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My noble friend Lord Bridgeman referred to the importance of training and education. The department has taken forward a number of initiatives to develop the workforce, including: the development of core competences and principles; publishing an e-learning package on end-of-life care, which is free to access for health and social care staff, and supporting communication skills so there is a lot going on in this area.

To conclude, my noble friend Lord Cavendish referred to hospices as places where patients receive the best kind of care and I would not wish to disagree with him. Having said that, surveys consistently show that up to 75 per cent of people would prefer to die at home but at present only about 20 per cent do so, with a further 17 per cent dying in a care home. It is about choice; however, I take note of the powerful points that he made. Lest any noble Lord should think otherwise, the Government remain committed to delivering good- quality end-of-life and palliative care services and we believe that the action we are taking will improve the quality and range of options available to those in England at the end of their lives, including the many who receive such excellent care from hospices.

Parliamentary Voting System and Constituencies Bill

Committee (5th Day) (Continued)

9.10 pm

Clause 7 : Interpretation

Debate on whether Clause 7, as amended, should stand part of the Bill.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, this clause is an interpretation clause, although it provoked some interesting debates on the amendments on which the House voted. The purpose of the clause is to provide definitions of certain terms used in the Bill, providing clarity as to the meaning of these words in the context of the Bill. The clause does not have any substantive effect on its own; that is contained in the clauses and schedules which use the words and terms listed in this clause. On that basis, I hope that the House will support me.

Clause 7, as amended, agreed.

Amendment 41 not moved.

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Clause 8 : Commencement or repeal of amending provisions

Amendment 42 not moved.

Amendment 43

Moved by Baroness Hayter of Kentish Town

43: Clause 8, page 6, line 4, at end insert-

"( ) over 25% of the electorate have voted in the referendum,"

Baroness Hayter of Kentish Town: My Lords, I start by saying that I should like to de-group Amendment 44. I apologise to those Members of the Committee who did not know that; I sent a notification earlier, but not by the deadline. I understand that the Government have been pre-warned. Clearly, Amendment 44 is a different issue from the others in this clause and in that way it is better for the Committee.

Amendment 43 is a very simple one to add to the noble Lord's simple Bill. It requires that, for the automatic outcome of the May referendum to be triggered, there would have to be a turnout in the UK of at least 25 per cent. The reasons for this are so obvious that they hardly need stating. The idea of introducing a major constitutional change on a vote of perhaps 10 per cent or 20 per cent of the electorate will seem to make no sense to anyone, be they for or against the AV proposal. Furthermore, on a low turnout, the numerical winning number could be alarmingly small. Should voters be fairly equally balanced between yeses and noes, the all important endorsement for the outcome by popular opinion would be missing.

The intention of this amendment is, in a way, twofold. It partially asks the question whether we want to change. In other words: can people be bothered? Are they interested enough in the matter to turn up and vote? Or, if they are already voting for the Scottish Parliament, the Welsh Assembly, or for their local councillors, are they bothered enough to complete the second ballot on this matter of AV? This is really important, given the understandable desire of the coalition, with which I have some sympathy, albeit a sympathy perhaps not shared by many of my noble friends, to capitalise on the voting date already in many people's diaries and offer this second choice on the same date. But this makes the threshold even more important, which is the second intention of the amendment. Should there be, for example, a 35 per cent turnout for the local elections, but then only a 15 or 20 per cent turnout for the referendum, what on earth would that say about the saliency of this choice? If perhaps a third of those who actually enter the polling station voted for their Scottish Parliament Member, their councillor or their Assembly member, and then did not take the extra 20 seconds to vote for or against AV, what would that say about the interest in this issue that engrosses so many of us in your Lordships' House and in this Committee today? I do not anticipate any such lack of participation in that referendum.

I certainly do not anticipate any such lack of participation on the part of those who already go to the polling station. I may have some concerns about London, but that is a different matter which is not before us now. My 25 per cent figure is modest.

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Lord Campbell-Savours: I am sorry to trouble my noble friend, but that is an incredibly low figure. Perhaps she will correct me, but if a majority of people on a 25 per cent poll voted, it would mean that only one in eight persons had actually voted for a change in the electoral system. Is that what my noble friend's amendment means?

Baroness Hayter of Kentish Town: My noble friend is right: it is extremely modest. As he knows, I am a very modest person, asking for very modest amendments to the Minister's very simple Bill. Other amendments have been tabled in the names of other noble Lords on both this side of the House and on the Cross Benches which are perhaps a little less modest than mine. The amendment is offered in the same spirit of generosity as when I did not divide the House on the issue of voting at the age of 16 and 17. I did not want to embarrass part of the coalition. It is tabled as a modest amendment to make it all the easier for the Government to accept it.

Lord Campbell-Savours: Does my noble friend recognise that, in the event that one in eight people vote to approve the question asked in the referendum, it would be extremely difficult for those of us in favour of electoral reform to justify a change in the electoral system ourselves? We would be placed in an utterly impossible position with such a low turnout and small number of votes cast in favour of the question.

Baroness Hayter of Kentish Town: I accept that the amendment is exceptionally modest. My fear is that, without even this as a backstop, we could risk having an even lower turnout and then be faced with what we do at that stage. Because this is an automatic trigger, it is not a referendum to advise the Government or Parliament about what they should do, but would automatically lead to that change. It is essential for there to be a threshold. Otherwise, we could be facing a low turnout and having to decide what to do about it. I am someone well used to dealing with risk management.

Lord Tyler: Does the noble Baroness recognise that the problem with thresholds for turnout is that not voting is turned into a no vote? Has she had the opportunity of examining carefully the persuasive argument of Mr Christopher Bryant, to whom reference was made earlier at some length, on 2 November, when he not only argued conclusively on behalf of the Labour Party against thresholds of this sort but was also most effective in securing a massive vote against them: 549 against 31. Has the noble Baroness had the opportunity of examining the arguments of Mr Christopher Bryant and, indeed, those of her colleagues who all went into the Lobby to vote against such thresholds?

Lord McAvoy: Before my noble friend answers the noble Lord, Lord Tyler, perhaps she could consider, in doing so, asking him about the advice offered by Mr Nick Clegg that AV was a "miserable little compromise".

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Baroness Hayter of Kentish Town: I take a lot of responsibility for Chris Bryant. I have known him a long time. I gave him his first job in the Labour Party. That started a beautiful career on his part; he somewhat overtook me somewhere along the line.

I have indeed remonstrated with the said Member of the other place on this matter, but I think-in fact, I am fairly sure-that I have persuaded him that it is right for us to put this modest little measure to this House. There are two points here. First, if we can never put anything that was not put in the other House, what is the purpose of this House? Secondly, the longer we look at the issues of the acceptability of that referendum, whether one is in favour of AV or against it, the more important it seems to all of us that the result, whatever it is, should be endorsed wholeheartedly and that even those who have lost the argument feel that there was a good turnout and it was a good decision. That is important.

The answer is not that we should not have a threshold. It may indeed be a question of my being too modest in my proposal-it is modest-but I am confident that the acceptance of that principle is something that the Committee should agree to and should be written into the Bill. I find it worrying that otherwise we will have a Bill that makes no allowance for a very small turnout. We might then be faced with the question of how we would deal with that.

Being versed in risk management, which is how I spend most of the rest of my life-that is how we manage things in organisations-I know that one tries not to arrive at a situation without having thought about it before, assessed the risk and mitigated it to the extent that it is possible so that you do not have to scrabble around at the last minute, dealing with results that might have been foreseen.

Actually, I am confident that we will get a 25 per cent turnout, but I would much prefer that the amendment was part and parcel of the Bill. It would not necessarily negate the results of that referendum; it would bring them back to the two Houses of Parliament to say, "How do we now deal with this? Do we think that, despite the threshold being small, it was such an overriding result one way or another that we can live with it? Or maybe a slightly different question about a more proportional system than this, which some Members would like, would be better. Or do we do as the Irish did-put it to the people again until they vote the way we want?". It gives Parliament and the Government the ability to think how to respond to a situation should it be too low a turnout.

I believe strongly that big constitutional changes should not be made without the will of the people, and the will of the people is as much about turning out to vote and expressing that as it is about the way that they cast their vote. I beg to move.

Lord Williamson of Horton: My Lords, noble Lords cannot imagine how pleased I am to see the noble Baroness, Lady Hayter of Kentish Town, moving this amendment. That is so for two reasons: first, because I am interested in the amendment and I support it; and, secondly, because I have sat through almost five days of discussion in the Committee and have heard a large number of extremely important interventions. Some

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of them did not interest me very much, I have to say, but I have been here and heard them all. I fully accept noble Lords' right to raise points, but they have done so a large number of times.

Now we come to an amendment that I am interested in because I share the view that it is reasonable, in a situation where we continually tell ourselves that we are dealing with a constitutional issue, that we should have some threshold, as is the case in a good number of democracies in the world. It is true that there are some disadvantages. It is claimed that it could confuse the electorate, though I do not accept that argument myself. I think that the electorate will understand perfectly clearly that they were voting on a certain issue and that they had given their opinion only above a specific threshold. There is also the possibility that quite a lot of people who abstain would consider that they would have given a no vote. However, once again, I do not think that we should attribute to the electorate ideas that they might not have. They might feel quite confident that they will cast their vote and that it is perfectly reasonable that it should be laid down in the procedure that a reasonable percentage of the electorate should vote on an important issue.

Therefore, in principle, it is a good idea to have a threshold. We could have an argument about whether it should be 25 per cent-we have two more amendments here which have a different percentage-but I am very keen that the issue should be raised, as it has been by the noble Baroness. It would be a serious dereliction of duty if we went into a constitutional amendment and had not properly discussed whether or not there should be a threshold. It is an important point and we know that in a good number of other countries there is a threshold in constitutional issue referendums or votes, either in the procedure for initiating a referendum or in the threshold required to validate the vote, which is what we are talking about in this case. This is a subject that ought to be debated in this House. I support the procedure. I accept that 25 per cent is pretty low but we have to launch the debate and see what views are taken in relation to a threshold in the constitutional referendum.

Lord Lamont of Lerwick: My Lords, I raised the question of thresholds at Second Reading and the noble Lord, Lord McNally, replied by saying, "Bring it on! Put it down and we will vote it down", so he can hardly be surprised that the amendment has arrived. I hope that he will be a bit more flexible than he indicated on that occasion. The amendment that the noble Baroness, Lady Hayter, has put forward is-as has already been said-an extremely modest one. There are other amendments, with successively higher thresholds, which the House might or might not wish to examine and divide on. The principle of some sort of threshold is extremely strong.

There are two sorts of thresholds. There are thresholds that relate to the outcome of the referendum that demand that that there should be a minimum percentage of those voting yes as a hurdle. That is an outcome referendum as in the 1979 referendum on Scottish devolution. Then there are quite different thresholds-like all the amendments tonight-that are purely based on turnouts. Looking at other countries is very interesting.

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There, the logic of the argument is that constitutional change should occur only when there is a clearly expressed and significant majority for it.

In the United States, for example, in order to change the constitution, a two-thirds majority of both houses of Congress is required. Those changes then have to be ratified by three-quarters of the state legislatures. In Germany two-thirds of the members of the Bundestag and the Bundesrat have to vote for constitutional changes. In New Zealand and Austria it has to be a two-thirds majority of votes cast, in Norway two-thirds of members of the Storting, and in Belgium two-thirds of the votes in both houses of parliament. In Denmark there is a 40 per cent threshold for constitutional changes, and in Italy a 50 per cent threshold. I believe there are also thresholds in Spain and Switzerland. The principle is very clearly accepted in many countries and the logic of it is very powerful: that constitutional change can be extremely important and has to be endorsed by the electorate by a significant majority indicating that that is the will of the people.

9.30 pm

It is interesting, I note, that even in the Liberal Democrats' constitution there must be a qualified majority for certain matters. I think I am right in saying-I know I will be contradicted immediately if I am wrong-that they required a two-thirds majority to enter the coalition. I know they were unanimous; that is what was expressed in the other House and not contradicted by any member of the Liberal Democrat party. The noble Lord, Lord Tyler, will no doubt elucidate this for us.

The principle is clear and the logic is powerful. I notice that Michael Pinto-Duschinsky, the well known academic on electoral systems, who was at Oxford and Brunel University, gave evidence to the Constitution Committee in which he said that either a 40 per cent outcome threshold or a 60 per cent turnout threshold would be eminently reasonable. Whatever Members think about that, it would be self-evidently ridiculous if we had no threshold, there was a very low turnout-let us say 15 per cent-and we just proceeded as though that were okay.

It is interesting that when we had the referendum on the north-east assembly, which was rejected, there was no requirement in that legislation for a threshold. However, such was the nervousness that this created among Ministers, that Nick Raynsford, the Minister at the time, was reported as saying that if there was a very low turnout the Government might not go ahead. They recognised the logic of the argument then. Ministers say that they are confident there will be a good turnout so they admit that that would be a good thing. If they are confident that there will be a good turnout, why do we not have a threshold written into the Bill, just to underwrite it?

Some of the arguments that have been put forward against a threshold have been rather weak. As the noble Baroness, Lady Hayter, said, it is not really an argument for the House of Lords to say, "The other place doesn't agree with us. We are not going to do it because the other place voted one way on this matter". We are entitled to vote on this. It is one of the functions of the second Chamber to look particularly

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closely at constitutional issues. Mr Harper, at one point when replying to the debate in the House of Commons, said that the Government did not want a threshold because they wanted to recognise the will of the people. However, if the will of the people is expressed by 10 or 15 per cent, that hardly seems to justify fundamental change.

Then we have the argument that we do not have thresholds for MPs. That is an interesting argument, to which I make two points in reply. First, MPs have to put themselves up for re-election. Once you have constitutional change, it is extremely difficult to reverse. Secondly, are we not here discussing a voting system the argument for which is that it will get a lot of MPs elected with majorities of 50 per cent? If that is the logic for electing MPs in the new electoral system, why should we not have a similar majority for a referendum on that system?

Then there is the argument that a turnout threshold would encourage people to stay away, and that people who stayed away were effectively voting no by not participating. You could equally say that the turnout threshold encourages people to vote. There is as much logic that way as there is the other way. I do not think there is reason on one side of the argument rather than the other. It is interesting to look at the referendums that we had in Scotland. In 1979, when the referendum had an outcome threshold, the turnout was 63 per cent, despite the threshold. When there was no threshold, the turnout fell to 60 per cent, so I do not follow the argument that a threshold will deter people from voting.

I also believe that a threshold related to turnout is consistent with the coalition agreement. I am sensitive to this point, which I raised with the noble Lord, Lord McNally, as he will recall, at Second Reading. I understand that it was acknowledged in another place in the debate on a similar amendment, and at Second Reading, that it is consistent with the coalition agreement, which in effect called for there to be no outcome threshold because there should still be a simple majority. Well, it would still be a simple majority, one way or the other, even with a turnout threshold.

It seems to me that there is a principle of having a threshold related to turnout. It is sometimes said that we have never had a turnout threshold in this country. I found when I read an ancient Hansard that in some local referendums on particularly rarefied issues such as local licensing or religious instruction in Scotland, there have sometimes been turnout thresholds. The idea is not completely foreign and is widely accepted in many parts of the world.

The amendment is extremely modest. Other amendments on this issue will be debated. Regardless of which one catches the attention of the Committee, the principle of a threshold of some kind, at some level, is pretty irresistible. I hope that the Minister will be a little flexible on this, because it would be profoundly wrong and would lead to great disillusionment if, on a very low turnout, there is a result that changed the voting system. There would be certain reaction against that and it would lead to considerable bitterness. I do not think that the result would be accepted at all. It is in everyone's interest that one of these amendments should be very carefully considered by the Government.

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Lord Elystan-Morgan: I am not sure whether it is to the convenience of the Committee, but I rise to speak to Amendments 44A and 45A. They have been degrouped, but I do not think that that will make any practical difference to tonight's discussions. I have listened with great interest to the most eloquent contributions of the noble Baroness, Lady Hayter, and the noble Lords, Lord Lamont and Lord Williamson, and I find myself very much in sympathy with everything that they have said.

However, I hope that when the noble Lord, Lord McNally, eventually determines this matter, he will again manage to achieve-as I am sure he had at one time-an open mind before coming to a conclusion. He is a person for whom I have immense regard and I believe that he is a great enough man to be prepared to reconsider the matter in the light of solid evidence.

The case can be put in six words: it is an insurance against disaster. When you insure something, you insure it not because you think that there is the certainty, nor indeed the likelihood, of destruction or damage. Nor do you insure it because you think that there is a fairly minor percentage possibility. However, because there exists a possibility, the prudent person insures. It is on that basis that I ask the Minister to consider this argument, which I put forward with great sincerity, believing as I do that it would greatly improve the Bill.

I accept that we are dealing with a situation of the utmost constitutional significance. This is only the second time that a referendum on a whole-UK basis has been held. The first and only one until now was in 1975 in respect of the United Kingdom's membership of the Common Market. We are having a referendum for the second time in 35 years. I have no doubt that Mr Clegg, the Deputy Prime Minister, was quite correct in saying that this is the most significant constitutional change since the Great Reform Act of 1832. Putting those matters together, therefore, I have not the slightest doubt that the Government were absolutely right to make this issue the subject of a referendum. One can hardly think of a matter that is more pertinent and more epoch-making.

I agree that referenda, in the main, are a diversion from the ordinary processes of Parliament. It is received wisdom that, in the Glorious Revolution of 1689 and the Bill of Rights, there was a huge transfer of power from monarchy to the people. That is not quite true. The transfer of power was from monarchy to Parliament. Parliament has exercised that sovereign authority as a trustee for the people ever since. In one sense, it would be a craven and irresponsible act on the part of Parliament to seek to delegate that authority back to the people-subject, of course, to the decision of the people at election time. However, there are exceptions and this, I think, is clearly one of them. It is delegating to the people that direct democratic authority that at one time was exercised, as the Committee will remember, in Greek city states and in the Roman republic thereafter-something utterly exceptional as far as our own system is concerned.

Nevertheless, that system is fraught with peril. It is possible, although very unlikely, that one could have a result brought about by only a minuscule proportion of the electorate. That is what we should insure against.

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We should be cognisant of the possible dangers. If it were the consequence of Parliament's position having so fallen into desuetude that general apathy and contempt kept people away from the voting booth, there would be very little that we could do about it. However, it could stem from wholly accidental sources. It is not impossible to have rainfall of a number of inches over a period of a few hours, as we have seen in the past two or three years, bringing about a wholly disastrous situation due to a vicissitude of nature. Another vicissitude of nature could well be foot and mouth disease, paralysing all mobility in the rural areas. We have seen that happen twice in the past 43 years. It could happen again. Let us hope that it never will happen again, but it could. Nobody can stand up in this House and say, "You are talking nonsense. These are possibilities that simply cannot happen". I would say that they are very unlikely to happen, and I hope and pray that they never will happen, but I think that we would be extremely foolish not to insure against them.

Baroness Liddell of Coatdyke: I am very interested in the point that the noble Lord is making. He may recall that the 1979 referendum on the Scotland and Wales Acts was held on 1 March, St David's Day. I well remember that we got up in the morning on 1 March and snow was falling. I remember the late Donald Dewar saying that if he had a dog he would kick it. Thankfully it was not my dog, and it was not foot and mouth disease or something as dramatic as that. However, there was an awareness that the weather conditions were going to be quite negative on that day.

Lord Elystan-Morgan: I hear what the noble Baroness says and I am sure that she is correct. I had the unfortunate experience of being chairman of the yes campaign in Wales and we lost heavily. However, there is no defence that I can raise in respect of weather, unfortunately.

Coming back to the question, I think that a threshold is certainly called for. The point has been well made by the noble Lord, Lord Lamont, that nearly all other democracies, particularly those that have a written constitution, have a provision for a threshold, so we would not be doing something out of line with democratic process and experience in many other countries. As noble Lords know, there are two types of threshold. One is the threshold relating to the minimum number in the turnout; the other threshold is the majority threshold. In 1978, there was the Cunningham amendment. The result of that amendment was that, for the devolution referendums in Scotland and Wales to be carried, there had to be at least 40 per cent in favour of the proposition.

The very distinguished constitutional commentator, Professor Vernon Bogdanor, has analysed that situation. You could achieve a 40 per cent majority in Scotland on an 80 per cent turnout if 50 per cent voted in favour. If the turnout went down to 70 per cent, you could still achieve it on 57 per cent of the vote. If it went down to 60 per cent, it would be 67 per cent-of course, a very high level unlikely to be achieved. Whether wrecking the referendum was the purpose or the desire, I know not. It may not have been, but that was certainly the result in Scotland. I make that point because many people have come up to me in the past

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few days saying, "I'm not really for your proposition. This 40 per cent business was gone into in the Cunningham amendment many years ago". However, this is quite different, as it relates simply to the question of turnout.

9.45 pm

The next question, then, is this: is 40 per cent right or about right? I doubt very much whether anyone could prove beyond reasonable doubt that 40 per cent was right or that 41 per cent or 39 per cent was wrong. I am completely flexible with regard to that. If 40 per cent is somewhere in the parish, I ask the Minister to look at it in that light.

My argument in favour of 40 per cent is that, first, so far as I know, in no general election in the past 100 years has the vote come anywhere near as low as 40 per cent. Secondly, the 1975 vote was well over 50 per cent. Thirdly, when the independent referendum commission of 2006, chaired by Sir Patrick Nairne, considered this matter, it talked about thresholds of 60, 65 and 70 per cent as being entirely reasonable. Therefore, in the circumstances, and with the greatest respect to the noble Baroness, who put her case with great persuasion and lucidity, I believe that 40 per cent is not very far from reality in this case. As I said, if you take the view that disasters cannot happen, you can well argue that this is unnecessary. However, if you accept the history of the real world-the world in which disasters do happen-it seems to be prudent and proper to insure against that eventuality.

So far as I am concerned, there is no desire whatever to delay matters or, indeed, to wreck this part of the Bill. The Bill has to return to the House of Commons in any event because of amendments that have already been passed and I do not think that it would be delayed further by this matter. So far as concerns wrecking the Bill, I am sure that the noble Lord will accept my amendment in the spirit in which it is tendered.

Speaking, if I may, as a Welsh lawyer, I put forward this argument from the point of view of an abundance of caution. I see that there are two former Chancellors of the Exchequer here, who also represent an abundance of caution. I understand that before long we shall hear from the noble Lord, Lord Lawson, who will take much the same line. The case that I put forward is founded on the fear of the remote possibility of a referendum being a disaster. In the circumstances, it is a small premium to pay by way of insurance.

The Deputy Chairman of Committees (Lord Geddes): My Lords, it may assist the Committee if I intervene at this point. I acknowledge that of course it is absolutely the prerogative of any noble Lord to degroup any amendment from an existing group. As I heard the noble Baroness, Lady Hayter, her wish was to degroup only Amendment 44. Therefore, to the best of my knowledge, Amendments 44A, 44B and 45A are still grouped with Amendment 43. I hope that that is of assistance to the Committee.

Lord Campbell-Savours: I want to intervene only briefly, because I want to speak later on the whole question of thresholds in the Bill. I just want to clarify the position as set out by the noble Lord, Lord Tyler. I

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fear that he misrepresented exactly what happened in the Commons. I have the Hansard here. My honourable friend Chris Bryant said:

"My hon. Friend is absolutely right that there is no fixed determined policy that we are completely and utterly in all cases implacably opposed to thresholds ... I was actually trying not to suggest a threshold ... I am not convinced by the arguments that are being advanced in favour of thresholds. I personally will be voting yes in the referendum. I do not believe that there should be a referendum, but there is a legitimate argument that others might want to consider about whether the fact that we are combining the polls will produce differential turnout in different parts of the country that might make a necessity of a threshold".-[Official Report, Commons, 2/11/10; cols. 247-8.]

In other words, he took that position on thresholds because he was concerned about differential turnouts. If we did not have the problem of the referendum being on the same day as different elections within the United Kingdom, his position on thresholds would have been completely different. It was most unfair of the noble Lord, Lord Tyler, to present his case in the way that he did.

Lord Tyler: My Lords, we can all cite from what was an extensive speech, but the judgment concerned stated:

"I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea".-[Official Report, Commons, 2/11/10; col. 246.]

That is absolutely clear. The clarity of that statement is endorsed by the fact that not only were 549 votes cast against the amendment against 31 for, but the vast majority of the honourable gentleman's colleagues voted that way. I think that he was very persuasive; I think that it would be doing him a disservice to interpret it in any other way.

Lord Campbell-Savours: I have read the Hansard of the whole of that debate. It is clear that the decision that my honourable friend took was on the basis that there was a possibility of differential turnout arising from the arrangement whereby the referendum takes place on the same day as a number of other elections throughout the United Kingdom.

Lord Lawson of Blaby: As the noble Lord, Lord Elystan-Morgan, said that I was going to intervene in this debate, I had better do so; indeed, I had intended to do so. It is the first time that I have intervened in Committee on the Bill and I shall try not to detain noble Lords for too long. I do not need to, because the noble Lord, Lord Elystan-Morgan, made a number of important points with which I agree but, in particular, my noble friend Lord Lamont made all the main points very convincingly.

I just add one or two points to that. First, this is not merely a constitutional matter; it is a constitutional matter of great importance. If there is a low turnout, it may well be that that is because too many people are puzzled by exactly what the implication is of a change from first past the post to the alternative vote, so they do not feel able to cast their vote. For that reason, you might get a very low turnout. In fact, the alternative vote system is generally agreed to be a totally capricious system. Every inquiry that has looked into it, such as the Jenkins commission, found it to be totally capricious. It could produce extraordinary results.

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Seeing the noble Lord, Lord Bach, in his place-I am very glad to do so-I give an example from the constituency of Blaby, which I had the honour of representing for 18 years and five general elections. I mention the noble Lord, Lord Bach, because he was one of my most distinguished constituents. Not only that, if I remember rightly-he will correct me if I am wrong-he was chairman of the constituency Labour Party.

Lord Bach: I still am.

Lord Lawson of Blaby: The noble Lord is a glutton for punishment. As the noble Lord, Lord Bach, will confirm, a characteristic of the constituency of Blaby was that it was always clear that the Conservative candidate-and I was fortunate enough to be the Conservative candidate for all those years-would come first past the post by a huge majority. However, two things were uncertain. The first was whether it would be an overall majority or fall short of an overall majority. In the five elections I fought, I had an overall majority in three of them and failed to get an overall majority in the other two. It was also uncertain as to which candidate would come second-whether it would be Labour second and the Liberal Democrat third, or the Liberal Democrat second and Labour third. In fact, on three occasions the Liberal Democrat came second and Labour third, and on the other two occasions it was the other way round, with Labour second and the Liberal Democrat third.

However, under the alternative vote system, which of the two came second and which of the two came third would have determined the result of the election. If the Liberal Democrat came third, it is a reasonable presumption that the second preferences would have been divided equally between myself and the Labour candidate and therefore they would not have affected the result; I would still have been elected. If, however, Labour came third, it is a reasonable presumption that the Labour voters would have given their second preference to the Liberal Democrat rather than to me-regrettable though that judgment might have been-in which case the Liberal Democrat would have been elected. Therefore the decision as to who was elected depended on who came second and who came third. It is an absurd, totally capricious system.

Furthermore, under the alternative vote system, if I had wished to maximise my chances of being elected, which is a reasonable ambition, I would have privately told all my closest supporters to vote Labour because that would reduce the risk of Labour coming third. I did not do that because we did not have the alternative vote. It is a ludicrous and capricious system which encourages insincere voting.

If we are going to introduce something like that-if we do make that move-there is a risk that when the public tumble to what is happening they will be extremely dissatisfied with it and there will be a serious loss of faith in our democratic system. It is important that that does not happen by inadvertence, as it were, because of a small poll. We will want as many people as possible to have bought into the change to reduce the risk of them becoming disaffected with our democratic system. We have problems of disaffection with our

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democratic system as it is; we do not want to maximise that. So we must have a threshold. As my noble friend Lord Lamont and others have said, every country has some kind of special supermajority or threshold requirement whenever it is making a constitutional change.

The question then arises of what kind of threshold it should be. Should it be as with the Cunningham amendment-I shall come briefly on to that-of January 1978, I think it was, in the Scotland and Wales Acts where the majority has to be X per cent-in that case the winning side had to get 40 per cent-or should it be a turnout threshold? I confess that I think that the Cunningham amendment was a better system; a threshold on overall turnout is not as satisfactory. However, I take the point of my noble friend Lord Lamont that it is arguable that to have a threshold for the winning score would be in conflict with the coalition agreement, whereas we have established that that is not the case with a threshold for turnout.

I confess within this private space that I do not regard the coalition agreement as holy writ and, although I am not the greatest constitutional expert, I do not believe that it is even protected by the Salisbury convention. Nevertheless it is right that we should have some regard for it on this side of the Committee. For that reason I am prepared to support the idea of an amendment introducing a threshold for turnout. I agree with the noble Lord, Lord Elystan-Morgan, that 25 per cent is ridiculously small and that it should be somewhere in the order of 40 per cent or 50 per cent.

10 pm

This principle was of course agreed in the vote on the Cunningham amendment. A number of my noble friends in this House were Members of the other place at the time and, along with me, voted for the Cunningham amendment on the ground that a significant constitutional change should not be made without some kind of special threshold. I will read the roll of honour of those of my noble friends who supported this principle: my noble friend Lord Fowler, my noble friend Lord Higgins, my noble friend Lord Howell-now a distinguished Minister in our House-my noble friend Lord Hunt, my noble friend Lord Jenkin, my noble friend Lord Jopling, my noble friend Lord Lamont, my noble friend Lord MacGregor of Pulham Market, my noble and learned friend Lord Mayhew, my noble friend Lord Newton, my noble friend Lady Oppenheim-Barnes, my noble friend Lord Selkirk-although he was called something else then-and my noble friend Lord Stewartby. I will not go on but there were many others. Not one of those has told me that they have changed their mind on this principle. Since they have not indicated in any way that they have changed their mind, I must assume that they are still of that view and correctly so.

Therefore, I hope that my noble friend Lord McNally if he is answering this, or my even grander noble friend Lord Strathclyde if he is doing the honours, will take very seriously the huge support there is on this side of the House for an amendment of this kind on grounds of deepest principle and of not risking the faith of the people of this country in our democratic system.

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Lord Maclennan of Rogart: Does my noble friend agree that the noble friends to whom he referred had one thing in common beyond their membership of his party and that was their desire to prevent the outcome being one that gave devolution to Scotland and Wales and that, similarly, those who are of the mind that he has expressed are in favour of preventing any change in the constitution today?

Lord Lawson of Blaby: I made clear the reasons for my argument. My noble friend is right that I quoted only my noble friends who voted in that way but it was a Labour amendment tabled by George Cunningham and had huge support too in the Labour Party. That was why it was carried.

For the life of me I cannot imagine why anyone would wish to see the alternative vote system. It is a crazy system and the only clear beneficiary might be the Liberal Democrat Party so it is possible that that has influenced its opinion slightly, although I think that is purely a coincidence. But it is very regrettable that the noble Lord is so keen to get the alternative vote system introduced that he is prepared to do it in a hole-in-the-corner way.

Lord Grocott: My Lords, I agree wholeheartedly with everything that the noble Lord, Lord Lawson, said, except in one respect. He anticipated, or perhaps reflected, on what might have happened, or could happen, in terms of people's second preferences should there be an alternative vote system, or had there been in his constituency in the past. He made the assumption that every Labour voter would probably vote Liberal as their second preference. However true that may have been in the past, having seen the Liberal Democrats' performance during the past six months, I would not make that assumption now. Not least, we have a coalition, so where do I put my second preference? I hope that the question will never arise, because, as I have made plain, if we were to have a referendum-and I would prefer that we did not-I would hope that the no campaign won.

I am very mindful of the time, so I shall not go on at any length. However, I have put my name alongside Amendment 44B in this group, which puts the threshold at 50 per cent, and I should like to make a couple of points. The first is to remind the Committee that, as my noble friend Lord Rooker pointed out very clearly, this is not an indicative referendum; it is a referendum which legislates. Should it be carried under the Bill as it stands, even by two votes to one-I know that I shall be criticised by the noble Lord, Lord McNally, for going to ridiculous extremes, but we have got to see the logic of the argument-the legislation would be passed. It would become part of the constitution of our country and represent the most dramatic constitutional change for a very long time.

I take it as read-at least, I hope that I can in this Committee-that if a Bill were passed at Third Reading in this House by two Members to one, with the remaining 800 Members wherever they preferred to be, and although it would be unchallengeable in constitutional law, it would be seen as ridiculous. I cannot believe that there is anyone in this House who does not think, though they may not want to put it in the Bill, that there has to be a threshold for a decision of this magnitude. The

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noble Lord, Lord Lamont, made a number of the points that I would have made. I simply say that I wholeheartedly agree with him that we are quite an unusual country-not unique, I think, but close to it-in there being no distinction between ordinary law and constitutional law. The only difference that we seem to apply is that it is increasingly assumed that major constitutional changes have to be ratified by referendum, which is not unreasonable. The reason for having a threshold is that, to quote a seasonal comment, a constitutional change is not just for five years; it is probably for life. If, as I half-anticipated, I had been intervened on and a noble Lord had said that Governments are elected by less than 50 per cent, I would have said that Governments come and go-we are now told that they can come and go only every five years, but they do come and go-whereas I think that we can all acknowledge that, should this change be made, it is incredibly unlikely that it would be reversed in our lifetime. That adds even greater import to the suggestion that we should be absolutely clear about the decision that we are making.

My amendment is for a 50 per cent threshold. It is not a figure that I have plucked out of the air, although "50 per cent" has constantly been repeated by the proponents of constitutional change. I have glanced through the most recent turnouts under the various electoral systems that operate in our country-there are far too many in my view, but that is not the point of this amendment. For local county council elections in 2009, it was 35 per cent; for Westminster parliamentary elections in 2010, it was 65 per cent; for the Greater London Assembly election in 2008, it was 45 per cent; for the Scottish parliamentary election, it was 51 per cent; for the National Assembly for Wales election, it was 43 per cent; for the European parliamentary elections, it was 34 per cent; for the European parliamentary elections in Northern Ireland, it was 42 per cent; for the Northern Ireland Assembly elections, it was 63 per cent; for the local government elections in Scotland, it was 53 per cent; for the local government elections in Northern Ireland, it was 62 per cent; for the Bedford Borough Council mayoral election, it was 30.9 per cent-I bet no one knew that one; and for the Greater London mayoral election, it was 45 per cent.

I hope I can convince the Committee that, for a major constitutional change, a 50 per cent turnout is not an unreasonable figure to validate that change. In fact, it is quite a modest figure bearing in mind that only half of those voting need to have voted in favour for the constitutional change to take place, which means one in four. Is it really an extremist position to suggest that, before we make this huge change, we should require one in four of our fellow citizens to vote in favour of it? That is the simple argument that I am presenting to the House and I hope the House will accept it.

Lord Howarth of Newport: My Lords, I am conscious of the time but I would like to say a few words because I think this is one of the most important groups of amendments we shall deal with in this Committee. I reject the proposition put forward by the noble Lord, Lord Tyler, that the debate and the vote in the House of Commons should constrain us in the analysis we make, and indeed the decision we take. I am glad that

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the noble Lord, Lord Lamont, similarly objected and I agree with him on that and I agree with him on everything else that he said.

Plainly, a decision to change the electoral system is a momentous one-it is one of the most important decisions that we could take in our constitutional affairs. It is playing fast and loose with the constitution not to write some sort of a threshold requirement into this legislation. It would be ironic if a reform, which is motivated in part for the very good reason that we have seen declining turnouts in one set of parliamentary elections after another over a long time, should be brought in on the basis of very low turnout indeed. That would be deeply unsatisfactory.

I am sure that it is right in principle that there should be a threshold and I am grateful to my noble friend Lady Hayter of Kentish Town for introducing this debate with her amendment. However, I agree with other noble Lords who have put the case that a 25 per cent turnout threshold is simply inadequate. However pessimistic we may be about participation in the other elections that are due to take place on 5 May, I do not think that any of us supposes that they will be less than 25 per cent. As the elections are to be combined with the referendum on the same date, it seems to me that it is all the more important that we should be very clear that people have come to the polls deliberately to vote on this issue of constitutional reform, as well as on the other issues that are before them in the other elections.

We need a high threshold to satisfy ourselves that there really has been-if indeed in the referendum a change in our voting system is to be approved-to borrow a phrase that has been a little tarnished by experience but is still expressive, the full-hearted consent of the British people. We need to be sure that this is a decision consciously and deliberately entered into and endorsed by a sufficient majority of the British people for us all to feel that they have together taken a decision in which they believe and with which, whatever our personal views may be, we must go along.

Grateful as I am to my noble friend Lady Hayter, I do not think that 25 per cent will do. I am grateful to the noble Lord, Lord Elystan-Morgan, for upping the ante but I would be with my noble friend Lord Grocott: I think that 50 per cent of those entitled to vote is a decent minimum for a change of this magnitude. My noble friend Lady Hayter's amendment would mean that we could introduce this radical change to our political system on a basis of less than 13 per cent of those voting in favour-50 per cent of a turnout of 25 per cent is just less than 13 per cent. That would be inadequate. My noble friend Lord Grocott has stated a decent minimum and I think the debate should proceed on the basis that his proposition is the one we need to examine seriously and to consider precisely what we should do, but certainly to ensure that there is a threshold that enables this decision to be widely regarded as a valid and proper one.

10.15 pm

Lord Falconer of Thoroton: My Lords, we are debating Amendment 43, which was tabled by the noble Baroness, Lady Hayter, and proposed a turnout threshold of

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25 per cent. We are also debating Amendment 44B from my noble friend Lord Grocott, which proposed a 50 per cent turnout threshold. I thought that we were not debating Amendments 44A and 45A from the noble Lord, Lord Elystan-Morgan, which propose 40 per cent, but the noble Lord has, no doubt tempted by the terms of the debate, put forward issues in relation to it. However, we will not come to votes in relation to those amendments until Monday, so it is entirely a matter for the noble Lord, Lord Elystan-Morgan, as to what he says then. We are not debating Amendment 43A, from my noble friend Lord Rooker, which says the vote has to be 1 million votes ahead, and we are not debating Amendment 44 from the noble Baroness, Lady Hayter, which says that there must be a majority in each kingdom of the United Kingdom.

This is an important constitutional debate. I do not go down the route that the noble Lord, Lord Lawson, tempts us down, which is to say that AV is such an appalling system that we really need something very substantial before we change to it. We have to look at this issue on the basis of it being a major constitutional change. Our constitution has developed over the past three decades, whereby a substantial majority in the House of Commons is not regarded as adequate for substantial constitutional changes such as staying in the European Union, devolving powers to Scotland and Wales and, now, fundamentally changing the voting system. That approach to the constitution is reflected by practically every developed democracy in the world whereby something more than the normal vote in Parliament is required. If that approach is the right one, and I sincerely believe that it is the right one-and it is plainly an approach shared by the coalition Government, who have rightly regarded a referendum as necessary before the change is made-we need to dig a little deeper to see what sort of referendum is required to legitimise the change. I emphasise "legitimise", because what is being required is something that makes the public accept that a significant change in our constitution has legitimacy.

If one looks at the sorts of turnout that one might reasonably expect if the turnout reflected other sorts of votes, one gets an indication of what sort of turnout one might get in this case. Approximately 20 per cent of the electorate in the referendum will also vote in the Welsh Assembly or Scottish Parliament elections; roughly the turnout for those is about 50 per cent, so 20 per cent of 50 per cent equals 10 per cent of the population voting. Approximately 60 per cent will vote in local authority elections, where the average turnout is 34 per cent, which produces approximately 20 per cent of the population. Some 20 per cent of the population will not vote on anything other than the referendum. It is not unreasonable to suppose that the turnout in relation to those voting only in the referendum could be as low as 20 per cent, which would produce a turnout of 5 per cent of the population. If one adds 10 per cent to 5 per cent to 20 per cent, you get 35 per cent. So on the basis of reasonable estimates by reference to other sorts of elections, you get 35 per cent of the population voting in this referendum. If it was close, that would mean that maybe as few as 19 per cent of the population would have voted for the change. The purpose of

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having a special rule about major constitutional change-and I have not heard anyone dispute that this is major constitutional change-is that there should be some special procedure to give the change legitimacy.

The idea that 19 per cent of the electorate, voting in favour of the change, gives the degree of legitimacy that is required seems to be wrong. In those circumstances, it looks pretty obvious that something else is required other than simply a referendum. The importance of having legitimacy is that we do not want to enter a phase in which our constitutional system of voting changes every time there is a change of government. If, therefore, there is to be a change-I do not need to quote Nick Clegg saying that this is the most important change since 1832-it is obvious that there has not been a change in our voting system for well over 100 years. This will inevitably have an effect on the make-up of the House of Commons. People will regard the system chosen as being a significant contributor to who won the election.

How do we deal with the issue of legitimacy in those circumstances if simply-

Lord Rennard: The noble and learned Lord is a very distinguished member of the previous Government, who brought forward the Constitutional Reform and Governance Act. It was carried through the other place before the general election with provision for a referendum on the alternative vote to be held before October 2011. It did not provide any provision whatever for a threshold. Will the noble and learned Lord tell us why that was not considered appropriate by his Government? On the issue of legitimacy, he suggests that it is terribly important that there should be enough people voting to justify anything. Does he recall that that Government in 2005 were elected with 35 per cent of the vote of British people on a 61 per cent turnout? In other words, only about 21 per cent of the electorate voted for that Government. Does he consider that that was legitimate?

Lord Falconer of Thoroton: First, I was not a member of the Government that put it forward. I think they were wrong not to have a turnout threshold in relation to it. Secondly, 35 per cent voting for the Government is approximately double the number that could vote for a change in the constitution. The critical point that I am making is that there is not a system in the world in a developed democracy that does not require something out of the ordinary before you make a change in the constitution. Why is that such a common provision right throughout democracies? It is because people understand that to make such a permanent change is much more important than changing a Government-you can throw the Government out in five years or four years, or in our system, even in two and a half years if they lose authority. You are stuck with the change for a long time. So please, on the Benches over there, think not about the result you want, but about what sustains our democracy. A change that comes about through 19 per cent supporting it may not be a change that has legitimate support. So our position-

Lord Maclennan of Rogart: Does the noble and learned Lord not accept that in the history of

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constitutional development in this country we have seen change-and we have seen progressive change. I ask him to listen to what I am saying.

Lord Falconer of Thoroton: I apologise. I should have been listening but I was distracted by fabulous information coming from the noble Lord, Lord Bach.

Lord Maclennan of Rogart: Perhaps I should make the point again, as briefly as I can. Does he not recognise that constitutional change and democratic legitimacy have been achieved in this country without public expressions of support at referenda? That history is far longer than is the history of referenda and there is very little precedent historically for referenda. No one considered that votes for women was not legitimate because it was decided by Parliament. Parliament does not cease to be sovereign because there is a referendum. That is true in respect of Europe and of devolution. It is also true in respect of the voting system. Surely the noble and learned Lord recognises that if there is a referendum result which does not give legitimacy it remains open to Parliament to react to that.

Lord Falconer of Thoroton: I have two points-I apologise to the noble Lord.

Lord Maclennan of Rogart: Parliament is still capable of introducing further legislation to take account of what has happened. That is not without precedent.

Lord Falconer of Thoroton: I have two points on that. First, the introduction of the referendum in our constitution effectively dates back to the European referendum. Once you have put the referendum into your constitution, it is very hard to go back on it-a point accepted by all political parties on this issue. Secondly, the position of saying, "Well, you can always change your mind if the level of support is not enough" would be legitimate if this were not a compulsory referendum, which requires the Minister to introduce the system of AV. If I may say so, with respect to the noble Lord, Lord Maclennan of Rogart, what this indicates is his instinctive acceptance that there are inevitably limits below which you cannot go.

Suppose the position was that only 25 per cent of the country voted in a referendum and that there was a majority of 12.6 per cent. Would anybody sensible say that that was sufficient justification? If this had been a sensible arrangement, Parliament would have kept control of that, but no: it was decided by this House and by the other House that it should be a compulsory referendum. In those circumstances, it is right for Parliament to address what a satisfactory turnout on it is. One of the things that we are doing in this House is exploring what the effect of the changes in the constitution has been, one major change being the introduction of referendums in order to make major changes to the constitution.

My view on this, a view which I express on behalf of my party, is that having rejected the idea of an indicative referendum it is for this House to address what, if any, threshold there should be. There should be a threshold because, in my view, low figures of the sort that I have indicated are not satisfactory. I am much encouraged in this by the support from the noble Lord, Lord Williamson, on the Cross Benches,

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and from the noble Lords, Lord Lawson and Lord Lamont. I did not realise that my noble friend Lord Bach had been chairman of that Labour Party constituency party but I now know why, for all those years, the noble Lord, Lord Lawson, was so sharp. My noble friend Lord Bach kept him so sharp in Blaby.

I ask the noble Lord, Lord McNally, to reflect on the need and reason for a referendum. Will he explain to the House what he would do if there was a 25 per cent turnout, which is perfectly conceivable, with a very small majority in favour of a change to the alternative vote system? Does he regard a 12.6 per cent vote in favour of that change as something that gives it legitimacy? Will he please not say that he is not going to go into hypotheticals? He has got to deal with the issue. One of the problems and frustrations that I think the whole House is feeling, with the possible exception of the noble Lords, Lord McNally and Lord Strathclyde, and the noble and learned Lord, Lord Wallace of Tankerness, is the refusal on the part of the government Front Bench to engage with any degree of depth on the constitutional issues that the Bill raises.

Everybody agrees that the threshold issue is important. I will not support my noble friend Lady Hayter's amendment because it is obvious that 25 per cent is too low a threshold, but it may well be that we shall support the thresholds in the other amendments. I invite the noble Lord, Lord McNally, to give us some idea of the Government's thinking on this and how they say that the referendum could give legitimacy.

10.30 pm

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, what a most unusual debate we have just had. We had a fascinating history lesson from my noble friend Lord Lawson; I will come back to that. We had a disagreement between my noble friend Lord Tyler and the noble Lord, Lord Campbell-Savours, about what was said in the House of Commons and what was meant by what was said, and different bits being prayed in aid. We had a slight disagreement about the grouping; I slightly lost track of it, but I will go with the mood of the House, whatever it is. I am very happy to speak to all the numerical thresholds, but not to the amendment of the noble Lord, Lord Rooker, and not to the noble Baroness's other amendment about separate nations of the United Kingdom having different thresholds.

It is most unusual, because while this House often disagrees with another place, I cannot think of a time-I am sure that someone will find one-where another place voted so overwhelmingly in one way, and where the tone of this debate has been the other way. My noble friend Lord Tyler was right to remind us about what happened in the House of Commons; when it was asked to vote on thresholds, it voted 549 to 31. It was an astonishing, astounding majority. Chris Bryant, speaking for the Labour Party, said that he did not think that it is appropriate to bring in a threshold. I am genuinely confused by the position of the noble and learned Lord's party as to whether or not they are in favour of a threshold. I think he said that he was; the Labour Party next door was clearly not. They may have changed their minds, or it may be

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something else. The noble and learned Lord cracked on about 19 per cent and how dreadful that would be, yet in 2005 the Labour Government were elected with 21.6 per cent of the electorate-derisory for a referendum on 19 per cent, but jolly good for the Labour Party on 21.6 per cent. We can make of that what we want.

In 1997, this House debated these issues. What did the Labour Party say in 1997? The noble Lord, Lord Sewel, who is sadly not in his place tonight, was the Minister. He said:

"The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered".-[Official Report, 7/7/97; col. 467.]

That was the Labour Party then. Tonight, the Labour Party is doing what it used to accuse the Liberal Democrats of doing-of saying one thing in one place and another in another, and changing their minds as the debate went on. We will have to see how this continues over the next few days.

My noble friend Lord Lamont spoke beautifully, as he does. I very much accept his view-although rather less so-that imposing a threshold might initially appear attractive; on the surface it may seem to offer an extra layer of reassurance and of legitimacy, particularly if the change being put to the vote is one that you personally do not favour. It is the Government's view, however, that if people want change, and if the majority of those who turn out to vote want change, we cannot deny them this by imposing artificial barriers. People should know that if the majority of people vote for AV in the referendum, they will get AV. We must let people have their say, otherwise we will not help to restore people's faith in politics.

That is why I was so fascinated by my noble friend Lord Lawson. I am sorry that there are not more colleagues here from those days. I was probably too young to vote in the referendum in 1978, but I accept that the Conservative Party voted for the threshold. I do not remember it being an issue of deepest principle. I think it was low-down cunning politics-and quite rightly, because the Labour Party was divided on the issue. It was trying to stop the nationalists by introducing devolution, and the Conservative Opposition quite rightly saw a great opportunity to try and ensure that the referendum would not be won, and that that would so destabilise the Labour Government that an election would be forced, and we would have the great years of rule. So my noble friend Lord Lawson was quite right in voting for it.

Lord Rooker: I have kept out of this debate, but I will give the Leader of the House the reason. It was the result of one of the finest speeches that I heard in 25 years in the House of Commons. The place was packed and I suspect that half the people in there did not know at the beginning how they were going to vote. George Cunningham turned the House around. I say that in all sincerity; he is no personal mate of mine. It was an absolutely magnificent speech. That was a big factor, along with the bit of low cunning that people saw as a consequence as well.

Lord Lawson of Blaby: If I may, while my noble friend is having a well earned rest, let me say that it was not a whipped vote on the Conservative side. It was a free vote and we were influenced in the way that

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the noble Lord, Lord Rooker, described. As an indication that it was a completely free vote, my noble friend Lady Thatcher, the Prime Minister at that time, did not take part in the Division. She did not vote-or did she? I do not recall.

Lord Falconer of Thoroton: She was Leader of the Opposition.

Lord Lawson of Blaby: Sorry, she was leader of the party, but she did not take part. It was a completely free expression of opinion based on principle.

Lord Strathclyde: My Lords, that just goes to show what happens when you have unwhipped votes. I am sure that my noble friend Lord Lawson knew which way he was going to vote on that day and rightly so. That is all part of the fabric of history that has brought us to this point. My point of principle remains that if people want to vote they need to know that, if there is a majority, they are going to get what they voted for.

Lord Campbell-Savours: What happens if only 13 per cent of the registered electorate vote in favour of the change in the referendum question? Will that 13 per cent, which is one in eight people in the country, be taken as the basis on which we can make this huge constitutional change?

Lord Strathclyde: My Lords, under the terms of the Bill, yes. But is that likely to happen? The noble and learned Lord got his calculator out-

Lord Rennard: My Lords, does my noble friend the Leader of the House agree that, if only 12 per cent vote against this change, there cannot be much opposition to it?

Lord Strathclyde: Up to a point, because I am going to argue in a moment that a threshold will encourage abstention and that therein lies a danger. Also, the Constitution Committee of this House recommended that the presumption should be against voter turnout thresholds in referendums.

Lord Falconer of Thoroton: It says, though, that that may be different in relation to serious constitutional issues.

Lord Strathclyde: Well, I will have to check-not that I disbelieve the noble and learned Lord, but I will have to reread my well thumbed copy of that report.

We have not specified a voter turnout threshold, because we want to respect the will of the people who vote in the referendum, without conditions or qualifications. These amendments seek to specify a minimum turnout threshold so that, if less than 25, 40 or 50 per cent of those eligible to vote in the referendum cast a vote, the result will be voided.

Specifying a threshold for voter turnout can effectively make every abstention a no vote. People may abstain from voting in a referendum for any number of reasons, such as ignorance, apathy or ambivalence. It does not seem appropriate to regard such people as effectively having expressed a preference. In addition, a threshold may create an incentive to abstain from voting for those who favour a no vote. This cannot be right.

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Lord Lawson of Blaby: If my noble friend will allow me, let me say that it is not as simple as that. It is not the case that an abstention will count as a no vote. It might well be the case that, if there is a considerable body of opposition to the change, it will win if its members vote, but if they stay at home and do not vote, that will allow the people who vote yes to win if they get over the threshold. So it is by no means as simple as my noble friend said; in fact, what he said is totally wrong. It might be that in certain circumstances it would help the no case, but in other circumstances it would help the yes case. That is the truth of the matter and people will therefore be inclined to vote if they understand what they are voting about.

Lord Falconer of Thoroton: Just to follow up on that important point, what is the evidence that the noble Lord, Lord Strathclyde, is relying on?

Lord Strathclyde: It is obvious that if there is a threshold on turnout and you encourage people not to vote, the threshold is not reached.

Lord Campbell-Savours: My Lords-

Lord Tyler: My Lords, the noble Lord, Lord Campbell-Savours, seems to have shouted, got up and sat down. The issue here is simple arithmetic. Suppose that the amendment in the name of the noble Lord, Lord Grocott, went through and 45 per cent of the registered electorate voted yes while 4 per cent-I do not think that it will quite so dramatic, but who knows?-voted no. The noes would win because only 49 per cent of the electorate would have turned out. I am very sorry to have to disagree with my noble friend Lord Lawson, but my noble friend the Leader of the House is right: if you do not vote, it is a no vote.

Lord Falconer of Thoroton: I do not think that the noble Lord, Lord Tyler, has been listening to his noble friend Lord Lawson, who is saying that sometimes a threshold will encourage people to vote yes. The question that I am asking the noble Lord, Lord Strathclyde, is: what does the evidence point to?

Lord Strathclyde: My Lords, we have had only one national referendum. What evidence there is exists because it is either common sense or, as my noble friend Lord Tyler has worked out, a matter of simple mathematics. Interestingly, the noble and learned Lord, Lord Falconer, did not say that my noble friend Lord Tyler's example was wrong. In fact, he was quite right; in his example, where 45 per cent vote yes and 4 per cent vote no, what happens is that the answer is no. Where is the justice in that? I am sorry that that is hypothetical.

Lord Falconer of Thoroton: The issue, as posed by the noble Lord, Lord Lawson-correctly, in my view-is whether or not the threshold encourages votes. There have been referendums not only in the United Kingdom; there have been referendums in a whole range of countries. I presume that the Government have done some research on this before responding on the issue

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of thresholds. What does that research show? The noble Lord, Lord Strathclyde, is shaking his head, looking bewildered and saying, "No, I can't tell you". He is saying to me that he regards the idea that the Government would have done any research into this as preposterous.

Lord Rennard: Will the noble and learned Lord tell us what research his Government did in the previous Parliament on this very issue before introducing their Bill?

Lord Falconer of Thoroton: I was not in the Government at the time. The noble Lord, Lord Tyler, is pointing at me in a rather aggressive way. I was not in the Government then, but the noble Lord, Lord Strathclyde, has access to a range of excellent civil servants who will tell him what the research is. I take it from the remarks that the noble and learned Lord, Lord Wallace of Tankerness, is making from a sedentary position that the Government have not troubled to do the research. He can correct me if I am wrong.

Lord Goodhart: My Lords, is it not an extraordinary situation that the effect of what the noble and learned Lord is saying is that, if 45 per cent of the voters voted yes and 4 per cent voted no, the noes would win, but if 45 per cent voted yes and 40 per cent voted no, the yeses would win?

Lord Falconer of Thoroton: That may be dealt with by the level of the turnout requirement.

Lord Grocott: The Liberal Democrats, suddenly energised, have identified a problem that is clearly troubling them. I suggest to them, as they anticipate the possibility that 45 per cent of a 50 per cent turnout would vote yes, that they need to introduce a threshold along the lines of the Cunningham amendment. On that basis, the question would have been passed. I look forward to their amendments to deal with the adjustments that they anticipate.

10.45 pm

Lord Strathclyde: My Lords, this useful little exchange has demonstrated why we rather oppose these thresholds on turnout or anything else.

Fundamentally, this is about turnout. The noble Lord, Lord Elystan-Morgan, said that the amendment was an insurance against the disaster of a low turnout, which noble Lords have said that they feared. Let me reassure the House. There are a number of reasons to believe that this will not be the case. Combining the referendum with other elections on 5 May will increase voter turnout. The campaigns in the run-up to the referendum will increase public awareness and people's desire and interest to vote. Additionally, the work of

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the Electoral Commission in promoting public awareness about the referendum and the media coverage that the referendum will receive gives us reason to believe that the referendum will secure a very healthy turnout. Indeed, statistics from previous referendums in the UK show that turnout is on average about 50 per cent.

The Bill does not specify a voter turnout threshold since it is not necessary or desirable. We should listen to the overwhelming vote against this type of amendment that was cast by another place. I very much hope that the noble Baroness will withdraw her amendment and that other amendments in this group will not be moved.

Baroness Hayter of Kentish Town: My Lords, I have had an interesting lesson in politics tonight. I am growing up fast. I thank some of the speakers for part of that. I was made to feel very sheepish by the excellent research done by the noble Lord, Lord Lamont, on other jurisdictions and by the noble Lord, Lord Lawson, on the noble Lords who sat with him in another place. I have also had a few lessons on arithmetic and one on the continuity of effort by my noble friend who continues as chair of his local party. My noble friend Lord Howarth of Newport said that I was being "simply inadequate" about the 25 per cent threshold. The words "ridiculously small" came from the noble Lord, Lord Lawson, but I think the sentiment was the same.

We still find that, at the core of this, the "small premium" that could achieve insurance against the remote possibility of small turnout remains essential and a constitutional issue of great importance for this House to consider. Unlike the election of a government, it is effectively irreversible. We want as many people as possible to have bought into the change should it happen. The full-hearted consent was how somebody put it. It is interesting that, other than the Minister, the only opposition to this has come from the Liberal Democrats-a party that has the word "democrat" in their name. I find it interesting that they oppose this fairly minor bit of democracy of having a threshold. There should be a threshold because it is a decisive referendum. It is not an artificial barrier. Unlike my good friend George Cunningham, I cannot deliver a magnificent speech to persuade you all of that this evening. I hope that these discussions will continue. However, to allow that and further consideration, I beg leave withdraw this amendment.

Amendment 43 withdrawn.

House resumed.

Terrorist Asset-Freezing etc. Bill [HL]

Returned from the Commons

The Bill was returned from the Commons agreed to.

House adjourned at 10.49 pm.

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