Lords Reform: Whose Referendum is it Anyway?
Author: James Graham
Published on Jul 20, 2012
Much of the debate over the House of Lords reform bill focuses on whether or not a referendum should be held. Labour, who support reform, are committed to holding one on the subject in their manifesto, while many opponents of Lords reform see a referendum as the best way to stop it from happening.
Unlock Democracy supports the principle that the public should have a right to block the reform, and suggest introducing a rule in which a referendum should be held if at least 5% of the electorate petition for one (see our briefing here [pdf]). If this system were adopted and the requisite number of petition signatures were acquired, the elections would not take place in May 2015, with a referendum held on either the day of the general election or shortly afterwards.
It looks likely that MPs - both supporters and opponents of reform - will insist on a referendum of some form making it into the legislation. This being the case, it is high time they started talking about the details. It is never a simple matter of whether to hold a referendum or not: what question should the electorate be asked, and when should the referendum be held?
The first issue that needs to be resolved is: what should the referendum be on?
Clearly the opponents of reform would like the choice in the referendum be between the status quo and a compromise position. That way they can argue, as the NO2AV campaign did, that “nobody really wants” what is on offer, no doubt into the process recruiting a number of reformers who find the compromise intolerable to act as spokespeople.
This method of “divide and rule” is a time honoured tradition for referendum campaigns the world over. And it represents a genuine dilemma: if you consider the proposal on offer to be a half-measure do you hold out for more, or compromise now?
There are three potential solutions to this. The first would be simple to not put a compromise measure to the public at all, but instead hold a referendum on whether or not to have a fully elected second chamber. This was, after all, a manifesto commitment for the Labour party, the Lib Dems and the Greens, meaning that more than 52% of the public voted for a party supporting this option in the last general election; why compromise?
Of course, it is more complicated than that: there’s still the question of what voting system to use, length of terms of office, etc. On top of that, plenty of supporters for a hybrid house would no doubt switch sides and support the “no” campaign.
There is then the option of a multi-option referendum. The referendum for the Scottish Parliament in 1997 asked Scots not only to endorse the setting up of a Scottish Parliament but, separately, asked whether the new chamber should have tax-varying powers. For Lords reform, it should be simple enough to ask a two part question, such as:
- Should the House of Lords be replaced by a directly elected second chamber?
- In the event of a directly elected second chamber be established, should up to 20% of places be appointed?
The third option would be to hold a two stage referendum, in which the public are given a number of options in the first stage, and then asked to endorse the most popular option which emerged in the first. Such a process would be more expensive to run (although if you are determined to spend tens of millions on a referendum, it is hard to argue in favour of half-measures), but ensures that whatever proposal is put to the public at the final stage is undoubtedly the one which enjoys the broadest consensus. New Zealand has used a two-step process in both 1992 and 2011 to vote on its voting system: on the first occasion when it voted to scrap first past the post and adopt the mixed member proportional (MMP) system, and on the second occasion when it voted to retain MMP (thus not necessitating in a second state of voting).
The downside of such a procedure would be that opponents of reform would be in a position to conserve their resources for the second confirmatory referendum, while reformers would risk tearing themselves apart fighting the first campaign. In New Zealand, the two-stage process was originally introduced by supporters of first past the post in a failed bid to derail the introduction of proportional representation (as recommended by a Royal Commission) by dividing the supporters of different systems. On the two occasions a referendum has been held, reformers have been able to remain broadly united. On balance, a multi-option, single stage referendum is probably the best option and is certainly less unwieldy.
Whichever system is used, pro-reformers who believe a referendum is necessary must not fall into the trap of allowing opponents of reform to effectively decide what topic the referendum itself should be on as was effectively allowed to happen in the 2011 referendum on electoral reform. Referendums are not, ultimately, about achieving consensus but about establishing what majority opinion is: confusing the two is often a recipe for disaster.
The other big factor is timing. Over the next few years, the following elections and referendums will be held in the UK:
- November 2012: Police and Crime Commissioners (England and Wales)
- May 2013: Local Government Elections, including county councils (England)
- June 2014: European Parliament Election and Local Government Elections, including London and other metropolitan boroughs (England)
- November 2014: most likely date for Scottish Independence referendum
- May 2015: General Election (and elections for Scottish Parliament, National Assembly of Wales and Northern Ireland Assembly)
That’s quite a busy timetable. The Electoral Commission’s advice in the past has been to not hold a referendum at the same time as a election and certainly the experience of the AV referendum (which clashed with the Scottish, Welsh, NI and local government elections) was that the parties struggled to engage with the referendum while the election was going on. This would certainly rule out holding the referendum in May 2015 - in addition to the fact that it would prevent the first elections from taking place then.
For similar reasons, it would be hard to justify holding a referendum in the six months running up to the general election, with all the parties focusing their resources on the upcoming election. And in the six months before that, most UK parties will be focusing on the Scottish referendum on independence.
The best option would appear to be to hold the referendum in March 2014, a couple of months before the European and local elections that year. However, that date would only be possible if the House of Lords chose not to block the bill and it was not necessary to use the Parliament Act to force the legislation through.
If the House of Lords is determined to play dirty tricks - and many of its members have pledged to do so - they could easily prevent the referendum from going ahead on that date, assuming the legislation does not clear all the stages of debate in the House of Commons before the end of 2012. So if that date were to be kept, MPs would have to be very disciplined in terms of not taking too long to scrutinise the legislation. Without a programme motion to set the timetable, it will be very hard to prevent that.
If March 2014 was not an option, the referendum would almost certainly have to take place either after the 2015 general election or on the general election day itself. Both these options would mean either not holding the first elections in 2015 or holding the referendum retrospectively.
Holding the referendum on the day of the general election would certainly be cheaper and ensure a good turnout, but would mean that there would be little or no actual debate. With all three major parties formally in favour of reform and the majority of activists focused on the elections, in practice it would be little more than an opinion poll. In terms of reducing the ability of the respective campaigns to make the referendum about something other than what is on the ballot paper, that may actually be a good thing but it is inarguable that it would be less deliberative.
A retrospective referendum after the general election would also have some merits, assuming that only a minority of the second chamber had been elected by that point (as is proposed in the House of Lords reform bill). The “suck it and see” approach, it would enable the public to experience how the new system would work in practice while it still being possible to go back to the old system if need be. In the event of the proposal for an elected chamber falling, the rump of elected members could simply serve out their terms of office - hardly a constitutional outrage given that the vast majority of peers take a party whip in any case.
In conclusion, holding a referendum is perfectly possible, but the “what” and the “when” need to be thrashed out. Thus far, the debate has been presented as if the supporters of the referendum option are united. If the referendum is to be practical and winnable though, those who support both a referendum and Lords reform itself need to be wary of siren voices leading them up a cul-de-sac.