|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Several points have emerged: first, the need to resolve the pension issue; secondly, the possibility of a Royal Commission on the police; and, thirdly, the quality of the management of the police service. I am always more impressed by the performance on television of Army officers who have been through Sandhurst than of many senior police officers, although I am always immensely impressed by the quality of the police officers--constable, sergeant and the ranks--directly working on the issues of crime. We might bear that in mind.
I still do not know why Her Majesty's Government have spent so much time reversing the rising trend of police numbers. They reduced them for three years and are now battling to get them back to where they were. But if what has been said today by all sides of the House has been heard by the police service, it will give them some encouragement and a reason to feel that morale should improve in future years. I beg leave to withdraw the Motion for Papers.
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
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
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.
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:
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,
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.
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:
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.
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.
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:
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.
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.
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.
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
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
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:
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.
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:
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,
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.
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,
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.
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.
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
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--
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.
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:
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.
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.
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,
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.
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
|Next Section||Back to Table of Contents||Lords Hansard Home Page|