Report (2nd Day) (Continued)

Fixed-term Parliaments Bill – in the House of Lords at 5:41 pm on 16th May 2011.

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Clause 7 : Final provisions

Amendment 22A

Moved by Lord Grocott

22A: Clause 7, page 4, line 3, leave out "comes into force on the day it is passed" and insert "shall come into force subject to its approval in a referendum in which the turnout exceeds 40%"

Photo of Lord Grocott Lord Grocott Labour 6:00 pm, 16th May 2011

My Lords, Amendment 22A is grouped with Amendment 23, but I do not intend to move Amendment 23, which is about the relationships between the two Houses, in advance of the publication of the House of Lords reform White Paper. I understand that we will be getting it tomorrow, so having a discussion today is rather pointless.

Amendment 22A refers to the need for major constitutional issues to be ratified by referendum. I am acutely aware that the idea of a referendum at all is not too popular at the moment. I was not very keen on the last one, but I am now that I know the result. I know that my justification for raising this was that a real-world event of some significance occurred between Committee and Report on the Bill. This is a constitutional Bill of some significance, and in between the two stages a very important event took place: the referendum on first past the post versus the alternative vote. It is absolutely right and proper that when the first referendum in 40-odd years has taken place, it should be considered.

I am pretty surprised that there has been no official statement on the result of the referendum to either House, as far as I know. There certainly has been no statement to this House, and I do not think there has been one to the other House either. I fear that I know the reason. Perhaps the Minister can give me a more principled reason than this, but I fear that it is in both sides of the Government's interest to pretend that the referendum has not happened. The Liberal Democrats obviously do not want to be reminded of the result, and the Conservatives, who may be muttering beneath their breath and punching the air silently, if it is possible to do that, may none the less feel that they had better not say too much about it at the moment because it might upset their coalition partners. I do not have either of those inhibitions. I am very happy to talk about the referendum and its significance for this legislation. I want to make sure that I remain in order.

I have to add, in parenthesis, that there is almost a conspiracy of silence among the media on this referendum. I think of two newspapers in particular-the Guardian and the Independent-which set great store by the referendum and campaigned for a yes vote. I am sure we would have had no end of in-depth analysis if there had been a yes vote, but as far as I can discover, although I cannot claim to read both papers in detail every day, there has been virtually no reference to the outcome of the referendum. There is a kind of a news blackout on discussing it. I do not intend to discuss it at length.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

I can hardly believe what I am hearing. In the referendum, the Labour Party was split. I am not sure whether it was split down the middle or at some other juncture, but it was clearly severely split, with its leader going one way and a lot of other people, including the noble Lord, another. Can he tell us what his Front Bench would have said had there been a statement?

Photo of Lord Grocott Lord Grocott Labour

I am responsible for all sorts of things, but I am happy to say that, by my choice-who knows what might have happened now-I retired from the Front Bench. One reason why I wanted to retire from the Front Bench was to have the sheer joy of discussing these constitutional issues without any inhibition.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

What the Front Bench would have said is that we accept the will of the people.

Photo of Lord Grocott Lord Grocott Labour

That is absolutely right. Just to correct a mathematical point, the Labour Party was not split down the middle. There was a majority of Labour MPs and Peers, a huge majority of Labour councillors and, so far as we know, activists and a colossal majority among voters. I see my noble friend Lord Reid in his place. He took an identical view to me and many other members of the Labour Party on the issue.

If the intervention was intended to embarrass, it has merely prolonged my remarks and enabled me to put the record straight on what the Labour Party did in practice in a referendum. The commitment of the Labour Party was to hold a referendum, not to tell people what to do, although I must admit that some of us in the Labour Party tried to influence the outcome. There has been a news blackout on this referendum, and I think I have explained the reason why.

The obvious question to ask is: what is the significance of this reference to the referendum in the Bill before the House? I think it is very significant indeed. The first point is to remind everyone of the colossal majority, by any reasonable expectations, in the referendum. It was passed in every voting district in the United Kingdom except, I think, seven. In most of the polling districts, between two-thirds and three-quarters of those asked said they did not want any change. I draw at least a couple of lessons from that that are significant to this Bill. It tells us pretty clearly that the public have very little appetite for major constitutional change. Many of us have argued that time and again in vain. Some of us did so through long periods of the night and were much criticised for it. We tried to point out to the Government and others that the public were just not raising these issues. There was no appetite for them whatever. If anyone is in any doubt that should a referendum be held, let us say, on fixed-term Parliaments-which of course reduce the power of the public; I will come to that in a moment-I have very little doubt that the outcome in that referendum would be similar to the outcome in the referendum that we have recently held.

The other thing I want to mention is something that I might be able to convince the House on. The outcome gives the lie to the oft repeated-in fact, ad nauseam repeated-comment, particularly by the Deputy Prime Minister, although others are guilty as well, that somehow or other we have a broken constitution, a broken politics, in this country. I have heard that word "broken" time and time again. One or two people who take close interest in these issues might be able to repeat that. I do not see any evidence, certainly not based on the result of that referendum, that that is what the people of this country think. They make all sorts of criticisms about politicians and politics, which is a healthy thing to do, but when it comes to the basic democratic construction of our constitution, the public's involvement in it, their ability to speak to and canvass their Members of Parliament, their ability to participate in elections and the freedom with which any conceivable opinion can be expressed, this country's constitution, far from being broken, works remarkable well in comparison with-I would go so far as to say any country in the world, but certainly the vast majority of countries in the world.

Please may I urge a little rethink, particularly on the part of the Liberal Democrats, on this constantly repeated phrase about a broken constitution? It does this country no favours-obviously-and it happens not to be true in the eyes of the electorate. If there were a broken constitution, my word, you could rest assured that the members of the public who constantly canvass their MPs-write to them, e-mail them, visit them at their constituency offices and so on-would be letting their Members of Parliament know. If any former MP is going to stand up and tell me now that the public are deeply concerned about broken aspects of the constitution, please do so and I will readily give way, but that is not my experience.

I know there is no great mood in the House to set forth on another referendum, but, as I said, this is the only basis on which I could introduce this subject, which was also raised in Committee. I ask the Minister on what basis, if any, he thinks the public want this huge change to their constitution. When he answers that question, I would like him to confirm-he owes it to this House, as this has been raised on many occasions, but we have not yet, as far as I can recall, and I have been here most of the time, had a clear answer to this question-that if this Bill passes in the way the Government want, there will be fewer general elections in this country; the public will be consulted less frequently. I regard that as a step backwards. We all know about problems with turnout, and I do not want to overstate my case, but I find a general election day as an awe-inspiring event if you think about it-I do not normally think about it in these terms because I am so busy. We have had all the opinion polls and all the chatter, and then there is a curious calm on election day when the public decide, and we never quite know what they are going to decide or the basis on which they make their decision.

If this Government are proposing, as they are, that there will be fewer general elections in the future-my calculation is that there would have been three fewer since the Second World War-could they at least acknowledge that this is the case and that they are going into this with their eyes wide open? It is very important that they do. I would like the Minister to tell us what the evidence is that the public want this change. Do they know the significance of what the Government are proposing? Furthermore, given that again we are being repeatedly told that all these constitutional changes are part of a coherent whole-the Bill we just considered, this Bill and the one that is coming down the track on House of Lords reform-I really would like to know what criteria the Government use to determine whether a constitutional Bill is of sufficient significance to be put to the people in a referendum. When I asked the Minister that in Committee, although he is a very honest man and good at dealing with this Bill he did not give a particularly straightforward answer. He said:

"The noble Lord, Lord Grocott, asked my noble friend Lord McNally which issues would be submitted to a referendum, and my noble friend replied: 'the Government believe that Parliament should judge which issues are the subject of a national referendum'.-[Hansard, 24/1/11; col. 671.] Indeed, it will be possible for Parliament to make that judgment on any legislation".-[Hansard,15/3/11;col. 193.]

It is not a very straightforward answer, let us be absolutely honest, to say that Parliament will judge when there is a heavy Whip-we all know perfectly well that this recent referendum would never have gone through the House of Commons on a free vote. That applies to the other half of that Bill, which increased the size of constituencies, so may we please have other criteria, aside from saying that it has to go through Parliament? Of course legislation has to go through Parliament. I want to know the basis on which the Government decide whether major constitutional Bills such as this one or the House of Lords reform Bill should be subject to referendums. What made the proposed change in the voting system subject to a referendum but, unless the Government have had second thoughts, not these other constitutional Bills? I beg to move.

Photo of Lord Cormack Lord Cormack Conservative 6:15 pm, 16th May 2011

My Lords, not for the first time the noble lord, Lord Grocott, has entertained the House with some good, robust constitutional common sense. I would just gently rebuke him. I am glad he has decided not to press Amendment 23, because he above all people must realise that the phrase "elected House of Lords" is a contradiction in terms. One cannot have an elected House of Lords; what the Government are, I believe, about to propose-and our suspense will be at an end tomorrow, I am told-is the abolition of the House of Lords and its replacement by a totally different sort of second Chamber. It behoves all of us in this place to recognise that reality and then to debate it on its merits or, as I believe, lack of them. We cannot allow ourselves to be deluded into talking about House of Lords reform when in fact we are going to debate House of Lords abolition. I am glad, therefore, that he is not going to move that amendment.

As to the amendment that he has moved, I am not sure how he could expect the Deputy Prime Minister to make a statement on the referendum. It is very difficult to make a statement when your face is covered in egg, and very difficult for the Prime Minister to make a statement when all he could do was echo a predecessor and say, "Rejoice, rejoice". We know why there was no statement, but we are all glad at the result.

The noble Lord has placed before your Lordships' House one very important question which it is important that my noble friend the Minister should seek to answer and which, for all his sensitivity, charm and many other qualities-and I do not say that in any sense facetiously-he has failed adequately to address until now. What are the criteria to determine a referendum? It cannot merely be what Parliament decides, because that means what is convenient for the Government of the day. Do not let us again delude ourselves into believing all the fine rhetoric surrounding this Bill. The Executive in our country are drawn from the legislature, and I do not object to that at all; I never have. It is the Executive who are the driving machine in all this. I personally do not like referenda, but they are in the system now. If our constitution, of which the noble Lord has spoken both eloquently and accurately, is to be safeguarded for future generations, it is important that we establish a principle that on major constitutional issues such as devolution, our continued membership in 1975 of the Common Market, as it then was, or the future of either or both of our Houses of Parliament, there should be the opportunity for the people, untrammelled by other considerations that inevitably crowd upon them during a general election, to be able to decide.

I hope that all those in government at the moment will reflect on that as we approach detailed debates in coming days, weeks, months and, I trust, years and determine what at the end of all that debate should happen. It is very important that we have a clear and coherent answer to that. It is unreasonable for us to suggest that my noble friend the Minister could give a comprehensive answer this evening. Of course he cannot-he has to consult his ministerial colleagues and superiors-but he can at least tell us that he has heard the words of the noble Lord, Lord Grocott, and that he recognises that there has to be an intellectually defensible set of criteria that determines what a major constitutional issue is and what it is not, and when there should be a referendum and when there should not.

Like the noble Lord, Lord Grocott, I am not implying that there should be a referendum on the Bill now before us, but I congratulate him on ingeniously using this opportunity to bring up a very important issue that gives us all a chance to reflect on it as we move towards an issue that truly will affect not only the future of this House but the future balance and stability of our constitution as a whole: the constitution about which the noble Lord spoke with such quiet passion and eloquence. Let us see what my noble and learned friend has to say before we end the Report stage of what is not the most glorious constitutional measure this House has been asked to consider.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, briefly, I support the noble Lord on his amendment. I do not think that the constitution, or even our politics, is broken, but a certain amount of damage has been done. In my lifetime I have seen a tendency for participation rates in voting to fall, along with an increasing sense of weariness with modern politics and disrespect for politicians. I am on the record as saying, when the Constitution Committee published a report on referendums last year, that there is a place for them in building confidence. Interestingly, the participation rate in the recent referendum was really rather encouraging. It was higher than we thought it would be in the lead-up to it. A cautious but proper rediscovery of the place for referendums has a part in rebuilding political life in this country.

More substantially, I should like to try a thought experiment on your Lordships. Let us imagine that we had a Bill before us that proposed to extend the life of a Parliament from a normal term of five years to six years. Would we think that that required a referendum? We would probably think that it did because it would extend the maximum term from five years to six, but in practice we are going to extend the length of Parliaments by an average of about a year. Why is this not an issue on which there should be a referendum?

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, I agree entirely with those who have just spoken that it would be helpful to the House-indeed, I think it is a necessity-that some clear principles should be articulated as to when a referendum would be appropriate. I understand the case for referenda on major constitutional issues. After all, the constitution is the property of the people and not of us as parliamentarians. If significant aspects of it are to be changed, there is a strong case for saying that they should be changed only with the permission of the people. However, I invite the House to consider the proposition that every significant constitutional change that we have seen over the last several decades has diminished the centrality of Parliament in our constitution. Whether it has been accession to the European Union, devolution or the development of the practice of holding referenda, we can see in all these instances that the capacity of the Parliament of the United Kingdom to take the major decisions that the people of the United Kingdom elected it to take has diminished. So before we express enthusiasm for the proliferation of referenda-perhaps no noble Lord wants to see their proliferation, although we should note that the European Union Bill seems to offer the scope for at least 57 varieties of them-we should consider what this may mean for the centrality and the character of Parliament in our national life.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

My Lords, I thank my noble friend for giving us an opportunity to speculate on the nature and the circumstances that might make it imperative to hold a referendum. It is unreasonable to expect the Minister to respond in definitive terms, and I do not think that we would necessarily push for that tonight; but it is reasonable to expect two things. The first is that the Minister, who as noble Lords have said has been more than reasonable in his attempts to respond to and clarify some of these issues, should attempt to answer the point. Secondly, he should consider some of the criteria that might compel a referendum on subjects the nature of which we are now discussing. He might like to consider, for instance, that one of the elements that would compel a referendum would be on subjects that are closely related to those which have recently been the subject of a referendum, and when the course being proposed by the Government would, in effect, alter that decision of the people in some incidental fashion.

Hypothetically, the people could resoundingly decide to reaffirm first past the post as an electoral system. If there was then any suggestion of a move by either Chamber of Parliament to reject it, obviously that could not be done, especially in the wake of an overwhelming decision to reject the system of alternative vote. If any attempt was made by either Chamber of this House to change that decision, perhaps by putting it through Parliament itself, it would be an outrage. If it was good enough to do it by referendum in the first place, it is good enough to do it in the second place. It is no argument to say, "We did not like the result the first time around, and so we will change the system". That is partly why the alternative vote was rejected. Therefore one of the criteria might be that there has been a recent vote on a subject.

A second criterion might be that something was a fundamental part of the British constitution, such as the voting system itself. It would appear from past experience that that requires a referendum. That might be the second criterion which a priori we would suggest would require the people to be consulted. A third criterion might be a fundamental change in the constitutional arrangements for the governance of the United Kingdom, such as the abolition of one of the two Houses of Parliament. As the noble Lord, Lord Cormack, said, we might speculate that we will have a proposal before us not for the reform of the House of Lords, but effectively to abolish it and replace it with a senate. I leave aside the substantial arguments as to whether this is taking place in the context of, whether intentionally or otherwise, the other House having been denigrated. I merely point out that abolishing a House of Parliament would be a major and fundamental constitutional change and therefore might be a subject for the Minister to consider as one of the criteria I have mentioned.

A fourth criterion would be the complete and fundamental diminution of the powers of one of the Houses of Parliament. I speculate again that if, for instance, we were to create a senate whose representatives were elected by, say, proportional representation, that would hugely diminish the powers, status and role of the other place. That is because the other House is only powerful relative to the second House of Parliament under the British constitution by virtue of the fact that the latter is constrained to scrutiny. If the second House were to add democratic legitimacy to its perceived wisdom and maturity, especially using a system that some people claim is more democratic than first past the post, that could not but diminish the powers of the House of Commons.

Finally, if each one of these criteria was an a priori reason for holding a referendum, we must conclude that any move to bring forward measures to change our constitution that included all the criteria-an electoral system that had already been put to the people, a proposal to abolish a House of Parliament and diminish the rights of the other House by the restoration of a new second House-would mean that they would be compelled to include in any legislative proposals an assurance that there would be referendum on them all. I shall give way to my noble friend.

Photo of Lord Cormack Lord Cormack Conservative 6:30 pm, 16th May 2011

I am most grateful to my noble friend. Would he not agree that the power of another place would be even further diminished if those elected to a second Chamber were on a 15 or 20-year term, were not eligible for re-election and were therefore not accountable to anybody?

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

Well, of course, my noble friend is speculating. It is hard to believe that the other Chamber would bring forward proposals for the creation of a second House which would so hugely diminish its own powers by bringing in a new electoral system that would then be claimed in the second House to be more legitimate than that in the first; and for a period that was three times as long; for a House that was already widely recognised as being greater in its maturity and wisdom. That would be the greatest case ever of turkeys voting for Christmas.

Should such a proposal come forward, I think that many people in the House of Commons would be very reluctant to diminish their own position, particularly since they have just seen a campaign launched for changing the British constitution-this was the yes to AV campaign-on the basis that MPs were all lazy, cowardly laggards. I think that such a proposal would not be met with universal approval in the House of Commons. I say merely that, if by some mental aberration of that House, such proposals were brought forward and were to concern not only a subject for which one of the criteria had already been put to a referendum-that is, the voting system, which is elemental to the British constitution-but also the abolition of one of the Houses of Parliament and the diminution of the other, each of these individually would be reason for having a referendum. Taken together, there would be an absolutely compelling case for it. I am sure that the Minister in his straightforward fashion, and given that he is a man known for his neutral and objective position in all these matters, will be able to put this to his colleagues, up to and including the leader of his own party, bring it back and reassure us all on it.

Photo of Lord Deben Lord Deben Conservative

Is it not a common feature of the four examples that the noble Lord has suggested that a referendum can be argued for only when it changes the basis upon which those who would otherwise vote for it have been elected? I am personally opposed to referenda in all circumstances, but it could be argued that it is improper for people who are elected on one basis to make huge changes in their own interest and present that to the people. The four examples that he used have that commonality. Would it not be a good thing for Governments, oppositions and coalitions to think carefully before they bring before the Houses of Parliament such changes without a referendum built within them?

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I agree absolutely with the noble Lord. There is one condition and qualification which the Minister could bring forward as an objection. He could say, for instance, that it would be entirely unreasonable for us to ask the Government to give a commitment to a referendum on such a subject unless they knew the precise details of the referendum, of the question to be put and so on. That would be a cast-iron argument were it not for the fact that the Government have already rushed to the television studios to assure us that they would willingly accept a referendum on the Scottish question were it put, without knowing the wording, the timing or the conditions of it. So that objection would entirely fall.

I am trying to be helpful to the Minister tonight, not by laying down demands for a definition but by suggesting that there might be criteria which he would like to consider before he comes back to the House. Whether it is a White Paper that we have to expect or a grey paper-perhaps by tomorrow morning it will merely be an essay on the British constitution that is being proposed-and whatever the form of the coalition agreement's operational eminences which exude from discussions in Cabinet, I hope that he will be able to come back and tell us that it is such an important subject that we will all get the chance to vote again, because we so enjoyed the last referendum.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, the key point has been made, but not yet by me. I want to reinforce what the noble Lord, Lord Grocott, said. Many of the measures being brought before us are premised on the assumption that our political system is broken. Like the noble Lord, I do not accept that it is and there is empirical evidence for showing that the people do not accept it. I accept that there is a crisis of confidence, but it is a crisis of confidence not in institutions but in politicians. There is a danger of displacement taking place here, of saying, "Well, it is not us, it's the system. We'll change the system". There are problems in that, so I accept the premise on which the noble Lord is proceeding.

My fear is that we may get ourselves into a situation where people do think that the system is broken if we keep messing about with it and making disparate changes without any clear rationale for them, rather than individual changes. If the Government start having a referendum on one issue which they feel for whatever reason there should be a referendum on, but then deny on it another issue which people think is important and there should be a referendum on, they will create problems in terms of how people view the system and how it is being operated.

I have always argued against referendums because I have an objection on principle to them; the Government's problem is that they do not. When they start holding them, they need to have a clear rationale for those occasions when they are clearly appropriate and those when they are not. Otherwise, we create a problem of delegitimising issues, with people thinking, "Well, this is really important, but we're not going to accept it unless it's subject to a referendum. Why can the Government have a referendum on A, when we attach real importance to B and we've not been given a say on the issue?". To cope with that, as the noble Lord, Lord Reid, indicated, you need a very clear framework which is transparent and explained to people, so that they know the basis on which the Government are proceeding. You cannot do it on an ad hoc basis. You need clearly to adumbrate the overarching framework or, if necessary, come up with those issues which clearly fall within the framework of necessitating a referendum.

The Constitution Committee of which I am member, as is the noble Lord, Lord Pannick, produced its report on referendums and tried to identify those areas so that we could at least get agreement on them. The Government need to think about what framework they are using for promoting referendums. They cannot do it on simply an ad hoc basis, saying that it is up to Parliament, because Government bring the Bill before Parliament. We need to know why they are doing that, and that they are doing it on the basis of principle rather than political desirability. The more politicians do the latter, the more we run the danger of people starting to worry about what the Government are doing and their trust being lost. It is essential that we maintain that trust. If the crisis of confidence is in politicians, it is up to us to get it right.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, the noble Lord, Lord Grocott, has served a very valuable purpose, because he has identified with precision one of the main defects in this Bill and so many of the proposals for constitutional change that have been brought forward by this Government and are still to be brought forward.

The essential point surely about constitutional principles is that they are intended to be neutral; they are intended to be objective criteria by which we and the people judge the propriety of the conduct of government. They do so by convention, by practice and, if change is proposed, they do so by public consultation, by pre-legislative scrutiny and by an attempt to achieve consensus. The Government's inability to identify when a referendum is appropriate-the noble Lord, Lord Grocott, asked the Minister to explain the Government's position on this in Committee and the Minister was unable to do so-is a manifestation of constitutional reform and change that is being proposed on an ad hoc basis; it is being proposed if and in so far as it is politically convenient for the coalition to do so.

Constitutional change cannot command public respect when the public perceive politicians as using constitutional means such as a referendum-means which are designed to control politicians-as a way of holding a coalition together. One has to do better than that. One has to identify a principled basis for using or not using a referendum. To bring forward constitutional change in this way-without public consultation and without any attempt to identify and then to apply objective, coherent principles on matters such as referendums-leads inevitably not only to poorly drafted, inadequate legislation but guarantees that the legislation, when enacted, will not command public understanding, far less public respect, and ensures that the legislation will remain on the statute book only in the short term.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, having rashly intervened on the spur of the moment earlier I decided that I had better stay until the end of debate in line with the conventions. I am very glad that I did because, in an old-fashioned phrase, it has been worth a guinea a minute. I shall associate myself later with some of the latter speeches but, first, I should say to the noble Lord, Lord Grocott-who thought that I was trying to embarrass him-that I was congratulating him on his sheer effrontery. I am not sure that the same is not true about the latter part of his remarks about Governments tampering with the constitution with no overall aim because, frankly, this is not the first Government that this charge could be levelled at-and he was a member of the last. However, on the latter point I am in complete agreement with him.

I wish to pick up on the comments of my noble friend Lord Norton, the noble Lord, Lord Pannick, and, not least, the noble Lord, Lord Reid-who made one of the most excellent speeches we have heard in these proceedings-on House of Lords reform. I agree with every word they said. As a coalition loyalist-well, mostly-I hope my colleagues will stop this messing about with the constitution. They have not got an architect drawing up what they want to get out of it, a great deal of it looks as though it has not been thought through and it does not reflect the basic fact that we have a constitution which, by and large, has served the country well and continues to do so, a point made by the noble Lord, Lord Grocott, and which was implicit in other speeches.

Having made those troublesome remarks-I saw my Whip looking at me and wondering whether I really had told him that I would be docile and loyalist this week-I assure my noble friend on the Front Bench that I will be good on this Bill. However, I am not promising that if we go on getting this kind of stuff.

Photo of Lord Higgins Lord Higgins Conservative 6:45 pm, 16th May 2011

My Lords, I apologise to the House for missing the first few minutes of this debate. However, fortunately, I have heard enough of what has been said since to be provoked into speaking.

Throughout the whole of my parliamentary career in another place I had a passionate feeling that Edmund Burke was right-that Members of Parliament were representatives not delegates-and that there was a danger that the use of a referendum could undermine that basic principle. I therefore have a word of caution about what has been said today, although I agree wholeheartedly with everything that my noble friend Lord Norton and the noble Lords, Lord Pannick and Lord Reid, have said. However, one or two caveats ought to be made, particularly in the light of the recent referendum where the result was rather good. Having said that, it was also in some ways-particularly in London-rather surprising. None the less, if there is any contemplation of future referendums, it is very important to write in provisions both in regard to turnout and majority, and that it ought not to be mandatory in the sense that after the result has been declared it does not come back to Parliament. It is very important that that should be so.

To whatever extent one can limit the range of referendums-I much prefer "referendums" to "referenda"; it is the gerund-we should make sure that the line is clearly drawn. To say, "We will have referendums only on constitutional matters", will not, I suspect, satisfy one's constituents. I always explained to my constituents that I was not concerned with what a majority of them might think. I would take account what a majority of them thought but would then take into account the debates which took place in the House of Commons and various other arguments I might hear. Constitutional issue or not, it is still the case that one needs to take other matters into account and not only what a simple majority of the population believes. I have considerable qualms about this.

If you asked what referendums the public would really like to have, I have no doubt that, despite the enormous change in social issues over the past half a century, it is still the case that they would like a referendum on capital punishment-and I have little doubt which way such a referendum would go. Therefore we must be very hesitant about going down the route proposed today. However important the individual issue may be-and to some extent we have mixed up the issue of House of Lords reform-we should consider very carefully the idea of spreading referendums wider and wider.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

My Lords, characteristically, my noble friend Lord Grocott has proposed an amendment which has caught the interest and imagination of the House. This has been a very good debate-almost the best in relation to the Bill. I strongly support what my noble friend Lord Grocott has said. My noble friend Lord Reid made a brilliant speech, which indicated what a loss to the leadership of both the nation and the Labour Party he is. I agree with what the noble Lords, Lord Newton, Lord Norton of Louth and Lord Pannick, have said. I think it is important to indicate why we are here. The way that you can change the constitution in this country is simply by an Act of Parliament. By and large, Parliament has been responsible in changing the constitution. Let us take, for example, our attempts to change the role of the Lord Chancellor, which got very short shrift from the House of Lords; there was a two-year delay, and it was substantially changed. The experience of the last 12 months in relation to constitutional reform has indicated a fundamental change in how constitutional reform is looked at by Parliament.

This is the second of three Bills in a suite of parliamentary reform. The first Bill reduced the number of Members of Parliament, which had not been done by Parliament by almost 100 years, because it was thought that it should be dealt with by an independent group. It proposed and passed a referendum on AV, which no political party wanted-save, possibly, the Liberal Democrats, faute de mieux-and the public did not want. That change was not introduced on the basis that people thought that it was the right thing to do for the constitution; it was introduced as a result of a deal done between two political parties. Parliament passed it, so Parliament in effect was willing to give approval to something that was not in the interests of the country, necessarily, but reflected what two political parties wanted. The reason Parliament did that, inevitably, was that unusually, because of the coalition, those two political parties controlled both the Commons and at that stage the Lords.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I am sure that the noble and learned Lord will want to complete the picture and remind the House that the proposal for a referendum on AV was also in the Labour Party manifesto at the last election. He seems to have ignored that fact.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

I do not know whether the noble and learned Lord noticed, but we lost the election. In a sense, I would not have been able to say that we would have had much credibility in putting that forward as the losing party-but you might think that that illustrates my point. The AV referendum was defeated, and the party that proposed it was defeated; the Liberal Democrats did not propose it and the Tories did not propose it. Because of the deal that was done and because of the influence that the coalition has on both Houses of Parliament, it is possible for such a constitutional change to get through both Houses of Parliament. An even more interesting point is that I do not think, although the noble and learned Lord will know better than I, that the AV constitutional change-if we ignore the referendum result for the moment-would have actually passed through Parliament; the only way that an attempt could be made to get it on to the statute book was by using the referendum route. The Conservatives would not have voted for it and half of my party would not have voted for it; all the Liberal Democrats would have voted for it, but I do not think that that constitutes a majority.

Most countries have some sort of entrenched or embedded position to protect the constitution, because most countries believe that if their constitution is working it should be more difficult to change it than other provisions. The heart of our constitution is in our democratic arrangements, such as how long Parliaments last, how we elect Members of Parliament, how we determine what the constituencies are and how many constituencies there are. All those arrangements have been fundamentally changed by the first two Bills, except that the AV referendum was defeated. The significance of the defeat in the AV referendum is that it indicates that the public are not interested in, or particularly keen on, a particular change in those particular systems. Before this series of Bills was introduced, my inclination would have been to be more trusting of Parliament to stop changes that go to the heart of the constitution and do not have popular support. Inevitably, in the light of what the coalition has done, one's faith in Parliament's ability to resist, because of the coalition, goes down.

The importance of what my noble friend Lord Grocott is proposing in this amendment, which I doubt he will push to a vote-but it is an incredibly important debate to have-is that, if parliamentarians are prepared to play with the constitution in the way that the coalition has done, as simply a counter to be given away in order to get into power, Parliament needs to look at how you protect the constitution against backroom deals in smoke-filled rooms. I am not aiming that particularly at the Liberal Democrats or the Conservatives; I am saying what the consequence is of coalitions.

I end with a reference to the noble Lord, Lord Tyler. I do not know whether noble Lords remember the excellent contribution that he made to the Parliamentary Voting System and Constituencies Bill, but he was an enthusiast for all of it. I happened to read in my Observer after the AV thing was lost, where the noble Lord said words to the effect that, "Now the AV vote has been lost, I should remind the Conservatives that there still yet needs to be a vote on the new constituencies that are being drawn". I took that to mean that it was all basically politics that was going on, that it as just a deal that was done, and that if the Liberal Democrats did not get AV they might look askance at what they had previously said was a major constitutional change. I understand why constitutional change. I understand why the noble Lord did it, but does that not suggest that we need to build in a few more protections in relation to major constitutional change? It would appear that this House, which has previously been good at stopping major constitutional change, is now faced with a coalition that has not viewed constitutional change with the same degree of responsibility as previous Governments.

I take the point made by the noble Lord, Lord Newton. He is absolutely right that from time to time we did propose constitutional changes, but we got drawn up short by Parliament. That has not happened with this suite of constitutional measures. That is what my noble friend Lord Grocott is saying needs very careful thought. It might not be a referendum that is needed, but something is certainly needed to give a bit of strength to Parliament to resist the possibly politically motivated constitutional changes that the coalition has brought forward-as opposed to in the national interest.

Photo of Lord Tyler Lord Tyler Liberal Democrat

I wonder whether in the course of his rewriting of history, the noble and learned Lord could just indicate which proposals for changing our constitution during 13 years of Labour Government, many of which he himself was responsible for, he ever suggested should be put to the public in the form of a referendum.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

The Welsh Assembly, the Scottish Parliament, the Mayor of London-those are the ones that come to mind immediately.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

I was out of the Chamber so I did not speak, but in the light of the noble and learned Lord's response to the noble Lord, Lord Tyler, will he comment on the fact that the three referendums that he described were all done one after another-and one had the sense that the policy was being made up as they went along. Only when those three had been done were we allowed a referendum Bill itself.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

I think that the referendums Bill came between those on Scotland and Wales and the London Mayor, but I may be wrong about that. However, I agree with the underlying thrust of the question. Once we started on the route of referendums we realised that we needed some principles, but those principles guided only the process for a referendum; they did not determine when there should be a referendum and when there should not. Maybe it is that issue that we now need to move on to.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Labour

My Lords, before my noble and learned friend sits down, may I draw to the House's attention that there was also a referendum in Northern Ireland?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

Thank you very much indeed for that. I also draw to the attention of the noble Lord, Lord Tyler, that there was also the referendum on a north-east regional assembly. No doubt before I leave the room there will be 53 other referendums that I shall refer to.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

First, my Lords, as I think the noble and learned Lord, Lord Falconer of Thoroton, said, we owe a debt to the noble Lord, Lord Grocott, for moving his amendment and stimulating an interesting and thought-provoking debate. The noble Lord, Lord Grocott, said that he was not going to move or speak to his Amendment 23 regarding your Lordships' House. Although he did not, it was certainly the subtext of a number of the contributions-and sometimes not even the subtext, as the clever speech made by the noble Lord, Lord Reid, indicated. When I listened to what he was inviting me to do or not to do, phrases such as "Greeks bearing gifts" seemed to come to mind from time to time. However, there will be ample opportunity to reflect on the issues in relation to the future of your Lordships' House over many weeks and months to come.

I also disagree with my noble friend Lord Cormack, who sweepingly said that we were all glad with the result of the recent referendum. Not all of us were glad, but we will let that pass. However, the noble Lord, Lord Grocott, started by asking why there had not been a Statement. While I was not glad with the outcome, as a good democrat I accept the will of the people; indeed the noble and learned Lord, Lord Falconer of Thoroton, suggested that that would have been the content of the statement. Indeed, the legislation provided for what would happen whether the will of the people was for a yes or a no vote.

In Committee, I think that the noble Lord, Lord Grocott, suggested that we might have a referendum on the question of four versus five years whereas, by contrast, this amendment is more fundamental. It asks the electorate to decide whether the Bill as passed by Parliament should be brought into force and to have a legitimacy threshold of 40 per cent. Clearly, that would require further primary legislation as no provision is made in this amendment. It is obvious from the important discussion that we have had-and the noble Lord's amendment reminds us-that while questions of referendums are of considerable constitutional significance, the referendums themselves tend to be very rare.

My noble friend Lord Higgins reminded us of the Burkean principle: we have a system of representative democracy and Parliament is entrusted with the power to make many important decisions on behalf of the people of this country. There must therefore be an exceptional reason to ask the people a direct question in a referendum. I rather suspect that most of your Lordships would subscribe to that view. It would be particularly unusual in the context of this Bill, given that it does not seek to give the Government or the Executive any additional powers but, rather, seeks to take power away from the Executive to strengthen Parliament. It will be Parliament that is strengthened by this; this Bill takes away the power of the Prime Minister to call a general election at a time which may be propitious for his own party. However, some important questions have been asked regarding the context and what might trigger a referendum.

The noble Lord, Lord Grocott, asked a number of questions. He asked what public indication there had been of support. In a letter to the Constitution Committee, my honourable friend Mr Mark Harper, the Minister, indicated that a survey conducted by Populus for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms. A poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported their establishment, and a survey conducted by the Scottish Youth Parliament in August 2010 found that 76.4 per cent of young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament.

The noble Lord also asked about the number of general elections that there would be. That is not as straightforward a question to answer as it might superficially appear because it would depend on how many occasions the provisions for an early election were triggered, if at all. We cannot by any stretch of the imagination work out how many that would be but it is important, too, to recognise that there are many ways in which we engage the public in the political process. We discussed some of those issues last week.

Your Lordships' Constitution Committee examined the use of referendums in the previous Session and, while noting that referendums may become part of the United Kingdom's political and constitutional practice, it also identified the fact that there were a number of significant drawbacks. It indicated, however, that it was likely that some fundamental constitutional issues would be determined by means of referendums. A fixed-term Parliament was not one of those listed. The noble Lord, Lord Reid, said that he did not necessarily expect a full or comprehensive reply this evening. However, I will ensure that the comments made by all your Lordships are considered by my ministerial colleagues who are involved in the field of constitutional change.

We may also want to reflect on this: inevitably, even if we were to make a distinction between what might be "fundamental"-the word used by the Constitution Committee in its report-and what might be significant, it will be a matter of judgment for Ministers concerned. It is interesting that when the Constitution Committee was working on an inquiry undertaken during the life of the previous Government-I was a member of that committee at the time-it put this response from the previous Administration into paragraph 95 of its report:

"the Government have argued that 'the decision as to whether or not a referendum should be held should be made on a case-by-case basis. We do not believe that an objective test could be established as to the circumstances in which a referendum should and should not be held'."

That was the position of the previous Government, who advocated, as I indicated, a referendum for changing the voting system to the alternative vote in their manifesto but did not recommend one in connection with introducing a fixed-term Parliament.

As I thought about the party opposite when it was in government, I noticed that the noble and learned Lord did not mention in reply to my noble friend Lord Tyler that there was no referendum on freedom of information or on the incorporation of the European Convention on Human Rights into our domestic law. I do not recall that we were urging him to do that at the time but those were clearly important, constitutional measures. Neither was the change to establish the Supreme Court-a fundamental issue regarding the separation of powers-the subject matter of a referendum. Thinking about the arguments while they were going to and fro, it occurred to me that the only way that you would ever get the absolute definition and clarity which so many noble Lords called for was, possibly, through a written constitution. Indeed, I note that the Constitution Committee itself said:

"A written constitution could provide a more precise definition of a 'constitutional issue', and define which issues required a referendum before any change. The arguments for and against introducing a written constitution are outwith the scope of this inquiry".

They are also outwith the scope of this debate and it is certainly not the policy of the Government to have a written constitution. However, I rather suspect that if we ever did have one it should be the subject of a referendum. The point there is: if you are ever to get the clarity without it having to be a matter of judgment by Governments of whatever hue-a coalition or a majority party of red, blue or yellow-it would inevitably then be the subject of a decision on their part as to what did or did not reach that level of importance.

I hope that I have indicated that there may be a distinction for the fundamental level. For example, the abolition of the monarchy or the secession of part of the United Kingdom are clearly of that level. As I have indicated, we do not believe that a fixed-term Parliament falls into that category. The previous Government of the Labour Party did not appear to think that it fell into that category either. In the whole plethora of measures that were brought in through the CRAG Act before the last election, I think only the possibility of having AV was going to be subject to a referendum.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Labour 7:00 pm, 16th May 2011

The Minister appeared to me to indicate that were part of the United Kingdom to secede, that should be the subject of a national referendum. Did I misunderstand him?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, if I might clarify I think I said that that was one suggestion put forward by the Constitution Committee. It said that that might be one of the occasions that would trigger a referendum but it is certainly not the policy of this Government to have a referendum on Scottish independence. The Prime Minister has made it clear that that would be a matter for the Scottish Parliament. Let me make that point very clear: it was one of the cases suggested by the Constitution Committee as, possibly, reaching that threshold. This illustrates the point that these are inevitably subjective issues. Any Government who wished to make a distinction about fundamental significance would find that that could vary from Government to Government. However, I undertake that the comments made by your Lordships will be fed back, and I am sure that there will be other occasions when the issue of referendums is discussed. A number of colleagues who talked generally about referendums did not necessarily think that the subject of fixed-term Parliaments lent itself to a referendum. Against that background, I ask the noble Lord to withdraw his amendment.

Photo of Lord Grocott Lord Grocott Labour

My Lords, I am not just being polite when I say that I am grateful to everyone who has taken part in this short-well, not so short-debate. I was straightforward with the House in saying that I was introducing the amendment not with a view to the House reaching a decision on it, but because I felt that it was important that the House should have an opportunity to reflect on the fact that a major referendum had taken place on a major constitutional issue and that lessons could be learnt.

Many people have contributed; there have been nine contributions. The Minister said at the end, as I was going to ask him to do, that he would take the views that had been expressed back to his colleagues. Normally it is mere politeness to say that but I really would recommend him to do so; he does not have to include my remarks, but if he includes the other nine contributions in the evidence that he takes back to his colleagues, it might even make them think again about this whole, not overly related programme of constitutional reform on which the Government seem to have embarked.

The contributions were terrific. It is impossible to summarise them, although it is fair to say that there was widespread concern about the way in which these constitutional changes are being taken through Parliament without in all or any cases, as the noble Lord, Lord Pannick, has said, proper pre-legislative scrutiny, proper consultation with the public or any proper attempt to get widespread agreement before any move is made. I hope that some lessons have been learnt from that.

I have to respond particularly to the noble Lord, Lord Newton, who chided the previous Labour Government for the various constitutional changes that we made. I am not sure that I need quite the same defence that I was preparing; I was amazed when it was pointed out how many referenda that there had been on various aspects of the previous Labour Government's constitutional reforms. I say to him that it is a different situation when a Government are returned with the clearest possible manifesto commitment-in Scotland and Wales particularly, there is absolute clarity about the commitment there-and a large majority.

I can tell the noble Lord, in the privacy of this meeting, that there were some constitutional changes that we could seriously have done without; I mention in passing the decision to change the electoral system for the European Parliament from first past the post to proportional representation. I am even more convinced now that, had that been put to the public rather than unilaterally decided by Parliament, we should have a splendid first past the post system for the European elections as well.

Noble Lords:

Hear, hear!

Photo of Lord Grocott Lord Grocott Labour

Encouraged by that response, I might bring forward a Bill to provide for just that.

There are various other contributions that I really ought to refer to. I must respond to what the Minister said. On public support for the proposal, he needs to be cautious about relying on opinion polls on what the people think about constitutional change. If my memory is not mistaken, there were large majorities in opinion polls-how they were determined, I am not quite sure-in favour of a change in the voting system. We were repeatedly assured by the Liberal Democrats that we, the politicians in all parties, particularly the Conservative and Labour parties, were convinced that the public did not particularly want a change in the voting system. What the sampling of the pollsters was I am not sure, but be wary of that as a basis for making constitutional change.

Once again, the Minister evaded the question-I suppose he has to-about actually confirming that the Bill will mean that the electorate, the people of this country, are consulted less frequently in general elections. There will be fewer general elections as a result of the Bill. The right reverend Prelate the Bishop of Chester put it brilliantly, if I may so: if we were going to change the interval between elections from five years to six, of course the public would need to be consulted on that, whereas we should be under no illusion whatever that the Bill increases the period between elections on average from four years to five. That is the seriousness of what is being suggested.

I have even heard a Minister-I think it was the Deputy Prime Minister-say in defence that the period between elections has historically been about five years if you eliminate the very short Parliaments. Well, if you eliminate all the Parliaments under five years, obviously the average is going to be five years. I did not major in maths or anything, but that is probably true.

I think that I speak for the House if I say that the masterly contribution, the coded warning to the Government, came from my noble friend Lord Reid. Constitutional reform is probably about the only aspect of our national or international policy for which he was not at some stage responsible as Secretary of State; he seems to have done pretty well everything else. I was glad to hear his views on the subject expressed so clearly. It was particularly relevant that he reminded us that the referendum that was my reason for introducing this amendment did not simply say no to the alternative vote; it was an affirmation of public support for first past the post. I agree strongly with him that, should that come up in any guise in the document that we eagerly await on Lords reform, it would be an insult to the public if there were a suggestion that any other kind of electoral system should apply in any reform to the House of Lords.

Like the noble Lord, Lord Cormack, I stand corrected. I must not call it "reforming" the House of Lords-it is abolishing the House of Lords and, to put it neutrally, replacing it with a very expensive senate. I understand that that is what is being proposed, but we will know soon enough.

My noble friend Lord Howarth reminded us again that there is consistency in the Government's position on constitutional reform, certainly with regard to the previous Bill and this one: in both cases they are diminishing Parliament rather than strengthening it. This Bill clearly diminishes it by making it less frequently refreshed by the electorate. Those of us who are ex-MPs understand that, essentially, you just know that you need an election after a period of time and that you need to have your mandate refreshed, let alone anyone else's. It is difficult to argue that the Bill on parliamentary constituencies does not weaken the link between the electorate and the House of Commons, because it makes constituencies bigger. The Commons cannot be strengthened if you are making constituencies bigger, so presumably that weakens it. This is one of the many reasons why I was opposed to both the Bills that have come before this Parliament.

I will not trespass on the patience of the House any longer. I found myself wanting to say how much I agreed with pretty well everyone who contributed to the debate, and the Minister would be doing a service not just to this House but to his Government if he reported to them the feelings of this House on constitutional matters of the kind of magnitude that we are discussing, and how-to put it gently-not enough thinking has been done about them. With the leave of the House, I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

Amendments 23 and 24 not moved.

Amendment 25

Moved by Lord Pannick

25: Clause 7, page 4, line 6, at end insert-

"(4) Sections 2, 3 and 6(3) shall have effect only until the first meeting of the new Parliament after the next parliamentary general election, but that Parliament or any subsequent Parliament may bring those sections back into force for the Parliament's own duration and until the first meeting of the following Parliament if a resolution to that effect is approved by each House of the Parliament in question."

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office) 7:15 pm, 16th May 2011

Amendment 25 is clearly linked as a package to the suite of amendments that the noble Lord, Lord Pannick, spoke to on Report on the first day. While it is not strictly consequential, the Government nevertheless believe that it would be unnecessary to divide the House on this, triggering a Division. However, we have made our position clear that we did not support the amendment, and we reserve our right to return to the issue at a later stage.

Amendment 25 agreed.