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The noble Lord said: My Lords, Amendments Nos. 11 and 22 in my name are to a considerable extent paving amendments for the amendment in the names of my noble friends Lord Stanley of Alderley and Lord Renton.
These amendments return briefly to the question related to the point I have just made about the referendum being advisory; namely, how one interprets the results. I said at Second Reading and in Committee--though I do not think the Government believed me so I shall say it again--that, looking at referendums in general and those that are to be held over the next four years and nine months, we ought to address the proposition: how do we judge the result? At the risk of repeating myself, I pose the question only because I have never received a satisfactory answer. If the level of turnout is down to that for a local election on a wet day--30 per cent. to 35 per cent.--even if the proposition wins by a vote or two, is that sufficient? I have never received an answer. I fully accept that in higher (general election) turnouts a simple majority is more than acceptable. In the amendment I put forward I proposed a cut-off point of 60 per cent. As the turnout goes down, we do have to ask how valid the referendum then is as an instrument for changing the constitution or whatever has been the subject of the question.
One of the reasons for my two amendments is that I want the returning officer, at the end of the count, in addition to doing all the things just discussed, to announce what was the proportion of the total electorate who voted in favour of each proposition. That allows my noble friends to move their amendment, which I shall not intrude upon other than to say that, although the amendment may well take a broad-brush approach, I hope that they will argue that the Government ought to address this issue.
I know that the Government will tell the House that, so far as this referendum goes, they are confident of a large turnout in Scotland. I rather gather that some journalists are beginning to doubt that confidence and say that the Scottish Office is beginning to worry about the turnout. I am sure that the same must be true in Wales, where, according to opinion polls, enthusiasm is markedly less than it is in Scotland. We recall the result in Wales at the last election.
It is not just a matter of this referendum. I hope that the Minister in replying will go a little beyond that. If a referendum is held on a mayor for London, on PR or a number of other difficult issues, and if we begin, as I believe we inevitably shall, to have referendums on issues that are more about morality than constitutional matters and in which party politics does not play the same part, the question will have to be addressed as to what constitutes a reasonable majority. That becomes very important in relation to a post-legislative referendum; it is equally important with a pre-legislative referendum.
I therefore hope that the Government will give some more philosophical thought to the result of referendums in general without feeling that they are in some way weakening their position in relation to the referendum in September over which they appear to be so concerned. I beg to move.
Lord Thomas of Gresford: My Lords, the noble Lord, Lord Mackay, invites us to consider the matter on principle. In states which have a written constitution such as Australia or New Zealand, there are provisions within that written constitution for a certain proportion to count when a referendum is held. In Australia, for the constitution to be changed, 50 per cent. of the votes are required in a majority of states. In New Zealand it is 60 per cent. of the votes cast to change the written constitution.
In this country, I should have thought that noble Lords who sit on the official Opposition Benches are supporters of the unwritten constitution. The advantages of the unwritten constitution are said to lie in its flexibility. When one examines the way in which the constitution has operated over the years where referendums are concerned, one looks for precedent. The important precedent, the one that effected the greatest constitutional change in this century, was the 1975 EC referendum, when a simple majority sufficed. That is the precedent upon which referenda in this country should be based until we have a written constitution where matters can be formally set out.
The percentages that were written into the Wales and Scotland Bills in 1979 for the purposes of that referendum were not based on principle. They were included not as a matter of government policy but halfway through consideration of the Bill, in order to get it through the Houses considering the Bills at that time. It was not a matter of principle. If we are to retain our belief in a flexible constitution, then we should go by the precedent of the 1975 referendum--namely, a simple majority: one vote is enough.
Lord Rees: My Lords, I am sorry to intervene in this debate, but I have been provoked by the intervention of the noble Lord, Lord Thomas of Gresford. I vividly remember the 1975 referendum. I took a minor role in it myself as a then Member of Parliament. That was a post-legislative referendum. Indeed, it took place about two or three years after a prolonged analysis during the passage of the Bill which led to this country's accession to the European Community.
This referendum is pre-legislative. We are told that it is advisory. In other words, the Government are rather making things up as they go along. I do not believe there is any respectable precedent for this. In this instance the House should therefore not attach any weight to a linkage between this referendum and that undertaken in 1975.
I am led on by the powerful intervention from this Front Bench. I asked a question of the noble Lord speaking for the Government at Committee stage, to which I received no answer. Is the House to understand
Lord Stanley of Alderley: My Lords, as my noble friend said, my Amendment No. 35 is grouped with this amendment and is possibly the substantive one that the noble Lord will wish to destroy when he comes to reply.
The purpose of my amendment is to explain and clarify to the electorate what they will be voting for in the referendum. They may think that when I cast my vote I am voting for or against a Welsh assembly-- I trust that your Lordships will forgive me if I refer particularly to Wales as I have little knowledge of Scotland--and that if there is a simple majority for either "Yes" or "No" that is the end of the matter.
As I read the Government's replies in Committee and the replies and remarks of the noble Lord, Lord Williams of Mostyn, on Amendment No. 5 this afternoon, nothing could be further from the truth. In the end--I am sure that the noble Lord will correct me if I am wrong--it will be Parliament that makes the final decision. In fact, it will not be Parliament at all which decides but the elective dictatorship that appears not to listen to Parliament. I see no reason to believe that that dictatorship will necessarily listen to the electorate--until, of course, nearer the next election.
Be that as it may, I hope to persuade the Government that my amendment is helpful, as my noble friend Lord Ferrers used to say when we were last in Opposition. The Government Front Bench have the advantage of youth and may not remember that sad but short lived period.
As I said at Second Reading, it would have been much wiser, and certainly more honest, if the Government had chosen to explain the full details of what an assembly might or might not do by holding the referendum after the passing of the Bill. My amendment goes a small way towards warning the electorate that their opinion may possibly not count.
The two amendments are designed to protect the electorate from being misled and deceived; not only that, they will encourage the electorate to vote, contrary to what the noble Lord said. Under subsection (a) of my amendment, if less than 35 per cent. of the electorate vote, regardless of the majority, the vote will be decided in the negative; but under subsection (b) of my amendment, if more than 35 per cent. and less than 50 per cent. of the electorate vote, the matter will be undecided. I have to admit that in the latter case I would have proposed a further referendum after the passing of the devolution Bill, when the full details of the duties of the assembly would have been spelled out. But that was outside the scope of the Long Title. Suffice it to say that
I accept that the Government may not wish to accept my 35 per cent. and 50 per cent. figures, in which case I should like to know what figures they suggest. After all, they are the Government now and must have a minimum figure in mind which they should declare to the electorate. A determination to go ahead with an assembly if less than 35 per cent. of the electorate vote would show a total disregard for the 65 per cent. that are content with the present situation.
I know that the noble Lord, Lord Parry, is going to get upset, but perhaps I may finish so that he can get more upset.
The Government are determined to push through this legislation to their party's political advantage, in that any Welsh assembly will always be dominated by South Wales, a Labour Party stronghold. Pity poor North Wales and Plaid Cymru.
I accept that my amendment does not overrule the Labour Party's promise to decide on a simple majority. However, let me put two extreme cases. If only 10 per cent. of the electorate voted, with 51 per cent. in favour, would the Government really go ahead with a Welsh assembly? If 90 per cent. of the electorate voted, with 51 per cent. in favour, I presume that the Government would consider--as indeed I would--that vote sufficient to proceed with an assembly? There must be a middle, sensible figure which, if they are to be seen to be responsible, the Government should spell out to the electorate before we go to the polls.
In passing, I would have thought that my amendment would appeal to the Liberal Democrat Party, who I understand believe a referendum to be totally unnecessary. Maybe I have misunderstood them.
The fact that I am personally extremely doubtful about a lot of chattering councillors in Cardiff deciding on my future in North Wales is incidental to the amendment. I hope that the Government will give me and the electorate a helpful answer and not say that my amendment is otiose--a horrible word--or that it poses a hypothetical question. Everyone must accept that it is essential to prepare and declare a contingency plan in case something such as I have described happens.
Page 2, line 4, at end insert ("and
(c) the proportion of the total eligible electorate represented by the total votes cast for each proposition.").
7.45 p.m.
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