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My Lords, we have had 13 referendums so far; three were national and 10 regional. This means that referendums have become an accepted practice and anyone who wants one from now on cannot be denied it on the grounds that it is inconsistent with parliamentary democracy. It is an established constitutional fact. In addition, there are several good reasons why a referendum has a place in a democracy. In a liberal democracy, the political class tends to be self-contained and it is quite important that people should be able to speak directly, unmediated by any institution. In that sense, a referendum serves as a safety valve in a liberal democracy. It also vitalises parliamentary democracy because from time to time, when the people speak and assert their sovereignty, parliamentary institutions are made accountable.
My good friend the noble Lord, Lord Norton, said that the difficulty with a referendum is who the people are accountable to. In a parliamentary democracy, parliamentarians are accountable to the people, but who are the people accountable to? Ultimately, there is an absolute premise for that authority. If I said that they were accountable to themselves, because they have to pay the price for the decisions they make, that answer should be sufficient. As Aristotle said, the wearer knows where the shoe pinches, so there is no responsibility beyond the people’s experience.
Given that, in short, a referendum is a part of our political life, the question is: what can we do to regulate it, so that we know when to implement it and on what issues, how great a majority should be required on that issue and what the preconditions are for a sensible referendum? All our referendums so far, bar one, have been noncontroversial. The EU referendum of 2016 became controversial, partly because its outcome is inconsistent with what the liberals and parliamentarians expected. That kind of clash between Parliament and the people had not happened on any of the earlier referendums.
Now that it has become controversial, it is very important that we should think in terms of a constitutional convention. That convention cannot be drafted by Parliament because it would be seen as a party—Parliament deciding its own future. The convention has to be done by Parliament in collaboration with the people. That is the kind of convention that the Scots had. Here, it is important to bear a simple point in mind. With a referendum, you create a kind of political system in which the country is ruled by Parliament in collaboration with the people. Just as we have the collaboration of Parliament and the sovereign, governing the country together, the situation would be that Parliament and the people govern the country. The people would express their views through a referendum, and Parliament through other ways. A referendum can therefore never be entirely advisory, nor can it be totally binding. There are ways in which its position can be defined, but I should have thought that one way in which we can look at the outcome of a referendum is where it is neither binding nor entirely advisory.