POLITICAL COMMENTARY

To refer or not to refer

HUGH MACPHERSON

The issue of the Common Market has had just as curious an effect on the political world as one or two wayward ladies in the past. It has produced some incongruous bed- mates and made men behave strangely out of character. So Mr Anthony Wedgwood Benn has temporarily fogotten his computers in advocating the need for the voice of the peo- ple to be heard on the question of entry. On the other hand Mr Powell, apparently rejects the idea that their voice be heard directly on the Market—at least in a referendum.

There is of course little prospect of a referendum taking place since the party managers are against the idea, but the de- mand for a referendum or a general election with the Common Market as the main issue is clearly going to be a factor in the debate over the next few months. Some anti- marketeers are strong advocates of direct consultation, if for no better reason than to allow them to say that the people are not being consulted. That is why they have readily consented to Mr Benn's idea. Pro- marketeers view his referendum with great suspicion for they make little bones of the fact that a majority of the nation is opposed to entry.

The basis of the argument for a referen- dum, or a general election, is well worth con- sidering. It highlights the essentially illogical nature of our thrice-blessed unwritten con- stitution on the question of the participation of the electorate in major decisions although it does not necessarily prove that direct con- sultation is acceptable.

What he saw as the essential criteria for referring the matter directly to the electorate were laid down by Mr Douglas Jay, in debate on the Address last July. He said that the public must have 'the final say' if two conditions were fulfilled. A major con- stitutional change must be involved, and the decision must be of an irrevocable nature. On the question whether the decision to enter the Market is irrevocable he reminded the House of Article 240 of the Treaty of Rome which states baldly 'This Treaty is for an unlimited period'. Mr Denis Healey dealt with this uncomfortable fact during the re-

cent debate on the EEC by suggesting that juridical commitments on the Continent in-

dicate a maximum achievement rather than a minimum one. 'They regard it as a Guiding Star rather than a route map,' he said helpfully. That explanation seemed more ingenious than ingenuous to these ears, since we would probably be signing the treaty on our own stuffy old standards. And do not enthusiastic marketeers tell us what a good influence we would be on the Market anyway? Presumably we could start with a touch of legal honesty. (At any rate he prob- ably made any fair English maidens con- templating civil marriage with a Frenchman or a German think again.) Having laid down his criteria Mr Jay then quoted the two familiar modern precedents for taking major constitutional matters directly to the electorate : the passage of the 1832 Reform Act and the Parliament Act of 1911. In each case the House of Commons came into conflict with the Lords. The government then returned to the people with the same programme and, when they had been confirmed in office, presented their legislation,once more armed with this public support. The threat to the Lords, by the government, was that the monarch con- cerned (William iv or George v) would swamp them with newly created Govern- ment Peers if they continued their resistance. In neither case was a referendum really threatened although one was drafted by the Asquith government.

It is suggested that these two precedents are made even powerful because they are ex- amples of major constitutional matters being referred to the people when they were, in fact, reversible by some future Parliament. Entry to the EEC, on the other hand, is not. But there is a major difference between the Common Market question and these two ex- amples which is of far more than academic interest and which suggests caution in draw- ing comparisons between them. In 1831 and in 1910 the mass of the electorate was firmly behind the government of the day, not only on the constitutional queStion of the power of the Lords, but also on its social and economic policies. The issues coincided.

Quite the opposite would apply in any election staged on the issue of the Common Market. Could anyone seriously con- template hardy political loyalists on either side overcoming their Pavlovian devotion to their own party to vote for anyone else? Independent candidates might confuse the issue a little but any election fought would end up with a merry jumble of issues ranging from industrial relations to prices and wages and arms to South Africa. Even if the parties divided on party lines with, say, Labour against entry, the situation would end in con- fusion. For there are diehards in both camps who would change sides. In short a Common Market election is simply unworkable because it cuts across party divisions. The final result of an election fought on the ques- tion of entry could be a weak government which would fall on any other issue than that of the Market. Fortunately no one takes the prospect of such an election seriously except for the purpose of psychological warfare.

That leaves the question of the possible use of a referendum. Here the case is built of rather flimsy material. There was the pos- sible use of it by the Asquith government,and Sir Winston Churchill once mentioned the possibility of using one to gain the nation's consent to extend Parliament for two years at the end of the war. It is of course used abroad and in the Commonwealth. South Africa had one in 1960 to decide whether she should become a republic. Australia has pro- vision for the use of the referendum on con- stitutional questions but has found that few have gained the requisite simple majority of states and voters.

The objections to the referendum are well known and to some advocates of the measure distinctly 'lowbrow'. Still they are worth reciting. If a referendum were in- troduced here then there could well be a de- mand for many more. For example Mr Jay and Mr Wedgwqod Benn were not con- spicuous with requests for a referendum on whether Britian should possess nuclear weapons or not—and it would be hard to imagine anything more irrevocable for society if a seriously faulty choice were made in that area. Once the principle has been breached good reasons could be advanced for others which could have the effect of blocking the lead that Parliament must give on certain issues such as hanging or homosexual law reform.

There is also little guarantee that any better result on a major issue—no matter how important—would be obtained by directly consulting the electorate rather than by the normal pressures that constituents can

bring on an MP. The Member can, as Burke

counselled, give 'great weight' to these representations and then offer 'his unbiased opinion, his mature judgment, his en- lightened conscience'. At no time does he simply reflect the majority view of his con- stituents although he must retain their con- fidence or pay the price at the next poll.

It is quite wrong to believe that our democracy must function with every citizen understanding every issue. Yet this is implicit in the desire to have a referendum on such a complex political and economic question as

the possibility of Britian's entry into the EEC.

To be fair to Mr Benn he recognises this difficulty and his proposal for a referendum takes account of the question of the sovereignty of Parliament. He would have his referendum carried out before any vote took place. Each mt. would then have in his pocket the result of the national poll and the individual result of his own constituency. The decision of Parliament—one must presume on a free vote—would then be binding. However the result of such a double decision would be to weaken not strengthen the Commons. There would be demands for preliminary official polls on controversial subjects. It would become more difficult than ever for Parliament to lead and not follow. And most of the objections to referenda would still hold.

I asked Lord ShinWell for his view on a possible referendum. His reply was characteristically forthright. 'We'll have none of it. The way we work in this country is we choose a decent set of chaps and hope they'll do the best for us. And on this Com- mon Market business both Heath and Wilson have let us down. Now quote me on that'. Delighted to do so. And, if I may be so bold, he states the Constitutional position rather well too.