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Parliamentary Voting System and Constituencies Bill

My Lords, I have, for my sins, tabled Amendments 11 and 15 in relation to a 40 per cent threshold, but I have considerable doubt whether those amendments are in any way superior to this one. The effect of my amendments, if I may so call them, would be completely to nullify the effect of the referendum. It would be as if it had never happened if it was carried by a yes vote but the turnout was under 40 per cent. That would be the end of it, it would be totally expunged. The effect of the amendment proposed by the noble Lord, Lord Rooker, is very different. It states that the referendum stays. The referendum has no mandatory effect, but it has a consultative effect to which, obviously, the Government of the day would be under considerable moral and legal obligation to pay the highest heed. That is the difference between them. The beauty of the amendment of the noble Lord, Lord Rooker, is that it gives great flexibility. It enables the Government to take into consideration all the matters which are relevant to its ultimate determination, including the level of turnout. For example, if the turnout was 39 per cent, it seems to me that it would be entirely proper for a Minister to say, ““In the circumstances, we see no reason why we should not accept this as, effectively, the will of the people””. On the other hand, if the turnout was 29 per cent, that might be very different. If there were special circumstances in relation to polling day, they, too, would be relevant factors to be taken into account. The beauty of Amendments 11 and 15, however, is that they give certainty. There would be no question of any dubiety about whether the Government of the day were acting properly and fairly or were in any way tinged by partisan considerations. It would be absolutely certain. It is said that Sir Walter Raleigh, contemplating the axe that would put an end to his life, said, ““It is a sharp but certain remedy””. That is what my amendments would be: a sharp and certain remedy, possessing the merit of certitude but lacking any flexibility. Three questions should be asked about the issue which are relevant to my amendments, and I shall not repeat them if I speak on those amendments. First, how serious would it be if only a derisory turnout supported a yes vote? Secondly, is a 40 per cent turnout threshold the right way to go about it? Is it fair and just? Thirdly, would any alternative in all circumstances be worse? I start with a proposition which I suppose that everyone in this House will accept: this situation is unique. We have never been this way before. Only one all-UK referendum has been held, in 1975 on the question of whether Britain should depart from the European Union. That was not a mandatory referendum; it was a consultative referendum. I have read the Act again. There is nothing in the Act that says in any way that it is authoritative, so it could only have been consultative. I am sure that that is the correct constitutional judgment in the circumstances. Therefore, we have the unique situation of an all-UK referendum that is mandatory. How serious would it be if there was a derisory turnout? I believe that that would eat like acid into the very roots of our parliamentary and constitutional system. I do not believe that one can exaggerate what would be the case. There is cynicism abroad already about this House and the other place. That cynicism would be multiplied many times if it were felt that changes had been made that turned only perhaps on a percentage of 10, 15 or 20 per cent. It can be said that Governments are elected on very small majorities and with very small turnouts. That is certainly the case: I think in 2005 it was under 22 per cent, as has already been said. Governments come and go: massive features of the constitutional landscape remain. That is what we are dealing with. The next question is whether this is the way to deal with this matter. Yes, I believe that it is. One could certainly consider the alternative of a majority provision, where a majority has to be x per cent. Many will remember the Cunningham amendment of 1979 which operated in Scotland and in Wales. The very eminent constitutionalist Professor Bogdanor laid the situation bare in the following way. With an 80 per cent turnout, you could achieve that 40 per cent majority with half of that vote plus one vote. With a 70 per cent turnout, you could achieve the 40 per cent majority with 57 per cent of those electors voting yes, which is a high percentage. However, with only a 60 per cent turnout, which would be very substantial—I think that was the turnout in Scotland in 1979—you would need 67 per cent of those electors to vote yes; a level so high as to be virtually impossible. The idea of a threshold condition, therefore, is entirely proper. I am in grave doubts as to whether my amendment has merit over that of the noble Lord, Lord Rooker, or whether the amendment of the noble Lord, Lord Rooker, has merit over mine. But if the House is of the opinion that this is the way to do it, I would completely accept that. As regards the 40 per cent, that is about right. With regards to Sir Patrick Nairne, I think there were two sittings—the 1997 and 2006 sittings—when turnout thresholds of 50, 60 and 70 per cent were discussed Bearing in mind that in no general election since time immemorial—as far as I know—has less than 50 per cent of the electorate voted, and that in the previous referenda referred to the turnout was always 50 to 60 per cent, 40 per cent seems to me to be right and proper. I do not accept the canard that by having a threshold an abstention amounts to a no vote. That is utterly misplaced and misconceived. There is no evidence one way or another. It is as likely as not that, were there a threshold, persons who are mildly disposed in favour will be brought out to vote. But if one places oneself in the mind of an ordinary elector who had doubts about the matter in hand, one can ask whether he going to vote or to abstain. If he votes, there is a stone cast deliberately and positively against the proposition. That stone will be part of a pile that he hopes will be sufficient to defeat it. If he does not vote, there is uncertainty as he does not know whether the threshold will be reached.