Craig Prescott 10.17am
Some people think a referendum is necessary, others don’t. Both sides are correct but they miss the fundamental issue.
Nick Clegg has argued that reform should not be dependent on a referendum because all three main parties support reform, and further, they committed themselves to reform at the last general election.
David Cameron, while still open to the idea of a referendum, also believes there are many arguments against holding one.
Both positions are untenable as far as the draft Bill is concerned, or the recommendations proposed by the majority of the Joint Committee for the Bill.
As all three main parties were in favour if reform at the last election, voters were presented with Hobson’s choice and couldn’t express their views either way on the issue. Furthermore, the Labour party included a commitment to a referendum in their 2010 manifesto.
Significant constitutional change should be as inclusive as possible, whereby the agenda is not wholly dominated by a section of the political class. This is why in many written constitutions around the world you would not now be reading this article, as it would be legally required for such proposals to go before an electorate in a referendum (the Australian Constitution is such an example).
Furthermore, it would be odd if a referendum was required to change the method of composition for the Lower House (the AV referendum) but not for a more radical alteration of the Upper House.
On a more principled level, it seems strange to attempt to introduce democracy to the House of Lords in an undemocratic way by refusing to hold a referendum. In this respect, the view of a majority of the Joint Draft Bill Committee in strongly suggesting a referendum is to be commended.
However, those who argue against a referendum are also correct. It all depends on what one means by ‘reform’. At the risk of criticising the Bill committee in the way you might criticise a lemon for not being an orange, they have not considered other proposals for reforming the House of Lords.
Incremental reform, for instance, would not require a referendum. This is the line taken in the Alternative Report, published independently by a minority of the membership of the Bill committee. This report proposes to harness the momentum for reform to propose legislation that could readily be included in the forthcoming Queen’s Speech. It should remove the remaining hereditary peers, permit peers to take permanent leaves of absence, introduce a minimal attendance requirement, and allow for the retirement of peers. Such legislation would be more politically acceptable to all members of all parties. It contains nothing controversial and could be a basis for more long-term reform.
Which according to the Alternative Report should be the responsibility of a Constitutional Convention. This is a common process elsewhere in the world, such as in Australia and certain federal states in the USA. The convention would consider the issue fully and in a broader manner than the current Bill committee has been able to do. Its membership would comprise constitutional experts, current Westminster politicians and representatives of devolved assemblies, local government, businesses and faith groups. It must operate apart from the political cycle. Ultimately, the convention’s proposals would be put to the electorate in a referendum, for the reasons offered above.
The fundamental issue missed by participants in the present debate about a referendum is that it is no longer sufficient for the ordinary political process to dominate the debate. It has dominated for a century, over two Royal Commissions, innumerable policy papers, inconclusive parliamentary debates and votes and, today, a draft Bill with a split committee and two diverging reports.
It is time for a fresh approach to an old problem.
Craig Prescott teaches Constitutional & Administrative Law at the University of Manchester.
Follow Craig on Twitter @craigprescott