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Lord Bassam of Brighton: We should be grateful to the noble Lord, Lord Owen, for joining us tonight in this stimulating and interesting constitutional debate.
This group of amendments turns on the whole question of the circumstances in which referendums are held. I should say from the outset that this is not a matter on which the Government have ever had any intention of legislating in the context of the Bill. It is not an issue that was even addressed by the Neill committee. Nor is it a matter in which the Nairne commission on the conduct of referendums made any prescription. That is not to side-step the issues raised by this debate. They are issues of the utmost constitutional significance. But they would take the Bill into wholly new territory.
So far referendums have always been held at the instance of government and Parliament. The proposition in Amendment No. 226, on the other hand, is that a referendum must be held, whether or not the government of the day want it and whether or not Parliament wants it, on any Bill which makes any significant constitutional change. I have noted that in their comments today the Official Opposition have given a measure of support to the proposal. I shall allow myself a little scepticism as to the reasons behind
the Opposition's apparent conversion to the doctrine that constitutional legislation demands the holding of a referendum.Whatever the motives of noble Lords who favour the amendment, no one can deny that it is a very large proposal to bring forward, which, if passed, would itself make a profound change to the constitution of this country. Parliament would be binding itself not to proceed with a certain class of legislation unless it had been approved in a referendum. I do not believe that Parliament will want to do that out of the blue as a mere side-show to a Bill dealing with other matters.
If the view were ever taken that a change of this kind was desirable, the method of setting it up would certainly need further consideration. Amendments Nos. 222 and 226 would provide for a mechanism whereby a Bill certified by the Speaker could not be passed into law unless its provisions had been approved in a referendum. The grounds for certification of such a Bill would be that its provisions were of first-class constitutional importance and that there existed significant divisions of opinion on its provisions either inside or outside Parliament. The amendments place a great deal of weight on it being possible to identify a Bill as being of first-class constitutional importance.
The noble Lord suggests that in deciding such matters it ought to be possible to take a cue from the procedure in another place in respect of the Committee stage of a Public Bill. Since 1945 it has been the practice that only in the case of a Bill of first-class constitutional importance is the Committee stage taken on the Floor of the House. I fear that the amendment would put a weight on such a distinction that, in this context, it simply could not bear.
While the idea of a Bill being regarded as of first-class constitutional importance clearly has a precedent, there nevertheless exists no reliable definition of quite what the concept means. Questioned on the point by the Procedure Committee in 1945, Herbert Morrison suggested that it should mean,
- "something that will make a material change in the working of the Constitution".
Viscount Cranborne: I am extremely grateful to the noble Lord for his usual courtesy. In the context of this extremely interesting debate, can he explain what were the criteria used by the Government in deciding
whether to call referendums on the matters that they have called referendums on since 1997; and indeed what were the grounds for calling a referendum in 1975? That might be a useful illustration as regards the noble Lord's argument.
Lord Bassam of Brighton: I think that it was a matter of our own political priorities.
10.45 p.m.
Lord Bassam of Brighton: That is beyond doubt, is it not?
It is quite conceivable that the question whether Parliament is or is not transferring its powers would also be very much at the heart of the debate. It is not a reliable and objective criterion for deciding whether there should be a referendum.
In any event, the noble Lord has suggested that nothing like all those measures in which the Committee stage would be reserved for the Floor of the House would also be certified by the Speaker as requiring a referendum. Clearly, it is difficult to see that some of the measures which, since 1945, have had their Committee stage taken on the Floor of the House would have merited a referendum. The Ministerial and Other Salaries Act 1975 and the House of Commons Disqualification Act 1975 are two examples. One might assume that this is where the additional criterion about there being a significant division of public or parliamentary opinion comes in, but I suspect even some of the dullest constitutional legislation is capable--the noble Lord, Lord Norton of Louth, gave the Committee an excellent example--of provoking a significant division of parliamentary opinion.
Furthermore, it is the Opposition's job to oppose. So the implication is that the noble Lord has in mind some narrower definition of what constitutes a measure of first class constitutional importance than that which has operated to date. Where the dividing line lies is anyone's guess. If he is saying that, of those Bills which since 1945 have been classed as constitutional Bills, only a minority would have been certified as requiring a referendum, I would be intrigued to know exactly which ones he has in mind. I believe that the noble Lord, Lord Goodhart, had a pretty good stab at telling the Committee what such a list would look like. In the life of the current Government we have introduced Bills on Northern Ireland, on Scotland, on Wales and on the creation of the Greater London Authority. Some might argue that certain parts of the legislation before us tonight are of profound constitutional importance. Others might argue that the Representation of the People Act passed earlier in this parliamentary Session is of profound constitutional importance. Is the Immigration Act 1971 of profound constitutional importance, or the Referendum Act 1975? Would we need a referendum to decide whether to hold a referendum?
What is certain is that, were these amendments to be accepted, this Bill would itself clearly fall into the category of measures requiring the holding of a
referendum. It seems that the noble Lord would have us hold a referendum on whether to adopt controls on referendums. That does not seem to be a sensible move.What is also clear is that the burden of deciding whether a particular measure should be the subject of a referendum would fall squarely upon the Speaker of the House of Commons. A number of Members of the Committee--the noble Baroness, Lady Fookes, the noble Lord, Lord Alderdice, and others--have voiced ample and fulsome criticism of that proposal. It would be for the Speaker to consider both the constitutional implications of a measure and the extent to which it divided opinion, both inside and outside Parliament. I believe that that would represent an enormous burden. It would politicise that office in a manner which I do not believe any Member of your Lordships' House would ever countenance. Furthermore, it would add a whole new dimension to the forthcoming election of the Speaker of the House. The views of the holder of that office would become the subject of the most intense scrutiny.
Even if the Speaker were able to exercise the judgment of Solomon in deciding such matters, why should the decision to hold a referendum be left to any one person? A particular constitutional reform could be subject to intense debate during its passage through both Houses. The opponents of the measure might table amendments to the Bill to require a pre- legislative referendum before the reform could come into force. Those amendments might be soundly rejected in each House. Is the Speaker then to be given a free hand to overturn the will of Parliament? That would hardly seem right.
I shall come back to the point that the constitutional implications of the amendments have not been thought through; they are enormous. As long as the matter of holding a referendum lies at the discretion of Parliament, it may plausibly be argued that the holding of a referendum does not signify an abdication of parliamentary supremacy. The amendments would completely alter the picture. Not only would the amendments require that an entire class of business be put to a referendum, they would also require that such measures be approved by a referendum before they could pass into law. In other words, there would exist a whole class of business in respect of which Parliament would no longer be competent to decide. If the amendments were made, they would be fairly well entrenched since any Bill to effect their repeal would itself require the holding of a referendum.
There are many in this Committee who decry what they regard as the loss of parliamentary sovereignty over the past 30 years. It is ironic that those very same people now seek to perpetrate a further major constitutional shift with seemingly little thought for the long-term implications.
With that, I turn to the remainder of this group of amendments. The purpose of Amendment No. 228 is to require that referendums be held only on a post-legislative basis. The intention is that a referendum should be held only in circumstances where Parliament
has already passed an Act which, subject to the outcome of the referendum, will effect the policy on which the referendum is to be held. The arguments for and against pre-legislative and post- legislative referendums are no doubt familiar to many of those here today. They are arguments which were rehearsed fairly comprehensively during the passage of the Referendums (Scotland and Wales) Act 1998. The great merit of a post-legislative referendum is that voters will know precisely what they are voting for or against. By contrast, it is argued, a consultative or advisory referendum may enable the voter to pass judgment on the principle behind a policy but leave the voter with no opportunity to pass judgment on precisely how that policy is to be implemented.In practice, however, things are not so cut and dried; the arguments are finely balanced. I would remind the House that the merits of pre-legislative and post-legislative referendums were examined by the Nairne commission on the conduct of referendums. Its conclusion was that the question of whether to use a pre-legislative or post-legislative referendum was simply a matter of political judgment. There may well be circumstances in which a consultative or advisory referendum is the appropriate course. Where the execution of a policy will require complex legislation and will occupy a good deal of Parliament's time, it may well be prudent to seek the view of voters on key issues before proceeding with legislation. In such cases, it would be perfectly possible for the government of the day to set out its legislative intentions in advance of the poll. Returning to the example of the Referendum (Scotland and Wales) Act 1998, the Government issued a White Paper setting out its proposals for devolution in some detail.
It will of course be argued that there is no guarantee that proposals touted in advance of a consultative referendum will reach the statue book unscathed. That is so. But the scenario in which Parliament considers and refines measures with the hindsight of a referendum debate and outcome does not seem at all absurd. No more so than the scenario in which Parliament labours over a piece of legislation only to submit the finished package to the public for an unqualified yes or no.
Moving on, Amendments No. 223 and 227 take us again into different territory. Essentially, what is proposed is that upon receipt of a petition signed by 5 per cent of the electorate the government of the day will be obliged to hold a referendum. My initial reaction to the proposed amendments was that the Opposition Front Bench seemed an unlikely source for what looks uncannily like a recipe for Swiss-style democracy.
I am not going to argue that citizen-inspired referendums have no place in our system of governance. After all, the Local Government Act 2000 provides for referendums to be triggered by public petition. We would, however, need to go further afield for examples of systems which provide for referendums to be held on issues chosen by a requisite number of petitioners. Switzerland is the well-known
example, but such arrangements also exist in New Zealand and a number of American states. The subjects of the referendums held under those arrangements have often been surprisingly mundane. The first referendum held in New Zealand as a result of a petition concerned, would you believe it, staffing levels in the fire service. In the United States, as a result of one such petition, Idaho polled its citizens on whether non-dentists should be able to fit dentures. We must assume that the noble Lord has stronger meat in his sights.The noble Lord, Lord Mackay, is well aware of the possible concerns about any general resort to referendums. He has articulated them very eloquently in the past. Perhaps I may take the House back to the debate on the Referendums (Scotland and Wales) Act. The noble Lord said:
- "Those of us who have had to seek election know that one of the constant questions we are asked is why we do not hold a referendum on the death penalty...Every Member of the Committee who has ever had to argue with a difficult constituent on the matter knows how difficult it is to tell him or her that one has to leave that decision to Members of Parliament...The position would be made even more difficult if we had asked people their views in a referendum and then decided not to accept the result of that referendum".".--[Official Report, 1/7/97; col. 116.]
I do not wish to follow up that objection of principle with a lengthy examination of the drafting of the amendment. But I would point out that a key matter on which the amendment is unclear is how the question to be put in a referendum following a petition is to be determined. I can only assume that it is intended that the question should be that proposed by the petitioners. If that is so, it begs the question: how would you avoid the possibility that such a poll might deliver a verdict that no government or Parliament could act upon, either because the question was unfair or because the proposition provided no real basis upon which to frame a policy?
We have had an interesting debate on this group of amendments. However, we are clearly in very deep constitutional waters. Whatever the merit of the arguments that have been put forward, I do not think that the role that referendums might have either in ratifying constitutional legislation or in restricting the ability of Parliament to provide for the holding of consultative referendums is a matter to be dealt with by means of amendments to this Bill. As I have said, the Government have sought with this legislation to give effect to the recommendations of the Neill committee as to how referendums should be conducted. The issues raised by these amendments are persuasively argued as being of a different order. On that basis, I urge their withdrawal.
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