Mrs. Margaret Thatcher (Finchley)
From the way in which Edward Shortthe Leader of the [column 305]House began his speech. One would have thought that a referendum had been an inherent part of the Labour Party's doctrine for a very long time. The right hon. Gentleman knows full well that that is not true. In July 1971 Harold Wilsonthe Present Prime Minister, then Leader of the Opposition, said from this Dispatch Box, when the question was being discussed at Question Time:
“I oppose a referendum, and I agree—I have always done so, as he has. The idea of an advisory referendum was not then put forward, but I still agree with the right hon. Gentleman on this question. But since he said, rightly, that the decision must be taken by Members of Parliament, each of them taking responsibility for his decision in the matter, will he look again at the White Paper which he published yesterday.” —[Official Report, 8th July 1971; Vol. 820, c. 1515.]
It is clear from that that the present Prime Minister was wholly against referenda and thought that the decision should be made by Members of Parliament. I was a little concerned that in the closing parts of his speech Edward Shortthe Lord President said that the British people must have the final say. I cannot quote his exact words, but I think that that was the expression he used. That is inconsistent with his earlier remark that the referendum did not derogate from parliamentary sovereignty. If it does not derogate from parliamentary sovereignty, it is Parliament which has the final say. He said that his pledge was that the British people should have the final say. That shows our constitutional difficulty in discussing this subject and in taking decisions before we have thought about them properly and considered all the consequences
The Lord President made great play on the question of the full-hearted consent of the people. Yesterday, when I was having the compulsory cold collation which we have to have these days, I was interested to see this letter in the Evening Standard:
“How tired one gets of the well-worn cliché ‘the full-hearted consent of the people’. What exactly is meant by this? Referenda for every important piece of legislation? If this was the case, we would have no Race Relations Act, immigration would have been stopped, abortions would still be illegal and hanging still be in force. All these laws were passed not only without this full-hearted consent nonsense, but, if the polls are to be believed, in the face of a determined 70 to 80 per cent. of the electors' wishes to the contrary.”[column 306]
I expect that that is what we shall move to if we have the first referendum without considering the consequences that every piece of legislation will require full-hearted consent, which normally means consent exercised through the House, consent which my right hon. Friends and I have been concerned to exercise through the House but which the Lord President is now saying is consent exercised through the new device of a referendum. That used not to be part of the Labour Party's doctrine.
This referendum, if it is held, will be the first in United Kingdom history to affect the whole of the United Kingdom, but the White Paper makes no attempt to consider this constitutional decision.
Mr. Kevin McNamara (Kingston upon Hull, Central)
Does the right hon. Lady think that the referendum on whether the Six Countries should remain part of the United Kingdom did or did not affect the rest of the United Kingdom?
The referendum was not taken over the whole of the United Kingdom, as the hon. Gentleman knows.
The White Paper makes no attempt to consider the constitutional decision of a referendum. It does not discuss its long-term effect and it does not indicate the status of the referendum result at law. Indeed, the White Paper avoids all the fundamental arguments and treats the whole question as merely one of tactics and organisation—and to that I would add semantics.
The speech made by the Lord President shows how difficult it will be to frame a question which suits everyone and is regarded as fair by everyone, let alone how difficult will be the framing of the 1,000-word statements by umbrella groupings. That will be even worse.
Used by the Labour Government in the form proposed, the referendum is a tactical device to get over a split in their own party, and any constitutional consequences are, therefore, of only secondary importance in the Government's eyes.
Mr. Michael English (Nottingham, West)
Is the right hon. Lady aware that the Labour Party picked up the idea of a referendum during the passage of the European Communities Bill from an amendment tabled by the hon. Member [column 307]who represents the faction in the Conservative Party that is anti-market?
On that occasion the referendum was rejected. Speeches were made on the subject from both sides of the House, to which I shall refer. The hon. Gentleman's interruption does not alter the fact that the White Paper makes no attempt to discuss the constitutional position once we have had the first referendum, although members of the Government accept that once we have a first referendum things will be different and will never be the same again.
I quote from a letter which appeared in The Times of 11th April 1972 from Roy Jenkinsthe Home Secretary:
“It may be argued … that the EEC referendum would be a once-for-all operation. The device would never be used again. Who can possibly say that? Once the principle of the referendum has been introduced into British politics, it will not rest with any one party to put a convenient limit to its use. And most history shows, as Clem Attlee pointed out with terse force in 1945, that it is a splendid weapon for demagogues and dictators.”
Those who resigned with the Home Secretary on the occasion when the Labour Party later adopted the referendum—I understand after two meetings of the Shadow Cabinet within the space of a fortnight—took a similar view.
Mr. Roderick MacFarquhar (Belper)
I remind the right hon. Lady that the gentleman who proposed a referendum in 1945 was the then Leader of the Conservative Party and Prime Minister—Sir Winston Churchill.
Indeed, yes. If I may go on with my own speech I shall come to that.
Referenda have been discussed before, in the House and elsewhere. There are some names that can be quoted in support of both sides of the argument. There will be even more names that can be quoted on both sides of the argument before we have finished the debate, if certain members of the Government vote in a way contrary to the way in which they resigned some time ago.
First, Dicey will be quoted on both sides of the argument, first by looking at the main edition of his book, which states that parliamentary sovereignty is supreme and, secondly, by looking at his views as a political activist who hated the party [column 308]system and thought that what he called the absolutism of a party possessed of parliamentary majority needed to be curbed. I confess that when I look at the Government benches I am inclined to agree with him that there are times when the absolutism of a majority party needs to be curbed, particularly in the period when curbs have been stopped after the reduction in powers of the House of Lords.
Mr. Gordon Wilson (Dundee, East)
Is the right hon. Lady aware that Dicey is a work on English constitutional law which is not acceptable in Scotland? Is she also aware that the Prime Minister promised the Lord Advocate consultation on the question of the constitution of Scotland?
Do read him. Both the eighth and tenth editions are full of good stuff. The last one which he wrote was the eighth edition.
Mr. Michael Stewart (Fulham)
I would prefer to get on, otherwise I shall take such a long time. I have only just started.
Mr. Michael Stewart
I only wished to say that I hope that the right hon. Lady will not pray Dicey in aid too much. If she reads another of the appendices to his great work, she will find that he argued that it was against the order of nature that women should elect Members of Parliament.
It is interesting that in these days it is much easier for women to get on in the Conservative Party than in the Labour Party. Women who are politically interested therefore know which party to join to pursue their political activities. The reference to Dicey which I have made came in the introduction to the eighth edition, and it was used as an argument against a referendum. Dicey was on both sides, and will be prayed in aid by both sides.
Churchill proposed a referendum at a time when there had not been a General Election for a long period, when the normal constitutional procedures were in suspense. Previously, as Home Secretary—Home Secretaries seem to get into trouble on the referenda issue—Churchill resisted an amendment to have a referendum in 1911. [column 309]
Churchill also can be prayed in aid on both sides—against the referendum when in Government, and for a referendum at the end of the wartime period. Therefore, one can pray in aid well-known parliamentarians or constitutional lawyers on both sides.
It is frequently the case that those who are against a change in the law put up the proposition of a referendum when they think that, by having one, they can defeat the change in the substantive law. That is the usual reason for such a suggestion. The answer given by the Government of the day is to consider all constitutional consequences. There have been a number of cases of that kind. There was a conference on the reform of the second Chamber which looked at the question of referenda and came to the following conclusion:
“The majority of the conference did not approve this plan on the ground, among others, that the use of the referendum, once introduced, could not be confined to cases for which it was in this instance proposed and that it might tend to lower the authority and dignity of Parliament.”
Whoever tends to be against a Bill proposes a referendum. Normally the answer is, “Let us consider its constitutional effects before agreeing to it” .
The White Paper takes the view “Other democratic countries have had a referendum—why should not we?” That is to take far too simplistic a view of the referendum and to attempt to divorce one constitutional feature of a country from its whole context and refuse to look at the matter against a proper background.
If one is considering a referendum—I would be prepared to consider it, but not against this background—it would have to be considered against whether one should have a written constitution, under what circumstances one should have referenda, and how one would require to limit the power and curb the use of it by the Government of the day.
Rightly or wrongly—I would say wrongly—have we not already got a written constitution by virtue of our affiliation to the Common Market? It is full of written provisions which purport to apply to this country.
The answer is “No.” On occasion, those who have proposed a referendum naturally have subordinated whatever they might have thought of the [column 310]constitutional circumstances of a referendum to what they thought of the provision which it was meant to be against. We recognise that this may happen again. But before embarking on a referendum we, as a House, should consider its far-reaching consequences. We should attempt to do so under four heads. First, parliamentary sovereignty; secondly, collective responsibility; thirdly, representative Parliament; and, fourthly, the consequences for treaty obligations which have already been assumed.
Let me deal first with parliamentary sovereignty. There is no power under which the British constitution can come into rivalry with the legislative sovereignty of Parliament. That is the tenth edition of Dicey. To subject laws retrospectively to a popular vote suggests a serious breach of this principle. To subject laws prospectively before the final assent of the popular vote suggests we are using a different rule to validate laws. To have several referenda would create a new rule. We should be saying that some proposals require popular ratification and others do not. Without a written constitution one might ask: which proposals and what kind of measures?
The Government seek to avoid that question by claiming that the case is unique. That is unconvincing, and masks the fact that they see the matter purely in terms of political expediency and party need. To use the referendum device at all is to ask the question: to what category of measure should referenda apply? Presumably the answer would be: in cases of constitutional change. But it is hard to define such a change in the British tradition because so much depends on convention and precedent. A referendum may, however, become acceptable if given a proper constitutional foundation—that is to say, if the conditions under which it could be used were defined. But that would mean, like many other democratic countries, going as far as a written constitution or at least part of the way. The implications for parliamentary sovereignty are profound. But if our sense of constitutional rules and conventions is weakening, there may come a time when some such course should be considered.
Secondly, I turn to the principle of collective responsibility. The statement in [column 311]the annex to the White Paper makes it clear that the doctrine of collective responsibility will be suspended prior to the poll. I believe that it is suspended not on the terms of entry but on the whole principle of entry. That is the only consistent interpretation of what would happen. But the whole relationship of government with Parliament depends on that principle. No Government can be properly accountable to Parliament unless they acknowledge a collective responsibility with regard to main matters of policy. The right hon. Gentleman Edward Shortthe Leader of the House described this as the most important issue that has faced the country for many years. What he is saying is that the people must make a decision, Parliament must make a decision, but the Government are incapable of making a decision. On all major matters the essential task of government is decision. That does not mean absence of argument or absence of some differences. It means the capacity to reach a decision after argument and consideration, and sticking to it or resigning.
We now face the new system. If the Government cannot agree, gone is the discipline of resignation, gone is the principle of accountability to Parliament. The new doctrine is to pass the buck to the people. Let the people arbitrate is the view. Normally if people are to arbitrate, one would usually ask whether they consent to arbitrate in that way. That was the view taken by the right hon. Gentleman who is now Harold Leverthe Chancellor of the Duchy of Lancaster and who wrote a letter to The Times on 27th March 1972 in the following terms:
“If we are to have a referendum, surely its first use must be to see whether the British people wish to introduce so important a departure from constitutional practice.”
The Leader of the House said that the present referendum proposal was in his manifesto, but the Labour Government were returned to power on the basis of about 38 per cent. of votes cast or on the basis of about 28 per cent. of those eligible to vote. In fact there is no mandate for a referendum.
Mr. Edward Short
Will the right hon. Lady tell the House what her percentage was in the election?[column 312]
The right hon. Gentleman is not really attempting to understand the argument. The Chancellor of the Duchy of Lancaster would do very much better. It was that right hon. Gentleman I was quoting. There is no evidence that the vast majority of our people wish to have a referendum on this issue.
If we wish to make certain, the logical and reasonable thing to do is to ask, in the first question—it could be done within the framework of the local elections— “Do you wish to leave this question to Parliament to decide in the normal way?” , in the way in which every single one of the original six Common Market countries decided. Although many of those countries have provision for referenda in their constitutions, they did not use it.
The Minister of State, Privy Council Office (Mr. Gerald Fowler)
I have been trying to follow with great care the right hon. Lady's argument about mandates. Will she accept that, if the present Government have no mandate for a referendum, the Conservative Government had no mandate to take us into the Common Market in the first place?
The hon. Gentleman cannot be much of a believer in parliamentary sovereignty to have made that intervention.
If Parliament is still sovereign——
No taxation without representation.
We could not be considering taking the country out of the Community unless Parliament were still sovereign, as the hon. Gentleman knows. If he believes in parliamentary sovereignty, yes, we had a mandate for going into Europe, and he knows it.
What I am saying is that if one wishes to ask whether the people want to leave the decision to Parliament—and I believe that many of them would like to do so—the proper procedure would be to put that question to them and find out. Why does not the right hon. Gentleman provide for that question to be put first? It might avoid all the other problems of having a referendum, of getting the umbrella organisations to draft statements, and so on.[column 313]
Mr. Phillip Whitehead (Derby, North)
I am extremely grateful to the right hon. Lady for giving way. Does she not accept that parliamentary sovereignty for the referendum is explicit in the vote taken by the House tonight? Once the House has decided upon a referendum we can have sovereignty precisely as she said for entry into the Common Market. That is parliamentary sovereignty.
Not by the vote taken tonight——
Only after the passage of the Bill through all its stages. Parliamentary sovereignty is not changed by declaration of the House, but only after the passage of a Bill through the House of Commons and the House of Lords, and after the giving of the Royal Assent, exactly the same passage as the European Communities Bill followed fully, after which we became a signatory to the treaty.
If we had a Government with enough courage to make a decision and give a clear lead, they would resign if they were defeated by the decision of the people. But, if I understand him correctly, the right hon. Gentleman has said elsewhere that the Government would not resign if the referendum went against their recommendation. Contrast Norway, which is used as an example for a referendum, where the Government resigned. But we understand that some members of the Government would resign. [An Hon. Member: “Stupid.” ] It is not very stupid, if one believes in collective responsibility. What the right hon. Gentleman is doing is to demolish collective responsibility for Labour Party convenience. He has a device so that the Government may stay, even if they are held in no confidence by the people. The people may say “We object to your main point of policy” , but nevertheless they have a device to stay in power, divided though they may be.
The third point I wish to make is the effect of a referendum on representative Government. The point was put forcibly in a debate on a Reference to the People Bill introduced in another place on 2nd March 1911. Lord LoreburnThe Lord Chancellor then pointed out that our system, which has been copied all over the world, is one [column 314]of representative Government under which those who have not time to look into every detail of this or that Bill choose people who are honourable and with whose opinions they are in harmony to discuss these matters. That has been our system of Government for many years, representative Government in which the representatives consider and discuss all the points in detail. In a popular vote, the voter expresses an individual opinion. In a representative institution, the representative would be expected to consider the interests of minorities and see how the separate measure fitted into the whole. I believe that if we have a referendum system, minorities would not receive anything like such a fair deal as they have under the existing system. I think that that is what the correspondent to the Evening Standard was also trying to say.
The fourth point concerns respect for treaty obligations. The obligations which we assumed by signing and ratifying the treaty were validly, correctly and constitutionally assumed under the full sovereignty and competence of Parliament. The treaty has been in operation for over two years.
The Minister of State for Foreign and Commonwealth Affairs (Mr. David Ennals)
Without the support of the people.
Would the right hon. Gentleman wish to put capital punishment to the test of a referendum? Of course he would not, because he is prepared to choose the cases on which he consults the people, according to the convenience of the Government. Perhaps the late Lord Attlee was right when he said that the referendum was a device of dictators and demagogues.
The treaty has been in operation for over two years. I know of no country in the Western World in which a referendum has been used to override a treaty obligation which had been through all its parliamentary stages and had been in operation for two years. Such a step would have a damaging effect on Britain's standing in the world.
We do not even know what the status of the referendum decision is. The right hon. Gentleman's speech did not exactly clarify the position. It is said [column 315]that the referendum is advisory or consultative. I believe that if there is a high poll and a clear majority, the result will in fact be binding on Parliament, whatever one may say in law about parliamentary sovereignty. I cannot envisage that a Parliament, whatever individual Members might have thought, if there were a clear vote against—[Interruption.] It is not advisory or consultative in the event of a clear result. It would be binding on everyone. [Hon. Members: “No.” ] It would bind and fetter parliamentary sovereignty in practice.
But if there were a low poll, and an indecisive result, the question would arise whether the British people had genuinely given their verdict by their vote. The Government might regard themselves as bound, but the result could not fetter the decision of Parliament. The uncertainty would be likely to be increased and not ended. If the decision were taken to come out on a low poll, it would be possible to argue that a further referendum should be taken when the revised terms of a free trade area were considered and had been through the House. I am sure that one side or the other would find a method to argue for a second referendum in the event of a low poll, and for not accepting the result. We could get into a difficult position by having embarked upon this first referendum without fully considering the consequences.
I turn to the sequence of events which led to this proposal.
Mr. Jeremy Thorpe (Devon, North)
The right hon. Lady has enunciated a constitutional principle which some of us found a little difficult to understand. She said that in practice, if there were a large turn-out and a majority one way or the other, Parliament as a whole would be bound. Is she saying that that would over-ride the obligations that Members of Parliament entered into with their constituents at the previous election, which might be entirely different?
I thought that I had made the position clear. I am sorry if I have not done so. In law, the result could not fetter Parliament, but I believe that in practice it would. That is all that I said. If there were an overwhelming decision one way or the other, I believe that in practice the deci[column 316]sion in Parliament would follow the referendum result. That could in no way fetter the way in which Members not fetter them. I was talking only about what I believed would happen in practice what I believed would happen in practice.
We know the sequence of events which led up to this proposal. In 1971, Harold Wilsonthe present Prime Minister was firmly against a referendum. But problems and divisions were arising in his own party, and one group of dissenters campaigned for a referendum. We accept that any hon. Member who holds strong views on the legislation itself is entitled to propose any method which he chooses to defeat it. But when Cabinets and Shadow Cabinets come to deliberate, they should bear in mind all the constitutional consequences of the course of action proposed to be slow to undermine cherished principles which have served liberty well for a long time.
It is quite possible to put a democratic case for having referendum provisions. If a referendum is put forward seriously as a constitutional instrument, we should need to consider the different kinds of referenda involved and what they implied for the present rules and conventions of our political order.
Assuming that we wanted the referendum provisions to apply only to constitutional questions, we should try to define what that means in a British context—an extraordinarily difficult exercise. If we wanted to avoid leaving the decision on whether to have a referendum to the whim of future Governments, we should have to think of some means of limiting its powers.
The White Paper does none of this. It is a practical expedient. It will have far-reaching consequences. The immediate point may be to register a popular view towards staying in the EEC. The longer-term result will be to create a new method of validating laws. What one Minister has used as a tactical advantage on one issue today, others will use for different issues tomorrow. This will lead to a major constitutional change, a change which should only be made if, after full deliberation, it was seriously thought to be a lasting improvement on present practice.
No such deliberation occurs in the White Paper which has been described [column 317]in the Sunday Times of 2nd March as reeking
“fittingly of shame … There is nothing here of the sovereign people, the higher democracy, the deeper search for a fuller-hearted consent … The Paper is written, unmistakably, by people who have lost all conviction in what they are saying. The referendum's true genesis, as a piece of thoughtless short-term brokerage in the Labour Party, is aptly reflected in the White Paper's dominant tone, which is one of helpless bewilderment at what is about to happen.”
We saw that in the speech of Edward Shortthe Leader of the House today.
This White Paper has come about because of the Government's concern for internal party interests. It is a licence for Ministers to disagree on central issues but still stay in power. I believe that the right course would be to reject it and to consider the wider constitutional issues properly and at length.