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Lord Norton of Louth: My Lords, I shall speak briefly, not because of the lateness of the hour but simply because I shall return to some of the issues shortly when we discuss one of my amendments. As my noble friend Lord Campbell of Alloway has already mentioned, I come at this matter from a somewhat different position. As I have made clear before, I have a fundamental and principled objection to referendums and therefore I do not wish to encourage them in any way.
The noble Lord, Lord Chalfont, asked whether we were aware of all the significant constitutional changes that are taking place. One of those significant constitutional changes is the use of referendums. We certainly have a constitution. Contrary to the popular perception, it is not unwritten. What we have is a constitution that is part written but uncodified. I do not think that we protect the constitution by installing a procedure that I argue serves to undermine it. For reasons that I shall mention later in connection with my amendment, I think that this device runs contrary to, rather than reinforces, parliamentary government.
I come to the specifics of the amendment. I wish to make just two points at this stage. For reasons that will be clear from what we heard earlier, I suspect that we shall return to it. Therefore I shall keep my comments short. Given that my objection is to referendums on principle, I have an objection to the amendment because it makes the triggering of referendums rather too easy. Under the amendment, both Houses would be able to ignore the advice of the constitutional committee. Therefore the constitutional committee of this House could not trigger automatically the holding of a referendum. Both Houses could still reject the advice. But I argue that the advice should precede a Bill rather than simple resolutions of the two Houses. I think that there needs to be a far lengthier reflective process before Parliament approves the use of the mechanism.
As my noble friend Lord Dean indicated, if the amendment springs from a belief that Parliament is weak, how on earth--if that is the case--will one achieve passage of this provision? If Parliament is weak, you strengthen Parliament; you do not look for devices outside the institution to achieve that result.
Lord Mackay of Ardbrecknish: My Lords, I consider that virtually all of the Bill constitutes important constitutional provisions. Perhaps with the exception of the noble Lord, Lord McIntosh of Haringey, who has just entered the Chamber, I think I can safely say that among those present in the Chamber this evening I am the only holder of the campaign medal for all the constitutional Bills we have had since 1997, starting with the Referendums (Scotland and Wales) Bill. I believe that that was its title.
One of the difficulties we experience in this House is that often we have to address important legislative issues late at night. However, in my view that is one of the virtues of our not having a guillotine system and having to do things by agreement. I am content to deal with these matters late at night, even though I should have liked to discuss some of the matters I have dealt with this evening before a larger audience at prime time. But that is the way of the world. We treat these matters as seriously at this time of the night as at any other time.
Like my noble friend Lord Norton of Louth, I have a principled dislike of referendums. In an ideal world I should not have started having them. I realise that they are a de facto part of the constitution, if not written into it. On a number of occasions we have discussed trigger mechanisms other than Her Majesty's Government triggering a referendum. So I have some sympathy with the search for a different trigger mechanism.
I am not entirely convinced that my noble friend Lord Campbell of Alloway has alighted on the right one, any more than I was convinced that the noble Lord, Lord Owen, and others had done so. Nor was I convinced when I proposed my earlier amendments that I had alighted on the right mechanism. But, undoubtedly, if we are to have many referendums we shall have to address how they are triggered other than by government. Theoretically they can be triggered by Parliament despite the government. But I have been long enough in politics to know that that may be theoretical; the chances of it happening are slight. It occurred on the Scotland legislation in the 1970s but it was an unusual occurrence due to the government's lack of a majority in the House of Commons and a rebellion on their own side.
Lord Bassam of Brighton: My Lords, late though the hour is I join with the noble Lord, Lord Mackay, in recognising that this is an important debate. It continues the discussion that began in Committee. I am grateful to the noble Lord, Lord Campbell, and others who have enlivened the debate.
As no doubt Members of your Lordships' House will recall, the noble Lord, Lord Owen, moved an amendment which would have had the effect of binding Parliament not to proceed with a certain class of legislation unless it had been approved in a referendum. Many who spoke in the debate were profoundly concerned at the constitutional implications of the proposal. Of particular concern was the fact that the decision whether or not to hold a referendum on a given constitutional issue would be placed in the hands of the Speaker rather than left to Parliament as a whole. With the amendments now before us, the proposal once again is that in specific cases a Bill may not pass into law unless and until a referendum is held.
However, it is less obvious that this proposal comes squarely up against the principle of parliamentary supremacy since such a referendum would be held pursuant to a resolution of both Houses of Parliament. To that extent it might be argued that the procedure envisaged is no more than an alternative to Parliament choosing to legislate to the same effect. If that is so, it might also be argued that it would be better that Parliament provided for a referendum to be held through the normal legislative process rather than by means of a resolution.
If I understand it correctly, the proposal is that Parliament would consider making such a resolution if the constitutional committee of the House of Lords were to advise that provisions of a particular Bill would substantially affect the constitution. The Royal Commission on the reform of the House of Lords recommended that a sessional constitutional committee be established. The Wakeham Commission further proposed that this committee should have the function of scrutinising all public Bills and preparing a report on their constitutional implications.
The picture would be radically different if the consequence of the committee's advice might be to prompt Parliament to consider the holding of a referendum. Such an arrangement would draw the work of such a committee into the thick of political controversy. It would beg more questions about whether the work of such a committee should be the preserve of a committee of this House alone.
I do not intend to dwell any further on the constitutional implications of these proposals. However, I am bemused by the proposal of Amendment No. 170: that in the case of a referendum held as a result of these provisions the chief counting officer should not be chairman of the electoral commission or a person appointed by him, as provided by Clause 125(2). It is instead suggested that the appointment of the chief
I can only repeat that the purpose of the provision is to enable the application of the relevant provisions of the Representation of the People Acts, with any necessary modifications, to the holding of a referendum without the need to enact such provisions in primary legislation.
To conclude, the Neill committee did not address these issues and the Government do not believe that it is appropriate to legislate on them in this Bill. We have sought to give effect to the Neill committee's recommendations on the fair conduct of referendums. The circumstances in which referendums are held are an issue of an altogether different order. As a student of the British constitution, I fully respect and understand the points that have been made about the constitution, its organic development, the way in which we should treat it, how it changes over time and how it should properly be considered. However, for the reasons that I have given, I urge the noble Lord to withdraw the amendment.
Lord Campbell of Alloway: My Lords, I thank all those who have spoken. I shall not enter into a riposte argument on the way in which they have commended or criticised the amendment. I did not expect any amendment of mine to have the support of my Front Bench, so I am not the slightest bit disappointed. I had hoped to be able to canvass a wider discussion among Back-Benchers throughout the House. On the undertaking to read with care everything that has been said, I beg leave to withdraw the amendment so that I may return to it at Third Reading.