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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.