Lords reform – is a referendum the way to finally settle the issue?

Labour under Blair and Brown tried and failed to forge a consensus over their 13 years in office. On one occasion, in 2003, the Commons (in)famously rejected all seven reform options, ranging from a fully appointed to a fully elected House. Later, in 2007, the government proposed a 50% elected chamber, only to see the Commons backing 100% election and the Lords 100% appointment. The coalition is committed to introducing elections to the upper chamber, but as this week’s Joint Committee report on the government’s proposals illustrates, deep divisions remain not just on the principle of election but on an array of subsidiary matters including the electoral system, the powers and size of the reformed chamber, and how to preserve the primacy of the Commons. The committee was itself divided on no fewer than 15 of its recommendations, with the pro-reformers winning most of the key votes, including giving qualified backing for the central principle that the reformed chamber “should have an electoral mandate”. Notably, however, the committee also stirred up a new debate by calling for the Lords reform plans to be put to the public in a referendum. Although pro-reformers such as Nick Clegg have come out against the idea, a referendum might offer the only way to avoid months and years of wrangling over the issue between and within the political parties. Referendums have been used before to overcome divisions in Westminster – in 1975 on the issue of EEC membership, in 1979 on Scottish and Welsh devolution, and indeed last year on electoral reform. While one side ends up disappointed by the result, both can agree on the fairness of the referendum process and respect the public verdict. The complication is that, as noted, Lords reform is not a binary debate between ‘pros’ and ‘antis’ as – for instance – a referendum on joining the Euro or ratifying the Lisbon Treaty would have been. Instead, before a referendum could settle the matter, Parliament would presumably need to agree upon all the details of the reform package to be put to the people. This will be a tough ask, but anti-reformers will surely be more willing to let the bill pass if they then have the opportunity to put the case against to the voters (as Tory backbenchers did on electoral reform). Another, more principled, reason to hold a referendum is that direct backing from the people can deliver greater legitimacy for the new or reformed institutions created. This was certainly the lesson of the referendums that gave approval for the creation of devolved institutions in Scotland, Wales and Northern Ireland in the 1990s. As the Lords Constitution Committee has itself recognised, the use of a referendum is particularly justified in the case of “fundamental constitutional issues”, where public confidence is vital for the health of the political system. Of course, in the absence of a codified constitution what counts as a constitutional matter (not to mention a “fundamental” one) is to some extent a matter of judgement. But creating an elected upper chamber would qualify under any sane definition. One criticism of referendums is that low levels of public interest or knowledge can lead to important decisions being taken on the basis of unconnected factors, such as general attitudes towards the government’s record or the politicians involved in the campaign. There is truth in this, but the conclusion that the public can therefore not be trusted with a say should be avoided. Rather, this underlines the responsibility of the political classes to engage the public in the debate. During the devolution referendum campaigns of 1997 and 1998, few would claim that the public were unaware of the issue on which they were voting. The same will surely apply in Scotland in 2013/14, when the future of the UK is decided. Similarly, it may be true that there is a status quo bias in referendums, as limited understanding (combined with low trust in politicians in general) leads voters to stick with the devil they know. The city mayoral referendums in England this week may offer the latest example of this tendency. But perhaps this is how it should be. Most other countries have additional hurdles (beyond that of a simple majority in the legislature) for constitutional amendment. This reflects recognition that changing the rules of the political game should not be too simple. In the UK too, therefore, the onus should fall on the pro-reform side to make the case for change to the public at large.