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Baroness Byford: The noble Lord said that he wishes the regulations to be flexible. The new clause states:

and so on. Do the Government anticipate that the commission will approve the decision, or will the regulations need to return to the House for approval? In other words, is the flexibility to which the noble Lord referred a requirement that Parliament must approve the regulations, or can the commission decide the issue itself? I should be grateful for some clarification.

Lord Cope of Berkeley: The Minister was quite right to say that probably all Members of the Committee have experience of the way in which provisions of this kind have operated in the past. None of us would disagree with the intention behind these clauses. It is important that the kind of arrangements that have applied to printed material in the past should apply to material on the Internet, on videos or in other ways. So that is correct.

I am sorry that even after this passage of time the arrangements applying to videos, the Internet, e-mails and so on, are still unformed, as it were, and extremely vague. It is clear that the Home Office needs to work fast on this issue when the Bill is enacted if these provisions are to be in place by the time we have elections in May--there could be a general election or council elections--or October. The Home Office has had a long time to consider the Bill. It has produced a huge number--100 pages or so--of amendments. Yet there is still vagueness about these particular provisions which will apply within a few months.

However, that is the case at the moment. Neither we nor anyone else has put forward alternatives in the form of amendments at the moment. I shall certainly not oppose these amendments to the Bill. The fact that these huge changes have been made to a comparatively simple part of the Bill emphasises part of the Home Office's problem this year; it has had too many Bills. It has not been able to draft them properly. The departmental officials and the parliamentary draftsman have all had the same trouble in trying to draft the Bills. That is why on Bill after Bill we have had enormous numbers of important amendments to comparatively simple matters. However, that perhaps is a matter for another time. As I say, we shall not

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oppose these clauses. They should stay in the Bill. My noble friend Lady Byford asked a very interesting question.

Baroness Blatch: I support my noble friend when he talks about the vagueness of some of these changes. Given that the Bill had its first airing back in the spring, and given that there have been all these months to think about the matter, it seems quite extraordinary that the Bill is still as imperfect as it is.

Perhaps I may ask the noble Lord another question. In speaking to the amendments and in giving an explanation for them, the noble Lord said that one of the reasons was the need to take into account new technology. But the new technology was there in April. It has been there for quite a long time. That issue could have been foreseen. Why was it that in April it was completely ignored, and only now, at this very late hour, does the amendment to the Bill take into account the application of new technology?

Lord Bach: I am grateful for what has been said. The noble Baroness, Lady Byford, asked about the regulations. The regulations will be made after consultation with the electoral commission, not on its recommendation, and will be subject to the negative resolution procedure. So Parliament will, if it wants it, have the last word on the regulations.

Baroness Byford: I presume that the regulations will come before the House as a statutory instrument.

Lord Bach: Yes, by way of negative resolution.

The matters of electoral law that we are changing are both complicated and very old-fashioned in many respects. It is not a simple matter, as may have been suggested, to alter something as important and complex as electoral law. The Second Reading debate was as long ago as May, but the fact is that we have come forward today with what are generally accepted to be sensible amendments. I hope that they will be seen as such.

Baroness Fookes: I am concerned about further provisions being placed in the form of regulations, partly because they have to be either swallowed whole or not accepted at all. There is no arrangement in this House or in another place for regulations to be amended. In the circumstances, that gives a great deal of power to the executive at the expense of the legislative procedure. Does the noble Lord care to comment on that?

Lord Bach: I take the noble Baroness's point and will take away that issue. I think I know what she is getting at. I shall write to her with our considered view on that important matter.

Clause 96 negatived.

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Clause 97 [Referendums to which this Part applies]:

9.30 p.m.

Lord Owen moved Amendment No. 222:

    Page 62, line 38, at end insert (", or

(ii) a referendum held on the provisions contained in a Bill in pursuance of a certificate issued by the Speaker of the House of Commons under section (Bills of first class constitutional importance: Speaker's certificate)").

The noble Lord said: Amendment No. 222 stands in my name and in the names of the noble Lords, Lord Prior, Lord Healey and Lord Skidelsky. I realise that this is a big issue for the Committee to be discussing at this time but it is very unusual to get an opportunity to have such a debate. The issue has been discussed on many other occasions but rarely on the Floor of the House, the last time being during the proceedings on the Parliament Act 1911.

We are all conscious of the fact that our constitution is unique in that we make constitutional change through normal legislative procedures. No special arrangements are made for constitutional legislation. It can be argued that that has suited us fairly well in the past but there is no doubt that there has been a slow, steady change over the past 30 years in the way that we approach some aspects of constitutional change. It is worth considering now whether we ought to be enacting some specific procedure rather than use the ad hoc arrangement of referenda.

The first referendum on constitutional change was advocated for Northern Ireland in the early 1970s. Indeed, a good deal of constitutional change first starts in Northern Ireland. I have in mind voting systems and other aspects. I had some reservations about it--giving one section of the United Kingdom in effect a droit de regard on a constitutional question which affected the whole of the United Kingdom. But it seemed to work. The next referendum concerned the controversy over the European Union. The referendum was held on the question of whether we should ratify the treaty of accession. I was not wildly keen on holding a referendum then.

At the time, the suggestion was put forward in a manner which certainly led people to believe that it was not being done objectively, but rather that it was being done for political reasons. Of course, in reality that is the history that lies behind a great many referendums. If I may be allowed to say so, all parties introduce them largely to cover themselves in difficult political circumstances. In fact, it was said that a referendum could be likened to a small rubber life-raft on to which some might wish to clamber. I believe that the noble Lord, Lord Callaghan of Cardiff, first used that analogy. I admit that, with some relief, I clambered on to that life-raft in the 1974 election. It provided a way of settling some of the disputes raging inside the then Labour Party opposition on the question of accession to the Treaty.

However, many of us were strongly influenced by the consequences of the 1975 referendum. It did not put the argument to bed as completely as many of us thought it would, but it made it virtually impossible, or

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at least incredible, to believe that that decision could be changed without recourse to another referendum. When an attempt was made to introduce a measure to take us out of the European Union without a referendum, it was treated with derision. I believe that we viewed the 1975 referendum as a success.

Later in the 1970s, a referendum was held on the question of devolution for Scotland and Northern Ireland. I supported devolution then and I have supported it ever since. The referendum was being held against the cause for which I campaigned. Nevertheless, particularly in retrospect, most people would agree that that was a salutary referendum. It slowed up the process and thus allowed time for more careful thought and for a better devolution package to be developed. To the credit of the present Government, that was the one that has been introduced in both Scotland and Wales--with the full support of the people of those two nations.

We can now see a pattern of referendums which has been building up over the past 30 or so years. They are beginning to add, I believe, some strength to the validity of constitutional change. However, the question is: can we and should we take the pure party politics out of the process and try instead to develop a mechanism whereby we can introduce constitutional change of considerable importance subject to certain special procedures? When I first looked at this, my attention was drawn to the argument first advanced in 1945 by the then Lord President of the Council, the late Herbert Morrison. He used the term which we have employed in this amendment; namely,

    "Bills of first class constitutional importance".

In 1945 the Labour Government, with a large majority, wished to introduce a great deal of constitutional change. Hitherto, the tradition had been that pretty much all Bills were dealt with on the Floor of the House. They wished to avoid delay and put Bills into Committee. It was at that time that the pledge was made that Bills of "first class constitutional importance" would be taken on the Floor of the House. That precedent was established in 1945 and has largely been followed ever since by dint of arrangements made between the parties. For those who are interested, that explains from where the words "first class constitutional importance" come. They form a reasonably widely accepted classification of serious constitutional Bills.

The next question to answer was: if a Bill was of "first class constitutional importance", should one resort virtually automatically to a referendum? That is what happens in some European countries; Ireland is practically in that situation. However, the problem with that course is that referendums are held on essentially non-controversial but important constitutional legislation. The notion of holding a referendum just for the sake of form when there is already a broad consensus in both public and party opinion is a little hard to justify.

Some noble Lords believed that the Second Chamber could be a constitutional safeguard; that that might be one of the new powers to come to a reformed

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House of Lords. It was certainly a credible possibility. The issue was much discussed in research papers, by your Lordships' Committee and in other places, but when it was discussed by the Royal Commission chaired by the noble Lord, Lord Wakeham, it was rejected.

When those of us who have tabled the amendment discussed the matter among ourselves, we came to the conclusion that, a Royal Commission having looked at the issue and having rejected the idea of giving this special power to a reformed House of Lords, it would be trying to push water uphill to argue that case.

So we looked for a mechanism. Here we come to the well-known procedure of the certificate of the Speaker of the House of Commons, which has been used in a number of circumstances but classically for finance Bills following the Parliament Act 1911. Its advantage is that it puts the decision back in another House. I see some merit in that-- maybe because I spent too long there--because a procedure on constitutional issues grounded in this House would not have the same acceptability in another place.

The question then arose as to upon what criteria would the Speaker make a judgment. We thought it necessary to have two criteria. First, controversy. Speakers are fairly good at deciding whether matters are controversial--that is one of the reasons they are there--but it needed to be for matters which are controversial in the country as a whole or within Parliament. Therefore we gave a double reason for calling a constitutional Bill of first-class importance--that is, for issues on which there were significant divisions of public opinion, parliamentary opinion, or both.

That is the core of the amendment. I know that it is late and I do not wish to go on too long. I do not believe that it should be used for any particular kind of constitutional change. Some people have suggested that it should be used only for European constitutional changes, but I do not believe they differ in substance from other changes. However, it is fair to say that we are now seeing IGCs in the European Union coming at us at a fairly rapid rate. We are being asked to make constitutional changes more rapidly than many people envisaged, and the procedures for surveying, criticising and monitoring those constitutional changes through the EU are not as effective as in the past.

For a variety of reasons we should not concentrate only on European legislation. However, we should bear in mind that that is now the principal way in which we make constitutional change. Therefore the amendment, if it is agreed to, should be phrased--and is phrased--so that it covers both European Union constitutional change and constitutional change generated purely within the United Kingdom. It is therefore not specifically a European issue, although I do not deny that it would have European implications.

The question then arises of how frequently would there be referendums. A useful assessment was made in research paper 97/53, which was published on 20th May 1997, in regard to the Committee stages on

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Constitutional Bills in the Commons. It contains an annex of all the Second Readings and Committee stages of constitutional Bills since 1945. It is difficult to make assessments, but if one excludes Bills which have been the subject of referendums and looks only at Bills which were controversial, either in the country or between the parties, one finds that there were few in number. My estimate was three, perhaps four. So, if this amendment had been enacted in 1945, we would probably have had three or four referendums between then and the present day. I do not think that is excessive. So it is with the idea of trying to have a trigger mechanism which makes sense, which has universal application and which would appeal to Members of another place as well as this, that we put forward this amendment. I beg to move.

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