Something on referendums which you should read

The House of Lords: adding value to the referendum debate

IT MAY not be fashionable to say so, but I have always felt a grudging admiration for the work of the House of Lords. This has increased markedly over the last three years on viewing the way in which the Constitution Committee of the House of Lords has dealt with the Legislative Competence Orders that have emanated from the National Assembly for Wales. If we must have a system of co-legislation, albeit as an interim phase, then the conduct of that committee is a model of added value.

It was therefore without any hesitation that I accepted the invitation to provide evidence to the Constitution Committee during their recent enquiry into Referendums in the United Kingdom. This offer came about because of my role as former National Co-ordinator of the Yes for Wales campaign back in 1997. My witness session occurred alongside Lord Fraser of Carmyllie, former Director of Think Twice, which had been the No campaign in Scotland at the same time. In questioning us, committee member Lord Norton of Louth made the point that “You are not our first witnesses but you are our first witnesses who have practical experience of being at the heart of campaigning.” This struck me particularly because, if you think about it, there are very few people who have actual solid experience of planning and delivering on a national referendum campaign. (Though of course it subsequently became clear that Elin Jones AM has way more experience in such matters than me…)

My attitude generally since 1997 has been to try and forget the referendum campaign. “The past is a foreign country, they do things differently there,” as LP Hartley wrote. But being a graduate of both politics and history, it seemed appropriate to undertake the personal psychoanalysis that released those long buried memories. Giving evidence was therefore a cathartic experience.

But even moreso has been the knowledge of being able to contribute to something which is comprehensive, considered and persuasive – the final report of the Committee on Referendums in the United Kingdom. The Welsh audience for this document may be virtually exclusive to those who have read this column or this one on WalesHome.org, but that is not a problem. Because ultimately there has been so little experience of referenda in the UK that questions of balance and politicisation – even elitism – are legitimate and need to be posed. As does the issue of press reporting of referenda, which was a matter of some concern to many witnesses.

The report is worth considering in the round, but there are a few key points which leapt out as having a particular bearing on where we are in Wales at the moment. The first of these is the first recommendation of the report, which states:

The balance of the evidence that we have heard leads us to the conclusion that there are significant drawbacks to the use of referendums. In particular, we regret the ad hoc manner in which referendums have been used, often as a tactical device, by the government of the day. Referendums may become a part of the UK’s political and constitutional practice. Where possible, cross-party agreement should be sought as to the circumstances in which it is appropriate for referendums to be used.

On first reflection, my opinion was that the circumstances of our own advancing referendum did not quite meet this view. After all, the Government of Wales Act 2006 was not exactly born out of consensus anywhere other than within Welsh Labour. But on further pondering it became clear to me that there was indeed a cosy consensus around the use of a referendum to decide Wales’ future. The Conservatives have long argued for one, the Liberal Democrats do not dispute the need for one, and even Plaid say no more in their manifesto than they want a referendum to be held purposefully. Indeed, even True Wales wants a referendum. So it seems that matter is settled.

Which makes it a little jarring that when the report then immediately offers a view to the appropriateness of a referendum, it makes the following point

…If referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues. We do not believe that it is possible to provide a precise definition of what constitutes a “fundamental constitutional issue”. Nonetheless, we would consider to fall within this definition any proposals:

To abolish the Monarchy;

To leave the European Union;

For any of the nations of the UK to secede from the Union;

To abolish either House of Parliament;

To change the electoral system for the House of Commons;

To adopt a written constitution; and

To change the UK’s system of currency.

This is tempered by the assertion that it is “not a definitive list of fundamental constitutional issues, nor is it intended to be.” But having said that, there does seem to be an enormous chasm between the suggestion that a referendum would be needed in a Welsh context to “secede from the Union” (a delightful phrase evocative of Fort Sumter) compared to the next usage of a referendum in Wales, which will simply approve or decline whether to move from Part 3 to Part 4 of the Government of Wales Act 2006. And indeed, even if the proposition is declined it will not end the process of piecemeal transfers which will, over time, bring the powers of the Assembly to the same point anyway. Which prompts me to think even harder about whether the whole damn process of calling a referendum on such a minor issue (at least in legal terms) is appropriate. By the strict rigidity of this Lords list, it surely wouldn’t be.

The report goes on to make a recommendation about the balance between the executive and the legislature in terms of when to call a referendum:

To leave such judgments entirely in the hands of the government of the day is in our view inappropriate. Parliament should decide whether or not a referendum is appropriate in a given circumstance.

This of course accords with the current approach being taken for Wales. The Assembly has begun the trigger process, both governments at each end of the M4 are involved, but the final decisions on triggering will be taken by both the Assembly and the Commons. So that principle is being taken forward intact.

Another recommendation which caught my eye was:

We recommend that there should be a general presumption against the use of voter turnout thresholds and supermajorities. We recognise however that there may be exceptional circumstances in which they may be deemed appropriate.

Thank goodness for that. A panel of experts has here unanimously concluded that the type of vote rigging enshrined in the legislation underpinning the Wales and Scotland referenda legislation back in 1979 is generally bunkum. Whether that will stop the handful of anti-devolutionists who haunt the Welsh blogosphere and keep repeating this demand is, of course, very doubtful.

The report may, of course, ultimately change nothing. It is simply advisory. But if you’re the type of person that values good advice, this report is worth reading.

It’s nice at a time when everyone is fixated with democracy that the unelected can make such a positive contribution to a critical issue for the modern Wales.