- 2A.—(1) For the purposes of this Schedule sponsorship is provided in relation to a recognised third party if—
- (a) any money or other property is transferred to the recognised third party or to any person for the benefit of the recognised third party, and
- (b) the purpose (or one of the purposes) of the transfer is (or must, having regard to all the circumstances, reasonably be assumed to be)—
- (i) to help the recognised third party with meeting, or to meet, to any extent any defined expenses incurred or to be incurred by or on behalf of the recognised third party, or
- (ii) to secure that to any extent any such expenses are not so incurred.
- (2) In sub-paragraph (1) "defined expenses" means expenses in connection with—
- (a) any conference, meeting or other event organised by or on behalf of the recognised third party,
- (b) the preparation, production or dissemination of any publication by or on behalf of the recognised third party, or
- (c) any study or research organised by or on behalf of the recognised third party.
- (3) The following do not, however, constitute sponsorship by virtue of sub-paragraph (1)—
- (a) the making of any payment in respect of—
- (i) any charge for admission to any conference, meeting or other event, or
- (ii) the purchase price of, or any other charge for access to, any publication;
- (b) the making of any payment in respect of the inclusion of an advertisement in any publication where thepayment is made at the commercial rate payable for the inclusion of such an advertisement in any such publication.
- (4) The Secretary of State may by order made on the recommendation of the Commission amend sub-paragraph (2) or (3).
- (5) In this paragraph "publication" means a publication made available in whatever form and by whatever means (whether or not to the public at large or any section of the public).").
Page 143, line 19, after ("2(1)(a)") insert ("(other than money)").
Page 143, line 24, at beginning insert ("the total value in monetary terms of").1141
Page 143, line 24, at end insert—
("(2A) The value of any donation falling within paragraph 2(1)(aa) shall be taken to be the value of the money, or (as the case may be) the market value of the property, transferred as mentioned in paragraph 2A(1); and accordingly any value in monetary terms of any benefit conferred on the person providing the sponsorship in question shall be disregarded.").
Page 143, leave out lines 27 to 30 and insert—
- ("(a) the total value in monetary terms of the consideration that would have had to be provided by or on behalf of the recognised third party in respect of the loan or the provision of the property, services or facilities if—
on commercial terms, and
- (i) the loan had been made, or
- (ii) the property, services or facilities had been provided,
- (b) the total value in monetary terms of the consideration (if any) actually so provided by or on behalf of the recognised third party.").
Page 143, line 31, leave out sub-paragraph (4).
Page 143, line 34, leave out ("or (4)").
§ On Question, amendments agreed to.
§ [Amendments Nos. 219 and 220 not moved.]
Lord Bach moved Amendment No. 220A:
Page 145, line 13, leave out ("relevant donation") and insert ("recognised third party").
§ On Question, amendment agreed to.
§ [Amendment No. 221 not moved.]
Lord Bach moved Amendment No. 221A:
Page 145, line 34, after ("donor") insert ("(whether or not falling within paragraph (a))").
§ On Question, amendment agreed to.
§ Schedule 10, as amended, agreed to.
§ Clause 91 [Returns as to controlled expenditure]:
Lord Bach moved Amendments Nos. 221B and 221C:
Page 59, line 4, leave out ("except where the third party is a registered party,") and insert ("in a case where the third party either is not a registered party or is a minor party,").
Page 59, line 24, leave out ("during the regulated period").
§ On Question, amendments agreed to.
§ Clause 91, as amended, agreed to.
§ Clauses 92 and 93 agreed to.
§ Clause 94 [Declaration by responsible person as to return under section 91]:
Lord Bach moved Amendments Nos. 221D and 221E:
Page 60, line 45, leave out from ("him") to end of line 3 on page 61.
Page 61, line 4, leave out ("the case of a recognised third party other than a registered party,") and insert ("a case where the third party either is not a registered party or is a minor party,").
§ On Question, amendments agreed to.
§ Clause 94, as amended, agreed to.
§ Clause 95 agreed to.1142
§ Clause 96 [Auditor's report on return]:
§ 9.15 p.m.
§ On Question, Whether Clause 96 shall stand part of the Bill?
§ Lord Bach
This group of amendments is concerned with controls on election and referendum publications. The amendments build on the existing Clauses 96 and 121 which we propose to replace by two new clauses. Therefore, when the time comes we shall oppose the Question that Clause 96 stand part of the Bill.
Before I turn to the detail of the changes made by the amendments, it may assist the Committee if I set out the purpose of the existing provisions in the Bill. Clauses 96 and 121 are modelled on Section 110 of the Representation of the People Act 1983 which requires the name and address of the printer and publisher of an election publication to be included on the face of the document. I do not suppose that there is a single Member of the Committee present tonight who has not faced a crisis of conscience or concern about the simple rule that I have just set out.
In the context of the Bill this requirement meets two objectives. First, where an advertisement is published which is designed to promote the election of a party or its candidates or a particular outcome in a referendum the electorate has a right to know who is behind the advertisement. In the case of an election, the fact that this or that organisation supports a particular party and is prepared to campaign vigorously in its favour may sway some people to vote one way or the other. The electorate should be able to make an informed judgment on such matters. For that purpose they need some basic information; namely, who has published a particular advertisement.
The second purpose of Clauses 96 and 121 is to assist the electoral commission with the enforcement of the controls on election and referendum expenditure. Advertising costs are likely to be one of the main expenses incurred by campaigners in an election or referendum. A requirement that the name and address of both the printer and publisher appear on any advertisement provides the commission with an immediate point of reference for further inquiries, should they be needed, as to the cost of the advertisement and the identity of the person or body on whose behalf it is published.
The need for both the electorate and the electoral commission to be properly informed about who is behind a publication is not restricted to publications which take the form of a printed document. Printed documents, be they posters, leaflets or newspaper advertisements, remain at present the dominant form of communication at elections, but they are no longer the only form of communication and the position may be vastly different in 10 or 20 years' time. At the time of the previous general election many Members of the 1143 Committee will have received a video from, for example, the Referendum Party. During the primary elections in the United States earlier this year one or two would-be presidential candidates made considerable use of e-mail and website advertising. If we do not take account of these new—and some not so new—forms of communication, the existing Clauses 96 and 121 will quickly become out of date, as will Section 110 of the 1983 Act. Therefore, Amendments Nos. 243B, 280C and 259P replace Clauses 96 and 121 and Section 110 respectively.
The three amendments are in many respects identical. I shall set out the key changes by reference to the new clause to be inserted by Amendment No. 243B. Subsections (2) to (5) of the new clause are concerned with printed documents. Subsection (2) sets out the relevant details to be included in any such document. As with the existing Clause 121, the relevant details include the name and address of the printer of the document. On reflection, we do not believe that it is apt to require the publisher's name and address on a printed document. It does not help the electorate or the electoral commission to know that an advertisement relating to a referendum that appears in, say, The Times has been published by Times Newspapers Ltd. What the electorate and the commission need to know is who placed the advertisement and on whose behalf.
Subsections (3) to (5) set out where the relevant details are to appear on different types of printed documents. Subsection (3) is concerned with single-sided documents such as a poster. Subsection (4) deals with printed documents that consist of two or more sides, such as a leaflet or referendum address. Subsection (5) is concerned with advertisements in newspapers and periodicals. Subsections (6) and (7) enable the requirements in respect of publications other than printed documents to be prescribed by regulations. We have opted for a regulation-making power as we need flexibility to adjust the requirements as new methods of publishing referendum material come on stream in years to come. As with other regulation-making powers in the Bill, this one is exercisable only after consultation with the electoral commission.
The new clause to be inserted by Amendment No. 280C and the new Section 110 of the 1983 Act to be inserted by Amendment No. 259P both make similar provision in respect of election material. The new clause to replace Clause 96 is inserted in Part X rather than Part VI of the Bill. This reflects the fact that the new clause is designed to apply to election publications issued by registered parties and third parties. As the Bill stands there is no equivalent to Clause 96 in Part V of the Bill. The other amendments in this group are consequential on the three main amendments to which I have referred.
The four amendments to Clause 120, in particular Amendment No. 243A, ensure that the same definition of "publish" is used throughout the Bill. Amendment No. 317C has the effect of preserving the existing Section 110 of the 1983 Act in respect of local 1144 government elections in Scotland. Amendments Nos. 307A to 307C make adjustments to the penalty provisions in Schedule 19. Amendment No. 321D amends Section 201 of the 1983 Act to provide that regulations made under the new Section 110 of that Act are subject to the negative resolution procedure. This ensures consistency with the parliamentary procedure that will apply to regulations made under the new clauses inserted by Amendments Nos. 243B and 280C. Finally, Amendment No. 322P repeals spent provisions in the Representation of the People Act 1985. I hope the Committee will agree that these are sensible changes which properly anticipate new forms of electoral communications.
§ Baroness Byford
The noble Lord said that he wishes the regulations to be flexible. The new clause states:The Secretary of State may, after consulting the Commission, by regulations make provision for",and so on. Do the Government anticipate that the commission will approve the decision, or will the regulations need to return to the House for approval? In other words, is the flexibility to which the noble Lord referred a requirement that Parliament must approve the regulations, or can the commission decide the issue itself? I should be grateful for some clarification.
§ Lord Cope of Berkeley
The Minister was quite right to say that probably all Members of the Committee have experience of the way in which provisions of this kind have operated in the past. None of us would disagree with the intention behind these clauses. It is important that the kind of arrangements that have applied to printed material in the past should apply to material on the Internet, on videos or in other ways. So that is correct.
I am sorry that even after this passage of time the arrangements applying to videos, the Internet, e-mails and so on, are still unformed, as it were, and extremely vague. It is clear that the Home Office needs to work fast on this issue when the Bill is enacted if these provisions are to be in place by the time we have elections in May—there could be a general election or council elections—or October. The Home Office has had a long time to consider the Bill. It has produced a huge number—100 pages or so—of amendments. Yet there is still vagueness about these particular provisions which will apply within a few months.
However, that is the case at the moment. Neither we nor anyone else has put forward alternatives in the form of amendments at the moment. I shall certainly not oppose these amendments to the Bill. The fact that these huge changes have been made to a comparatively simple part of the Bill emphasises part of the Home Office's problem this year; it has had too many Bills. It has not been able to draft them properly. The departmental officials and the parliamentary draftsman have all had the same trouble in trying to draft the Bills. That is why on Bill after Bill we have had enormous numbers of important amendments to comparatively simple matters. However, that perhaps is a matter for another time. As I say, we shall not 1145 oppose these clauses. They should stay in the Bill. My noble friend Lady Byford asked a very interesting question.
§ Baroness Blatch
I support my noble friend when he talks about the vagueness of some of these changes. Given that the Bill had its first airing back in the spring, and given that there have been all these months to think about the matter, it seems quite extraordinary that the Bill is still as imperfect as it is.
Perhaps I may ask the noble Lord another question. In speaking to the amendments and in giving an explanation for them, the noble Lord said that one of the reasons was the need to take into account new technology. But the new technology was there in April. It has been there for quite a long time. That issue could have been foreseen. Why was it that in April it was completely ignored, and only now, at this very late hour, does the amendment to the Bill take into account the application of new technology?
§ Lord Bach
I am grateful for what has been said. The noble Baroness, Lady Byford, asked about the regulations. The regulations will be made after consultation with the electoral commission, not on its recommendation, and will be subject to the negative resolution procedure. So Parliament will, if it wants it, have the last word on the regulations.
§ Baroness Byford
I presume that the regulations will come before the House as a statutory instrument.
§ Lord Bach
Yes, by way of negative resolution.
The matters of electoral law that we are changing are both complicated and very old-fashioned in many respects. It is not a simple matter, as may have been suggested, to alter something as important and complex as electoral law. The Second Reading debate was as long ago as May, but the fact is that we have come forward today with what are generally accepted to be sensible amendments. I hope that they will be seen as such.
§ Baroness Fookes
I am concerned about further provisions being placed in the form of regulations, partly because they have to be either swallowed whole or not accepted at all. There is no arrangement in this House or in another place for regulations to be amended. In the circumstances, that gives a great deal of power to the executive at the expense of the legislative procedure. Does the noble Lord care to comment on that?
§ Clause 97 [Referendums to which this Part applies]:
§ 9.30 p.m.
Lord Owen moved Amendment No. 222:
Page 62, line 38, at end insert (", or
(ii) a referendum held on the provisions contained in a Bill in pursuance of a certificate issued by the Speaker of the House of Commons under section (Bills of first class constitutional importance: Speaker's certificate)").
§ The noble Lord said: Amendment No. 222 stands in my name and in the names of the noble Lords, Lord Prior, Lord Healey and Lord Skidelsky. I realise that this is a big issue for the Committee to be discussing at this time but it is very unusual to get an opportunity to have such a debate. The issue has been discussed on many other occasions but rarely on the Floor of the House, the last time being during the proceedings on the Parliament Act 1911.
§ We are all conscious of the fact that our constitution is unique in that we make constitutional change through normal legislative procedures. No special arrangements are made for constitutional legislation. It can be argued that that has suited us fairly well in the past but there is no doubt that there has been a slow, steady change over the past 30 years in the way that we approach some aspects of constitutional change. It is worth considering now whether we ought to be enacting some specific procedure rather than use the ad hoc arrangement of referenda.
§ The first referendum on constitutional change was advocated for Northern Ireland in the early 1970s. Indeed, a good deal of constitutional change first starts in Northern Ireland. I have in mind voting systems and other aspects. I had some reservations about it—giving one section of the United Kingdom in effect a droit de regard on a constitutional question which affected the whole of the United Kingdom. But it seemed to work. The next referendum concerned the controversy over the European Union. The referendum was held on the question of whether we should ratify the treaty of accession. I was not wildly keen on holding a referendum then.
§ At the time, the suggestion was put forward in a manner which certainly led people to believe that it was not being done objectively, but rather that it was being done for political reasons. Of course, in reality that is the history that lies behind a great many referendums. If I may be allowed to say so, all parties introduce them largely to cover themselves in difficult political circumstances. In fact, it was said that a referendum could be likened to a small rubber life-raft on to which some might wish to clamber. I believe that the noble Lord, Lord Callaghan of Cardiff, first used that analogy. I admit that, with some relief, I clambered on to that life-raft in the 1974 election. It provided a way of settling some of the disputes raging inside the then Labour Party opposition on the question of accession to the Treaty.
§ However, many of us were strongly influenced by the consequences of the 1975 referendum. It did not put the argument to bed as completely as many of us thought it would, but it made it virtually impossible, or 1147 at least incredible, to believe that that decision could be changed without recourse to another referendum. When an attempt was made to introduce a measure to take us out of the European Union without a referendum, it was treated with derision. I believe that we viewed the 1975 referendum as a success.
§ Later in the 1970s, a referendum was held on the question of devolution for Scotland and Northern Ireland. I supported devolution then and I have supported it ever since. The referendum was being held against the cause for which I campaigned. Nevertheless, particularly in retrospect, most people would agree that that was a salutary referendum. It slowed up the process and thus allowed time for more careful thought and for a better devolution package to be developed. To the credit of the present Government, that was the one that has been introduced in both Scotland and Wales—with the full support of the people of those two nations.
§ We can now see a pattern of referendums which has been building up over the past 30 or so years. They are beginning to add, I believe, some strength to the validity of constitutional change. However, the question is: can we and should we take the pure party politics out of the process and try instead to develop a mechanism whereby we can introduce constitutional change of considerable importance subject to certain special procedures? When I first looked at this, my attention was drawn to the argument first advanced in 1945 by the then Lord President of the Council, the late Herbert Morrison. He used the term which we have employed in this amendment; namely,
§ "Bills of first class constitutional importance".
§ In 1945 the Labour Government, with a large majority, wished to introduce a great deal of constitutional change. Hitherto, the tradition had been that pretty much all Bills were dealt with on the Floor of the House. They wished to avoid delay and put Bills into Committee. It was at that time that the pledge was made that Bills of "first class constitutional importance" would be taken on the Floor of the House. That precedent was established in 1945 and has largely been followed ever since by dint of arrangements made between the parties. For those who are interested, that explains from where the words "first class constitutional importance" come. They form a reasonably widely accepted classification of serious constitutional Bills.
§ The next question to answer was: if a Bill was of "first class constitutional importance", should one resort virtually automatically to a referendum? That is what happens in some European countries; Ireland is practically in that situation. However, the problem with that course is that referendums are held on essentially non-controversial but important constitutional legislation. The notion of holding a referendum just for the sake of form when there is already a broad consensus in both public and party opinion is a little hard to justify.
§ Some noble Lords believed that the Second Chamber could be a constitutional safeguard; that that might be one of the new powers to come to a reformed 1148 House of Lords. It was certainly a credible possibility. The issue was much discussed in research papers, by your Lordships' Committee and in other places, but when it was discussed by the Royal Commission chaired by the noble Lord, Lord Wakeham, it was rejected.
§ When those of us who have tabled the amendment discussed the matter among ourselves, we came to the conclusion that, a Royal Commission having looked at the issue and having rejected the idea of giving this special power to a reformed House of Lords, it would be trying to push water uphill to argue that case.
§ So we looked for a mechanism. Here we come to the well-known procedure of the certificate of the Speaker of the House of Commons, which has been used in a number of circumstances but classically for finance Bills following the Parliament Act 1911. Its advantage is that it puts the decision back in another House. I see some merit in that— maybe because I spent too long there—because a procedure on constitutional issues grounded in this House would not have the same acceptability in another place.
§ The question then arose as to upon what criteria would the Speaker make a judgment. We thought it necessary to have two criteria. First, controversy. Speakers are fairly good at deciding whether matters are controversial—that is one of the reasons they are there—but it needed to be for matters which are controversial in the country as a whole or within Parliament. Therefore we gave a double reason for calling a constitutional Bill of first-class importance—that is, for issues on which there were significant divisions of public opinion, parliamentary opinion, or both.
§ That is the core of the amendment. I know that it is late and I do not wish to go on too long. I do not believe that it should be used for any particular kind of constitutional change. Some people have suggested that it should be used only for European constitutional changes, but I do not believe they differ in substance from other changes. However, it is fair to say that we are now seeing IGCs in the European Union coming at us at a fairly rapid rate. We are being asked to make constitutional changes more rapidly than many people envisaged, and the procedures for surveying, criticising and monitoring those constitutional changes through the EU are not as effective as in the past.
§ For a variety of reasons we should not concentrate only on European legislation. However, we should bear in mind that that is now the principal way in which we make constitutional change. Therefore the amendment, if it is agreed to, should be phrased—and is phrased—so that it covers both European Union constitutional change and constitutional change generated purely within the United Kingdom. It is therefore not specifically a European issue, although I do not deny that it would have European implications.
§ The question then arises of how frequently would there be referendums. A useful assessment was made in research paper 97/53, which was published on 20th May 1997, in regard to the Committee stages on 1149 Constitutional Bills in the Commons. It contains an annex of all the Second Readings and Committee stages of constitutional Bills since 1945. It is difficult to make assessments, but if one excludes Bills which have been the subject of referendums and looks only at Bills which were controversial, either in the country or between the parties, one finds that there were few in number. My estimate was three, perhaps four. So, if this amendment had been enacted in 1945, we would probably have had three or four referendums between then and the present day. I do not think that is excessive. So it is with the idea of trying to have a trigger mechanism which makes sense, which has universal application and which would appeal to Members of another place as well as this, that we put forward this amendment. I beg to move.
§ Viscount Cranborne
I support the noble Lord's amendment, for all the reasons that he gave. I do so with one reservation to which I shall come shortly.
Along with a number of interested parties, the Government have consistently told us over the past few years that they are worried about the reputation of Parliament. Anyone who holds that Parliament's importance is as the central part of our national life will share the Government's concern. It arises, at least in part, from an increasing belief that Parliament is felt by the electorate to be distant from their everyday concerns. Indeed, so often, when they are considered by Parliament, those concerns are considered "way behind the curve", as the military is wont to put it.
I suspect that part of that concern could be addressed by examining the day-to-day procedures of both Houses. Indeed, as a result of the welcome initiative by the noble Lord, Lord Peston, that is something that this place is intent on doing. I say in parenthesis that I hope it will do so not in a way that accelerates the avalanche of ill-digested legislation that we have to consider—of which this Bill is a prime example—but in such a way as to control it, so that its quality can be improved.
As I understand the amendment, it does not seek to address the day-to-day aspects of parliamentary life, but another aspect entirely: an aspect that affects national life on very great issues, and in particular issues which are not only self-evidently substantial but which are by their nature, whatever the theory, virtually irreversible if approved.
As the noble Lord made clear, increasingly since the early 1970s we have witnessed Parliament making substantial constitutional changes which are in most cases and to all intents and purposes irreversible. The obvious example cited by the noble Lord was our act of joining what was then the EEC. Since 1997, the incidence of such examples has multiplied. I am not sure that I wholly go along with the noble Lord when he says that there have not been many such examples. There have been a number of examples—some of which, of course, the Government have made the subject of referendums. I refer to issues such as devolution for Scotland and Wales and the London Assembly. Other examples are the incorporation of the ECHR, which we all recognise will have substantial 1150 consequences no matter which side of the argument we espouse; reform of this House, if indeed we ever get to a proper stage of reform; and, as the noble Lord mentioned, a great deal of Northern Ireland legislation. Those are obvious cases.
Effectively, such major constitutional changes can, at least in theory—and substantially have been in practice on occasion—be forced through Parliament on a majority of one in another place and, in the case of manifesto Bills, through this place without it having the oportunity to push the matter to the Parliament Act if it so wanted. There is one exception: the extension of the life of a Parliament under the Septennial Act. In theory, in a number of these cases, the electorate need have no direct say in the matter at all beyond taking part in any national debate that may be cobbled together at the time. That is particularly true—I was struck by the noble Lord's descent, if I may so put it, into anecdotage of the 1970s—when parties are split on the matter and when a referendum can readily become an easy way off the party unity hook.
For that reason, above all, it seems to me that it would be extremely sensible for Parliament to consider one way in which it could reconnect with the electorate in between parliaments on very big issues which are essentially, irreversible; namely, by giving the electorate the final say on matters that have enormous, long-term constitutional consequences. Indeed, one of the by-products of accepting the principle of the noble Lord's amendment is that it would give the electorate a feeling that it did have the ultimate say so on matters of this kind.
I turn to the exception to my general support for the noble Lord's amendment. It seemed to me that he gave extremely cogent reasons why the initiative should come from the Speaker in another place; in other words, that it should be a Speaker's initiative. In a fully reformed House of Lords I should infinitely prefer the initiative to come from this Chamber. If one believes, as I do, that this House has as its central role the objective of making another place do its job properly—I put that perhaps rather crudely—especially in legislative matters, there is also by extension a very useful job that this Chamber could do by developing its role as a constitutional longstop. As I say, we already have one such unequivocal function under the Septennial Act, where the Parliament Act does not apply over the extension of the life of a parliament.
We are developing the strictures of what was formerly called the delegated powers and scrutiny committee—something which during my time as Leader of this House I did my best to encourage; indeed, I pay tribute to the present Government in that I believe they have also pursued the same path—and these should always be observed by the Government in matters of Henry VIII clauses and too many delegated powers. Therefore, in day-to-day matters we are also beginning to develop what I believe is an extremely effective constitutional check, as well as developing our role as a constitutional longstop.
1151 Although I am the first to admit that the pragmatic reason for keeping the power with the Speaker that the noble Lord proposes may be a more practical and immediate way of seducing another place into agreeing with his views, in a purist world there is a great deal to be said for this House, if it were to accept the amendment, suggesting that it would, in its role as a developing constitutional longstop, be a more appropriate place for the initiative to originate.
If a very substantial constitutional change were proposed, it would make considerable sense for this Chamber not to take upon itself the decision about whether or not that constitutional change should go through. Even in its fully reformed state, which I hope will come about fairly shortly, I suspect that this House would not carry the authority to enable it to do that on its own. However, it might be able to carry the authority to refer the matter to the electorate, with whom the ultimate decision should rest, particularly in matters of a very substantial constitutional type. If we used the power suggested for the Speaker in this amendment with wisdom and judgment, I suggest that it would do much to increase the standing of this House in the estimate of the electorate, which is something that I feel is much to be desired.
In spite of that one reservation I believe that this is an important principle which is well worthy of consideration by this Chamber. It closes a circle which at the moment needs to be closed and in which there is a gaping gap. If the noble Lord were to withdraw the amendment and bring it back at Report stage, it would be well worth our while debating it again more fully, perhaps at a more sensible hour of the day.
§ Viscount Cranborne
I hear the question asked from the other side of the Chamber, "What is wrong with now?". There is nothing wrong with now, particularly as it is delightful to see so many Members on the Government Back Benches and on other Benches paying close attention to this important debate. However, it may not have escaped the Committee's attention that occasionally the Chamber is even fuller before dinner than it is now. There will be many people with enormous experience who may feel able to take part in such debates earlier in the day rather than later.
Finally, I draw attention to Amendment No. 228 which stands in the names of my noble friends Lord Mackay of Ardbrecknish and Lord Astor in which they suggest that referendums should always be post-legislative rather than pre-legislative. I hope that the Committee will also give sympathetic consideration to that amendment for one simple reason; namely, that it seems to me that the history of pre-legislative referendums has not been a happy one. I believe this is true of pre-legislative referendums in other countries. I suspect that if we were honest with ourselves we would admit that pre-legislative referendums in the past three years have not been universally satisfactory either. Certainly I would be the last to suggest that if the referendum had been better conducted in 1152 Scotland—whatever quibbles one might have with it—a different result would have been obtained. It is perfectly clear that it would not have done. However, I am not sure that we can say the same about the referendum in Wales.
It seems to me that the overwhelming objection to pre-legislative referendums is that they emasculate parliamentary consideration of the Bill giving effect to the measure under consideration. It is all too easy, particularly in another place, to force through a Bill without proper consideration. We all know that was done by the spadeful, if I may put it that way, on the Welsh Bill. It is all too easy to force through consideration of a Bill with the spoken, and sometimes even unspoken, accusation that those who oppose the Bill, even in detail, are going against the spoken will of the people in the pre-legislative referendum. How much better to look at the Bill in detail—as this Parliament does—and then if a referendum is to be called, for it to be submitted as a post-legislative referendum with the full details available to those who are interested enough to look at them before they vote one way or the other. That does not emasculate parliamentary consideration of what is going on.
I hope that the Committee will see the merit in what the noble Lord proposes, not only from the point of view of the electorate—which is what really matters—but also from the point of view of the standing of this Chamber.
Before my noble kinsman sits down, I followed his remarks with care but could not fully understand them. Did he say that the power should be given to this Chamber after stage two is complete or to the current transitional Chamber?
§ Viscount Cranborne
My noble kinsman always reproaches me when I am not as clear as I should be. I apologise for not being clear. My feeling is that such a power would really only be sensible after a full reform had been implemented, when it was clear that this Chamber had been given as much authority as the electorate wanted it to be given. I suggest that it would be sensible for a measure fully reforming this Chamber to be the subject of a referendum.
§ Lord Goodhart
We should all be grateful to the noble Lord, Lord Owen, for tabling this amendment. It is an important subject which requires an airing. The noble Lord made a characteristically thoughtful and well-reasoned speech in putting forward his proposals. I regret, therefore, to say—I think that it will not surprise him—that we on these Benches are unable to support him.
We have had only one referendum which was a referendum throughout the United Kingdom: the 1975 European referendum. We have had a number of sub-UK referendums. We have had two each in Wales and Scotland. I shall not refer to the Northern Ireland situation because I understand my noble friend Lord Alderdice, wishes to speak on that. However, the fact that we have had referendums does not mean that we 1153 should always have a referendum even on what can be regarded as a matter of first-class constitutional importance.
We have the difficulty of deciding what is a Bill of first-class constitutional importance; and of deciding whether there is a significant division of opinion on it. If we consider only the Bills which have been brought forward during the current Parliament one has to say, obviously, that the Scotland Act and the Government of Wales Act were Bills of first-class constitutional importance. They were plainly controversial. One effect of the noble Lord's amendment would be that the referendums on Scotland and Wales would have had to be held not only in Scotland and Wales but across the United Kingdom. The noble Lord shakes his head but the constitutional implications seem to me not in any way confined to Scotland and Wales. They plainly apply to the United Kingdom as a whole. If the Scotland Bill (now an Act) had been rejected by a majority entirely resulting from English votes, while it was supported by a substantial majority of Scottish votes, the consequences would have been horrendous.
Other Bills have been of first-class constitutional importance. The House of Lords Act was one. Others may have been more doubtful. The European Parliamentary Elections Act substituted a new and previously untried form of voting. The Human Rights Act was a matter of major constitutional importance. The Freedom of Information Bill now before your Lordships' House is a matter of arguably first-class importance. The Bill we are debating is probably of first-class importance, particularly in so far as it seeks to impose limits on the election spending of political parties and third parties. I believe that there would be far more referendums than the noble Lord contemplates.
There is a more fundamental question. We are a parliamentary democracy. The classical theory has always been that we elect our Members of Parliament to govern the country. It is for them to take the decisions; and if they get those decisions wrong it is for them to face the consequences at the following general election.
It is impossible now to continue to say that there is no place for referendums in our political system. There clearly is; we have had a number of them. We have been promised by the Government, with the support of this party, that there will be a referendum before this country joins the euro. There would have to be a referendum before there was a change of the electoral system throughout the country. But it is plain that referendums need to be used sparingly. For one thing, a referendum should be held only on a single, simple issue that can be answered by a straightforward "yes" or "no". It would he wholly inappropriate to have a referendum on this Bill, even if it is regarded as being of major constitutional importance. It is even more obvious that it would be inappropriate to have a referendum on changes in European treaties, many of which are very complex and do not present a single question that can be answered "yes" or "no". Some aspects of the treaties are welcome and some are not.
1154 It would be wholly wrong to impose a mandatory requirement to have a referendum in certain circumstances. It is for Parliament to decide when there should be a referendum. It should not be laid down for all time in a statute. The issue should be decided on each occasion. A referendum is a useful servant. It should not be made a master of the political process. That is why I regret that my colleagues and I are unable to support the amendment.
§ 10 p.m.
§ Lord Norton of Louth
I oppose the amendment. I have always had a principled objection to referendums. The fact that they may be held has not shifted my principles. The fewer referendums we have, the better. In an ideal world we would not have them.
I do not intend to rehearse the principled arguments about referendums. If anybody wants the best arguments on principle, they need look no further than Margaret Thatcher's first speech as Leader of the Opposition in the other place. It was an excellent exposition of the case against referendums. The arguments that she advanced then have not changed. Unlike some, I intend to stick to the arguments.
The amendment is flawed in two important respects. The first has already been touched on in part. There is a difficulty in defining terms on two levels. First, there is a distinction to be drawn between issues of first-class constitutional significance and those of second-class—or even upper-second-class—constitutional significance.
Some measures would clearly be recognised as being of first-class constitutional significance. Others might be constitutional measures which are clearly not first-class. That is not the problem. The issue is where the line is drawn between first and second class. That is difficult. The noble Lord, Lord Owen, says that the criteria will be related to controversy. That is not adequate. There have to be objective criteria for determining what is of first class constitutional significance.
The noble Lord, Lord Owen, has introduced a further difficulty by saying that the issue must be controversial. Where does a controversial issue stop and an issue that is widely debated but not controversial start? Where is the precise dividing line between that which is controversial and that which is hotly debated but not controversial? How far does the controversy have to extend? The noble Lord, Lord Goodhart, referred to the Government of Wales Bill. It was controversial in Wales but it may not have been a pubs and clubs issue in the rest of the UK.
The amendment is fundamentally flawed in its definitions. To some extent the amendment itself recognises the problem because the determination has to be made by somebody else. It will not be obvious what is a first-class constitutional issue, so there will have to be a figure who decides. The amendment confers that duty on the Speaker of the House of Commons, who is by reason of office a neutral figure. The Speaker is meant to transcend politics, not get involved in political issues. Determining whether an 1155 issue is controversial and of first-class constitutional significance is a highly political function. It would draw the Speaker into political controversy. That is not desirable for the office of Speaker and I do not think that the occupant of the office would particularly want that.
It is quite correct to say that in the other place decisions as to what matters should be dealt with on the Floor of the House are made depending on their constitutional significance. Such decisions are not based on a objective test; they are political decisions taken between the parties. I do not believe that such a decision could be hived off to the Speaker; I do not believe that the Speaker would want that to happen because it would serve to undermine the neutral role of that office.
I understand the argument advanced by my noble friend Lord Cranborne, who believes that the House of Lords may be the best body to handle the matter. I understand the argument for that. I can see that the House has the expertise to decide such an issue: it may be more detached and may be able to look at the matter more objectively. However, a fundamental practical problem lies in that route. Giving the House of Lords the power to decide when referendums will be held is one way to ensure that this amendment will not be acceptable to the other place. Therefore, in practical terms, that idea will not get far.
I believe that the amendment itself is fundamentally flawed. Wider issues or other problems may be raised. A problem also exists in that, if a referendum is triggered in relation to Bills that may be controversial, none the less they may not be issues which persuade people to get on their feet and take part in a referendum.
I take as an example an issue which is close to home—the House of Lords Bill. That Bill was certainly controversial within the Palace of Westminster. It may be determined that it was somewhat controversial outside. If the matter is considered objectively, it was a Bill of first-class constitutional significance. However, in all honesty, I do not believe that, if that issue were put to the country in a referendum, there would be a massive turnout on either side of the argument. It was a vital and important issue and was properly debated here. However, I do not believe that Parliament would do its reputation any good by allowing such a matter to be dealt with in a referendum. That would be my response to the argument advanced by my noble friend Lord Cranborne. I do not believe that one enhances the reputation of Parliament by handing over its responsibilities to other bodies.
Therefore, I believe that the amendment is fundamentally flawed. If we are to have referendums—and, for the reasons that I mentioned at the beginning, I prefer that we do not; but I recognise that as a fact of political life we may do—it should be 1156 for Parliament to decide when to hold one and on what basis and for Parliament to be held responsible for such a decision.
§ Viscount Cranborne
Before my noble friend sits down, in the context in which he used the word "Parliament", does he not really mean "the government of the day"?
§ Lord Norton of Louth
My view is that it is up to Parliament to decide those issues. If Parliament has the political will, that is a matter for Parliament. If Parliament is not strong enough, that is an argument for strengthening Parliament and not for passing decision-making to other bodies.
§ Baroness Blatch
Before my noble friend sits down, perhaps I may ask a second question. Does he not agree that on a matter of such importance Parliament should have the last word? Does he agree that, given that the Thatcher government had a large majority and that the present Government have a large majority, as my noble friend Lord Cranborne said, the matter would be in the hands of the government of the day as opposed to Parliament, although technically Parliament would make the decision? Does he not agree that at least a threshold should be passed in deciding something of such constitutional importance and that one suggestion—the suggestion enshrined in this amendment—would be one way to make a judgment? If that is not acceptable, would he at least accept in its place a threshold that must he passed?
§ Lord Norton of Louth
I would accept that completely, and I look forward to receiving the support of my noble friend when shortly we deal with my amendment which seeks to impose a 40 per cent threshold in any referendum.
§ Lord Dean of Harptree
I support the principle of the amendments, although I am doubtful about the details. Having heard my noble friend just now, I am even more doubtful. As is well known, our constitution is largely unwritten. The advantage of that is that it suits the way in which we deal with matters in this country. It has flexibility which enables us to react to immediate situations without having to go through a ponderous procedure of amending rules and regulations. However, the danger is that changes can be rushed through with undue haste and without proper consideration for the consequences. That happens whichever government are in office. This is not a party political point at all.
What goes for the constitution of the country in general goes also for parliamentary procedures. In your Lordships' House, we have relatively few Standing Orders. We proceed by consensus and common sense and by self-regulation. In another place, there are more Standing Orders but there too, consensus is necessary. My noble friend the Chief Whip will agree that neither House could function properly without the co-operation of the usual channels.
1157 There are two principles. The first principle is that the government of the day are entitled to get their business after due debate if they can command a majority. Equally, the opposition of the day are entitled to have adequate time to debate, to probe weaknesses and to persuade.
That is a delicate balance which can work only with give and take. That applies in particular to Bills of major constitutional importance. We are now in a position where those Bills of major constitutional importance are subject to the same procedure as that for Bills of minor significance. There was a time when there was a convention in another place, which the noble Lord, Lord Owen, and my noble friend Lord Cranborne will remember very well, whereby Bills of major constitutional importance had certain procedural safeguards. They were taken without a guillotine; and they were taken completely on the Floor of the House rather than being sent upstairs.
That convention has been discarded in this Parliament. Whatever people may feel about the merits of the constitutional Bills which have gone through in this Parliament, many people feel that that is an erosion of parliamentary procedure.
What is to he done? I am delighted that your Lordships' House has agreed that we shall have a constitutional committee which will alert the House to the constitutional implications of all Bills which are brought before it. I hope that that new committee, when it is set up, will be as valuable as the Delegated Powers and Deregulation Committee which alerts the House to the advisability or otherwise of delegated powers in Bills. I hope that the new committee will fulfil a similar function and will be able to point the House to the need to consider constitutional points in Bills which require special attention.
I suggest to the Committee that that is a good start and I hope that that committee will be up and running very soon. But is it enough? I doubt it. We need new procedures, both in Parliament and for the electorate, which will give more time for mature consideration and more protection against governments of any colour who are in a hurry.
I do not expect the Minister to accept any of these amendments this evening. But I hope that he will at least give a fair wind to the principle which has come out very clearly in all the speeches which have been made on the amendments.
§ Baroness Fookes
I share the views of my noble friend Lord Norton about the inadvisability of holding referenda. For my part, I should prefer that there were none at all. But since we are to have them, it is extremely important that we should set down clear and proper rules on the subject.
I turn to the proposals of the noble Lord, Lord Owen. I am extremely concerned about giving the Speaker of the House of Commons what seems to me an intolerable burden. For five years, I was a Deputy Speaker in the other place and there are only three Deputy Speakers plus the Speaker. Therefore, it is an extremely tight-knit arrangement. One saw at very 1158 close hand the normal strains and stresses placed on a Speaker, without this quite different arrangement which must, or would, draw the Speaker into considerable political controversy. I do not see how the Speaker could maintain impartiality in those circumstances.
If this amendment were to be agreed, I wonder what would happen if the Speaker refused to exercise such a decision. I should have thought that it would be within the powers of the Speaker to do that. I do not know what sanction there would be if the Speaker made that choice. Therefore, I believe that this would he a difficult provision to have on the statute book. Although I regret to differ from the noble Lord, Lord Owen—after many years as a neighbour in Plymouth—I cannot support this amendment.
§ 10.15 p.m.
§ Lord Alderdice
The Committee has every reason to be grateful to the noble Lord, Lord Owen, for bringing this matter to your Lordships' attention. He has pointed out that in recent times we have seen substantial constitutional changes—we must regard them as exciting constitutional changes—and they have stimulated him to encourage the Committee to consider how such matters may be dealt with properly, which is extremely helpful.
The noble Lord has also suggested that the Speaker of the House of Commons is a person of such wisdom and integrity that the responsibility should be placed in that office. I am the last person to suggest that Speakers, whether of the House of Commons or other places, are not people of enormous wisdom in all matters. However, in so far as they have a role to play, it is largely within the House in which they operate. The noble Lord has said that it is often the fortune or otherwise of the Speaker to determine how to deal with matters of controversy and political difficulty. That is absolutely true; at least it is certainly true in the part of the world from which I come.
However, the problem with referendums is that not infrequently the controversy is not between the parties in the Chamber, but outside in the country. The Speaker has no particular mandate to address matters of controversy outside the Chamber and in the country as a whole. Whatever mechanism one chooses, this one, however immediately and superficially attractive it may be, does not appear to me to be appropriate.
There are other difficulties. The speed of the constitutional changes to which the noble Lord has drawn our attention, has changed the context. One constitutional change has been devolution, not only for Scotland and Wales, but also for Northern Ireland. Under the Good Friday agreement, a principle that had been in existence for a long time was enshrined in an international treaty: that is, that it would be for the people of Northern Ireland to determine whether they remain part of the United Kingdom. Prior to that it was for the parliament of Northern Ireland, but now it is for the people of Northern Ireland.
It seems to me curious to suggest that that is not a change of first-class constitutional importance. If the people of Northern Ireland were determined to leave 1159 the United Kingdom, the United Kingdom would no longer exist; it would return to being Great Britain. The presence of Northern Ireland makes it the United Kingdom. Therefore, one could not suggest that it was not a change of first-class constitutional importance.
It would also seem a little strange to leave the decision on whether there should be such a referendum in the hands of the Speaker of the House of Commons when it is already clear in law and in international treaty that it is for the people of Northern Ireland to address the matter. I suspect that as far as that decision is concerned, it would be right that the people of the Republic of Ireland would also have a say, as they would have to live with us after that, but that is not a matter for the Committee or another place.
The constitutional changes to which the noble Lord draws our attention have changed the context in such a way that the solution that he proposes is no longer sufficiently encompassing. But we should be grateful to the noble Lord, Lord Owen. He pointed out for us the changes that have taken place and that are taking place, and that we must think about those matters. All that is true. It may be that extra belts and braces should be added to constitutional change by referendums. But there are many other mechanisms that could be used. The use of weighted majorities in Parliament has not been canvassed, nor mechanisms such as the involvement of your Lordships' Chamber.
So we should take the amendment of the noble Lord, Lord Owen, as a trigger for thought and perhaps discussion over a prolonged period of time as we see the developments that take place. We could then find an appropriate way, at some later stage, to address how we deal with the exciting constitutional changes that are taking place and, as we saw rather sadly today north of the Border, point up that we no longer have one Prime Minister, but a number of Prime Ministers; no longer one Parliament, but a number of Parliaments; no longer one Speaker but a number of Speakers. We now have a constitutional variegation; a variable geometry of politics which makes the simple solution proposed in the amendment neither simple nor appropriate to the times.
§ Earl Russell
In the University of London I used to teach the optional subject constitutional history. When we came to syllabus reform, we had to consider what was a matter of major constitutional importance. To do that for myself I found extremely difficult. To do it to produce the agreement of a committee I found totally impossible. Constitutional importance is like beauty; it is in the eye of the beholder. What is perceived as constitutionally important in one generation may be perceived as profoundly unimportant in another.
I also deeply share the misgivings expressed by the noble Baroness, Lady Fookes, about giving those powers to the Speaker of another place. I know that the Speaker has to be dragged to the Chair; I do not want that to become more literal than it is at present. With this amendment in place, it could become very literal indeed.
1160 Madam Speaker, or Mr Speaker as he might be on another occasion, is trained to make decisions according to the procedural rules of the House of Commons. That is her or his special excellence. That special excellence does not confer a power to decide what is of major constitutional importance. Those are extremely sensitive political decisions falling on an office supposed to be impartial. If they fall on the judges, that would be better because they take decisions according to rules which are themselves not at all political; they are quite different rules—statutory construction, interpretation of words and precedents.
Also, it would be extremely difficult for the Speaker of another place if the question of alleged constitutional importance concerned the relations between the two Houses of Parliament. I have absolutely no doubt that the Speaker's decision would be impartial; whether it would be perceived to be so by everybody in this Chamber is a question on which I have some misgivings. Even if it were possible to reach agreement on what is a matter of first-class constitutional importance, it does not follow that everything that follows is suitable for a referendum. For example, I could argue that the abolition of the Joint Committee on Statutory Instruments was a matter of first-class constitutional importance, for it would allow the executive to make law without the consent of Parliament. But I dread the thought of explaining the case for a referendum on that to the voters.
We should remember what happened in the referendum in France on the presidential term. The turn-out was more dismal than anything we have had here. If this amendment were to be put in place, it would open not a can, but a magnum of worms.
§ 10.30 p.m.
§ Lord Cope of Berkeley
The Committee will be grateful to the noble Lord, Lord Owen, and his colleagues for setting up the debate. It has been interesting and important. In the course of introduction, the noble Lord reminded us that as regards general referendum, the issue dates back to 1975 when the referendum took place on the European Community. That was undertaken in order to deal with the Labour Party's problem, as he rightly set out.
However, it did not decide the issue. The issue had been decided in the previous Parliament by an Act of Parliament. As my noble friend Lord Dean and other noble Lords will remember, as a Bill, it was subjected to the process of constitutional Bills; that is, a long and elaborate Committee stage on the Floor of the House, which is unusual in another place. The noble Lord, Lord Owen, also said that the purpose was to take party politics out of the decision on when to have a referendum. I disagree with that. I do not believe that in practice that would be achieved.
However, several other matters have received attention in the debate. First, I turn to the definition of the phrase "first class constitutional importance". No one has attempted a definition or much in the way of guidelines, and nor does the amendment. The 1161 amendment avoids the question by offloading it on to the Speaker. However, as has been pointed out by a number of speakers in the debate, including my noble friends Lord Norton and Lady Fookes, the noble Lord, Lord Alderdice, and the noble Earl, Lord Russell, the Speaker does not make decisions of this character. The Speaker in another place interprets and enforces the Standing Orders of the House of Commons.
Those of us who were Members of another place know that its Standing Orders are far more elaborate than those in your Lordships' House. Here, the Standing Orders are extremely brief. The Companion is almost as forceful as the Standing Orders and is more detailed but in the House of Commons everything that is in the Companion, and a good deal more, is covered by the Standing Orders. The Speaker's primary duty is to run the House in accordance with those Standing Orders.
It is true that daily that involves important and difficult decisions by the management of the House, but it does not involve the controversial decisions which could be involved in this matter. It would put in danger the independence of the Speaker. Occasionally the independence of the Speaker has been challenged. People have thought that the Speaker of the day was not as independent as he or she might have been, and therefore that difficulty has not been wholly avoided by the chair. Nevertheless, the amendment would introduce that provision more strongly. Reference is made to "the Speaker" in order to avoid the difficulty of defining what is "of first class constitutional importance", but I do not think we can get out of it that easily.
We all expect that in due course there will be a referendum on the euro. Sometimes the Government argue that because that is only an economic matter, not a constitutional issue, it must be decided by economic tests and the constitutional element is unimportant. That view is not shared by a large number of people, including myself, who believe that the constitutional aspects of the euro are as important as the economic aspects. But if the Government's view that the constitutional aspects are very much subsidiary to the economic ones prevailed, presumably that matter would be regarded as being of second-class, not first-class, constitutional importance.
The other part of the test is the question of divisions of public or parliamentary opinion. There are ways to measure levels of controversy. As far as concerns public opinion, one measure is the turn-out at referendums. The turn-out in the Welsh referendum was extremely low and showed that that was not a matter in which the people of Wales had as much interest as had been first thought. As has emerged in the course of the debate, there are all kinds of issues which can be regarded as being of first-class constitutional importance in which the wider public have little interest and knowledge. This was expressed to an extreme degree by the noble Earl, Lord Russell, who referred to the Joint Committee on Statutory Instruments.
1162 I believe that the underlying difficulty is the lack of a written constitution. Although I do not advocate for a moment that we have one, most of the constitutions that exist in the world have a number of features. One is that the constitution sets out the powers of the parliament, judges and so on and then provides a mechanism for altering the constitution itself. Invariably, that has more complicated hurdles—larger majorities, and so on—than a mere change in legislation by way of Act of Parliament or whatever. In that way the countries decide in their written constitutions exactly what is to be regarded as of sufficient constitutional importance to place greater hurdles in the way of change.
It is not quite true to say that we have no written constitution; we do, but it is combined in all kinds of different documents; for example, Acts of Parliament. For that matter, the Standing Orders of both Houses are in a sense part of our constitution. There are also constitutional conventions which are set out only in books, commentaries and so on, rather than in a definitive piece of legislation. But the difficulty of a provision of this kind, which is not avoided in this particular amendment, lies in deciding what constitutes a matter of first-class constitutional importance.
In Amendment No. 226, reference is made to,divisions of public opinion or parliamentary opinion".Amendments Nos. 223 and 227 in the name of my noble friend Lord Mackay of Ardbrecknish (who I am delighted to see has joined us) are directed to this point. My noble friend's proposal is that a referendum should also be held on receipt of a petition signed by 5 per cent of the relevant electorate. That is a substantial hurdle, but it is an objective measure to decide where, in respect of a particular matter, there is a significant amount of public opinion in favour of a referendum. It has that advantage over the primary amendment in this group, Amendment No. 226.
My noble friend has another amendment in this group, Amendment No. 228. That goes to the question of when the referendum should be held. It was expressed in the debate as being a question of whether there should be a post-legislative referendum or a pre-legislative referendum. My noble friend Lord Cranborne gave the example of the pre-legislative referendums in the Welsh and Scottish cases two years ago. That should not encourage us to have pre-legislative referendums.
§ Lord Goodhart
I am grateful to the noble Lord for giving way. Does he regard the pre-legislative referendums on Scotland and Wales in 1998 as being a worse example than the post-legislative referendums in 1978?
§ Lord Cope of Berkeley
The short answer to that is yes. It is better to have a fully formed proposal that has passed through Parliament and become an Act of Parliament and is then confirmed or not by the electorate, rather than a vague suggestion, which is what was incorporated in the two pre-legislative 1163 referendums in Wales and Scotland two years ago. That makes the referendum a much more sensible and reliable guide to what is happening. Otherwise, people when voting for a vague idea, as it were, do not necessarily know exactly what it is they are voting for, or, for that matter, against.
Amendment No. 222 moved by the noble Lord, Lord Owen, is neither pre-legislative nor post-legislative because the Speaker's certificate is granted after the Bill has been introduced into the House of Commons. The referendum takes place presumably before further stages of the Bill proceed. It is only when the referendum has been completed—if it is approved—that the Bill would then proceed on its parliamentary course. I am assuming that from reading the exact terms of the amendment.
That is probably the least satisfactory of the options that are available. But it flows from the Speaker making the decision of constitutional importance. It would frequently get us into trouble with the sessional business because if a Bill was introduced into another place, the Speaker would make up his or her mind, the referendum would take a number of months to set up and to be put in place and then the Bill would restart again quite a long way through that parliamentary session, even if it had started on day one. Therefore, we might need a further provision to carry over such a Bill. I am not in favour of that as a principle, but I think it is an awkwardness of the way in which the amendment has been drawn up. This has been an extremely interesting debate. I have no doubt that the questions raised by this group of amendments will continue to be matters themselves of controversy. They will also be matters of first-class constitutional importance.
§ Lord Bassam of Brighton
We should be grateful to the noble Lord, Lord Owen, for joining us tonight in this stimulating and interesting constitutional debate.
This group of amendments turns on the whole question of the circumstances in which referendums are held. I should say from the outset that this is not a matter on which the Government have ever had any intention of legislating in the context of the Bill. It is not an issue that was even addressed by the Neill committee. Nor is it a matter in which the Nairne commission on the conduct of referendums made any prescription. That is not to side-step the issues raised by this debate. They are issues of the utmost constitutional significance. But they would take the Bill into wholly new territory.
So far referendums have always been held at the instance of government and Parliament. The proposition in Amendment No. 226, on the other hand, is that a referendum must be held, whether or not the government of the day want it and whether or not Parliament wants it, on any Bill which makes any significant constitutional change. I have noted that in their comments today the Official Opposition have given a measure of support to the proposal. I shall allow myself a little scepticism as to the reasons behind 1164 the Opposition's apparent conversion to the doctrine that constitutional legislation demands the holding of a referendum.
Whatever the motives of noble Lords who favour the amendment, no one can deny that it is a very large proposal to bring forward, which, if passed, would itself make a profound change to the constitution of this country. Parliament would be binding itself not to proceed with a certain class of legislation unless it had been approved in a referendum. I do not believe that Parliament will want to do that out of the blue as a mere side-show to a Bill dealing with other matters.
If the view were ever taken that a change of this kind was desirable, the method of setting it up would certainly need further consideration. Amendments Nos. 222 and 226 would provide for a mechanism whereby a Bill certified by the Speaker could not be passed into law unless its provisions had been approved in a referendum. The grounds for certification of such a Bill would be that its provisions were of first-class constitutional importance and that there existed significant divisions of opinion on its provisions either inside or outside Parliament. The amendments place a great deal of weight on it being possible to identify a Bill as being of first-class constitutional importance.
The noble Lord suggests that in deciding such matters it ought to be possible to take a cue from the procedure in another place in respect of the Committee stage of a Public Bill. Since 1945 it has been the practice that only in the case of a Bill of first-class constitutional importance is the Committee stage taken on the Floor of the House. I fear that the amendment would put a weight on such a distinction that, in this context, it simply could not bear.
While the idea of a Bill being regarded as of first-class constitutional importance clearly has a precedent, there nevertheless exists no reliable definition of quite what the concept means. Questioned on the point by the Procedure Committee in 1945, Herbert Morrison suggested that it should mean,something that will make a material change in the working of the Constitution".But, in the absence of a written constitution, the question of whether a particular measure will make a material change to the workings of the constitution will inevitably be a matter of opinion and dispute. The decision as to whether or not a measure is tackled on the Floor of the House can bear that sort of fuzziness. In the end it is something which is thrashed out through the usual channels. It is not, frankly, a matter of the highest importance in the general scheme of things. It is certainly not a sound basis for deciding whether a decision by Parliament on a particular issue should be made subject to the outcome of a referendum.
§ Viscount Cranborne
I am extremely grateful to the noble Lord for his usual courtesy. In the context of this extremely interesting debate, can he explain what were the criteria used by the Government in deciding 1165 whether to call referendums on the matters that they have called referendums on since 1997; and indeed what were the grounds for calling a referendum in 1975? That might be a useful illustration as regards the noble Lord's argument.
§ 10.45 p.m.
§ Lord Bassam of Brighton
That is beyond doubt, is it not?
It is quite conceivable that the question whether Parliament is or is not transferring its powers would also be very much at the heart of the debate. It is not a reliable and objective criterion for deciding whether there should be a referendum.
In any event, the noble Lord has suggested that nothing like all those measures in which the Committee stage would be reserved for the Floor of the House would also be certified by the Speaker as requiring a referendum. Clearly, it is difficult to see that some of the measures which, since 1945, have had their Committee stage taken on the Floor of the House would have merited a referendum. The Ministerial and Other Salaries Act 1975 and the House of Commons Disqualification Act 1975 are two examples. One might assume that this is where the additional criterion about there being a significant division of public or parliamentary opinion comes in, but I suspect even some of the dullest constitutional legislation is capable—the noble Lord, Lord Norton of Louth, gave the Committee an excellent example—of provoking a significant division of parliamentary opinion.
Furthermore, it is the Opposition's job to oppose. So the implication is that the noble Lord has in mind some narrower definition of what constitutes a measure of first class constitutional importance than that which has operated to date. Where the dividing line lies is anyone's guess. If he is saying that, of those Bills which since 1945 have been classed as constitutional Bills, only a minority would have been certified as requiring a referendum, I would be intrigued to know exactly which ones he has in mind. I believe that the noble Lord, Lord Goodhart, had a pretty good stab at telling the Committee what such a list would look like. In the life of the current Government we have introduced Bills on Northern Ireland, on Scotland, on Wales and on the creation of the Greater London Authority. Some might argue that certain parts of the legislation before us tonight are of profound constitutional importance. Others might argue that the Representation of the People Act passed earlier in this parliamentary Session is of profound constitutional importance. Is the Immigration Act 1971 of profound constitutional importance, or the Referendum Act 1975? Would we need a referendum to decide whether to hold a referendum?
What is certain is that, were these amendments to be accepted, this Bill would itself clearly fall into the category of measures requiring the holding of a 1166 referendum. It seems that the noble Lord would have us hold a referendum on whether to adopt controls on referendums. That does not seem to be a sensible move.
What is also clear is that the burden of deciding whether a particular measure should be the subject of a referendum would fall squarely upon the Speaker of the House of Commons. A number of Members of the Committee—the noble Baroness, Lady Fookes, the noble Lord, Lord Alderdice, and others—have voiced ample and fulsome criticism of that proposal. It would be for the Speaker to consider both the constitutional implications of a measure and the extent to which it divided opinion, both inside and outside Parliament. I believe that that would represent an enormous burden. It would politicise that office in a manner which I do not believe any Member of your Lordships' House would ever countenance. Furthermore, it would add a whole new dimension to the forthcoming election of the Speaker of the House. The views of the holder of that office would become the subject of the most intense scrutiny.
Even if the Speaker were able to exercise the judgment of Solomon in deciding such matters, why should the decision to hold a referendum be left to any one person? A particular constitutional reform could be subject to intense debate during its passage through both Houses. The opponents of the measure might table amendments to the Bill to require a pre-legislative referendum before the reform could come into force. Those amendments might be soundly rejected in each House. Is the Speaker then to be given a free hand to overturn the will of Parliament? That would hardly seem right.
I shall come back to the point that the constitutional implications of the amendments have not been thought through; they are enormous. As long as the matter of holding a referendum lies at the discretion of Parliament, it may plausibly be argued that the holding of a referendum does not signify an abdication of parliamentary supremacy. The amendments would completely alter the picture. Not only would the amendments require that an entire class of business be put to a referendum, they would also require that such measures be approved by a referendum before they could pass into law. In other words, there would exist a whole class of business in respect of which Parliament would no longer be competent to decide. If the amendments were made, they would be fairly well entrenched since any Bill to effect their repeal would itself require the holding of a referendum.
There are many in this Committee who decry what they regard as the loss of parliamentary sovereignty over the past 30 years. It is ironic that those very same people now seek to perpetrate a further major constitutional shift with seemingly little thought for the long-term implications.
With that, I turn to the remainder of this group of amendments. The purpose of Amendment No. 228 is to require that referendums be held only on a post-legislative basis. The intention is that a referendum should be held only in circumstances where Parliament 1167 has already passed an Act which, subject to the outcome of the referendum, will effect the policy on which the referendum is to be held. The arguments for and against pre-legislative and post- legislative referendums are no doubt familiar to many of those here today. They are arguments which were rehearsed fairly comprehensively during the passage of the Referendums (Scotland and Wales) Act 1998. The great merit of a post-legislative referendum is that voters will know precisely what they are voting for or against. By contrast, it is argued, a consultative or advisory referendum may enable the voter to pass judgment on the principle behind a policy but leave the voter with no opportunity to pass judgment on precisely how that policy is to be implemented.
In practice, however, things are not so cut and dried; the arguments are finely balanced. I would remind the House that the merits of pre-legislative and post-legislative referendums were examined by the Nairne commission on the conduct of referendums. Its conclusion was that the question of whether to use a pre-legislative or post-legislative referendum was simply a matter of political judgment. There may well be circumstances in which a consultative or advisory referendum is the appropriate course. Where the execution of a policy will require complex legislation and will occupy a good deal of Parliament's time, it may well be prudent to seek the view of voters on key issues before proceeding with legislation. In such cases, it would be perfectly possible for the government of the day to set out its legislative intentions in advance of the poll. Returning to the example of the Referendum (Scotland and Wales) Act 1998, the Government issued a White Paper setting out its proposals for devolution in some detail.
It will of course be argued that there is no guarantee that proposals touted in advance of a consultative referendum will reach the statue book unscathed. That is so. But the scenario in which Parliament considers and refines measures with the hindsight of a referendum debate and outcome does not seem at all absurd. No more so than the scenario in which Parliament labours over a piece of legislation only to submit the finished package to the public for an unqualified yes or no.
Moving on, Amendments No. 223 and 227 take us again into different territory. Essentially, what is proposed is that upon receipt of a petition signed by 5 per cent of the electorate the government of the day will be obliged to hold a referendum. My initial reaction to the proposed amendments was that the Opposition Front Bench seemed an unlikely source for what looks uncannily like a recipe for Swiss-style democracy.
I am not going to argue that citizen-inspired referendums have no place in our system of governance. After all, the Local Government Act 2000 provides for referendums to be triggered by public petition. We would, however, need to go further afield for examples of systems which provide for referendums to be held on issues chosen by a requisite number of petitioners. Switzerland is the well-known 1168 example, but such arrangements also exist in New Zealand and a number of American states. The subjects of the referendums held under those arrangements have often been surprisingly mundane. The first referendum held in New Zealand as a result of a petition concerned, would you believe it, staffing levels in the fire service. In the United States, as a result of one such petition, Idaho polled its citizens on whether non-dentists should be able to fit dentures. We must assume that the noble Lord has stronger meat in his sights.
The noble Lord, Lord Mackay, is well aware of the possible concerns about any general resort to referendums. He has articulated them very eloquently in the past. Perhaps I may take the House back to the debate on the Referendums (Scotland and Wales) Act. The noble Lord said:Those of us who have had to seek election know that one of the constant questions we are asked is why we do not hold a referendum on the death penalty…Every Member of the Committee who has ever had to argue with a difficult constituent on the matter knows how difficult it is to tell him or her that one has to leave that decision to Members of Parliament…The position would be made even more difficult if we had asked people their views in a referendum and then decided not to accept the result of that referendum".".—[Official Report, 1/7/97; col. 116.]I think that many of those here today would agree with that. I am surprised, therefore, at the suggestion of a general provision for referendums to be held at the behest of the public.
I do not wish to follow up that objection of principle with a lengthy examination of the drafting of the amendment. But I would point out that a key matter on which the amendment is unclear is how the question to be put in a referendum following a petition is to be determined. I can only assume that it is intended that the question should be that proposed by the petitioners. If that is so, it begs the question: how would you avoid the possibility that such a poll might deliver a verdict that no government or Parliament could act upon, either because the question was unfair or because the proposition provided no real basis upon which to frame a policy?
We have had an interesting debate on this group of amendments. However, we are clearly in very deep constitutional waters. Whatever the merit of the arguments that have been put forward, I do not think that the role that referendums might have either in ratifying constitutional legislation or in restricting the ability of Parliament to provide for the holding of consultative referendums is a matter to be dealt with by means of amendments to this Bill. As I have said, the Government have sought with this legislation to give effect to the recommendations of the Neill committee as to how referendums should be conducted. The issues raised by these amendments are persuasively argued as being of a different order. On that basis, I urge their withdrawal.
§ Lord Owen
We have had an extremely interesting debate. I fully agree that this is an issue of far greater importance than can be determined, first, by a 1169 Committee of this House and, secondly, at this late hour. I have no doubt, therefore, that this can only be a probing amendment.
The underlying issue is clear. Can we continue with our present system; or are we being driven by a number of different circumstances to look at arrangements which exist in other countries? There were times during the noble Lord's response when this was made to seem a unique provision. A large number of our fellow countries in the European Union hold referendums on constitutional issues; or they have another safeguard—namely, there must be a threshold, a majority. In our Parliament we have only one vote—the straight voting system. There is no weighting at all. I examined the whole question of whether there could be two-thirds majorities or some such provision.
The hour is late, and I shall not take up all the detailed points. Much was made of whether this is a matter of constitutional importance. I do not think the decision is as hard as has been suggested. First, there are the precedents of establishing this in the House of Commons. After all, those are discussions between the usual channels.
On the question of the Speaker, the noble Baroness made a fair point. But, as she knows, the Speaker takes account of what is being said by the parties and consults deeply, whether he or she is making a decision on hybridity or on the certification of a Bill as a Money Bill, and on many other matters. The Speaker rarely makes his or her decision in a vacuum. It is the result of listening to the pressures that are brought upon him. It would only be in a context in which at least one political party was demanding that there should be a referendum, and he or she would have to make a judgment as to whether this was a purely opportunistic movement or whether it was well rooted on constitutional grounds.
Of course, the argument that the noble Lord, Lord Norton, raised against a referendum in principle and basically in favour of the constitution as it is, is a very powerful one. The constitution has actually served us pretty well, despite all the problems. However, there are signs of "creakiness" in the constitution and there are signs that we are, to some extent, getting a written constitution in through the backdoor by other means—whether it is the European Convention on Human Rights or, as is now being discussed in the European Union, the charter on fundamental rights. I do not want to go into all these areas, but this House will not be able to move away from this for as long a period as it has in the past. This debate is with us. As the noble Lord, Lord Alderdice, said, events in Ireland have introduced a number of very substantial changes as regards giving the people the right to make a decision by, for example, act of treaty. All those changes will have to be taken into account.
I, for one, should like to think quite hard about all the points that have been raised tonight. It may be for someone wiser and cleverer than I to come back with some form of an amendment proposing another procedure. Apart from anything else, I know full well that this issue would normally be referred to the 1170 Procedure Committee in the other place; and, if it was at all possible, the parties would try to find a measure of consensus on the matter. I personally think that that would be so.
I leave this final marker. I do not believe that we shall be able to sustain our present procedures. Important constitutional Bills will need a different procedure from the one currently in operation. However, that is a matter for future debate and argument. I can only thank noble Lords who have taken part in this debate and apologise for not having replied to all the points raised. With the leave of the Committee, I beg leave to withdraw my amendment.
§ The Deputy Chairman of Committees (Baroness Hooper)
Is it your Lordships' pleasure that this amendment be withdrawn?
The Deputy Chairman of Committees
The Question is, That Amendment No. 222 be agreed to. As many as are of that opinion will say, "Content"; to the contrary, "Not Content"—
§ [Amendment No. 223 not moved.]
§ 11 p.m.
Lord Mackay of Ardbrecknish moved Amendment No. 224:
Page 63, line 1, leave out subsections (4) and (5).
§ The noble Lord said: I believe that some of us will have noted that "little Division" from one part of the Chamber. We shall remember it when it comes to other issues in this Bill.
This is a very small amendment. It is very much a probing amendment. Clause 97 introduces some general points about referendums. Towards the end of it, in subsections (4) and (5), it empowers the Secretary of State "by order" to carry out certain actions. I wonder why these two subsections have been included in the clause. That applies especially to subsection (4)(b) which says that,
any specified provisions of this Part shall apply, subject to any specified modifications, in relation to any specified referendum for which provision is made by the Bill".
§ That is a pretty wide power to be given to a Secretary of State to change things in this referendum part of the Bill. I wonder what the Government have in mind.
§ It is possible that this provision is perfectly innocent in its intent and that it has been included only in case a referendum takes place before the Bill is enacted. That certainly looks like what subsection (4)(a) says. However, subsection (4)(b) does not say so and reads—at least to a non-lawyer like myself—as if it will apply for all time to come; in other words, that 1171 somehow or other a Secretary of State could make any specified modifications in relation to any specified referendum. That seems to me to be a pretty broad power to give to Secretaries of State. I should like some indication from the Minister as to why the Government feel that these two subsections are necessary. I beg to move.
§ Lord Bach
Clause 97 specifies the referendums to which the arrangements set out in Part VII of the Bill are to apply. Subsection (2) provides that, for the purposes of Part VII, "referendum" means a referendum held in pursuance of any provision made by or under an Act of Parliament; in other words, were the Bill to make no further provision on the point, the arrangements set out in Part VII would only have effect in relation to a particular referendum once the legislation providing for that referendum to be held had reached the statute book. As a result, the referendum period in relation to a given referendum could start only from the date the Bill providing for the referendum to be held had been enacted. This could seriously impact on the effectiveness of the provisions set out in this part of the Bill.
It is quite possible that only a relatively short period may elapse between the passing of a referendum Bill and the date of the poll. In the case of the 1975 referendum on Britain's continued membership of the European Community, the Referendum Act was passed on 8th May 1975 and the poll was held on 5th June 1975, just 28 days later. The two sides in the referendum did not, of course, wait for Royal Assent before they started campaigning. There was some acknowledgement of that fact in the legislation. Section 3 of the 1975 Act required the two designated umbrella organisations—namely, "Britain in Europe" and the "National Referendum Campaign"—to produce accounts showing their income and expenditure from 26th March 1975, the date that the Bill was introduced. Without such backdating the accounts would at best have told only half the story.
It is clear from the example of the 1975 referendum that there may be too little time after a referendum Bill is enacted for the controls in Part VII to impact on the referendum campaign. An obvious response to that is to delay the holding of the poll until a reasonable time had elapsed after the enactment of the Bill or the making of an order providing for the referendum to be held. That is all very well but there may well be instances where it is desirable that there is only a short interval between the passage of the necessary legislation and the holding of the poll. The referendum in Northern Ireland to endorse the Good Friday agreement was a case in point.
Commencing the referendum period on or after the date of Royal Assent would also ignore political reality. As in 1975, the referendum campaign in the country will be in full swing at the same time as the referendum Bill is making its way through Parliament. Those in favour or against the proposition to be put to the people in a referendum will not be biding their time. They will be forming their umbrella groups, 1172 raising campaign funds and spending those funds to advance their cause. The controls on donations and the limits on campaign spending must be in force at this time if they are to have any real impact.
Subsections (4) and (5) of Clause 97, which the amendment seeks to delete, enable the provisions of Part VII of the Bill to be applied to a referendum Bill which has been introduced into Parliament as if it were an Act. As a result, it would be possible to provide for the referendum period in a particular case to commence on, for example, the date of the First or Second Reading of the Bill under which the referendum is to be held. Once the referendum period starts, the controls on referendum expenses and the arrangements for designating the two umbrella organisations come into play. By designating the umbrella organisations at an early stage, they will then have sufficient time to make best use of the public funding provided under Clause 105 to launch their campaigns.
The purpose of Clause 97(4) and (5) is therefore simply to ensure that the arrangements set out in this part of the Bill can be applied in good time to any referendum campaign. If these subsections were to be removed and the arrangements could only be applied from the date a referendum Bill is enacted, the effectiveness of this part would be greatly diminished.
The spending limits in Schedule 13 apply to a United Kingdom-wide referendum. The order-making power which the noble Lord asked about would be used to set different limits in the case of a referendum in, say, Scotland alone.
§ Lord Mackay of Ardbrecknish
I am grateful for the noble Lord's comments. I followed what he said and I understand the point about the umbrella organisations perhaps needing to be identified and the spending limits needing to be put in place before the legislation is finally passed for a specific referendum. I shall read carefully what the noble Lord said with a special eye to making sure that the order-making powers do not encompass wider matters than the items he mentioned, as I have suspicions—I cannot think why I should have—about giving Ministers too much power. I am never entirely sure whether they can always be trusted and in every circumstance. I am grateful for the noble Lord's explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 97 agreed to.
§ [Amendments Nos. 225 to 228 not moved.]
§ Clauses 98 and 99 agreed to.
§ [Amendment No. 229 not moved.]
Lord Mackay of Ardbrecknish moved Amendment No. 230:
After Clause 99, insert the following new clause—