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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.
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”,
“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.