Referendums: Parliamentary Democracy - Motion to Take Note

– in the House of Lords at 2:11 pm on 19th July 2018.

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Moved by Lord Higgins

That this House takes note of the impact on parliamentary democracy in the United Kingdom of the use of referendums.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, our debates on Brexit have made frequent reference to referendums, but it seemed to me that the time had come to take a rather wider view of this issue. I am glad to see that a number of noble Lords who have added their names to the speakers’ list today take a similar view. I look forward with great interest to their comments, particularly the maiden speech from my noble friend Lord Pickles. He will give us a more up-to-date perspective on the view of those in the House of Commons on these issues than some of us who moved from the House of Commons to your Lordships’ House a long while ago.

There is certainly no lack of background briefing on this issue. The House of Lords Library has produced a splendid note, and only this month a massive tome, a report of the Independent Commission on Referendums, was published. In addition, there have been reports by your Lordships’ Constitution Committee and the Public Administration and Constitutional Affairs Committee of the House of Commons. The latter makes a particular study of the results and the effect of the Brexit referendum.

They all draw a certain amount of attention to the history of referendums in this country since 1975. Referendums were used very successfully by Hitler. Both Churchill and Attlee criticised the idea of them and, notably, Mrs Thatcher described referendums as,

“a splendid weapon for demagogues and dictators”.

While that reflected the immediate context of the time, I think there are still considerable concerns about the way in which referendums affect our democratic system. They are certainly popular with the electorate—perhaps to some extent reflecting the unpopularity of politicians —with the idea that they somehow get a direct feed in, even though in this country I believe we have politicians who are less out of touch with the electorate than in almost any other country in the world because of constituencies meetings and so on.

I am concerned that the idea of referendums is constantly referred to as democratic. One can see the arguments in favour of that view but, in fact, it is not what we normally mean by democracy in this country. What we fundamentally believe in, I think, is the idea of representative parliamentary democracy where we elect Members of Parliament and, as Burke pointed out, they then take into account the views of their constituents together with their own judgment on any particular issue. One of the problems with referendums is the extent to which a Member of Parliament or a Member of your Lordships’ House can take into account the views which were expressed. This is somewhat inhibited if a major part of a decision—almost a central part of it—is taken by a referendum. It is noticeable that very few Members of Parliament have stood up and simply said that they reject the decision of this or that referendum.

The crucial issue here is whether the referendum is regarded as binding. I took part at great length in the debates in your Lordships’ House on the referendum Bill. What was clear at that time was that it proposed an advisory referendum, not a binding one. It is clear since then that the Government have regarded it as binding. The effect of that on the extent to which Members of Parliament can express an independent view is obviously very important.

The Prime Minister, soon after the result of the referendum, said very clearly we must “respect” it. Respect is a very interesting word. As far as the last referendum is concerned, there are lots of reasons for not respecting it. It was not a representative democracy, passed by an overwhelming majority of the population. It was a majority of those voting but quite clearly a lot of people did not vote because they realised that they did not fully understand the issues. Therefore, the argument that we must respect it also has to be seen against the background of a campaign that was riddled with lies from beginning to end—not least on the question of the Brexit premium. In addition, there is the recent discovery of the extent to which the finances of the leave campaign might have affected the result. To conclude that we must respect the result is very doubtful.

As far as that is concerned, we have to take into account whether it is binding or not. As I say, it is in danger of undermining rather than helping our democratic system. The report that I referred to from the House of Commons points out that critics of referendums warn that they may undermine parliamentary democracy, particularly so when there is a clear difference of view,

“between … a majority of the public and the majority of parliamentarians”.

It points out that this is probably the situation with the Brexit decision. So this, again, must give us some concern that referendums do not really help the operation of our democratic system—in fact, quite the contrary. I conclude from that that there are some serious problems that we have to face if we are to continue with the use of referendums, and there is a very strong case for the committees of both Houses to look at the issue in great detail.

One thing I am absolutely clear about is that I do not think there is a case for a second referendum on Brexit. We can do without another one, as it would again produce a very confused result. The right course of action at this stage is for Parliament to assert how the pieces of the chaos that have resulted from the referendum, not least in the last few days, can be put right. Parliament really must assert its influence more strongly over the way in which things develop in the present situation. Therefore, the case for referendums becomes increasingly doubtful. At all events, I think that we need to tighten up the rules.

I was surprised to discover in the briefing the existence of the Political Parties, Elections and Referendums Act, which I had not previously come across—I may not be alone in that. That could perhaps be amended to cover certain issues. I will always regret that during the passage of the referendum Bill through your Lordships’ House, I did not put down an amendment to cover thresholds for both the turnout and the majority. We might have been in a very different situation today had I done so, but I thought that if I did, it would inevitably make the result of the referendum mandatory rather than advisory. None the less, I think that there is a case to be made, perhaps by the relevant committees, for saying that we should not have any referendum in future without thresholds for the turnout and the majority.

I conclude by saying that we certainly need further study by the committees to sort out the present problems that I have referred to. However, I am also influenced by the fact that I spend a considerable amount of my time in the Netherlands, which has had a rather bad experience with a referendum relating to Ukraine. It has been a real problem for the country, so the political coalition in the Netherlands has decided to introduce a measure to ban, flat out, the use of referendums, including advisory referendums. As I said, the difference between advisory and mandatory referendums is very blurred. As I understand it, this had already gone through the lower House of the Parliament in the Netherlands, but there was then a move to have a referendum against having a ban on referendums. This was obviously rather controversial. The result is that there have been further disputes and the matter has gone to the Supreme Court, which has come to the conclusion that you cannot have a referendum banning the use of referendums. That, as I understand it, is the present situation and we will have to wait to see what any appeal against the Supreme Court decision brings.

That brings out the important point that we should consider to what extent the use of referendums in our country undermines the normal representative parliamentary system, in which we have such faith and which I think is unequalled in the world, not least in protecting minorities. One of the great problems with referendums is that they take no account whatever of minorities. They have been described as the dictatorship of the majority, and I think that that is indeed the position, not least as far as the latest referendum is concerned.

I believe that we should consider all these issues very carefully and I hope that the debate will seek to clarify them further. Given the amount of interest in this issue by way of background papers and so on, this is clearly an appropriate moment for us to consider to what extent we should continue to use referendums and, if we do, in what form. I beg to move.

Photo of Baroness Stedman-Scott Baroness Stedman-Scott Deputy Chairman of Committees, Baroness in Waiting (HM Household) (Whip)

My Lords, time is very tight in this debate, and I respectfully ask all noble Lords to comply with their speaking times.

Photo of Lord Parekh Lord Parekh Labour 2:25 pm, 19th July 2018

My Lords, I thank the noble Lord, Lord Higgins, for securing this debate. We have had three national referendums so far and quite a few regional ones, but none of them has led to the kind of controversy that has arisen from the last referendum. There are two factors to that: first, it dealt with one of the most important events in our history, which is unscrambling the arrangements that we have had in place for the last 42 years; and, secondly, the result was totally unexpected—at least, unexpected by those who called it. Therefore, there is a danger that our debate on the place of referendums in a democracy could be clouded by our views on that referendum. In order to avoid that, I want to decontextualise the debate and talk almost entirely about the place of referendums in a democracy, irrespective of what happened with the referendum on the EU.

Our political system is parliamentary democracy, not parliamentary sovereignty, but I think that the two are often confused. First, it is a parliamentary democracy in the sense that the power lies with the people, and it is articulated not directly by the people but through the representative institution—namely, Parliament. Therefore, it is a democracy first and it is parliamentary second. It is a parliamentary democracy because it is democracy as articulated through the instrumentality of Parliament. Therefore, as a parliamentary democracy, people remain sovereign. Popular sovereignty, as in any independent state, is a basic principle of a political system, and that is true of our system as well.

Secondly, to talk of parliamentary sovereignty implies that the monarch has no role, but you cannot call a Parliament unless the monarch calls it, and the monarch is not a part of Parliament.

Thirdly, Parliament is subject to certain conventions and procedures. Unless those procedures are met, it is not properly constituted and its deliberations and decisions do not count as laws. Therefore, Parliament is not sovereign, and it is misleading to say that it is. Given that we have a representative democracy, the question is: what is the role of a referendum?

Here, I take a slightly different view from that of the noble Lord, Lord Higgins, because I am a keen supporter of referendums, provided that they meet certain conditions and are conducted in a certain way. Nearly 95% of parliamentary or representative democracies in the world practise referendums, and the fact that Hitler used them does not necessarily make them a weapon of dictatorship. For example, in a parliamentary democracy people might feel that Parliament does not represent them or that the political class, made up of different political parties, is already thinking in a certain way and acting on assumptions that people do not share, as I think happened in this case. What do people do in that situation? How do we elicit their views?

In that context, I think that people have a right to speak if they feel that the Parliament does not fully represent them. If they have a right to protest or demonstrate, they also have a right to express their views, and the only way they can do so is through a referendum. If people feel that they want to disown the political class, or if, on an issue of fundamental national importance, they feel that Parliament does not represent their views, how do people speak? They speak through protests and so on, or else through referendums. A referendum, with all its limitations, is a valuable constitutional device. It gives voice to people’s feelings and gives them a chance to express their views. It forces them to think, because a clear-cut issue is presented to them. It centres on a specific issue and is not won or lost by which political party is in power, as general elections are. More importantly, everyone feels engaged by it, and people feel committed to the decision that is taken because they have all thought about it individually and participated in it.

That referendums have a place in a parliamentary democracy is beyond doubt—as I said, we have already had three referendums so far. The important thing is to be clear about what the place of a referendum is: to constitutionalise it. It cannot just be an ad hoc convention by which a referendum takes place. It must be regularised and constitutionalised to give it a definite place in our constitutional system. This would mean laying down the conditions under which a referendum can be held and the manner in which it should be conducted so that information is provided to the people. It would indicate where a referendum is politically binding and where it is not, and where it should have a threshold or a supermajority provision. Once referendums are constitutionalised in this way, they would become an important part of our constitutional system and could be easily reconciled with any kind of parliamentary democracy that we happen to have.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat 2:31 pm, 19th July 2018

My Lords, in discussing referendums we have very much to put our discussions in the context of declining popular support, in this country and elsewhere, for parliamentary democracy. It is a real problem we all face, and we see it as it stretches across the rest of the democratic world. In Britain, we have a situation in which the people—and newspapers—who campaigned very hard for the restoration of British parliamentary sovereignty have, for the past two years, insisted that the “will of the people” as expressed in one referendum must override parliamentary scrutiny and further debate. We have disillusion with elites and with the establishment—with representatives, as such—and the rise of “authentic” charismatic figures who are seen to represent the people, even though they usually do not come from the people. We see that not just in Britain but elsewhere. When I see the Daily Mail giving large coverage to Jacob Rees-Mogg attacking the establishment as a man of the people, I feel that we are almost in a surreal world. But that is where we are, and the public school-educated journalists of the Daily Mail and the Daily Telegraph busily attack the metropolitan elite, even though they are all members if it; meaning, of course, that what they are attacking is those who think that evidence, debate and discussion are important to democratic politics and not simply emotion and gut feelings. That is the problem that faces us and into which context we have to put the future of referendums.

Membership of political parties has declined. In 1970, 5% of our voters belonged to political parties, the largest of which was the Conservative Party. In 2010, it was 1%. It has recovered a little since then, although in some unpublished figures, the Conservative Party is now the fourth largest political party in Britain after the Liberal Democrats and the SNP. It certainly ought to worry us that the governing party has become a central political machine funded by large donors without the roots it used to have among the population.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

What about the Labour Party?

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

That is a matter for the noble Lord.

We have a broken two-party system. In many other countries, the old parties have begun to break up and new parties are emerging, but ours are held in place by a voting system and by their privileged access to funding. We have a situation in which political education in this country is extremely poor—almost absent. The noble Lord, Lord Higgins, said that we believe in parliamentary democracy. However, my experience of the referendum campaign is that many people expressed deep confusion about the quality of democracy and the issues at stake because we have not tackled the question of how to educate our masters, as Disraeli said we needed to do, so many years ago. One reason I have been converted to the idea of the voting age being 16 is that it would encourage schools to get into political education in a much more active way. We all know how delicate and difficult that is, but we need enormously to prioritise citizenship, an understanding of the rights and obligations of citizenship, what we mean by the rule of law and what we mean by representative democracy.

It does not help that local democracy has been undermined and its funding cut back, and that we now have fewer elected representatives in England than in any other democratic country. We have seen the professionalisation of political campaigning, the rise of what the Russians call political technology, and the very slick way in which the anti-AV campaign and the Brexit campaign—both led by Matthew Elliott—used the peripheral, almost irrelevant, question of funding for the National Health Service to discredit other matters. That was very well done and very clever, given that it was not central to the issues. The influence of big funders—often offshore and occasionally foreign funders, and occasionally also dark money—is clearly something that we need to look at.

Where does that take us? Like the noble Lord, Lord Higgins, I have read the various reports. I was very impressed by the Independent Commission on Referendums and I strongly agree with many of its recommendations, including that referendums are best to ratify a decision which government has taken rather than to start a debate about what we might do if the population expressed a preference for X rather than Y. The last thing one should do, of course, is have a referendum to avoid the governing party having to take a decision first. That is what happened two years ago and is, after all, what happened in 1975.

I also agree with the commitment that referendums need to be embedded in a longer process of debate and negotiation, as far as they can be. Citizens’ assemblies and other things are mentioned, and in Britain we face the problem that we have a more highly educated electorate but they are less interested in politics. They want to listen to us on the radio or television only for 30 seconds at a time, rather than the two to three minutes we used to get 20 or 30 years ago. There is a real problem in getting complex politics across. I also agree that referendums need to be restricted to major constitutional questions. I further agree that referendums need to be tightly regulated. The report says rather optimistically that they need to be fair, but what we have seen in the context of the last two referendums—most recently in 2016—is that regulation needs to be not only clear but quickly imposed. Here we are, two years after the referendum, and the questions of where some of the money came from and whether the limits were exceeded still hang in the air.

Where are we as a result of all this? Referendums have become a part of the British constitution—we cannot take them away again—but they should be used rarely. Our democratic system is much shakier than it used to be, and politicians across all parties need to co-operate to repair and strengthen it. To paraphrase Winston Churchill: parliamentary democracy is the worst of all systems of government, except for all the others. And I am not at all sure that plebiscitary democracy is any better than parliamentary government.

Photo of Lord Wilson of Dinton Lord Wilson of Dinton Crossbench 2:38 pm, 19th July 2018

My Lords, I worry that we are all going to say the same thing. I am very glad to follow the noble Lord, Lord Wallace. What worries me is that there are strong forces at work, putting pressure on our unwritten constitution, and we do not have answers as to how to meet them. I congratulate the noble Lord, Lord Higgins, on this timely debate. I am very pleased that we shall hear two maiden speeches, one from the noble Lord, Lord Pickles, who has relevant local government experience, and one from the noble Lord, Lord Anderson, who brings to these Benches his wealth of constitutional knowledge.

We are proud—are we not?—that our constitution is not written down. Everyone else has to write it down, but we can get through without that. Indeed, one of my predecessors as Cabinet Secretary once said in evidence to a Select Committee, “Oh we make it up as we go along”, and there is a sense in which that is true. I remember on one occasion I asserted as Cabinet Secretary a principle—it does not matter what it was—as a long-standing convention and got away with it. My staff pointed out to me later that there was no reference to it in any textbook or other document anywhere. I had invented a long-standing convention on the spot. That plastic quality of our constitution is in some ways a huge advantage. Although we talk about our constitution over the centuries, the reality is that it changes the whole time.

If we look at the last 40 years, we have had entry to the Common Market, which was a huge constitutional change. Local government used to be an independent tier of democracy, but over the last 30 or 40 years it has become an agent of central government in many areas. When Secretary of State, Mr Charles Clarke actually asserted that it was an agent of central Government. Nicholas Ridley predicted it before the poll tax came in. That is a big change. “Where are the riots in defence of local democracy?”, I asked local government when that was happening, and there was no answer.

Similarly, Mr Blair’s years were a period of extraordinary change. There was devolution to Scotland, Wales and Northern Ireland. They were all different in concept and in content, but no one remarked on the inconsistency. We had reform of your Lordships’ House, freedom of information, the Human Rights Act and a whole raft of big change and yet nobody really noticed it. That is the truth: in this country no one is interested in the constitution and we tend to do big change as if we were under anaesthetic. We wake up decades later and wonder whether we meant to do what we did. It is happening with Europe at the moment, but devolution is another area. We tend to think about it only after it has happened and we should have thought about it beforehand.

Referendums have slipped in in this way because social pressures lead to big change in the constitution. Successive Governments, from time to time, have found it convenient to have referendums—not necessarily for the right reasons. We have similarly found—as Brexit illustrates—that we have had the referendum without paying much attention to the legislation for it and then we woke up and wondered what we meant by it. We must first look at the pressures that led to this demand for referendums. When I first entered the Civil Service, most informed policy debate took place within—though I have no evidence for this—5,000 to 10,000 informed MPs, civil servants, professionals and so forth in a small social space. But the social space is now tens of millions of people who have discovered that it is much more satisfying if they express themselves on social media rather than wait every five years to vote. That pressure is much bigger than the answer that referendums will provide.

We have to accept that referendums have come, but we should have a clear understanding that they should be the final step in a long process of democratic debate so that everyone is familiar with what comes forward and has had a chance to discuss it. It should be the final blessing on what has been done but no great shock, and everyone should be clear, with all the options, what will happen if they vote for them. We cannot have options put forward in a referendum where no one knows what they mean at the beginning of the process. The process is the wrong way round on Brexit. We should have the referendum only when we know what we are voting for. That is the fundamental point.

It is also nonsense to say that Parliament cannot overturn the democratic will of the people. Parliament is sovereign. We are a monarchy, not a republic. The Queen in Parliament is where sovereign power lies. I will not develop that because I am at the end of my speech, but the fundamental importance of accepting that Parliament is sovereign and that referendums can only be advisory is important, however difficult that is.

We are at the beginning of a process. Let us now look at the constitutional change that is coming and get it right before we implement it ever again. Governments should never offer an option in a referendum that they think would be damaging. How can you possibly defend, in the national interest, offering the public an option that you think will do them damage? But that is what happened with Brexit.

Photo of Lord Pickles Lord Pickles Conservative 2:45 pm, 19th July 2018

My Lords, I stand to address your Lordships’ Chamber for the first time. It is some 26 years since I made my maiden speech in another place and, even more dauntingly, it is 40 years since I made my maiden speech in Bradford City Hall. I was born in Keighley in a two-up, two-down in terraced housing close to the River Worth—and I can say that it is more than distance between the River Worth and this gilded Chamber. Somebody of my background was extremely unlikely to find themselves in this Chamber. However, my grandfather told me at the age of 15 that I would become a Member of this House.

Let me explain the background. On both sides of the family we were Labour voters. My great-grandfather helped form the Independent Labour Party at the beginning of the 20th century and my maternal grandfather was a Christian Socialist of the old school. He was a railwayman and it was his proudest day when the Labour Party under Clement Attlee nationalised the railways. I cannot help but feel that my grandfather would be very pleased with the present Government on the East Coast Line.

My grandfather was a keen supporter of Harold Wilson and George Brown and I continually argued with him—not, as you might think, as a prototype Selsdon man, but because Labour was not good enough. I was a Communist. My room was festooned with posters of Marx and Engels. I had Das Kapital and I read the Communist manifesto. For my 14th birthday my parents bought me Trotsky’s History of the Russian Revolution, which I read from cover to cover. I must tell noble Lords, with some distress, that a few years ago I tried to read it again and felt a little like Bertie Wooster being given the task by the most formidable of all his fiancées, Florence Craye, of reading Nietzsche. Bertie concluded that it was an excellent remedy for insomnia. Noble Lords will recall that Jeeves thought that Nietzsche was “fundamentally unsound”. Much the same could be said of Mr Trotsky.

But before I realised that, I was arguing that the Labour Party had betrayed the working classes by what the Wilson Government were doing and my grandfather said, “The trouble with you, young Eric, is you’re gullible: I wouldn’t be at all surprised if you didn’t end up as a ruddy Tory”. Then he went on—it pained me at the time and I am sure that it will pain noble Lords—“I wouldn’t be at all surprised if you didn’t end up with those half-wits in the House of Lords”. So here I am—the black sheep of the Pickles family, albeit with an ermine collar. My grandfather was a great man and I still treasure the Bible he gave me over half a century ago. Along with my parents, he was responsible for a very firm moral compass.

Besides my interest in the Conservative Party, which I am delighted to inform noble Lords has recently seen a massive increase in its membership, I have always been interested in social cohesion and the groups that make up the United Kingdom. At an early age, in the mid-1980s, I was co-chairman of the Joint Committee Against Racism with the late Labour MP Jo Richardson, whom I remember with great affection. Goodness knows what she would make of the current situation—but I will leave that for another time.

Whether it was in the Joint Committee Against Racism, or as leader of Bradford Council, chairman of the Conservative Party, Secretary of State or in my current job, I was always bolstered by some good advice given to me by my noble friend Lord Lawson of Blaby when I was a very young Conservative. I was at an event at which he explained what it was like to be a Secretary of State. Somebody asked, “How do you keep that up? How do you keep that rhythm going?” He said, “Because one day I know it will end”. Admittedly, ending in this place has a certain finality about it, but I have always felt that if you are given an opportunity to speak out, you must say what you think is right and make a difference.

I will briefly make a couple of remarks to my noble friend Lord Higgins, who taught me an awful lot when I was a very young MP. I cannot help but feel that Richard Nixon, who perhaps was not the greatest parliamentarian, had it about right: once you squeeze the toothpaste out of the tube, it is just about impossible to get it back in. All the very fine distinctions that have been made make not a jot of difference to the public. They have voted and the distinction is different. Even Charles de Gaulle, somebody I admire perhaps more than anybody, came unstuck on a referendum because the French public answered an entirely different question.

In conclusion, were my grandfather to look on the fine bunch of men and women that I see before me, I think he would regard his judgment on your Lordships’ House as a bit harsh. I think he would feel that I was in very good company.

Photo of Lord Sherbourne of Didsbury Lord Sherbourne of Didsbury Conservative 2:52 pm, 19th July 2018

My Lords, it is a real and genuine pleasure to follow my noble friend Lord Pickles. I have heard many maiden speeches in this House but I have never heard one quite like that. I learned a lot about his early years. Of course, he has had a most distinguished career in local government as leader of Bradford Council, a Member of Parliament —you could not wish for a more assiduous constituency MP than him—and a Cabinet Minister. Whatever job he has had, he is always refreshingly down to earth and direct, as we have heard. He has a clear and analytical mind. He is prepared to grasp nettles and bring about change when change is needed. He does all this with a twinkle in his eye. His great talent is his capacity to diffuse any political situation through his sheer presence. He brings great experience and expertise to this House and we warmly welcome him.

As others have said, today’s timely debate is thanks to my noble friend Lord Higgins. The Motion before the House tactfully talks about the impact of referendums on parliamentary democracy. “Tension” might be a more accurate word, because that is what we experience today. We know how it happened: after the 2015 general election, Members of Parliament exercised their judgment—as they should in a representative democracy—and voted to call a referendum. In a general election, voters delegate to politicians the responsibility for making complicated decisions; in many ways, the politicians delegate that responsibility to the voters in a referendum, at least up to a point. The question on the ballot paper was very simple: “Do you want to remain in the EU or do you want to leave?” The complicated question of how we leave the EU was not on the ballot paper, so it was left to the politicians to answer it.

The problem is that politicians cannot decide among themselves, which has resulted in Members of both Houses claiming that they have somehow been able to divine what people voted for: to take control, leave the customs union, not leave the customs union, not be worse off or whatever. Frankly, we do not know what they voted for, because people vote the way they do for hundreds and thousands of different reasons, many of them absolutely bizarre. The idea that everybody reads every line of every manifesto or piece of political literature is fanciful. Politicians are now grappling with what form Brexit should take and are beginning to call for a second referendum. “Let the people decide”, they say. “Do they want the form of Brexit that would be on offer or would they prefer, on second thoughts, to remain in the EU after all?” I am totally opposed to a second referendum. Let me explain why.

One of the great things about this country is that, every four or five years, millions of people go to their local village hall, library or school, take a pencil stub, put a cross on a scrap of paper and put it in a tin box. The next day, the most powerful and ruthlessly ambitious people in the land walk out of Downing Street and government without a drop of blood being shed. It is one of the glories of our democracy. It works by consent: people who do not like the result accept it, which is the foundation of our democracy. But if politicians say, “I know you voted to leave in the referendum, but don’t you think you might have made a mistake? Would you like to reconsider your decision?” then the political class undermines that referendum’s validity and the very foundation of our democracy.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop 2:58 pm, 19th July 2018

My Lords, I, too, congratulate the noble Lord, Lord Higgins, on securing the debate, which, as others have observed, is timely. A man who secured a silver medal in the 440 yards relay in the Commonwealth Games in 1950 knows how to pace himself. I also congratulate the noble Lord, Lord Pickles, on his maiden speech with all its fascinating revelations. I look forward to the maiden speech of the noble Lord, Lord Anderson of Ipswich, shortly.

Of course, I acknowledge that the United Kingdom cherishes a parliamentary democracy. That key point, and all that flows from it, has been powerfully argued by the noble Lord, Lord Higgins. It is the genius of this country that over time we have made use of ancient yet enduring institutions and constantly evolving constitutional practices to serve a thoroughly modern society. The Church was present in the counsels that predated Parliament and the estates that first gathered here. It has witnessed both the supremacy of the other place and the extension of the franchise. We are being looked down upon in stone effigy by those who witnessed Magna Carta, including two archbishops.

Parliamentarians have, at certain key moments, embodied the sense of the nation and articulated what needed to be said on local and national issues—as, indeed, on matters of global importance. We have sought and seek to legislate for the better welfare of our fellow citizens and we do so with our time, expertise and wisdom. We do so in this House upon our honour. Our role is to scrutinise, challenge, debate, consider and legislate. At the end, we offer our labours as a contribution to the parliamentary process and to Her Majesty for her consent.

Referenda are historically alien to the British constitution. However, the introduction of plebiscites into the British system is now a development, albeit regrettable, that we have to live with. We have legislation specifically on national referenda in the 2000 Act, such are their permanence.

It is worth considering why this has occurred. I identify at least two reasons. One is to determine intractable issues that people will not otherwise allow a Parliament to determine. In 1975 and 2016 it was, at least in part, to manage party divisions over our relationship with the key European bloc and bring certainty to a long-running issue. It came into play in the referendums on Scottish independence in 2014 and on Scottish and Welsh devolution in 1978 and 1997. As in some other countries, we now allow for key constitutional issues to be determined in referenda. The voting system referendum of 2011 was another example.

The second reason is not unrelated to the first. It is an understanding that, since democracy is the participation of the citizen in the politics of the community, referenda offer the widest and most direct form of such participation. They carry with them the sense of final arbitration of block votes on binary questions. The problem with binary question voting in a national ballot is that it invites the voting population to do what parliamentarians undertake in the context of debate and continuing process—mastering a complex topic. For referenda to continue—there is no sign of them going away—there needs to be on each occasion a mechanism, such as a Joint Committee or commission, responsible for public preparation on the issues. While there was extensive prior coverage lasting years and high-quality debate before the 1975 referendum, neither was evident in 2016.

Binary questions do not resolve complex matters of public policy, as the most reverend Primate the Archbishop of Canterbury made clear in this House on 7 March last year, during the Report stage of the European Union (Notification of Withdrawal) Bill. A referendum acts like a surgeon’s knife in amputation at a static point in time. By contrast, parliamentary deliberation evolves after each general election, facing each matter before it in scrutiny, argument and debate. A simple question determined by a slim majority leaves virtually half our nation permanently without a voice in the matter, in a way that a Parliament never does. As is said in Proverbs, chapter 21, verse 5:

“The plans of the diligent lead surely to abundance, but everyone who is hasty comes only to want”.

For both Houses of Parliament, the continued option of referenda poses a challenge. We need urgently to recover a sense with the public that we address the really important matters and do not shy from or endlessly postpone them. If we can find the means to communicate the importance of public policy and something of its texture in the media, the appetite for this innovation in the British constitution may wane. I sincerely hope that it does.

We are contending with matters that are the most momentous that this country has faced, certainly since 1940. There are those who, at the very time we need the sort of deliberation I have expounded, have sought to close down debate in this place in a plea that all is decided in a referendum and that the rest is for the Executive to determine. Such an approach is injurious to parliamentary democracy as evolved in this nation and I hope that we in this Chamber and in the other place will resist this misguided attempt.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 3:04 pm, 19th July 2018

My Lords, I am grateful for this opportunity to make my maiden speech in such an interesting and topical debate. I thank everybody who made my introduction to your Lordships’ House so enjoyable, including my supporters, the noble Baroness, Lady Warsi, and the noble Lord, Lord Pannick, and those—in particular, Black Rod and her staff—who have started to explain to a rather slow student both the geography and the procedures of this astonishing and remarkable place.

I am proud to associate myself with the town where my wife and daughters were born and where I have lived for most of my adult life. Since Anglo-Saxon times, Ipswich has prospered from trade with Europe, frictionless or otherwise. It stands also for global Britain, having manufactured the first railway locomotives used in China. Another distinction was lost without too many regrets just last week: the record of Ipswich Town Football Club in providing the England team with each of the managers to have taken it to a World Cup semi-final.

But my origins lie far from East Anglia, in non-conformist Yorkshire and in Scotland: in a small business in Skipton run by my Yorkshire grandfather, William Mason, a motorcycle champion, who later filled the sermons he gave as a Methodist lay preacher with the geology, physics and astronomy he loved and knew so well; and in the Kinloch Anderson company, best known as a kilt maker in Edinburgh and now in Leith, which this year celebrates its 150th anniversary in its sixth generation of family management.

My mother and father forsook their own family businesses for a new one—schoolteaching and, later, headmastering. Among their pupils at different schools in Scotland and England were the heir to the Throne and future Labour and Conservative Prime Ministers. I hope that that is a cause for congratulation, but in any event, with no prospects of equalling that achievement, I turned instead to the law. Since then I have scratched a living in a range of courts, as advocate and part-time judge, but I am most familiar with the courts of the European Union.

Opinions of course differ on whether the EU has contributed to the unprecedented peace and prosperity enjoyed in our continent over the past 70 years or merely coincided with it. But on almost any view, the European project constitutes the most advanced expression the world has yet seen of the international rule of law—a state of affairs to which British judges and lawyers have contributed with distinction, including my own mentors, the late Lord Slynn of Hadley, Sir David Edward and Mr David Vaughan QC, who sadly died earlier this year.

Change came for me in 2010, when I was invited to succeed the noble Lord, Lord Carlile, in his remarkable work as Independent Reviewer of Terrorism Legislation. Since then, in that capacity and others, I have spent most of my time in the invigorating if sometimes treacherous waters of counterterrorism, counterextremism and investigatory powers. This has left me with a deep appreciation for those who work in intelligence and law enforcement to keep us safe, both in Great Britain and Northern Ireland and indeed abroad. We think of the three police officers whose great and exemplary bravery was recognised only today. I have appreciation for others as well, not least the British Muslims who have impressed me on so many occasions with their energy, generosity and desire to contribute fully to the life of this country, and finally for your Lordships’ House, whose real and beneficial influence on the law in these areas inspired me to fill out the application form to join your number.

That leads me to this debate. In translating the result of the recent referendum into a position that commands assent in Parliament, we seem to be in some difficulties. No doubt those difficulties have many causes, but our current predicament highlights for me two linked issues relating to the use of referendums in a parliamentary democracy. The first is the problems that are bound to arise when opinion in Parliament opposes major constitutional change and the majority of the people demands it. It was instructive to learn from the University College report, at paragraph 2.47, that the usual practice in other countries is for constitutional change to need the endorsement of Parliament before it is put to the people.

Secondly, it is surely at the least highly desirable that irreversible constitutional changes should be made not just on the say so of a bare majority of those who voted on a particular day but by the settled will of a clear majority of the electorate. That is all the more important when, in contrast to the usual practice in other countries, a referendum is the sole decision point for such a change.

To this end, mechanisms such as voter turnout thresholds and supermajorities—a familiar feature of corporate governance—are available. The Constitution Committee of this House recommended in 2010 that such safeguards should not be ruled out. I was delighted to hear the noble Lord, Lord Higgins, make a similar point and was disappointed that the otherwise excellent University College report stopped short of endorsing these mechanisms, even in exceptional cases.

I am exhausting my ability to be uncontroversial and I have just exhausted my time as well. I thank noble Lords for their welcome and their indulgence.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 3:11 pm, 19th July 2018

My Lords, we are indeed fortunate to have listened in a single debate to two such distinguished maiden speeches, each delivered with great style, wit and charm. I am particularly pleased to follow my noble friend Lord Anderson and thus be the first to congratulate him. I confess to no surprise at the excellence of his speech: periodically during my years as a judge he used to come before us and make dazzling appearances; not invariably with success, but that was probably our fault and not his. He is described in the main reference book appraising members of the Bar as the—the, not a—leading EU public law expert, with,

“an incredible level of analysis and mastery of presentation … charismatic and charming”, and,

“a spectacular advocate”.

His huge contribution to public life, as the Government’s Independent Reviewer of Terrorism Legislation for some years, until February last year, needs no emphasis from me. It is well summarised, surely, in the citation for his knighthood, awarded just a month ago in her Majesty’s Birthday Honours List:

“For services for national security and civil liberties”.

To advance both those twin imperatives, wrongly thought by some to be in conflict, is surely a singular achievement. This House is going to benefit immensely, I suggest, from the expertise and wise judgments of my noble friend Lord Anderson, and we greatly look forward to his future contributions to our debates.

Turning to the issue of the debate, referendums, I first join with others in congratulating the noble Lord, Lord Higgins, on securing and so skilfully opening this debate. I should begin by confessing to having written a “Thunderer” article in the Times on this question in April, headed, “Britain needs one last referendum before we ban them”. A few days later I was confronted in a corridor by the noble Lord, Lord Lawson, to whom the noble Lord, Lord Pickles, has already referred. He asked me if it really was me who had written this piece, and when I acknowledged that it was he said he hoped I realised how stupid it was. Did I recognise, for example, that 20 years ago the referendum held on both sides of the border in Ireland had been integral to the success of the Good Friday agreement? I was, I confess, rather shaken by that encounter and I have become rather less clear in my view that once, by a further referendum, we have, as I suggest we should, obtained the public’s view on whether, after all, we should Brexit, we should, as I said in the article,

“legislate to ensure that never again will our parliamentary representatives feel bound by a referendum to sacrifice their own mature judgment on the altar of public opinion”.

My more up-to-date views are these. First, referendums are, I suggest, by their very nature a risky and dangerous way of determining important political issues. I will not quote again the famous quotation from Margaret Thatcher, but they are a populist device, all too often ill-informed and dangerously repressive, and they ride roughshod over minority interests. Of course, all that was notoriously true in Nazi Germany, as has been observed. Nevertheless, with appropriate safeguards there may be occasions when, perhaps as a prelude to major constitutional change, a referendum is indeed appropriate. The Good Friday agreement is, I am inclined to accept, a good example of that. So too, I think, was the vote on Scottish independence and possibly—although here I put a particular emphasis on safeguards—the vote on membership of the EU.

By safeguards I am really talking about the various ways of protecting representative democracy from the obvious deficiencies that we can now see to have afflicted the 2016 EU referendum. That gave the public a deceptively binary choice, to be made by a bare majority and in circumstances where, although in strict legal theory the result was advisory only, politically it was really compelling, as has been acknowledged, at least to the extent of requiring an Article 50 notification to begin the Brexit process, although not, I would argue, to the extent of pre-empting any further, final referendum once the available terms become clear.

Possible future safeguards, obviously interrelated, for any future referendum would, I suggest, include the following. First, we should require more than a bare majority of those voting before giving effect to a vote for change. Secondly, we should spell out as precisely and truthfully as possible the actual likely consequences of a choice either way. As my noble friend Lord Wilson put it, any referendum should follow, not precede, a full public debate on the questions at issue. Thirdly, we should make it plain that the result of the referendum will be treated as advisory only. The weight of such advice, the respect in which it is held, would depend always on the clarity of the choice offered to the electorate, the extent of the majority, in both absolute and proportionate terms, and indeed the relevance of subsequent events.

Taking the present situation, surely there are here highly relevant subsequent events. They include, do they not, the increasing likelihood that leaving the EU will prove altogether more difficult, and possibly damaging, than many of those who voted for Brexit can possibly have supposed; the discovery of substantial breaches in electoral law by those campaigning for leaving; and of course the mere passage of the two years, which of itself has enfranchised many of the younger generation, who plainly wish to remain.

Three suggestions have been made. The suggestion of the noble Lord, Lord Sherbourne, is that we simply slavishly follow the referendum, however imprecise may have been the decision then taken: it was to leave and we should do no more than follow that. Secondly, the noble Lord, Lord Higgins, suggested that parliamentarians could properly now ignore the referendum utterly. I suggest that there is a real risk of forfeiting public trust in the political process if that course was taken. Thirdly, it is suggested that we should ask the public and respect their view on the deal now available by a further referendum, and that is the course that I support.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 3:20 pm, 19th July 2018

My Lords, I too congratulate my noble friend Lord Higgins on initiating this debate. Although we have variously discussed and legislated for referendums, we have little experience of debating the merits of referendums qua referendums. There is a tendency to advocate a referendum as a means of achieving an outcome that may not be achieved through other processes.

Referendums are offered as tools of democratic expression. They are, however, in conflict with responsible government. Government can be held accountable to electors for the decisions that they take and the outcomes, but how can the electorate hold themselves accountable for the outcome of a referendum decision? Decision-making through referendum is, strictly speaking, irresponsible.

The form of a referendum is also problematic. As the right reverend Prelate mentioned, voters are faced usually with a binary choice. The stark choice between A and B leaves out a choice between A-plus and A-minus and between B-plus and B-minus and option C. That relates to another fundamental problem—my noble friend Lord Sherbourne has touched on this. We know how people vote, but not why. Did those voting for A prefer A-plus or A-minus? The 2016 EU referendum appears to have generated a remarkable body of mind readers. We keep hearing from some that the 17.4 million who voted to leave voted for a hard Brexit. We hear from others that, in fact, electors voted for a soft Brexit. We know definitively that a majority voted leave. We do not know definitively why they voted leave. Survey data may suggest the reason or reasons, but polls are a form of political intelligence and are often given a weight that they cannot bear. There is no way authoritatively to resolve that dilemma. Even if one holds a second referendum, it will not reveal why people voted the way they did in the first.

The EU referendum reveals other problems. Referendums are advocated on the basis that they generate debate and a more informed electorate and that they produce a decisive result, perhaps for a generation. I contend that the 2016 referendum debate was not notable for a high level of intellectual discourse. It was a confused debate and indeed an exercise, on both sides, in how not to conduct a referendum debate. It did not clearly resolve the issue. As with other referendums, no sooner does one have a result than those on the losing side start finding reasons why there should be another referendum.

There are thus powerful arguments to be made against referendums. The problem, as several noble Lords have said, is that it is now too late to close the lid on this Pandora’s box. Referendums are part of our constitutional architecture. In my view, they are a rather ugly feature, but we have them. Given that we have them, the challenge is managing them effectively with a clear set of rules that are applied consistently.

To listen to some Members of your Lordships’ House, one would think that this House was not involved in passing the EU referendum Bill. Objections are expressed to implementing Brexit on the basis that the majority for leave was small and that therefore it should not be implemented. That is to apply retrospectively rules that we did not embody in the referendum Bill. The time to argue over supermajorities or turnout thresholds was when we were discussing the details of the Bill. It is now rather too late to discover that one provided for the outcome to be determined by a simple majority.

We could have made the referendum binding, as we did with the 2011 AV referendum. I presume that the Government set their face against doing so because that would be to concede that the leave side might win. We are thus in a position where some argue that we should not implement the result of the referendum as it was advisory. I have always made the point that it would be perverse for Parliament to legislate for a referendum and then ignore the result.

Dicey provided the classic definition of parliamentary sovereignty. What is often overlooked is that he made the point that legal sovereignty rested with Parliament but that political sovereignty rested with the people. He wrote:

“The electors can in the long run always enforce their will”.

Arguing that Parliament can set aside the outcome of the referendum is politically naive and potentially dangerous. If we do not intend to abide by a referendum outcome, we should not legislate for one.

The position that we are in shows the problems with referendums. But we are in the situation we are in. If we are to have referendums, let us anticipate and determine clear and agreed rules. The report of the Independent Commission on Referendums, set up by the UCL Constitution Unit, to which reference has already been made, has just been published. It identifies clear criteria for holding referendums and its proposals merit serious consideration. I hope that the Government will take the proposals seriously so that, in future, we can argue over the merits of a case and not muddy debate with arguments that cannot be resolved over process and motivation.

Photo of Lord Judd Lord Judd Labour 3:26 pm, 19th July 2018

My Lords, whenever I listen to the noble Lord, Lord Norton, I always think how immensely fortunate we are in this House to have somebody who approaches matters of this kind with so much clarity and convincing analysis.

I thank most warmly my old personal friend, the noble Lord, Lord Higgins, for having given us the opportunity to discuss this matter today. I have always been persuaded that the constitution in the broadest sense belongs to the people and that we are the practitioners. But of course it is not as simple as that, because what has evolved with our constitution—and it is just as well to have been reminded by a former Cabinet Secretary that it is changing every day—is that we have representative democracy, and we have very firmly as the pillar of our democracy the concept that communities send representatives, not delegates, to Parliament. Of course, they are morally and intellectually party to the manifesto to which they subscribe, but in Parliament they are expected to use their judgment and wisdom in the interest of the people. That is very precious if democracy is going to work.

Going with that is the concept of consensus. Within whatever constraints come out of a general election, there is a certain limit on absolutism. Other views have to be taken into account; no Parliament can be binding on its successor. Others may come and change the situation. This leads to give-and-take and modification, a process of self-education in Parliament about the issues faced and the solutions advocated.

After quite a long time in Parliament, I feel more strongly than ever that parliamentary democracy will work successfully only with strong, clear political leadership. It is essential for leadership to spell out to people what the issues really are, their implications and what is needed to put them right. We cannot abandon that process to the media and the ill-prepared public.

I must recognise, however, that the people were given the opportunity to express their views in a referendum. I cannot for the life of me see how—in the light of all that has emerged since, all the discussions and all the realities that have been revealed—we can possibly seal such a significant change in our constitution without the people having had an opportunity to endorse again whether they accept what is being put forward. I am not sure that I favour another referendum. However, if not a referendum there must be a general election before the situation is sealed, because the people must have had an opportunity to hear the arguments and to listen to contrary points of view on what should be done, before making their decision.

I do not think that it was right to go down the road of a referendum, and I am uneasy and a bit disturbed by the rationalisation that is now going on. With great respect to my noble friend Lord Parekh, I question how you constitutionalise that process: I do not believe that referenda and parliamentary representative democracy can work alongside each other. One is about intelligent and critical debate and outcome, cut and thrust and building consensus and so on, and the other, when it comes down to brass tacks, is about oversimplified, emotional decisions.

Forgive me for coming back to this theme pretty well every time I am on my feet, but one of the saddest things about the whole referendum process is that anyone who thinks and experiences life in this country knows that we are totally interdependent with the rest of the world: defence, the economy, security and migration all require an international approach—working out what is the best way forward in the interests of our people by working together. That is why I believe that we must seek the endorsement of the people through a general election in which these issues can be fully debated.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland) 3:32 pm, 19th July 2018

My Lords, decades ago my noble friend Lord Steel of Aikwood said that the British constitution was not worth the paper it was not written on. Now we have a more dysfunctional constitution than many of us have ever seen. I do not concur with some of the sentiments expressed to the effect that this wonderful unwritten constitution kind of dynamically works. It is in danger of failing to work and letting us down very badly. If our Parliament does not understand that and start to think about it, we may find that centuries of evolution can be crushed in a very short time.

I want to refer to two different referendums that we had on constitutional issues. In the Scottish referendum on independence there was at least a semblance of a framework. I will claim some credit: it was during a period of coalition, with a Liberal Democrat Secretary of State for Scotland who recognised that there needed to be a shape to that referendum. The shape took the form of the Edinburgh agreement, where all the parties agreed on the principles and the outcome, and that it would be accepted as a once-in-a-generation decision. That was not enforceable but was nevertheless part of the agreement.

It also forced those calling for the referendum—the nationalists—to at least set out, in a very long White Paper, the basis of what kind of independence they were asking the people to vote for. Much of the detail of that White Paper was challenged—and was very challengeable—but it was at least a framework. It forced them to say things such as, “We would operate with the pound sterling”, which exposed the fact that, as we had no central bank and required the authority of the remaining part of the United Kingdom, that was a basis on which independence would not fly, and almost certainly determined the outcome of the referendum, which was to remain part of the United Kingdom. If a process even vaguely approaching that had taken place with the Brexit referendum, there might have been a difference in the context of the debate and the outcome.

History will treat David Cameron very harshly, because to put a question to the people that involved an answer which you had no idea how you could deliver was the most appallingly irresponsible and cavalier, short-term political approach to the destiny of our nation. History will not forgive him for that. We now face a situation in which the majority of people in Parliament and in Government believe that we are embarked on a decision that will deeply damage our country for many years—if not generations —to come. I do not mean just economically: I mean politically, in terms of our standing and influence in the world.

It is essential, therefore, that we look at how we are abusing our constitution, and if we use instruments such as referendums we find ways of putting them into proper contexts. They should probably be reserved mostly for constitutional issues, and a two-stage process may be the only way you can make them work where there is a binary decision. That involves asking people in broad terms which way they want to go, but with a clear undertaking that, having set out the course, the mechanism will then be developed before they are again asked, “Is that still something we should follow through?” I find it ironic that of all the parties in the country at the moment, the one that is most enthusiastic about campaigning to give people a referendum on the outcome is my own party, the Liberal Democrats when we are the party that least needs the referendum. We were completely united from start to finish that it was the wrong thing to do and we should not do it. It is the other parties which are split and may have to go back to the people to get a resolution of their own difficulties, because they are not capable of resolving them themselves. There just seems to be an irony about that.

The position that we need to develop is: if we are routinely to use referendums in future as a means of determining a position, the first thing we have to be clear on in law is whether it is a consultative, advisory referendum or a binding referendum. If it is the latter, before the question is put you have to be able to tell people what the implications or consequences of either of the answers are in detail. The argument we are now faced with is that having had a referendum, anybody who suggests that we should do anything other than implement that referendum—even though we have no idea in what way to do it—is frustrating the will of the people and despising the democratic process. I think it is offensive to suggest that. I do not blame people who voted leave in the context. They were told lies and left to make all kinds of judgments. They were voting for all kinds of reasons, as has been said. It is not my view that they got it wrong, or anything else. Some of them might be absolutely certain that they know what they want and would vote for it again.

However, I believe categorically that when we know that the nation is facing a serious potential mistake, the very least we have to say to people is, “First, we have to be able to agree a course of action, so if we do not have one we cannot have a referendum”. But we are all faced with a situation where literally none of us has the slightest idea what will happen to our country next week, next month or by next March. Yet we turn around and claim that we represent the people and can somehow or other deliver for them, and that we are bound to implement their decision, even though we do not know what it means, because we did not think about that when we asked them the question.

The noble Lord, Lord Higgins, is absolutely right to have initiated this debate. It is essential that the country thinks hard about how we work our constitution and use instruments such as referendums in ways that do not take our country from disaster to catastrophe.

Photo of Lord Eames Lord Eames Crossbench 3:39 pm, 19th July 2018

My Lords, I, too, thank the noble Lord, Lord Higgins, for making this debate possible. A week ago the report of the independent commission on referendums, which has already been referred to, was published. When I was invited to be a member of the panel that produced that report, I went into those sessions with two human emotions. The first was that I came from a part of the United Kingdom where the people had spoken with such force in the Good Friday agreement referendum—and I also came from a part of the United Kingdom which had voted contrary, by a majority, to the rest of the United Kingdom on the Brexit issue. There I had two contrasting human pictures of the power, purpose and result of a referendum.

What did I find? I found that in all our discussions in that panel, which comprised politicians, the media, academics and people who had experience of referendums, and which resulted in 70—I say again: 70—recommendations in the report, what came through time and time again was that there is a human side to the dilemma of the referendum issue. Let me explain briefly what I mean. Having been Anglican Primate in Ireland through all those years, and being absolutely involved in the events that led up to the Good Friday agreement, to feel the people speak with the volume that they did when the possibilities and results of all the discussions were made known was not only an emotional endorsement but a constitutional endorsement of the way forward. You could not be in the position that I was in and not be totally overcome by the power of what was possible by having a referendum and giving the people the choice.

The difference between the two referendums was that the people knew what we were proposing as the way forward. There had been preparation, education, discussion and dialogue, and when the first referendum was held and the Good Friday agreement, or Belfast agreement as it is sometimes referred to, was put before the public, they were in a position to say, “This is what we want. This is the way we are prepared to go”—and there was no disillusionment as to the possible outcome. Moving on to the second referendum, there is a part of the United Kingdom that by a majority decides one way and finds that, when the whole picture becomes plain, it is in a minority. The democracy that we all believe in said, “Fair enough. Northern Ireland has expressed its view but the referendum says, ‘This is the view of the United Kingdom, so we go this way’”.

I cannot overemphasise the degree of confusion that exists in Northern Ireland today, not only about the border, and not only about the fact that so many of the consequences of Brexit will be felt by us first in the United Kingdom, but about the fact that we have learned two lessons about referendums from the examples that I have given. It was therefore no surprise to me that there were three consequential suggestions from the independent commission’s report:

“First, we should seek to ensure that referendums fit as well as possible into the rest of the process of democratic policy-making, so that there is effective preparation for any referendum and the choices available to voters are as clear as possible”.

The last speaker reminded us of the significance of that in the Scottish situation.

Secondly, we suggest that,

“referendum campaigns should be conducted in a way that is fair to both sides and enables voters to access the information that they want before deciding how to vote”.

The noble Lord, Lord Norton of Louth, reminded us of the significance of that point. The third suggestion is that,

“the rules around referendums should be updated for the digital age, so that transparency is maximized and it is harder for the system to be abused”.

In making a plea from my own experience of the two contrasting consequences of the process of referendums, I suggest to the House that not only should this independent report be seriously considered but that the House should understand that there are different facets of how the population of the UK approach a referendum situation.

Photo of Lord Bilimoria Lord Bilimoria Crossbench 3:46 pm, 19th July 2018

My Lords, I thank the noble Lord, Lord Higgins, for initiating this debate. He talked about things being riddled with lies. The finances of the Leave campaign have just come to light, and there are people calling out for the whole thing to be rerun because of that. I congratulate my noble friend, whom I have known for many years, the noble Lord, Lord Pickles, on his excellent maiden speech; it was fantastic to hear his story. I also welcome the expertise of the noble Lord, Lord Anderson, my noble friend on the Cross Benches. I am sure that both noble Lords will make a phenomenal contribution.

The whole idea of referenda is that they are simple yes/no questions. The interpretation by the Prime Minister and the Government is that the people voted to take back control of our laws, our borders and our money and that therefore we will leave the single market and the customs union and there will be no more ECJ—simple, cut-and-dried red lines. We have had only three UK-wide referenda in our history, including the one in 2016. The 1975 referendum on the European Community was not a vote to join; we had already joined in 1973. The referendum was on whether or not we should stay in. Similarly, the AV referendum in 2011 was for no change, based on the idea that, “You know what you have with our current system; this is what you’ll get if you go for AV”. Then of course there have been eight referenda on devolution in Scotland, Wales and Northern Ireland.

We have to remember the results of those other two UK-wide referenda: in 1975 it was 67.2%, a two-thirds majority, while in the 2011 AV referendum the result was 67.9%, another two-thirds majority. What were we doing—were we asleep when we passed the referendum Act and did not insist on a two-thirds majority threshold? I am not advocating a written constitution but in every country that has one, if you want to change that constitution there is invariably a two-thirds hurdle, and Brexit means changing the constitution in a huge way. Referenda should be used only in very rare circumstances. The Constitution Committee has given some examples, which I shall come to.

In 1945, the Labour leader Clement Attlee responded to Winston Churchill’s wanting to hold a referendum to extend the wartime coalition by saying:

“I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and fascism”.

As we have heard from the noble Lord, Lord Higgins, Margaret Thatcher said they are,

“a splendid weapon for demagogues and dictators”.

Then Margaret Thatcher spoke about this whole concept of representative government, where elected representatives—not delegates of their constituents but representatives—make decisions in the interests of their constituents and the country as a whole. We keep hearing about the 17.4 million but what about the 16.1 million people who voted to remain? That is a huge minority. That is the other point about the representative system of democracy: it protects minorities and ensures that their interests are taken into account. Here you have the tyranny of the majority on a one-off vote with a permanent effect.

Look at the effect that that has on MPs. If you look at the list of what the Daily Mail calls “mutineers”—the rebel MPs, the brave Nicky Morgans and Jonathan Djanoglys—you can see that many of them have constituencies that voted to leave, but they believe that it is in the best interests of the country to remain. So this has really challenged the whole concept of parliamentary democracy. To top it all, people were given four months to decide on an issue of such complexity—from February to June 2016. Then there is the asymmetric reversibility of referendums. There is a big difference between the consequences of voting for the status quo and a vote for independence or withdrawal. A leave vote is irreversible, whereas with a remain vote you can always come back again and have a vote to leave.

Here is the crux of it all: I am told that it is undemocratic to challenge the will of the people. No, no—it is very democratic. In a normal electoral cycle, every four or five years you make a decision and, if someone wins by 50.1%, they have won. Five years later, as Keynes said—and even David Davis says that a democracy cannot be a democracy unless you can change your mind—you can change your mind and you can vote them out and have something else, after the facts have changed. That is real democracy, not holding people to something permanent. On top of that, you have the youngsters who were not allowed to vote. The demographics have changed in these two years; there are two years’ worth of 16 and 17 year-olds who are now eligible to vote—and there will be more by the time we come to next year.

Things have changed, the facts have changed and our economy has changed. It was the fastest-growing economy in the western world two years ago; now Europe is growing faster than we are. The timing of the referendum was absolutely wrong; the migration crisis was at its peak and it frightened people. And then there is the reason for the referendum. Why did David Cameron do it? It was for the right wing of his party and for UKIP. Things have changed. Where is UKIP today?

My conclusion to this is that, in having a referendum, we should have had a threshold. Now we have the consequence where there are three options. The first is that we may have a hard Brexit, which will be unacceptable to this Parliament and the people of this country. Secondly, we could have a soft Brexit, with the EEA option, which is where we might end up—the least-worst option. That might be acceptable. The third option is that we might end up remaining. In my view, there is no option, and we are headed for something—call it a second referendum, call it referendum part 2 or the people’s vote. That is most likely to happen and is probably the most democratic solution to the conundrum that we have brought upon ourselves.

Photo of Lord Cormack Lord Cormack Conservative 3:52 pm, 19th July 2018

My Lords, I have considerable sympathy with many of the points made by the noble Lord, Lord Bilimoria. There has been a subtext to every speech in this very remarkable debate, introduced so splendidly by my noble friend Lord Higgins. The subtext has been, “I wouldn’t have started from here”. I have to say to myself as well as to everybody else that we are indeed where we are.

We have had two very fine maiden speeches in this debate. My noble friend Lord Pickles made a gently but wonderfully idiosyncratic speech that we will all remember. It was a potted autobiography, and all the better for that. The noble Lord, Lord Anderson, made a very fine speech. I am just sorry that he was not appropriately dressed for it, in view of the fact that he comes from a family of kilt makers.

This is an incredibly serious matter. I was very taken by the reference to the Netherlands by my noble friend Lord Higgins. I would love to have a Bill before your Lordships’ House stating that there will not be any more referendums. But, again, they are now part of our system. We could of course have one that would have one question: do you wish to continue to live in a parliamentary democracy? I believe that a parliamentary representative democracy is really inimical to the concept of a referendum, but we have to accept that there will probably be other ones.

Let us remember that it is our duty to learn from our mistakes. We made mistakes when we passed that Act without inserting requirements for a specific majority, as the noble Lord, Lord Anderson, suggested we might have done—but we did not. The lesson that has come out of this debate more clearly than any other is that a referendum should be to ratify what Parliament has decided. That is in fact what the referendum of 1975 did. I took part in it; it was an intelligent debate. I had Labour Members of Parliament, colleagues, staying in my own home and taking part with me in meetings in my own constituency. Everybody knew what it was about. We had entered what was then the European Economic Community and were deciding whether to endorse that particular decision. As the noble Lord, Lord Bilimoria, has just reminded us, we endorsed it with more than a two-thirds majority. The noble and right reverend Lord, Lord Eames, also talked about Northern Ireland but, again, that was endorsing—ratifying—something that had in effect already been decided.

Any referendum Act—and there is a need for one—should have two principal objectives. First, the referendum should be to ratify what Parliament has decided and, secondly, as with those countries that have a written constitution—to which the noble Lord, Lord Bilimoria, and others referred—there should be a threshold, as we had in 1979, and a percentage. No referendum should ever be judged as an instruction from the people unless there is a very large majority indeed. The majority of 2016 was something of a generational majority; my grandchildren were in tears because of what my generation had done to them. We cannot rerun it. I am not one of those who will advocate a second referendum, but I really do recommend that we heed the lessons of our recent past.

I have always been a great student of the English Civil War. I have known the facts for a very long time, since I taught them as a schoolmaster. In the last few months, I have come to understand the emotions. Parties have been torn apart and friends have said things to friends that a friend should never say. I really do believe that that is because the result was so close. We have to learn these lessons. I suspect that Mr Cameron, who chose the wrong time for the referendum, when people were confusing migration and immigration—remember that dreadful Nigel Farage poster of the Syrian refugees—made a promise not thinking that he would have to deliver. I think he still felt that he would be to some degree dependent upon Liberal Democrat votes, which was not something that would lead to a referendum.

As I said, we are where we are. We have got to make sure that such a division never occurs in our country again. In the next few months, we have to try to heal the wounds—which are quite deep—that have already been caused.

Photo of Lord Dykes Lord Dykes Liberal Democrat 3:58 pm, 19th July 2018

My Lords, we have had a debate of enormously high quality from all speakers today—a very special occasion. I hope, therefore, that I shall not be the exception, because I share the joint feelings of remorse and dismay about what has happened in this country, and the way that we have lost our way as a result of it. I am not decrying the result of many millions of votes—far from it. I am a great believer in collective democracy of that kind, but we have lost our way as a result of what really was a mistake made by people who have now been described as all having voted for the same reasons, but who did so for all sorts of different reasons. This is a national tragedy of unrivalled proportions that fills me with great gloom as well as a determination to try to help, in a modest way, to rectify the huge mistake that this country made in 2016.

In the meantime, however, this House has gained two excellent new stars in the firmament. We thank the noble Lord, Lord Pickles—whom I have always admired and whose career I followed as much as I could from a distance when he was in the House of Commons as a distinguished Member and, finally, a Cabinet Minister—and the noble Lord, Lord Anderson. We thank them very much for their history, their remarks, and their commitment to this new place, which I hope they will not find too eccentric. I was particularly grateful for the remarks of the noble Lord, Lord Anderson, and the breadth of his vision, and that important explanation about the European Court of Justice. I have always been an enthusiast for the European Union. I make no apology for that now and I have never reduced that view. In fact, it is now even more important to the health and welfare of all the member states than it ever was in the past.

We are lumbered in this country with the tragic misfortune of having five or six extreme, right-wing newspapers, owned by owners who, by the way, conveniently do not pay UK personal taxes and live as tax exiles, and who inflict on us long, boring editorials about the need for patriotism in Britain. For some reason, they have focused on anti-Europe as a main theme for their papers, which become comics and magazines rather than newspapers; they become propaganda sheets rather than genuine purveyors of news. It is the only European member state that has this tragedy and I regret it. I blame and feel bitter about the Murdoch experiment in this country, which did so much damage, and overlapped with other newspapers in the way that they dealt with things—we have to contend with that as well.

It is invidious in such an array of high-quality speeches to single any one out, but I particularly thank the noble Lord, Lord Norton, for his words of great constitutional wisdom. I also thank the noble Lord, Lord Bruce, for what he said; I am tempted more and more to agree with him that the lack of a written constitution is a disadvantage rather than a plus point. We have always been proud of being different from the others in saying, “No, we don’t need a written constitution”. However, as the former Cabinet Secretary pointed out very clearly earlier in the debate, that has now become a mistake and a liability, and somehow we have to get through this.

As others have said, this is the first time that a referendum has been inflicted on the country without any particular rationalisation of why the country should vote either one way or another—except the emotional thing about staying in or leaving the European Union. It is totally different from the 1975 referendum. I agree with the noble Lord, Lord Cormack. When we worked reluctantly with the Conservative Party on that, we disapproved of the referendum idea, but we all worked for a good result—there was one and the country settled down.

Why has this country remained the bad member of the European club? It is a club of friendly, sovereign countries working together, using majority voting sometimes and unanimity at other times, building up the European Union by treaty, and increasing the collective sovereignty of the whole body—as well as the individual sovereignty of the member states—whenever they make a collective decision. Most member states regard that as a good thing. Why has Britain been the unique exception to this and had this strange attitude that, somehow, it is them against us and they are doing us down? There is this hostility to the European Commission as well. It is one of the smallest civil services in world history, running on the instructions and requests of the European Parliament—which is democratically elected on an increasing turnout, and has more influence in the 50:50 system of legislation—the Council of Ministers and sovereign member states.

That is what we need to emphasise as we approach, I hope, the resolution of this ghastly crisis. The Government is in disarray and I am afraid the Prime Minister has made mistakes in handling this matter since the referendum result. I still wish her well in coping with it but, none the less, we have to deal with it and solve it, and restore the feelings and confidence of the people in our political system by restoring the sovereignty and strength of our parliamentary democracy.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 4:05 pm, 19th July 2018

My Lords, we have been treated to two most memorable maiden speeches, and I think we will all enjoy in future the contributions from the noble Lords, Lord Anderson of Ipswich and Lord Pickles. We are also hugely indebted to the noble Lord, Lord Higgins, for introducing what must be one of the most topical debates ever to have come before your Lordships’ House. In that connection, we are also extremely grateful to the noble and right reverend Lord, Lord Eames, and his colleagues, who produced this great work. I went to the launch last week and listened with interest to his contribution today, and I shall make some more references to that report in a moment.

The quick answer to the question posed by the noble Lord, Lord Higgins, is that if representative democracy was as effective and democratic as we are entitled to expect in a mature country such as ours, we probably would not need referendums. We need them because it is not, I am afraid, as perfect as we should like. That point was made eloquently and thoroughly by my noble friend Lord Wallace of Saltaire.

The Report of the Independent Commission on Referendums is remarkable for a number of reasons, but its membership deserves some mention. It was high-powered and cross-party, and included important leavers and remainers. I think that Parliament—and government—will have to look carefully at its recommendations. There are 70 of them; I have been through them and ticked the great majority of them enthusiastically. The Minister, having recognised on Tuesday that the present legislation was frankly not fit for purpose—I think I am quoting him fairly from our exchanges—will acknowledge that we will all have to look at this work very carefully. It picks up the point made by the noble Lord, Lord Cormack, just now: we must learn from mistakes. The commission’s report goes through those mistakes with admirable clarity.

The comparisons made by my noble friend Lord Bruce with our previous referendums—in Northern Ireland, which the noble and right reverend Lord, Lord Eames, referred to, and in Scotland—were absolutely critical. That, too, was picked up by the independent commission. I could give many examples from its recommendations, but clearly time is not on our side. However, I will pick one or two, because they are relevant to all the discussions that have taken place in your Lordships’ House this afternoon.

First:

“Referendums are best suited to resolving major constitutional issues, such as those relating to sovereignty. They work best when they are held at the end of a decision-making process to choose between developed alternatives”.

That point was made eloquently by the noble Lord, Lord Wilson. Secondly:

“Any legislation enabling a pre-legislative referendum should set out a process to be followed in the event of a vote for change. If a government does not produce a detailed White Paper on the proposals for change, a second referendum would be triggered when the legislation or treaty implementing the result of the first referendum has passed through the relevant parliament or assembly”.

I know that the noble Lord, Lord Higgins, and other noble Lords are perhaps sceptical of the value of a second referendum, but the independent commission makes a solid point there.

Thirdly—a detailed point, but very relevant at the moment:

“Imprint laws that apply to printed campaign materials should also be extended to apply to online campaign materials. This would allow voters to identify the source and legitimacy of political advertisements”.

And finally:

The Commission has made various recommendations that require amendment to the legislative framework for referendums called by the UK parliament. It hence recommends new legislation to amend the Political Parties, Elections and Referendums Act … 2000 and bring these changes into effect”.

I could quote many other recommendations, many of which have been echoed on all sides of your Lordships’ House this afternoon. However, I will now concentrate for just a few minutes on what happens next.

In contrast to his colleague in the Commons on Tuesday, the noble Lord, Lord Young, clearly accepts that the current legislation is not fit for purpose. The repeated advice of the Electoral Commission and the Information Commissioner, with the continuing inquiries of the DCMS Select Committee in the other place, make this all too evident.

Occasionally it is alleged that the margin of the outcome of the 2016 referendum could not be due to the improper use of online campaigning; the Minister himself has drifted somewhat in that direction on previous occasions. The jury is out on that point: the margin was less than 4%, a 2% swing would have taken it to remain, and for every 17 people who voted for Brexit, 16 voted to stay in the EU.

I am sure that the Minister—who is always extremely well informed and briefed—has studied very carefully the authoritative report published recently by the Constitution Society, Data and Democracy in the Digital Age. He is nodding. The figures quoted there are very persuasive. Between the elections of 2015 and 2017, the Conservatives increased their expenditure on online platforms, data agencies and consultants from £2.2 million to £3.9 million; and Labour from £368,000 to £1.7 million. In the 2016 referendum the remain campaigns spent nearly £4 million and the leave campaigns some £4.5 million. Of course, those are only the returns that were recorded. They can give us only a hint of what others may have spent illegally—including, of course, the Russians, the so-called “dark money”, to which reference was made earlier in the debate.

This week’s report of the very thorough investigation by the Electoral Commission adds to the urgency for greater transparency and more effective penalties for breaking the law. If those big sums are being spent in that way—legally or illegally—either those who provided them have been fooled into investing in something that is a complete waste of money or a lot of very clever people have got the wrong end of the stick. I do not believe that and believe therefore that those very considerable sums were spent with the intent to have real influence.

In the last few days we have had the report of the investigation of the Electoral Commission which adds to the urgent demand for greater transparency and for more effective penalties for breaking the law. The two main leaver gangs stand accused—officially—of both lying and now cheating, and the modest fine is laughable. Knowingly spending an illegal £500,000 and more and being fined £61,000 cannot be accepted as appropriate.

If this vast expenditure has insignificant impact then, of course, it may be that it does not really matter—but clearly it does. Parliament will have to legislate for the digital age and, in particular, we need to improve the defence mechanism to prevent foreign interference. The source and legitimacy of all forms of support—in kind as well as in cash—must be reviewed, and here the role of American billionaires may be as influential as that of Russian state-sponsored bots.

There is unanimity among our statutory advisers and other interest organisations that the law needs updating urgently. The Minister himself referred again on Tuesday to his party’s 2017 statement, recognising the,

“broad consensus that election law is fragmented, confused and unclear”.—[Official Report, 17/7/18; col. 1140.]

He also reminded your Lordships that we cannot just take down the previous Act from the shelf—there is an Act for each referendum—because, despite the recommendation of the independent commission that there should be generic law covering all referendums for consistency, we have not got it.

It surely is necessary now to start the process to find a consensus on what needs to be done. The work of the independent commission gives us a very good start. We could start now to draft the main amendments and new clauses that would be likely to command that consensus—inside and outside Parliament—so that we can be ready for whatever may be needed in a few months’ time.

I do not think that we are in a process at the moment that can end up simply with a political fix—an agreement to do whatever in a few months’ time within the political system. As the noble Lord, Lord Norton, reminded us earlier, political sovereignty rests with the people. If you once ask them a question and then decide you may need to change that a bit in future, it will not be sufficient just to bring it back to Parliament. However much we revere and respect the sovereignty of Parliament, we will have to think about how the people feel as well. After all, yesterday even the normally cautious and sceptical Times reported increased support for, and an increased likelihood of, a further poll. I believe that it would be simply irresponsible for the Government not to start work now on updating the referendum legislation.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office) 4:14 pm, 19th July 2018

My Lords, the great danger in speaking late in a debate with so many thoughtful contributions and such experienced noble Lords is that the old adage rings true: perhaps everything has been said but not yet by everybody. Therefore, being one of the last speakers, I feel somewhat apprehensive.

I genuinely and warmly congratulate the noble Lord, Lord Higgins, on securing such an interesting and valuable debate. I also thank the House of Lords Library for providing an excellent briefing. It is a pleasure to speak in a debate in which I have heard two first-rate maiden speeches. The noble Lord, Lord Pickles, and I have form on debating, in that we had neighbouring constituencies when we were both in the other place. I rather like the sound of his grandfather, but I expect that it will be a vain hope to tempt the noble Lord back to his political roots. The noble Lord, Lord Anderson, is known to many noble Lords through his former work as the Independent Reviewer of Terrorism Legislation, at which he distinguished himself. With his speech today, he distinguished himself in your Lordships’ House as well. We are very grateful to have two such impressive additions to this House and we welcome them both.

Despite the general title of this debate, it was inevitable that it would focus on the 2016 referendum on our EU membership. There are several issues to address in talking about the general subject of referendums and parliamentary democracy: why do we have referendums in the first place; what is their interaction and relationship with the democratic process; and can we do better in future? Quite often a high moral objective is attributed to referendums. Proponents assert that they are an opportunity to break away from decision-making by the so-called elite so that the people can have their say, but the reality is that they are rarely used because the Government want to seek public opinion; they are more likely to be used for reasons of political management, and it is interesting to look at the three UK-wide referendums that we have had.

In 1975, a referendum was held on whether to stay in the Common Market. Harold Wilson inherited a divisive policy after Ted Heath took the UK into the European Community. All the indications were that people wanted to remain in the Common Market, so there was little risk in having a referendum, but by having a public vote and allowing his Ministers the freedom to support whichever option they chose, although the debate was quite heated and difficult at times, Harold Wilson avoided a damaging split in his Government and his party, and he reinforced his own political position.

The 2011 vote on the voting system under the coalition Government sought to manage the relationship between the Conservatives and their Liberal Democrat coalition partners.

In 2016, we had the EU referendum, which has since proved to be very controversial and divisive, and it is on that that today’s debate has focused. In 2011, the coalition Government introduced legislation which had first been proposed by Gordon Brown as Prime Minister. It was rejected by the two other parties, which then provided for a referendum should a new treaty transfer additional powers to the EU. However, there was no political will to maintain that position. I was interested to hear from noble Lords on the Liberal Democrat Benches, as it was Nick Clegg as the Lib Dem leader who campaigned for an in/out referendum on membership, and then 81 Conservative Peers defied the Whip to support such a poll. With that growing dissent in his own party and an electoral threat from UKIP, David Cameron made it a manifesto commitment. Therefore, again, it was for political management. Similar to 1975, it was a straightforward yes/no vote about remaining in the EU or leaving. I think that that referendum has brought much of the theoretical discussion about the advantages and disadvantages of referendums to life, particularly given the closeness of the result.

A number of questions have been raised today. Do referendums undermine or enhance parliamentary democracy? Do they provide a tool or a tactical device for Governments, especially authoritarian ones, or can they be a check on Governments’ powers? Are they a genuine means of engaging the public or are they dominated by the elite and by well-funded groups? Does the legitimacy of a yes/no question do justice to complex issues? Also, in the same way as it is often difficult to disaggregate why voters vote in a particular way in elections, can we be confident that a single referendum question is really the issue on which people make a judgment?

The most challenging of all the issues is the interaction and relationship with the democratic process. The noble Lord, Lord Higgins, opened the debate with the wise question: can any referendum result be binding on a Parliament? The dilemma here is that, for any referendum to have any legitimacy with the electorate and to get them to take part, the public have to be given some authority. But can that legitimacy or authority extend to overriding parliamentary democracy and representative government and, if so, how can that be judged? Would it be by the national result or, if the voting was counted in that way, by constituency?

Let us be honest: few people call for or support a referendum unless they think they will win it. The decision whether or not to proceed with a referendum lies with the Government and Parliament, so they are likely to take place only when the Government of the day decide that it is in their interests and that they will win.

Throughout my political life, I have argued that democracy is about more than voting: it is about participation, engagement and education, and, as your Lordships’ House is only too aware, it is about scrutiny and compromise. That becomes almost impossible if it is a binary choice in a referendum. Democracy is not a finite act that is exercised with one stroke of a pen. When votes are cast in a referendum, in order for them to be respected by the elected representatives, it should be done in a way that unites rather than divides. Elected representatives have to act in the context of their wider responsibility to the country and to their constituents. They have to, as the noble Lord, Lord Anderson, said, translate that decision into legislation.

We all understand the inevitable tensions both before and since the 2016 referendum. But there can be no excuse for the way in which some newspapers and journalists expressed their view that those who did not agree with them were not acting in the national interest. Comments as extreme as calling people “traitors”, and worse, deny the very foundations on which our democracy is founded.

That was not all about the referendum. There was of course something else going on, symptomatic perhaps of wider changes in the world, as mentioned by the noble Lords, Lord Wallace and Lord Wilson, that fed into much harsher personal attacks on social media. Often, this was in the form of tweets from those hiding behind a pseudonym, but occasionally it was done in person. The worst of all examples is the murder of our parliamentary colleague Jo Cox.

What is the way forward? When the Independent Commission on Referendums reported earlier this month, it was able to reflect not just on the last referendum but on others that have taken place. Two paragraphs of the report have been raised in this debate, and I think they are key. In one, the report says:

“In some circumstances, referendums can exist alongside the structure of representative democracy without difficulty. Where a referendum takes place on a precise proposal for change that has already been worked through the representative process, it can make and legitimise a final decision”, and,

“strengthen representative institutions by enhancing the connection between representatives and voters”.

That is because the voters know exactly what they are voting for. The report adds:

“By contrast, where a referendum takes place on an imprecise proposal, difficulties can be created. As a consequence, parliament can find itself left with an instruction from voters, but with wide disagreement on what that instruction means. That is particularly so if those who called for the change are not among those responsible for its implementation”.

Essential for the legitimacy of any referendum is clarity of choice, an understanding of the implications of that choice, and confidence in the quality of information and the integrity of those providing such information. That is even more pertinent now, following the finding on the Vote Leave campaign’s actions. In 2010, having examined the issues, our constitutional committee was clear that a national referendum was appropriate only in a limited range of constitutional issues. However, I think that much greater caution will be exercised in future, not because of the outcome of the 2016 referendum but because, as a number of noble Lords have said, of the lack of clarity around what was voted on. Because of that, everyone can claim that they know why people voted. That has led to a weak and divided Government, and we are probably in a position where there is no majority for any option currently on the table in the House of Commons. The noble Lord, Lord Wallace, talked about a lack of public confidence; this referendum has decreased our confidence and trust in politicians rather than increased it. With the referendum, the public expected politicians to sort it out but they are failing to do so.

There is probably just one issue that Baroness Thatcher and Clem Attlee agreed on many years ago which was that they feared that it was not democratic if the loudest and richest had the greatest say. They made the point that government is not just about the will of the majority but about protecting minorities.

I hope the Minister can respond on this. It is clear that in future we need greater rules and criteria that are fit for purpose, including on how social media and modern technology can be used and abused in these proposals. It is clear that the legislation needs to be updated but it has to bring clarity to what is being asked for and honesty and integrity to the arguments, which do not denigrate experts.

Photo of Lord Young of Cookham Lord Young of Cookham Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office) 4:25 pm, 19th July 2018

My Lords, I congratulate my noble friend Lord Higgins on his choice of subject, which is even more topical today than when he chose it, and on the speech he made introducing it. I also thank all noble Lords who took part. As the noble Lord, Lord Dykes, said, it has been a very high-quality debate. In the time available, which has been curtailed somewhat—I make no complaint about that—I may not be able to deal with all the points.

I congratulate my noble friend Lord Pickles. This is the second time I have admired his maiden speech; on 5 June 1992, the newly elected Member for Brentwood and Ongar addressed the other place for the first time on housing and the importance of owner-occupation. He may recall one sentence from a moving egalitarian speech:

“what is good enough for the toffs is good enough for the workers”.—[Official Report, Commons, 5/6/1992; col. 1058.]

Then he may have identified himself with the workers, but today? Who can say? He is well known to many of the cognoscenti of electoral matters for his report Securing the Ballot, which has informed many of our debates. We are delighted that we will now have his direct, earthy input.

I also congratulate the noble Lord, Lord Anderson, on his maiden speech; like my noble friend he has a distinguished career in public service and his contributions have already informed many of our debates. Again, as European and security issues move towards the top of the political agenda, we are delighted to have him and look forward to his future speeches.

Looking at the list of speakers yesterday evening, I noted that half are former Members of the other place, as were all three Front-Bench spokesmen. Speaking for myself, I was always worried about what my noble friend Lord Sherbourne referred to as the tension between parliamentary democracy on the one hand and government by referendums on the other—an issue that ran through our debate. It was mentioned by, among others, my noble friends Lord Higgins and Lord Cormack, the noble Lord, Lord Judd, and the noble Lord, Lord Wallace, who mentioned plebiscitary democracy. For example, a majority of MPs could make it clear in their election addresses that they opposed capital punishment, but then be faced by a referendum that went the other way. But the only way that the law could be changed was if MPs voted to change it, setting Parliament against the people. In a sense, that is what has happened in the EU referendum, as we know that the majority of MPs voted remain but were confronted with a different verdict from their electorate—a point made by my noble friend Lord Higgins to which I will return in a moment.

Having said that, I do see a case for referendums on whether people want to remain under this Parliament’s jurisdiction, as with the referendum on whether Northern Ireland should stay in the UK or the referendum on Scottish independence, mentioned by the noble and learned Lord, Lord Brown, and others. I believe those are in a category of their own and a valid case can be made for them under the principle of self-determination. Since 1973, 11 referendums have been held in the UK, and the majority of them have been related to the issue of devolution. As the noble Lord, Lord Parekh, said, most of those were not controversial. I also make an exception for what I call direct local democracy—local referendums on issues such as council tax increases and neighbourhood plans.

Following the series of mainly non-controversial referendums on devolution in the late 1990s, we passed the Political Parties, Elections and Referendums ActPPERA—in 2000. That enshrined in law a broad framework of rules to regulate for consistency and fairness in the conduct of any referendum held as a result of an Act of Parliament, whether taking place nationwide in one or more of the UK’s constituent nations or in any region of England. Again, I shall say a little more about that in a moment.

I turn now to the EU referendum, which has been at the heart of today’s debate. There was a referendum which decided that we should stay in the EU, so arguably a referendum was needed if that was to be overridden and we were to leave. Many noble Lords have opposed the EU referendum, arguing that it undermined parliamentary democracy by asking people a binary question on a highly complex matter instead of relying on people who had the time and capacity to master the issues. The argument against referendums was well put by the right reverend Prelate the Bishop of Southwark who brought the good book into play to reinforce his argument. The noble and learned Lord, Lord Brown, referred to referendums as “risky and ill-informed”, while my noble friend Lord Norton used the word “irresponsible”, and the noble Lord, Lord Judd, made it clear that he was opposed to them. Some of the arguments risk patronising the electorate. The high turnout at the referendum did indicate a high degree of engagement and there was certainly no dearth of information for those who wanted it.

Two themes have emerged in the debate, one of which was repeated by the noble Baroness, Lady Smith: that there was a lack of clarity as to why people voted as they did. The noble Lord, Lord Wallace of Saltaire, mentioned that. All sorts of reasons have been prayed in aid; it was a cry for help for people who felt left behind by globalisation, or it was a protest in parts of the country where people felt that their public infra- structure was under threat from immigration. A whole range of reasons was given, but there was no lack of clarity as to why people voted as they did.

The other major theme running through our debate is that if you have a referendum, you should know what you are voting for, a point made with force by the report of the UCL commission about which the noble and right reverend Lord, Lord Eames, spoke—that if you have a referendum, you should know in advance exactly what the outcome will be. As I think the noble Lord, Lord Tyler, said, in the case of UCL commission, it recommended that if that was not the case, you should have another one downstream when the result would be clear.

A number of noble Lords have argued that we should never have held the referendum. The problem with that argument is that membership of the EU has been a major political issue for 40 years and it has split our two largest parties. Prior to the 2015 general election, the only way a voter could indicate a very strong preference for leaving was by voting for the UK Independence Party—never likely to form a Government—and the only way a voter could indicate a strong preference for remaining was by voting Lib Dem. With respect to those who have spoken for that party and with whom I enjoyed working in coalition, it was never going to form a Government either. The former Prime Minister, David Cameron, took the view that the only way to resolve this long-running, contentious issue at the heart of our democracy was to grasp the nettle and hold a referendum. The noble Lord, Lord Bruce, made it clear that he thought that was a mistake and explained why. However, a general election could never give a clear verdict on this single issue, whereas a referendum does provide a clear expression of preference. The noble Lord, Lord Judd, said that we should resolve this by having another general election, but with great respect, I am not sure that another general election would resolve this particular issue.

Before the EU referendum, the Government were clear that they would respect the outcome and defer to the will of the people. The present Government have respected that view and are now committed to the UK leaving the EU. Like most noble Lords, I campaigned for remain and I was disappointed by the result. It might have been different if the EU had shown more flexibility on freedom of movement before the referendum was called, if remain had fought a better campaign, and if some politicians had not spent quite so much time and energy over the years making disobliging remarks about the EU. The result also might have been different—dare I say it?—if the Labour Party had been led by another leader.

Although I voted to remain, I respect the result of the referendum and I agree with my noble friend Lord Higgins: it is now for Parliament to proceed and deliver the results in the way it thinks best. To that extent, Parliament remains supreme. As a number of noble Lords have pointed out, referendums are not legally binding, so to that extent they cannot undermine parliamentary sovereignty. However, as my noble friend Lord Norton and others have said, while referendums may not be legally binding, they are politically binding with a cost involved in ignoring the outcome.

Confidence in the EU referendum outcome has recently been affected by allegations of electoral malpractice and foreign influence, and charges of criminal activities due to campaign overspends—a point made by the noble and learned Lord, Lord Brown, and the noble Lord, Lord Tyler. That rules have been breached is rightly a cause for concern but that does not mean that the rules were flawed. Of course, we should look again at the penalties, as said by the noble Lord, Lord Tyler. It is also my view that neither the breaches nor the alleged interference on social media could account for the majority of 1.3 million; I notice that the noble Lord, Lord Tyler, disagrees but I cannot substantiate my view by science. Although he quoted yesterday’s Times, it also came to the conclusion that the outcome would have been the same.

Where do we go from here? Previous Governments have chosen to bring forward stand-alone legislation for each referendum, which provides this House and the other place with the opportunity to amend legislation to include some of the suggestions that we have heard during the debate, such as thresholds for turnout and majorities if so desired. At the moment, the Government have no plans to depart from this approach, which has been the approach of previous Governments.

Many noble Lords put the debate in the broader context of how we engage with the public. The noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, mentioned other means of communicating the growth of social media. He also drew attention to what I call the changes in the terms of the trade of politics—declining party membership, the rise in populism and the growth of social media—which form the background to any review that we might undertake of the legislation. On that point, a number of noble Lords suggested that we needed to revisit the legislation in the light of the experience of recent referendums, the growth of social media and some of the evidence referred to by noble Lords. I have a lot of sympathy for that view but, at the risk of repeating what I said earlier this week, we need a bit of time to absorb the important report of the Independent Commission on Referendums, launched on 11 July, to which a number of noble Lords referred. I was very impressed by the point made by the noble and right reverend Lord, Lord Eames, on how two referendums in the same part of the United Kingdom can have different outcomes depending on the context in which they take place.

We need to have a good look at the commission’s recommendations, many of which are aimed at the Government. We should await the DCMS report on fake news to understand the impact of social media on elections; it has taken evidence from some of the key players in the referendum. We need the Intelligence and Security Committee’s report on the influence of Russia on the recent referendum and general election. We need the result of the Information Commissioner’s inquiry into breaches of data protection laws by Cambridge Analytica and Facebook, together with any outstanding Electoral Commission reports. When we have those important documents, it will make sense to stand back and take on board all their points—and those made in today’s debate—to see how the legislation can be strengthened and updated. Many helpful suggestions have been made today.

In the meantime, the Government will continue to work with the Electoral Commission and other stakeholders to protect the integrity, security and effectiveness of referendums and elections. In response to the point made by the noble Lord, Lord Tyler, the Government will do what they can to build a consensus on any changes to the legislation that are needed. I thank all noble Lords for their collective eloquence and wisdom.

Photo of Lord Higgins Lord Higgins Conservative 4:39 pm, 19th July 2018

My Lords, I was delighted and surprised to be fortunate in the Motions ballot. I am glad that my choice of subject produced a debate of such exceptional quality, even by your Lordships’ high standards, particularly with two outstanding maiden speeches from my noble friend Lord Pickles and the noble Lord, Lord Anderson of Ipswich.

The Minister’s reply is very important. What has come out very clearly is that our experience of referendums, since they started and more recently, shows that there are a great many lessons to be learned and mistakes to be avoided. As my noble friend on the Front Bench just said, it is worth considering all the points made today and then seek to codify them to some extent, so when we next come to consider whether we should have a referendum and how it should be carried though it will be precisely on that rule book.

In that sense, I hope that this will be a memorable debate. I am most grateful for all the kind remarks that colleagues have made about me. I am very glad that this has been a debate that should have value in future, as well as reflecting what has happened in the past.

Motion agreed.