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Lord Owen: We have had an extremely interesting debate. I fully agree that this is an issue of far greater importance than can be determined, first, by a

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Committee of this House and, secondly, at this late hour. I have no doubt, therefore, that this can only be a probing amendment.

The underlying issue is clear. Can we continue with our present system; or are we being driven by a number of different circumstances to look at arrangements which exist in other countries? There were times during the noble Lord's response when this was made to seem a unique provision. A large number of our fellow countries in the European Union hold referendums on constitutional issues; or they have another safeguard--namely, there must be a threshold, a majority. In our Parliament we have only one vote--the straight voting system. There is no weighting at all. I examined the whole question of whether there could be two-thirds majorities or some such provision.

The hour is late, and I shall not take up all the detailed points. Much was made of whether this is a matter of constitutional importance. I do not think the decision is as hard as has been suggested. First, there are the precedents of establishing this in the House of Commons. After all, those are discussions between the usual channels.

On the question of the Speaker, the noble Baroness made a fair point. But, as she knows, the Speaker takes account of what is being said by the parties and consults deeply, whether he or she is making a decision on hybridity or on the certification of a Bill as a Money Bill, and on many other matters. The Speaker rarely makes his or her decision in a vacuum. It is the result of listening to the pressures that are brought upon him. It would only be in a context in which at least one political party was demanding that there should be a referendum, and he or she would have to make a judgment as to whether this was a purely opportunistic movement or whether it was well rooted on constitutional grounds.

Of course, the argument that the noble Lord, Lord Norton, raised against a referendum in principle and basically in favour of the constitution as it is, is a very powerful one. The constitution has actually served us pretty well, despite all the problems. However, there are signs of "creakiness" in the constitution and there are signs that we are, to some extent, getting a written constitution in through the backdoor by other means--whether it is the European Convention on Human Rights or, as is now being discussed in the European Union, the charter on fundamental rights. I do not want to go into all these areas, but this House will not be able to move away from this for as long a period as it has in the past. This debate is with us. As the noble Lord, Lord Alderdice, said, events in Ireland have introduced a number of very substantial changes as regards giving the people the right to make a decision by, for example, act of treaty. All those changes will have to be taken into account.

I, for one, should like to think quite hard about all the points that have been raised tonight. It may be for someone wiser and cleverer than I to come back with some form of an amendment proposing another procedure. Apart from anything else, I know full well that this issue would normally be referred to the

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Procedure Committee in the other place; and, if it was at all possible, the parties would try to find a measure of consensus on the matter. I personally think that that would be so.

I leave this final marker. I do not believe that we shall be able to sustain our present procedures. Important constitutional Bills will need a different procedure from the one currently in operation. However, that is a matter for future debate and argument. I can only thank noble Lords who have taken part in this debate and apologise for not having replied to all the points raised. With the leave of the Committee, I beg leave to withdraw my amendment.

The Deputy Chairman of Committees (Baroness Hooper): Is it your Lordships' pleasure that this amendment be withdrawn?

A noble Lord: No. Not Content!

The Deputy Chairman of Committees: The Question is, That Amendment No. 222 be agreed to. As many as are of that opinion will say, "Content"; to the contrary, "Not Content"--

Noble Lords: Not Content!

The Deputy Chairman of Committees: The "Not-Contents" have it.

On Question, amendment negatived.

[Amendment No. 223 not moved.]

11 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 224:

    Page 63, line 1, leave out subsections (4) and (5).

The noble Lord said: I believe that some of us will have noted that "little Division" from one part of the Chamber. We shall remember it when it comes to other issues in this Bill.

This is a very small amendment. It is very much a probing amendment. Clause 97 introduces some general points about referendums. Towards the end of it, in subsections (4) and (5), it empowers the Secretary of State "by order" to carry out certain actions. I wonder why these two subsections have been included in the clause. That applies especially to subsection (4)(b) which says that,

    "any specified provisions of this Part shall apply, subject to any specified modifications, in relation to any specified referendum for which provision is made by the Bill".

That is a pretty wide power to be given to a Secretary of State to change things in this referendum part of the Bill. I wonder what the Government have in mind.

It is possible that this provision is perfectly innocent in its intent and that it has been included only in case a referendum takes place before the Bill is enacted. That certainly looks like what subsection (4)(a) says. However, subsection (4)(b) does not say so and reads--at least to a non-lawyer like myself--as if it will apply for all time to come; in other words, that

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somehow or other a Secretary of State could make any specified modifications in relation to any specified referendum. That seems to me to be a pretty broad power to give to Secretaries of State. I should like some indication from the Minister as to why the Government feel that these two subsections are necessary. I beg to move.

Lord Bach: Clause 97 specifies the referendums to which the arrangements set out in Part VII of the Bill are to apply. Subsection (2) provides that, for the purposes of Part VII, "referendum" means a referendum held in pursuance of any provision made by or under an Act of Parliament; in other words, were the Bill to make no further provision on the point, the arrangements set out in Part VII would only have effect in relation to a particular referendum once the legislation providing for that referendum to be held had reached the statute book. As a result, the referendum period in relation to a given referendum could start only from the date the Bill providing for the referendum to be held had been enacted. This could seriously impact on the effectiveness of the provisions set out in this part of the Bill.

It is quite possible that only a relatively short period may elapse between the passing of a referendum Bill and the date of the poll. In the case of the 1975 referendum on Britain's continued membership of the European Community, the Referendum Act was passed on 8th May 1975 and the poll was held on 5th June 1975, just 28 days later. The two sides in the referendum did not, of course, wait for Royal Assent before they started campaigning. There was some acknowledgement of that fact in the legislation. Section 3 of the 1975 Act required the two designated umbrella organisations--namely, "Britain in Europe" and the "National Referendum Campaign"--to produce accounts showing their income and expenditure from 26th March 1975, the date that the Bill was introduced. Without such backdating the accounts would at best have told only half the story.

It is clear from the example of the 1975 referendum that there may be too little time after a referendum Bill is enacted for the controls in Part VII to impact on the referendum campaign. An obvious response to that is to delay the holding of the poll until a reasonable time had elapsed after the enactment of the Bill or the making of an order providing for the referendum to be held. That is all very well but there may well be instances where it is desirable that there is only a short interval between the passage of the necessary legislation and the holding of the poll. The referendum in Northern Ireland to endorse the Good Friday agreement was a case in point.

Commencing the referendum period on or after the date of Royal Assent would also ignore political reality. As in 1975, the referendum campaign in the country will be in full swing at the same time as the referendum Bill is making its way through Parliament. Those in favour or against the proposition to be put to the people in a referendum will not be biding their time. They will be forming their umbrella groups,

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raising campaign funds and spending those funds to advance their cause. The controls on donations and the limits on campaign spending must be in force at this time if they are to have any real impact.

Subsections (4) and (5) of Clause 97, which the amendment seeks to delete, enable the provisions of Part VII of the Bill to be applied to a referendum Bill which has been introduced into Parliament as if it were an Act. As a result, it would be possible to provide for the referendum period in a particular case to commence on, for example, the date of the First or Second Reading of the Bill under which the referendum is to be held. Once the referendum period starts, the controls on referendum expenses and the arrangements for designating the two umbrella organisations come into play. By designating the umbrella organisations at an early stage, they will then have sufficient time to make best use of the public funding provided under Clause 105 to launch their campaigns.

The purpose of Clause 97(4) and (5) is therefore simply to ensure that the arrangements set out in this part of the Bill can be applied in good time to any referendum campaign. If these subsections were to be removed and the arrangements could only be applied from the date a referendum Bill is enacted, the effectiveness of this part would be greatly diminished.

The spending limits in Schedule 13 apply to a United Kingdom-wide referendum. The order-making power which the noble Lord asked about would be used to set different limits in the case of a referendum in, say, Scotland alone.

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