Clause 8 — Commencement
Orders of the Day
12:40 pm

Photo of William Hague

William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I beg to move amendment No. 293, page 4, leave out line 8 and insert—

'(2A) Section [ Referendum] comes into force on Royal Assent.

(2B) The other provisions of this Act come into force if an affirmative answer has been given to the question asked in a referendum held in accordance with section [ Referendum] and any legal challenge made under an order made under that section has been disposed of by the court or courts in question.'.

The Chairman:

With this it will be convenient to discuss the following: Amendment No. 296, page 4, leave out line 8 and insert—

'(2A) Section [ Referendum on the Treaty of Lisbon (No. 2)] and Schedule [ Conduct of the Referendum (No. 2)] come into force on Royal Assent.

(2B) The other provisions of this Act come into force if an affirmative answer has been given to the question specified in section [ Referendum on the Treaty of Lisbon (No. 2)] in a referendum held in accordance with that section and Schedule [ Conduct of the Referendum (No. 2)] and any legal challenge made under that Schedule has been disposed of by the court or courts in question.'.

Amendment No. 297, page 4, leave out line 8 and insert—

'(2A) Section [ Referendum on the Treaty of Lisbon (No. 3)] and Schedule [ Conduct of the Referendum No. 2] come into force on Royal Assent.

(2B) The other provisions of this Act come into force if an affirmative answer has been given to the question asked in a referendum held in accordance with section [ Referendum on the Treaty of Lisbon (No. 3)] and Schedule [ Conduct of the Referendum (No. 2)] and any legal challenge made under that Schedule has been disposed of by the court or courts in question.'.

Amendment No. 63, on page 4, line 8, leave out 'on Royal Assent' and add

'only if an affirmative answer has been given to a referendum held in accordance with Schedules ( Referendum on the Treaty of Lisbon) and ( Conduct of the Referendum) (which shall have effect) and any legal challenge made under paragraph 3 of Schedule ( Referendum on the Treaty of Lisbon) has been disposed of by the court or courts in question'.

New clause 1— Referendum—

'(1) A referendum shall be held throughout the United Kingdom and Gibraltar on the day specified by an order made by a Minister of the Crown.

(2) The question to be asked in the referendum is—

"Should the United Kingdom approve the Lisbon Treaty?"

(3) A Minister of the Crown may by order make provision in relation to the referendum which—

(a) determines the referendum period for the purposes of Part 7 of the Political Parties, Elections and Referendums Act 2000 (c. 41); and

(b) requires ballot papers to be used by voters in Wales, after having set out the question and the possible answers in English, to set them out again, with equal prominence, in Welsh.

(c) makes provision as to the conduct of the referendum, entitlement to vote in the referendum and legal challenge to the referendum result.

(4) The question in Welsh is—

"A ddylai'r Deyrnas Gyfunol gymeradwyo Cyfundeb Lisbon?"

(5) Every power of a Minister of the Crown to make an order under this section shall be exercisable by statutory instrument.

(6) An order under this section may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(7) The Secretary of State may by order made by statutory instrument bring the provisions of this Act into force provided that a majority of votes in the referendum shall have been cast in favour of approving the Lisbon Treaty.'.

New clause 18— Referendum on the Treaty of Lisbon (No. 2)—

'(1) A Referendum shall be held, not later than six months after Royal Assent, throughout the United Kingdom and Gibraltar on the day specified by an order made by a Minister of the Crown.

(2) This question shall be asked in the referendum—

"Should the United Kingdom approve the Lisbon Treaty?"

(3) A Minister of the Crown may by order vary the wording of this question, or add a supplementary question.

(4) An order under this section may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) The referendum shall be conducted in accordance with Schedule [ Conduct of the Referendum (No. 2)].'.

New clause 19— Referendum on the Treaty of Lisbon (No. 3)—

'(1) A Referendum shall be held, not later than six months after Royal Assent, throughout the United Kingdom and Gibraltar on the day specified by an order made by a Minister of the Crown.

(2) This question shall be asked in the referendum—

"Should the United Kingdom approve the Lisbon Treaty?"

(3) The referendum shall be conducted in accordance with Schedule [ Conduct of the referendum (No. 2)].'.

New schedule 1— Referendum on the Treaty of Lisbon—

'Holding a referendum

1 (1) A referendum shall be held, not later than six months after Royal Assent, throughout the United Kingdom and Gibraltar on the day specified by an order made by a Minister of the Crown.

(2) The question to be asked in the referendum is—

"Should the United Kingdom approve the Treaty of Lisbon?"

(3) A Minister of the Crown may by order make provision in relation to the referendum which—

(a) determines the referendum period for the purposes of Part 7 of the Political Parties, Elections and Referendums Act 2000 (c.41); and

(b) requires ballot papers to be used by voters in Wales, after having set out the question and the possible answers in English, to set them out again, with prominence, in Welsh.

(4) The question in Welsh is—

"A ddylai'r Deyrnas Gyfunol gymeradwyo Cyfundeb Lisbon?"

(5) Every power of a Minister of the Crown to make an order under this paragraph shall be exercisable by statutory instrument.

(6) An order under this section may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

Entitlement to vote in the referendum

2 (1) Subject to subparagraph (2), a person is entitled to vote in the referendum, if on the day it is held, he has—

(a) an individual who would be entitled to vote as an elector at a parliamentary election in a constituency in the United Kingdom;

(b) a peer who would be entitled to vote as an elector at a local government election in an electoral area in Great Britain or at a local election in an electoral area in Northern Ireland;

(c) a peer who, by virtue of section 3 of the Representation of the People Act 1985 (c.50) (peers resident outside the United Kingdom), would be entitled to vote as an elector at a European Parliamentary election in an electoral region; or

(d) a Commonwealth citizen who would be entitled to vote in Gibraltar as an elector at a European Parliamentary election in the combined electoral region in which Gibraltar is comprised.

(2) A Minister of the Crown may by order made by statutory instrument make provision for the purposes of subparagraph (1) for disregarding alterations made after a specified date in a register of electors.

(3) An order under subparagraph (2) may—

(a) apply or incorporate, with or without modification, any provision of any enactment or subordinate legislation relating to elections;

(b) make different provision for different cases;

(c) make provision subject to such exemptions and exceptions as the Minister making the order thinks fit; and

(d) make such incidental, supplemental, consequential and transitional provision as that Minister thinks fit.

(4) An order under subparagraph (2) may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) In subparagraph (1)—

"electoral area" means—

(a) an electoral division or ward (or, in the case of a parish or community in which there are no wards, the parish or community) for which an election of councillors is held in England and Wales under the Local Government Act 1972 (c.70);(b) an electoral ward for which an election of councillors is held in Scotland under the Local Government etc. (Scotland) Act 1994 (c.39); or(c) an area for which an election of members of a district council is held in Northern Ireland under section 11 of the Electoral Law Act (Northern Ireland) 1962 (c.14);

"electoral region" means an electoral region mentioned in section 1(2) of the European Parliamentary Elections Act 2002 (c.24);

"European Parliamentary election" means an election of a representative to the European Parliament.

Legal challenge to the referendum result

3 (1) No court may entertain any proceedings for questioning the number of ballot papers counted or votes cast in the referendum, as certified—

(a) by the Chief Counting Officer, or

(b) by counting officer,

unless the proceedings are brought in accordance with this section.

(2) The proceedings may be brought—

(a) in England and Wales, only by a claim for judicial review;

(b) in Scotland, only by a petition for judicial review;

(c) in Northern Ireland, only by an application for judicial review;

(d) in Gibraltar, only by a claim for judicial review.

(3) The court in England and Wales or Gibraltar must not give permission for a claim unless the claim form is filed before the end of the permitted period.

(4) The court in Scotland must refuse a petition unless it is lodged before the end of the permitted period.

(5) The court in Northern Ireland must refuse an application for leave to apply for judicial review unless it is lodged before the end of the permitted period.

(6) In this paragraph "the permitted period" means the period of six weeks starting with—

(a) the date on which the Chief Counting Officer or (as the case may be) the counting officer gives a certificate as to the number of ballot papers counted and votes cast in the referendum; or

(b) if he gives more than one such certificate, the date of the last to be given.'.

New schedule 2— Conduct of the Referendum—

'Introductory

1 (1) In this Schedule "the 2000 Act" means the Political Parties, Elections and Referendums Act 2000 (c. 41).

(2) Expressions used in this Schedule and in Part 7 of the 2000 Act have the same meanings in this Schedule as in that Part.

Encouraging voting

2 The Electoral Commission may do anything they think necessary or expedient for the purpose of encouraging voting at the referendum.

3 (1) For the purpose of encouraging voting at the referendum the Electoral Commission may, in particular, direct each counting officer to provide such impartial information as may be specified in the direction to every person who is entitled, in the referendum, to vote in the counting officer's voting area.

(2) A direction under this paragraph may also include requirements as to the form and manner in which the information is to be sent.

(3) A direction under this paragraph may not require the inclusion of additional information in a document or part of a document the form of which is prescribed by or under any enactment.

(4) In subparagraph (1) "voting area", in relation to a counting officer, means—

(a) in the case of a counting officer appointed for a relevant area in Great Britain, that area;

(b) in the case of the Chief Electoral Officer for Northern Ireland in his capacity as a counting officer, Northern Ireland; and

(c) in the case of a counting officer for Gibraltar, Gibraltar.

Provision of information to voters

4 (1) This paragraph applies if the Electoral Commission have not, before the appropriate day, designated an organisation under section 108 of the 2000 Act (organisations to whom assistance is available under section 110 of that Act) in relation to each possible outcome of the referendum.

(2) The Electoral Commission shall take steps to provide such impartial information for persons entitled to vote in the referendum as will promote a proper and fair understanding and awareness among those persons about the arguments for each answer to the referendum question.

(3) The Electoral Commission shall ensure that expenditure in money or money's worth in any form by those persons responsible for promoting the arguments for each answer to the referendum question is as far as possible of equal value and shall require those persons to produce audited accounts to ensure compliance with this paragraph within the permitted period for proceedings under paragraph 3 of Schedule ( Referendum on the Treaty of Lisbon).

(4) No public expenditure nor any expenditure in money or money's worth from the European Union or its institutions shall be provided or spent in pursuance of the referendum campaign.

(5) In this paragraph "the appropriate day" means—

(a) the day specified for the purposes of this paragraph in an order under subsection (6) of section 109 of the 2000 Act;

(b) if no such order is made and one or more applications under that section are made in relation to each possible outcome of the referendum before the 29th day of the referendum period, the 43rd day of the referendum period; and

(c) in any other case in which no such order is made, the 29th day of the referendum period.

(6) Information provided in pursuance of this paragraph must be provided by whatever means the Electoral Commission think is most likely to secure (in the most cost-effective way) that the information comes to the notice of everyone entitled to vote in the referendum.

(7) The Electoral Commission shall publish rules and guidelines for and shall monitor compliance by the broadcasting authorities regulated in the United Kingdom by Charter or statute as providers of programme services in relation to the referendum so as to ensure that the provision of those services complies with the same impartiality as is required of the Electoral Commission itself under paragraph 4(2).

Combination of polls

5 (1) A Minister of the Crown may by order make provision for, or in connection with, the combination of polls at the referendum with those at an election or at another referendum, or both.

(2) An order under this paragraph may include provision creating criminal offences.

Payment of the charges and expenses of relevant officers by the Electoral Commission

6 (1) A Minister of the Crown may by order make provision for the payment by the Electoral Commission of any of the following—

(a) the charges in respect of services properly rendered, or expenses properly incurred, in connection with the referendum by a relevant officer; and

(b) the sum equal to any increase in the superannuation contributions required to be paid by a local authority in respect of a person in consequence of a fee paid as part of those charges.

(2) The order may include provision as to—

(a) the services and expenses, or descriptions of services and expenses, in respect of which payment may be made;

(b) the maximum amount to be paid or reimbursed in respect of such services and expenses, or descriptions of services and expenses;

(c) payments in advance; and

(d) accounts to be submitted.

(3) Before making an order under this paragraph, the Minister in question must consult the Electoral Commission.

(4) The consent of the Treasury is required for the making of an order under this paragraph.

(5) In this paragraph "relevant officer" means—

(a) a counting officer; or

(b) a person appointed by the Chief Counting Officer or a counting officer to discharge all or any of his functions.

Accounts relating to expenditure under paragraph 6

7 (1) As soon as reasonably practicable after the holding of the referendum the accounting officer of the Electoral Commission and—

(a) prepare and sign an account of the payments made by the Commission in accordance with an order under paragraph 6; and

(b) submit a copy of the account, as signed, to the Comptroller and Auditor General.

(2) The account must be in such form as the Treasury direct and must set out—

(a) the aggregate amount of charges and expenses falling within subparagraph 6(1)(a) in respect of which those payments have been made; and

(b) the aggregate amount of sums falling within paragraph 6(1)(b) in respect of which they have been made.

(3) The Comptroller and Auditor General must—

(a) examine and certify the account submitted to him under this paragraph; and

(b) lay a copy of the account, as certified, and of his report on it before each House of Parliament.

Gibraltar

8 (1) A Minister of the Crown may by order make such provision as he considers appropriate for the purposes of, or in connection with, one or both of the following—

(a) the holding of the referendum in Gibraltar; and

(b) the regulation there of the conduct of the referendum.

(2) The provision that may be included in an order under this paragraph includes, in particular—

(a) provision about any matter as respects which the Political Parties, Elections and Referendums Act 2000 (c. 41) makes provision for the United Kingdom in connection with referendums;

(b) provision for applying any provision made under section 7(2) of this Act to Gibraltar with modifications;

(c) provision about donations to political parties and others who campaign, or are proposing to campaign, for one or other of the possible outcomes to the referendum;

(d) provision imposing obligations in relation to the referendum on the providers of programme services;

(e) provision conferring functions in relation to the referendum on any public authority in Gibraltar that is responsible for regulating those providers;

(f) provision conferring jurisdiction on courts in Gibraltar that are specified in the order or which are determined in the manner so specified;

(g) provisions conferring jurisdiction in relation to matters arising in Gibraltar on courts in the United Kingdom;

(h) provision for expenses incurred by specified persons in accordance with the order to be charged on and paid out of the Consolidated Fund.

(3) Before making an order under this paragraph the Minister in question must consult both—

(a) the Government of Gibraltar; and

(b) the Electoral Commission.

(4) An order under this paragraph may—

(a) provide for conduct to constitute a criminal offence under the law of Gibraltar;

(b) extend and apply to Gibraltar, with or without modification, the provisions of any enactment or subordinate legislation relating to any matter mentioned in subparagraph (2);

(c) modify any such enactment or subordinate legislation (including any imposing criminal liability) so far as it has effect in relation to any part of the United Kingdom;

(d) modify or apply or incorporate, with or without modification, the provisions of any legislation in force in Gibraltar relating to elections or referendums or to any such matter.

(5) The capacity of the Gibraltar legislature to make law in relation to any matter in relation to which provision may be made under this paragraph is not affected by the existence of the power conferred by this paragraph.

(6) But subparagraph (5) is not to be construed as restricting the operation in relation to a law made by the Gibraltar legislature of the Colonial Laws Validity Act 1865 (c. 63) (under which colonial laws are void if repugnant to provision made under an Act of Parliament).

Supplementary provision

9 This Act does not affect the power of the Secretary of State to make provision under section 129 of the 2000 Act (orders regulating the conduct of referendums) for or in connection with the referendum.

10 Section 126 of the 2000 Act (identification of promoter and publisher of referendum materials) does not apply to any material published for the purposes of the referendum if the publication is required under or by virtue of an order under section 129 of that Act.

Orders under this Schedule

11 (1) Every power to make an order under this Schedule shall be exercisable by statutory instrument.

(2) An order under paragraph 5 or 8 may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(3) An order under this Schedule may—

(a) apply or incorporate, with or without modification, the provision of an enactment or subordinate legislation relating to donations, elections or referendums;

(b) make different provision for different cases, including different provision for different parts of the United Kingdom and different provision for Gibraltar;

(c) make provision subject to such exemptions and exceptions as the Minister making the order thinks fit; and

(d) make such incidental, supplemental, consequential and transitional provision as that Minister thinks fit.

Interpretation of Schedule

12 (1) In this Schedule—

"donation" means anything which is or corresponds to a donation within the meaning of Part 4 of the Political Parties, Elections and Referendums Act 2000 (c. 41); and

"programme services" means any services which would be programme services within the meaning of the Broadcasting Act 1990 (c. 42) if Gibraltar were part of the United Kingdom.'.

New schedule 3— Conduct of the Referendum (No. 2)—

Introductory

13 (1) In this Schedule "the 2000 Act" means the Political Parties, Elections and Referendums Act 2000 (c. 41).

(2) Expressions used in this Schedule and in Part 7 of the 2000 Act have the same meanings in this Schedule as in that Part.

Referendum period

14 A Minister of the Crown may by order make provision which determines the referendum period for the purposes of Part 7 of the Political Parties, Elections and Referendums Act 2000 (c. 41).

Wales

15 A Minister of the Crown may by order make provision which—

(a) requires ballot papers to be used by voters in Wales, after having set out the question and the possible answers in English, to set them out again, with prominence, in Welsh; and

(b) determines the question in Welsh.

Entitlement to vote in the referendum

16 (1) Subject to subsection (2), a person is entitled to vote in the referendum if, on the day it is held, he is—

(a) an individual who would be entitled to vote as an elector at a parliamentary election in a constituency in the United Kingdom;

(b) a peer who would be entitled to vote as an elector at a local government election in an electoral area in Great Britain or at a local election in an electoral area in Northern Ireland; or

(c) a Commonwealth citizen who would be entitled to vote in Gibraltar as an elector at a European Parliamentary election.

(2) A Minister of the Crown may by order made by statutory instrument make provision for the purposes of subsection (1) for disregarding alterations made after a specified date in a register of electors.

(3) An order under subsection (2) may—

(a) apply or incorporate, with or without modification, any provision of any enactment or subordinate legislation relating to elections;

(b) make different provision for different cases;

(c) make provision subject to such exemptions and exceptions as the Minister making the order thinks fit; and

(d) make such incidental, supplemental, consequential and transitional provision as that Minister thinks fit.

(4) An Order under subsection (2) may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) In subsection (1)(b) "electoral area" means—

(a) an electoral division or ward (or, in the case of a parish or community in which there are no wards, the parish or community) for which an election of councillors is held in England and Wales under the Local Government Act 1972 (c. 70);

(b) an electoral ward for which an election of councillors is held in Scotland under the Local Government etc. (Scotland) Act 1994 (c. 39); or

(c) an area for which an election of members of a district council is held in Northern Ireland under section 11 of the Electoral Law Act (Northern Ireland) 1962 (c. 14).

Encouraging voting

17 The Electoral Commission may do anything they think necessary or expedient for the purpose of encouraging voting at the referendum.

18 (1) For the purpose of encouraging voting at the referendum the Electoral Commission may, in particular, direct each counting officer to provide such information as may be specified in the direction to every person who is entitled, in the referendum, to vote in the counting officer's voting area.

(2) A direction under this paragraph may also include requirements as to the form and manner in which the information is to be sent.

(3) A direction under this paragraph may not require the inclusion of additional information in a document or part of a document the form of which is prescribed by or under any enactment.

(4) In subparagraph (1) "voting area", in relation to a counting officer, means—

(a) in the case of a counting officer appointed for a relevant area in Great Britain, that area;

(b) in the case of the Chief Electoral Officer for Northern Ireland in his capacity as a counting officer, Northern Ireland; and

(c) in the case of a counting officer for Gibraltar, Gibraltar.

Provision of information to voters

19 (1) This paragraph applies if the Electoral Commission have not, before the appropriate day, designated an organisation under section 108 of the 2000 Act (organisations to whom assistance is available under section 110 of that Act) in relation to each possible outcome of the referendum.

(2) The Electoral Commission may take such steps as they think appropriate to provide such information for persons entitled to vote in the referendum as the Commission think is likely to promote awareness among those persons about the arguments for each answer to the referendum question.

(3) In this paragraph "the appropriate day" means—

(a) the day specified for the purposes of this paragraph in an order under subsection (6) of section 109 of the 2000 Act;

(b) if no such order is made and one or more applications under that section are made in relation to each possible outcome of the referendum before the 29th day of the referendum period, the 43rd day of the referendum period; and

(c) in any other case in which no such order is made, the 29th day of the referendum period.

(4) Information provided in pursuance of this paragraph must be provided by whatever means the Electoral Commission think is most likely to secure (in the most cost-effective way) that the information comes to the notice of everyone entitled to vote in the referendum.

Combination of polls

20 (1) A Minister of the Crown may by order make provision for, or in connection with, the combination of polls at the referendum with those at another referendum.

(2) An order under this paragraph may include provision creating criminal offences.

Payment of the charges and expenses of relevant officers by the Electoral Commission

21 (1) A Minister of the Crown may by order make provision for the payment by the Electoral Commission of any of the following—

(a) the charges in respect of services properly rendered, or expenses properly incurred, in connection with the referendum by a relevant officer; and

(b) the sum equal to any increase in the superannuation contributions required to be paid by a local authority in respect of a person in consequences of a fee paid as part of those charges.

(2) The order may include provision as to—

(a) the services and expenses, or descriptions of services and expenses, in respect of which payment may be made;

(b) the maximum amount to be paid or reimbursed in respect of such services and expenses, or descriptions of services and expenses;

(c) payments in advance; and

(d) accounts to be submitted.

(3) Before making an order under this paragraph, the Minister in question must consult the Electoral Commission.

(4) The consent of the Treasury is required for the making of an order under this paragraph.

(5) In this paragraph "relevant officer" means—

(a) a counting officer; or

(b) a person appointed by the Chief Counting Officer or a counting officer to discharge all or any of his functions.

Accounts relating to expenditure under paragraph 6

22 (1) As soon as reasonably practicable after the holding of the referendum the accounting officer of the Electoral Commission must—

(a) prepare and sign an account of the payments made by the Commission in accordance with an order under paragraph 6; and

(b) submit a copy of the account, as signed, to the Comptroller and Auditor General.

(2) The account must be in such form as the Treasury direct and must set out—

(a) the aggregate amount of charges and expenses falling within subparagraph 6(1)(a) in respect of which those payments have been made; and

(b) the aggregate amount of sums falling within paragraph 6(1)(b) in respect of which they have been made.

(3) The Comptroller and Auditor General must—

(a) examine and certify the account submitted to him under this paragraph; and

(b) lay a copy of the account, as certified, and of his report on it before each House of Parliament.

Gibraltar

23 (1) A Minister of the Crown may by order make such provision as he considers appropriate for the purposes of, or in connection with, one or both of the following

(a) the holding of the referendum in Gibraltar; and

(b) the regulation there of the conduct of the referendum.

(2) The provision that may be included in an order under this paragraph includes, in particular—

(a) provision about any matter as respects which the Political Parties, Elections and Referendums Act 2000 (c.41) makes provision for the United Kingdom in connection with referendums;

(b) provision for applying any provision made under section 7(2) to Gibraltar with modifications;

(c) provisions about donations to political parties and others who campaign, or are proposing to campaign, for one or other of the possible outcomes to the referendum;

(d) provision imposing obligations in relation to the referendum on the providers of programme services;

(e) provision conferring functions in relation to the referendum on any public authority in Gibraltar that is responsible for regulating those providers;

(f) provision conferring jurisdiction on courts in Gibraltar that are specified in the order or which are determined in the manner so specified;

(g) provision conferring jurisdiction in relation to matters arising in Gibraltar on courts in the United Kingdom;

(h) provision for expenses incurred by specified persons in accordance with the order to be charged on and paid out of the Consolidated Fund.

(3) Before making an order under this paragraph the Minister in question must consult both—

(a) the Government of Gibraltar; and

(b) the Electoral Commission.

(4) An order under this paragraph may—

(a) provide for conduct to constitute a criminal offence under the law of Gibraltar;

(b) extend and apply to Gibraltar, with or without modification, the provisions of any enactment or subordinate legislation relating to any matter mentioned in sub-paragraph (2);

(c) modify any such enactment or subordinate legislation (including any imposing criminal liability) so far as it has effect in relation to any part of the United Kingdom;

(d) modify or apply or incorporate, with or without modification, the provisions of any legislation in force in Gibraltar relating to elections or referendums or to any such matter.

(5) The capacity of the Gibraltar legislature to make law in relation to any matter in relation to which provision may be made under this paragraph is not affected by the existence of the power conferred by this paragraph.

(6) But sub-paragraph (5) is not to be construed as restricting the operation in relation to a law made by the Gibraltar legislature of the Colonial Laws Validity Act 1865 (c.63) (under which colonial laws are void if repugnant to provisions made under an Act of Parliament).

Legal challenge to the referendum result

12 (1) No court may entertain any proceedings for questioning the number of ballot papers counted or votes cast in the referendum, as certified—

(a) by the Chief Counting Officer, or

(b) by a counting officer,

unless the proceedings are brought in accordance with this section.

(2) The proceedings may be brought—

(a) in England and Wales, only by a claim for judicial review;

(b) in Scotland, only by a petition for judicial review;

(c) in Northern Ireland, only by an application for judicial review; or

(d) in Gibraltar, only by a claim for judicial review.

(3) The court in England and Wales or Gibraltar must not give permission for a claim unless the claim form is filed before the end of the permitted period.

(4) The court in Scotland must refuse a petition unless it is lodged before the end of the permitted period.

(5) The court in Northern Ireland must refuse an application for leave to apply for judicial review unless it is lodged before the end of the permitted period.

(6) In this section "the permitted period" means the period of six weeks starting with—

(a) the date on which the Chief Counting Officer (or as the case may be) the counting officer gives a certificate as to the number of ballot papers counted and votes case in the referendum; or

(b) if he gives more than one such certificate, the date of the last to be given.

Supplementary provision

13 This Act does not affect the power of the Secretary of State to make provision under section 129 of the 2000 Act (orders regulating the conduct of referendums) for or in connection with the referendum.

14 Section 126 of the 2000 Act (identification of promoter and publisher of referendum materials) does not apply to any material published for the purposes of the referendum if the publication is required under or by virtue of an order under section 129 of that Act.

Orders under this Schedule

15 (1) Every power to make an order under this Schedule shall be exercisable by statutory instrument.

(2) An order under paragraph 5 or 8 may be made only if a draft of the order has been—

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(3) An order under this Schedule may—

(a) apply or incorporate, with or without modification, the provision of an enactment or subordinate legislation relating to donations, elections or referendums;

(b) make different provision for different cases, including different provision for different parts of the United Kingdom and different provision for Gibraltar;

(c) make provision subject to such exemptions and exceptions as the Minister making the order thinks fit; and

(d) make such incidental, supplemental, consequential and transitional provision as that Minister thinks fit.

Interpretation of Schedule

16 (1) In this Schedule—

"donation" means anything which is or corresponds to a donation within the meaning of Part 4 of the Political Parties, Elections and Referendums Act 2000 (c. 41); and "programme services" means any services which would be programme services within the meaning of the Broadcasting Act 1990 (c. 42) if Gibraltar were part of the United Kingdom.'.

Photo of William Hague

William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Amendment No. 293 is linked with new clause 1, and its effect is very simple: it would mean that the Act would come into force, and the Lisbon treaty would be ratified by the United Kingdom, only once there had been a referendum of the British people, in line with the manifesto commitments of every party in the House.

The Committee will understand that the arguments in favour of a referendum are many and varied. They include the arguments that the issues being decided are of great importance to the governance of Britain, that the constitutional nature of what is being proposed is transparently obvious, and that referendums have become a regular part of our constitutional practice in Britain in recent years, on matters ranging from directly elected mayors to the establishment of a Scottish Parliament. However, there is one argument that all of us in the House would do well to reflect on in the coming hours as we debate the issue of a referendum on the Lisbon treaty. It is an argument that goes to the heart of trust in politics and faith in political institutions. Put simply, it is this: a referendum should be held on the issue because a referendum was promised—by the Government, by the Opposition and, yes, by the Liberal Democrat party.

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Alan Beith (Berwick-upon-Tweed, Liberal Democrat)

While we are talking about trust, on the basis of the right hon. Gentleman's considerable historical knowledge of the Conservative party, can he tell me of any occasion when the Conservative party has held a referendum on any treaty that it has negotiated—or indeed on anything else at all? Ought we not to measure the Conservative party's attitude by how it behaves in power, rather than how it behaves in opposition?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Parties should be judged on whether they keep the promises that they make. The only occasion on which the Conservative party has promised a referendum, other than on the possible introduction of the euro under the Maastricht treaty, was in the 2005 general election, and we are keeping that promise by voting for the amendment today. It is a pity that the right hon. Gentleman's party will not keep its promise by voting for the amendment.

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

Does the right hon. Gentleman accept that there have been substantial changes, particularly as regards justice and home affairs, for which the opt-in and opt-out arrangements are far more extensive than they were under the proposed constitution? That was a matter of particular sensitivity for him and his colleagues. Circumstances have changed, and as that great Liberal, Lord Keynes, said,

"When the facts change, I change my mind. What do you do, sir?"

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The hon. Gentleman says that there are substantial differences between the constitution and the treaty before us, but last night on the BBC's "Newsnight", a commentator said, "There are differences but they are differences of nuance." He also said: "I think you have to go through some pretty perverse constitutional contortions to be able to go back and explain to the electorate why that promise for a referendum doesn't hold." That commentator was one Mark Littlewood, head of media for the Liberal Democrats until last year. That is the accurate position. Clearly, it is not only the leader of the hon. Gentleman's party who can run into calamities from time to time.

The promise was made specifically about the European constitution, and given the overwhelming similarity between the constitution and the reform treaty, all attempts to wriggle out of that commitment will only be seen, and will only be, the weasel words with which a solemn promise is deliberately and calculatingly broken.

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Elliot Morley (Scunthorpe, Labour)

The right hon. Gentleman speaks of opting out of measures as a nuance, but it is much more than a nuance. Also, does he not think it significant that countries such as Denmark, Holland and France, which voted against the constitution, are not having a referendum on the treaty, because they do not see it as the same?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

"Nuance" was not my word. It is the word of a former head of media for the Liberal Democrats. I will present my own analysis of the changes or similarities between the treaty and the constitution in a moment.

Since when has it been an argument that a Government in this country are absolved of keeping their election commitments because a Government in another country are not doing a similar thing? We cannot say that the election manifestos of parties in the House are invalidated because a referendum is not held in another country.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I shall give way once more, then I must make a little progress.

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Nigel Evans (Ribble Valley, Conservative)

I am grateful to my right hon. Friend for giving way. Surely one of the fundamental changes, other than the promise made in 2005 by all the parties, is that the ratchet clauses in the treaty mean that there could be fundamental changes in the future, on which Members of Parliament would have no say whatever?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Of course that adds to the case for a referendum. It is an issue that we debated in Committee last night, and I am pleased to say that Mr. Davey and I, and Members of other parties, made common cause in saying that the use of such ratchet clauses should be subject to primary legislation, rather than the simple motion to which the Government have so far committed themselves.

Let us remind ourselves of the categoric nature of the promises made. The Conservative manifesto was clear. The Labour party manifesto stated:

"We will put it"—

that is, the European constitution

"to the British people in a referendum and campaign wholeheartedly for a 'Yes' vote".

The then Prime Minister, Tony Blair, elaborated, as he often did, to The Sun. He said:

"We don't know what is going to happen in France, but we will have a referendum on the constitution in any event, and that is a government promise"—

I repeat—"in any event". Asked what it was that made the European treaty constitutional in nature, the then Foreign Secretary, now the Secretary of State for Justice and Lord Chancellor, said at the Dispatch Box on 6 June 2005 that it was the creation of an EU president and an EU Foreign Minister. He said:

"Those points are central to the European constitutional treaty, and of course I see no prospect of their being brought into force, save through the vehicle of a constitutional treaty."—[ Hansard, 6 June 2005; Vol. 434, c. 1001.]

Even the most casual voter, looking to see whether the promises made at election time are fulfilled, would recognise that that combination of statements does not allow for the abandonment of the referendum when a redrafted treaty still contains the essence of its constitutional nature, as defined by the current Lord Chancellor himself.

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I hope that hon. Gentlemen will wait a moment. I am coming to the Liberal Democrats' manifesto of 2005, then I will gladly give way. That stated:

"We are therefore clear in our support for the constitution, which we believe is in Britain's interest—but ratification must be subject to a referendum of the British people."

A few months later, at their party conference in Blackpool, Mr. Clegg proposed a conference motion that stated:

"Any proposals which involve significant change in the relationship between the Union, the Member States and its citizens should be approved in Britain through a referendum".

That is of interest to the Committee, because it went further even than the manifesto commitment. Not only, in the view of the then future leader of the Liberal Democrats, should the constitution be submitted to a referendum, but any proposals involving significant change in the relationship between the EU and its member states, he said, should be submitted to a referendum.

That is an interesting view. Difficult as it is to argue that the Lisbon treaty is fundamentally different from the EU constitution, relying, as the argument does, on the exaggeration of the significance of a small number of changes, when one considers the sheer sweep of the treaty's provisions—the creation of a president and Foreign Minister, or high representative, the abolition of so many vetoes, the provision, as my hon. Friend Mr. Evans pointed out, for the abolition of even more to come, the total collapsing of the third pillar of the EU, the widened scope of the European Court of Justice and the increased powers of the European Parliament—an argument that the treaty is not even a significant change in the relationship of the EU to the member states can only be an exercise in intellectual nonsense and political deception. And that is what it is.

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am grateful to the right hon. Gentleman for giving way, because he avoided answering my previous intervention on justice and home affairs, which he and his colleagues always regarded as the most sensitive of the subjects that we are considering. Does he now accept, and will he put it on record, that the reform treaty is substantially different from the constitution in that every single aspect of justice and home affairs is subject to an opt-out or an opt-in? That is a fundamental change, which he should acknowledge.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The hon. Gentleman is right to point out that there are some differences on justice and home affairs, which I will tackle shortly, between the constitution and the Lisbon treaty. However, there is an important point, which the European Scrutiny Committee has studied at length, to make. Michael Connarty, who has spoken so often in our proceedings, pointed out that the red lines—Chris Huhne was considering the red lines on justice and home affairs—leak like a sieve. That is why I am not satisfied with the changes.

Several hon. Members:

rose —

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Let me finish my point about the Liberal Democrats before I take a further intervention.

The leader of the Liberal Democrats should be true to his original conviction. When he wrote in The Guardian on 15 October 2003, as a Member of the European Parliament, he attacked the Government for

"dismissing all calls for a referendum"

and

"playing straight into the hands of the Eurosceptics."

He said:

"Nothing will do more damage to the pro-European movement than giving room to the suspicion that we have something to hide, that we do not have the 'cojones' to carry our argument to the people."

An explanation of why the Liberal Democrat leadership's protests in the debates have become ever more shrill is that, at some point in recent months, they have become separated from their cojones. Those unfortunate objects are now to be found impaled on a distant fence.

The argument that the Lisbon treaty is not only different from the European constitution, but so different that entire political parties are relieved of their commitment to hold a referendum does not stand up to much analytical scrutiny.

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Angus Robertson (Parliamentary Leader (Westminster Group); Moray, Scottish National Party)

The right hon. Gentleman is right to point out that every party in the House committed itself to a referendum, not least the Scottish National party, which committed itself first, and will vote for a referendum this evening. However, is not it right and proper to remember the public in the debate? Opinion poll after opinion poll shows that the overwhelming majority of supporters of the Labour party, the Conservative party, the SNP and even the Liberal Democrats want a referendum on the issue. It is no surprise that cynicism arises in the country about democratic decisions when we ride roughshod over our promises and public opinion on this matter.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Absolutely. That is well said. People in 10 parliamentary constituencies have had the opportunity, organised by the Electoral Reform Society, to cast a vote. It is noticeable that one of the highest turnouts and one of the largest majorities in favour of a referendum on the treaty was in the constituency of the hon. Member for Eastleigh. The margin for a referendum was vastly greater than his majority at the general election. He should reflect on that.

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John Redwood (Wokingham, Conservative)

My right hon. Friend makes a powerful case. Did he notice two other things about that interesting referendum? First, the number of votes in favour of a referendum was greater than the number of votes that Chris Huhne got—

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

Mr. Hague just said that.

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John Redwood (Wokingham, Conservative)

No; my right hon. Friend said "greater than his majority". The number of votes for the referendum was actually greater than the number that elected the hon. Member for Eastleigh on the promise to hold a referendum. Secondly, the hon. Member for Eastleigh failed in his campaign to stop people in his constituency voting on that crucial issue. Was that not an anti-democratic disgrace?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

It was a shame to discourage people from voting. My right hon. Friend has picked me up on an important point. The number of votes cast and the majority may be similar in the Rhondda, but not in the rest of the country. My right hon. Friend has made an important distinction—matters are even worse for the hon. Member for Eastleigh than I imagined, because the number of votes cast in a referendum was greater than his support in the constituency.

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I am spoiled for choice. Let us bring in Matthew Taylor.

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Matthew Taylor (Truro and St Austell, Liberal Democrat)

Given the right hon. Gentleman's passionate commitment on the subject and his concerns about the treaty, which I do not doubt, will he clarify what will happen if, as is likely, the treaty goes through? If the treaty were in place and the Conservatives were in government, what exactly would they put to the British people in a referendum to enable them to vote on the concerns that the right hon. Gentleman has expressed?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The hon. Gentleman asks me to look a long way into the future. It is perfectly understandable that hon. Members in other parties are ever more inquisitive about a Conservative Government, since that moment draws steadily nearer. [Interruption.] The Foreign Secretary says that I always give that answer to that question, but it is the same question, so it receives the same answer. That consistency will apply under a Conservative Government.

The hon. Member for Truro and St. Austell asks me to concede the argument before it is over, but the issue is not yet decided. When it is decided in this place, it will go to another place, when it will not be too late for those parties that committed themselves to a referendum in their election manifestos to insist that it happens. Perhaps the hon. Gentleman should recommend that course to his colleagues.

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Geraldine Smith (Morecambe and Lunesdale, Labour)

The right hon. Gentleman's party has claimed throughout the debates that there has not been enough time to discuss all the detail, and many amendments have been tabled, yet the right hon. Gentleman expects the British people to vote a straight yes or no, which is nonsense. One cannot vote on a treaty that is 30 or 40 pages long; one can vote only on a principle.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

If the people of Ireland can have a referendum, the people of Britain have every ability to hold one. We suggest not a Committee stage throughout the country, but that once the Bill has passed through Parliament, and before it receives Royal Assent, there should be a referendum so that people can give their verdict. The voters of France and of Holland had a referendum, and the people of Britain should have the referendum that they were promised.

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Geraldine Smith (Morecambe and Lunesdale, Labour)

The right hon. Gentleman says that the people of France and of the Netherlands had a chance to vote in a referendum, yet he says that the treaty is the same as the constitution. If so, what did their vote achieve?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

It certainly did not lead to their withdrawal from the European Union—some people claim that voting on the treaty is the same as withdrawal. The hon. Lady might well ask what the votes achieved. The European leaders went away and tweaked and tinkered with the constitution and brought it back under a different name, which brings me to a point that I wanted to make.

The treaty was designed to seem different. In the words of Valéry Giscard d'Estaing, who wrote the original document:

"All the earlier proposals will be in the new text , but will be hidden and disguised in some way."

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Kim Howells (Minister of State, Foreign & Commonwealth Office; Pontypridd, Labour)

That is the French.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The Minister says that that is the French, but here come the Belgians. The then Belgian Foreign Minister put it honestly when he said:

"The aim of the Constitutional Treaty was to be more readable: the aim of this Treaty is to be unreadable...The Constitution aimed to be clear, whereas this Treaty had to be unclear. It is a success."

I give full marks to Giuliano Amato, the former Italian Interior Minister, who said last year that it was

"decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception...Because if this is the kind of document that the IGC will produce, any Prime Minister—imagine the UK Prime Minister—can go to the Commons and say, 'look...it's absolutely unreadable, it's the typical Brussels treaty, nothing new, no need for a referendum.' Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new."

At least that was a disarmingly honest admission of what was going on. Hardly anybody has been fooled—except, unfortunately, some of the party leaders in the House of Commons. In spite of the deliberate attempt to baffle the people of this and other countries, which should in itself redouble the determination of the people's elected representatives to secure a referendum, it is not beyond the wit of interested human beings to come up with a comparative analysis of the constitution and the Lisbon treaty.

1:00 pm
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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I must complete this point, but I will give way to the right hon. Gentleman in due course.

A comparative analysis is, however, beyond the capabilities of the Foreign Office, it seems. Throughout last autumn, the initial answers to the written questions that I had tabled to the Foreign Secretary asking for a comparative, clause-by-clause analysis were simply delaying replies, as Ministers worked out how to avoid publishing something so deeply inconvenient to their argument. In the end, the Foreign Secretary just refused to do so, relying on the discredited mantra that the constitutional concept had been abandoned, which was not conducive to open debate. From a Government who are supposedly committed to freedom of information and transparency, that should not be acceptable to Parliament.

As a result, it has been left to others to perform the comparative analysis with intellectual rigour and honesty. The European Scrutiny Committee has published a table showing that the overwhelming majority of the constitution's provisions are replicated in the Lisbon treaty. We always say that we will try not to get the hon. Member for Linlithgow and East Falkirk, who is reading at the moment, into too much trouble, but the Minister for Europe has told us that the hon. Gentleman is in so much trouble as it is that that does not matter any more. The hon. Gentleman said that

"every provision of the constitutional treaty, apart from the flags, mottos and anthems, is to be found in the reform treaty. We think that they are fundamentally the same, and the Government have not produced a table to contradict our position."—[ Hansard, 11 December 2007; Vol. 469, c. 211.]

Another analysis showed that of the 250 main provisions in the constitution, 240 are replicated in the Lisbon treaty. Every cross-party analysis of the treaty has reached the same conclusion. The Foreign Affairs Committee concluded that

"there is no material difference between the provisions on foreign affairs in the Constitutional Treaty which the Government made subject to approval in a referendum and those in the Lisbon Treaty on which a referendum is being denied."

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I must give way to the Chairman of the Foreign Affairs Committee.

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Mike Gapes (Ilford South, Labour)

Will the right hon. Gentleman also remind the House that my Committee decided in two specific votes—by nine votes to three and by eight votes to four—to reject moves for a referendum on this treaty?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

It is well known that that was what the Committee decided on a referendum; I am discussing whether the Lisbon treaty and the constitution are the same. The hon. Gentleman's Committee and the report, with which he presumably agreed, said that, on foreign affairs, the treaty and the constitution are exactly the same.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I shall, because I promised I would.

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Malcolm Bruce (Gordon, Liberal Democrat)

Will the right hon. Gentleman acknowledge that a constitution that would have swept away every treaty from the treaty of Rome to the treaty of Nice, and incorporated them in a single document capable of being determined on a yes or no vote, is quite different from a set of rules that are bound to incorporate changes, if they are going to advance the workings of the European Union? That is the fundamental difference. If the right hon. Gentleman is successful tonight in the Lobby, secures a referendum and campaigns for a no vote, how will he explain and interpret what the British people want the Government to do next?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The right hon. Gentleman thinks that there is a fundamental difference between the documents, but my argument is that there is no fundamental difference between them. Let me complete the answer to that, and I shall come to his second point in due course.

Faced with that onslaught of evidence and analysis from independent commentators and Committees of this House, the promise breakers have made their last stand on one forlorn but intriguing argument—the "mouse" argument, originally introduced, I think, by the hon. Member for Kingston and Surbiton. [Interruption.] The hon. Gentleman will explain later who originally came up with it. That argument concedes that the Lisbon treaty is indeed 90 per cent., or thereabouts, the same as the constitution, "But," it goes on, with an air of triumph inappropriate to the facts available, "a mouse is 90 per cent. genetically the same as a human being, and it is the 10 per cent. difference that really counts."

The difference between a man and a mouse is indeed a fascinating question, and if Liberal Democrat Front Benchers vote for a referendum tonight, the performance of their leader might be part of the analysis of that difference. Even if we bend over backwards to accommodate that view, however, by no stretch of the imagination do the changes made between the two documents turn the man-like constitution into the mouse-like treaty of Lisbon.

Compared with the constitution, the Lisbon treaty contains some improvements, such as the explicit ruling out of European Court of Justice competence in foreign policy and the six words on climate change, which we debated last week. They are nice to have, but they make no material difference to the policies, powers or procedures of the EU. The changes between the constitution and the Lisbon treaty also take one important step backwards—the removal of the commitment to undistorted competition within the EU from the overriding objectives of the European treaties—but the vast majority of the rest is the same.

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I know that we are in Committee, and I am trying to give way as much as I can, but I must be allowed to make an argument.

Why have the debates in this House on this treaty over the past six weeks been in essence the same as the public debate that raged about the European constitution? We would not be arguing about the same things if the two documents were fundamentally different. The Government are fond of alleging that the Conservative party is alone in its view of European affairs—they always omit to mention that they opposed vast tracts of the treaty to which they have now signed up—but on the issue of whether the constitution and the treaty are the same, it is the Government who are alone in Europe.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I give way to the author of the "mouse" argument.

Hon. Members:

Squeak, squeak!

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I am grateful to the right hon. Gentleman, who is as usual making an amusing speech. However, will he deal with the substance for a change? Will he give a proper answer about the difference between the provisions of the constitutional treaty and the Lisbon treaty on justice and home affairs, which are among the most significant changes proposed by the constitutional treaty? Will the right hon. Gentleman admit that there are now major opt-ins that make a complete difference to how the Lisbon treaty affects the United Kingdom? Will he agree with that on the record?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

We had that discussion just 10 minutes ago. Of course there are changes between the Lisbon treaty and the constitution, and I have just listed some others. However, they do not equate to the difference between a man and a mouse, which is the argument here.

The Spanish Prime Minister has said:

"We have not let a single substantial point of the constitutional treaty go."

The Finnish Europe Minister has said:

"There's nothing from the original institutional package that has been changed."

The German Chancellor has said:

"The substance of the constitution is preserved. That is a fact."

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Gordon Banks (PPS (Rt Hon James Purnell,  Secretary of State), Department for Work and Pensions; Ochil and South Perthshire, Labour)

Will the right hon. Gentleman give way?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I must proceed for another few minutes.

The Government cannot argue that the treaty is different and that the referendum is unnecessary because they have met their four red lines, which relates to the point that the hon. Member for Kingston and Surbiton has just made. One of the red lines was that the treaty should have no impact on tax policy. The fact that the impact on tax is the same in the treaty as it was in the constitution is clear—there is no impact at all. It was only ever a red herring that Tony Blair invented when he was before the Liaison Committee.

The second red line is that there should be no loss of independence in foreign policy—that can be debated in respect of either document—but other than the renaming of the foreign minister as the high representative, almost nothing has changed between the two documents.

A third red line—claimed by Tony Blair at the Dispatch Box in front of me at the end of June in his last days in office—was a clear opt-out from the charter of fundamental rights, but the Minister for Europe has since told us:

"The fact is that the United Kingdom has neither sought nor achieved an opt-out on the charter of fundamental rights, which will apply in every member state of the European Union."—[ Hansard, 28 January 2008; Vol. 471, c. 34.]

That is a total reversal of what the former Prime Minister said, and he is no longer here to explain that to the House of Commons.

The final red line was the opt-in on justice and home affairs. The value of that has been debated, and the European Scrutiny Committee has cast doubts on parts of it. The Government claim to have met their red lines, although few objective analysts agree with them, but when they promised a referendum they made exactly the same claim about their red lines.

So, what has really changed between Tony Blair standing at the Dispatch Box and saying

"let the battle be joined."—[ Hansard, 20 April 2004; Vol. 420, c. 157.]

about a referendum in April 2004, and the current Prime Minister saying, "Let battle be avoided at any cost, and please don't let me be photographed at the signing ceremony"? Only two things have changed: the general election of 2005 was got out of the way, and the Government decided that a referendum could not be held because they did not think that they would win it. The Prime Minister who did not have the bottle to call a general election he had prepared for is the same Prime Minister who does not have the courage or honour to hold a referendum that he has promised.

As a result, this treaty is devoid of any democratic mandate or legitimacy, which is a rarity in the history of European treaties. The authority of the Wilson Government in the '60s to pursue entry negotiations into the then European Economic Community derived from a clear commitment in their election manifesto. The mandate of the Conservative Government elected in 1970 to complete those entry negotiations was based on an explicit manifesto commitment. The Labour Government elected in 1974 said that they would hold a referendum, and they did. The Conservative manifesto in 1992 included the intention to ratify the treaty of Maastricht. However, nowhere did the Labour manifesto of 2005 say that if the constitution were defeated elsewhere in Europe, it would be brought back with a few tweaks or that a commitment to a British referendum would be abandoned.

The opportunity to call a general election last autumn, with the ratification of the treaty proposed in the Government's manifesto, was not taken up. Given that the treaty brings about major changes in the way in which Britain is governed, the Government have nowhere—neither in a general election nor in a referendum—requested or received the authority and consent of the people. The absence of such authority damages the democratic legitimacy of the European Union in the eyes of the electorate. The unwillingness of those who favour a treaty of this kind to submit their views to the electorate contributes neither to democracy nor to the quality of argument.

In a speech last month to the Centre for European Reform, the Foreign Secretary was reported to have said that once the new EU treaty had been ratified, pro-Europeans in Britain, as he termed them, would have no more excuses in trying to combat public hostility to the EU. The implication is that, once the treaty is ratified without the voters' consent, Ministers must start working on the voters in order to encourage them to favour such things. What is wrong with trying to persuade the voters of the merits of the case before ratification, rather than afterwards? What does it say about the convictions of politicians when they reserve their arguments for following quietly in the wake of decisions, rather than arguing boldly for them in advance? It tells us that their calculations are more important than their convictions. As one commentator wrote yesterday in The Independent:

"This treaty strategy is Gordon Brown's personal creation, this is his specified treatment of Parliament, and visible to all is his definition of politics as cynicism in action."

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Rob Marris (PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office; Wolverhampton South West, Labour)

I think that the United Kingdom negotiated a good deal. Indeed, many in France would say that the rejection of the constitutional treaty in a referendum has led to a worse deal for France on the Lisbon treaty. If the right hon. Gentleman had his way, and there were a referendum and it were lost, what evidence does he have that the UK could renegotiate a better treaty for itself? In that case, would he wish to return to the status quo ante, with, as he believes, the EU functioning not very well?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

Of course, there are many arguments, which are probably beyond the scope of the amendment—they are certainly beyond the time available for my speech—about what could be achieved in different situations and through different negotiations. We could go into all the arguments about what would have happened if the Government had actually taken a lead in the past two years, rather than sitting immobile and allowing this to be done to them—declaring the constitution dead two years ago. They could have negotiated many things more successfully. The argument that we cannot possibly ever say no for fear of what would happen afterwards is a strange argument in a democracy. This House must be able to come to a judgment, and the country should be able to come to a judgment, when it has been promised the opportunity to do so. The Government's refusal to call a referendum—

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

rose—

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Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

I shall give way to Mr. Foster, then I shall try to conclude.

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Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I am most grateful to the right hon. Gentleman for giving way. On the answer he just gave, he has been asked about that matter three times already. One of the great merits of an in/out referendum is that there is total clarity about the implications, whatever result is obtained. There is a total lack of clarity about the referendum he proposes. Just once, would he answer this fundamental question: what would be the implications of a "no" result in the referendum he seeks?

1:15 pm
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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

If the Liberal Democrat party is so concerned about the implications of a "no" result in a referendum on the treaty, it should not have included a commitment to such a referendum in its election manifesto. The hon. Gentleman makes the point that an in-out referendum would give a clear view. On the question of in or out, it would give a clear view, but it would tell us nothing about what people think about the Lisbon treaty. Many people—including me—are strongly in favour of remaining in the European Union but against the Lisbon treaty.

This group of amendments includes an amendment tabled by Mr. Davidson, which would enable a referendum on the Lisbon treaty and give the Government an order-making power to add another question. Although we prefer amendment No. 293, which proposes a straightforward referendum on the treaty, our second preference would be to support the amendment of the hon. Member for Glasgow, South-West. I would have thought that the Liberal Democrats would want to support it, too, because it would allow a vote on the Lisbon treaty and on another question, which is what they want.

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

The amendment that stands in the name of Mr. Davidson allows the Government to change the question, which presumably includes changing it to include support for the treaty. Is that what the right hon. Gentleman really supports?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

If the amendment tabled by the hon. Member for Glasgow, South-West were passed, we could be sure that there would be a referendum, and the terms of the question would then be open to further debate and discussion. It would be wrong to rule out the hon. Gentleman's amendment simply on drafting grounds.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The hon. Gentleman must make his own speech, but I shall let him intervene one more time.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

On the question of what would happen if there were a referendum and the country voted no, the right hon. Gentleman knows that the British Conservative party has no friends in Europe. All the other 26 conservative parties oppose it. How would he negotiate in the British national interest, when every conservative party in the European Union opposes him?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

The logic of the hon. Gentleman's argument is that no nation is allowed to vote no, that even the power of veto does not really count and that no nation can stand up against the orthodoxy of the times. I say that that is not democratic, and it is not right. Indeed, it was not an argument accepted by the Liberal Democrats when they wrote their election manifesto.

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Philip Davies (Shipley, Conservative)

My right hon. Friend is again making an excellent speech. Does he agree that the crux of the matter is that thousands of my constituents have filled in forms demanding a referendum, and that they feel cheated? Either the Government and the Liberal Democrats think that my constituents are too thick to make a decision on the treaty, or they know that they would lose a vote on it. Which of those two things does my right hon. Friend think it is, or does he think it is both?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

It might be both. There is a patronising attitude along the lines of, "Although this is important, it is so detailed that you out in the country needn't worry your little heads about it", but I suspect that the more powerful argument that has prevailed on the Government is that they do not think that they would win such a referendum, which does us no favours.

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Adrian Bailey (PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence; West Bromwich West, Labour)

rose—

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

In fairness to the Committee, I must try to conclude my remarks, because I want to put one further argument.

In addition to my earlier points, of equal concern to all of us who believe in thriving democratic parliamentary government is the position taken by those who promised a referendum and now wish to deny one, which damages the reputation and standing of our politics. In our role as constituency Members of Parliament, most of us in the House—I suspect that this applies to all parties—visit sixth forms and local colleges, and speak about the work of Parliament and why elections matter and votes count. We encourage young people to exercise their civic responsibilities. In many cases we send them birthday cards on their 18th birthday saying, "You now have the right to take part in decisions about your country's future."

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Adrian Bailey (PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence; West Bromwich West, Labour)

Will the right hon. Gentleman give way?

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William Hague (Shadow Foreign Secretary, Foreign Affairs; Richmond (Yorks), Conservative)

No, I am explaining my argument.

It is central to people's faith in participation, which we so strongly encourage, that Members of Parliament, once elected, do their best to be true to the broad direction and principal promises that they have made to voters. On occasion, when Members of Parliament cannot do so, there should be a compelling reason that the country as a whole can understand and, at least in part, accept.

No such argument prevails in this case. If the Committee votes down the amendments calling for a referendum, we will have to go to our schools and colleges and say that there are times when almost the entire House of Commons can be elected on a specific pledge, and yet a majority in the House can then decide to renege on it, not because it is unaffordable, not because there is an emergency and not because the voters no longer want that pledge, but simply because those in the majority calculate that it suits them in the short term and that they can probably get away with it. The unavoidable implication is that politicians are not trustworthy, that Parliament does not see itself as accountable and that votes do not necessarily matter.

So, I believe not only that a referendum is right and appropriate on a treaty of such importance, but that if the Committee were to tell the Government today that a clear promise that could so easily be kept ought to be kept, it would, in a climate of loss of faith in political institutions, do more to restore public confidence in the basic honesty and accountability of our politics than any other action that we could take. The Prime Minister said that trust in the Government was central to his purpose. The leader of the Liberal Democrats called for

"a new politics, of politicians who listen to people, not themselves."

If those leaders remain heedless of the arguments for a referendum on the treaty, they will win short-term relief from the views of the electorate tonight, but the damage to their standing and to the politics and reputation of our country and Parliament is something on which they will have to reflect and repent for many years.

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David Miliband (Foreign Secretary; South Shields, Labour)

This important debate raises fundamental questions about our parliamentary democracy, and about the role of Parliament and its relationship with the people. In our system of government, we do not have a legal test for whether we should hold a referendum, but we do have a clear principle, based on precedent and for many years supported by all the main political parties. Where there is a shift in power of a fundamental nature, it must be put to the people. That is the question that I want to address today. However,

"every time we have such a referendum it is, in a sense, an abdication of responsibility by the House and the Government of the day. This Government intend to make no such abdication of their responsibilities; nor do they intend to invite the House to abdicate from its responsibility."—[ Hansard, 21 February 1992; Vol. 204, c. 627.]

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Nigel Evans (Ribble Valley, Conservative)

When the Foreign Secretary fought the 2005 general election on a manifesto that promised a referendum on the issue, did he put out a personal statement saying that he was opposed to the holding of that referendum?

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Sir Peter Tapsell (Louth and Horncastle, Conservative)

I happen to be one of the Members of this House who voted in favour of a referendum on the Maastricht treaty. If a sufficient number of my colleagues, in all parts of the House, had joined me and helped to carry the vote, we would not have had the Amsterdam or Nice treaties or now the Lisbon treaty. However, 400 of the people who failed to do that have since fled the premises, leaving me virtually alone, as the boy on the still burning deck. We hear a lot about the military covenant, but behind a military covenant is an even more important constitutional position, which is the social contract. That is what the Government have broken, by ignoring their pledge to the electorate to hold a referendum.

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David Miliband (Foreign Secretary; South Shields, Labour)

The hon. Gentleman will be pleased to know that a significant number of the members of the shadow Cabinet were here in 1992, and each and every one of them voted against a referendum on the Maastricht treaty.

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Desmond Swayne (Parliamentary Private Secretary To the Leader of the Opposition; New Forest West, Conservative)

The comparison with Maastricht simply will not wash. No party went to the general election that preceded the ratification of the Maastricht treaty, after it was signed, promising the electorate a referendum, as the Foreign Secretary's party did before the previous election.

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David Miliband (Foreign Secretary; South Shields, Labour)

I am going to address directly the novel constitutional argument that Mr. Hague put on the radio this morning, which is that it is not the content of a treaty that should decide whether there is a referendum.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

rose—

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David Miliband (Foreign Secretary; South Shields, Labour)

I will make a little progress and then I will give way to right hon. and hon. Members.

The right hon. Member for Richmond, Yorks covered a lot of ground in his speech, but dodged the central question in tonight's vote, which is whether the treaty of Lisbon represents a fundamental shift in the balance of power between the nation state—and this nation state in particular—and the European Union. If it does, there should be a referendum; if it does not, there should not be one.

Let me address directly the question that has been raised. I can see why the right hon. Gentleman dodged the question of whether there had been a fundamental shift, because on the radio this morning he made the extraordinary claim that it was not the content of treaties that should determine whether they are subject to a referendum. In other words, he denied the constitutional practice that says that it is a shift in the balance of power that determines whether there should be a referendum.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

rose—

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William Cash (Stone, Conservative)

Does the Foreign Secretary deny that there is a whole range of fundamental changes in the relationship between the European Union and this country and Parliament by virtue of the national obligation that is imposed on Parliaments, the merger of all existing treaties with legal personality, the declaration of primacy, which for the first time is stated in a treaty, the fact that treaties are created without implementation by Act of Parliament and an extension of the powers to use statutory instruments? A range of fundamental constitutional changes are in the treaty, irrespective of all the other broken promises. The reality is that the Foreign Secretary is wholly and totally wrong in his assessment.

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David Miliband (Foreign Secretary; South Shields, Labour)

The hon. Gentleman will know that the provisions on legal personality have been around since Maastricht, which was pioneered through the House by the Conservative party.

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David Miliband (Foreign Secretary; South Shields, Labour)

I am happy to give way to the right hon. Gentleman, the former Secretary of State for Social Security.

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Peter Lilley (Hitchin and Harpenden, Conservative)

The Foreign Secretary said that a novel constitutional concept was being introduced. Is he saying that it is a novel constitutional concept that Members of Parliament should keep their promises?

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David Miliband (Foreign Secretary; South Shields, Labour)

No, of course I am not saying that. What I am saying is that referendums were held on devolution in the case of the Scottish Parliament and the Welsh Assembly precisely because they changed the distribution of power in this country. A proposal to join the euro would also shift power, so a referendum would be necessary. It must be the content of the treaty that determines whether we should have a referendum. I want to go through, in detail, the allegations that have been made about the content of the treaty and then the facts about the treaty, and I will show that there is no way to make the argument that it represents a fundamental shift in the balance of power in this country.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

The Prime Minister met the leader of Ireland to discuss the treaty in July last year. After the meeting, the Prime Minister said that he and the Taoiseach had discussed the European constitution and how it might be taken forward over the next few months. What does the Foreign Secretary think the Prime Minister meant by that?

1:30 pm
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David Miliband (Foreign Secretary; South Shields, Labour)

Every Government and leader in Europe has recognised that the constitution has been abandoned— [ Interruption. ] Mr. Francois says that the Prime Minister has said that the treaty is the same. The Prime Minister has never said that the Lisbon treaty is the same as the constitution. The reason he has not said it is because it is not the case.

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John Redwood (Wokingham, Conservative)

Is the Foreign Secretary seriously suggesting that a bigger transfer of power was involved when referendums were held on proposals for elected mayors and for the north-east regional assembly? Or is he just trying to find a smokescreen after breaking his own promise because he knows that he would lose a referendum?

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David Miliband (Foreign Secretary; South Shields, Labour)

No, I am not saying that. My case is that this treaty does not represent a fundamental shift in the balance of power in this country. Furthermore— [ Interruption. ] As we have discussed on Second Reading [ Interruption. ] As we discussed— [ Interruption. ]

The Second Deputy Chairman:

Order. We cannot have interjections from a sedentary position when— [ Interruption. ] Order. We cannot have interjections from a sedentary position when the Foreign Secretary is attempting to answer questions that have been put to him.

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David Miliband (Foreign Secretary; South Shields, Labour)

On Second Reading, we discussed the fact that, when the former Prime Minister announced that a referendum would be held on the constitutional treaty, he precisely said that it was not for the constitutional nature of the balance of power in that question. So that question was addressed directly on Second Reading, including by the Prime Minister at the time.

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Philip Davies (Shipley, Conservative)

Following the point made by my right hon. Friend Mr. Redwood, the Government insist on referendums to set up elected mayors and parish councils. Why on earth will they not keep their promise to hold a referendum when they are transferring so many powers away from this Parliament to the European Union?

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David Miliband (Foreign Secretary; South Shields, Labour)

The reason is to do with whether there is a fundamental shift in the balance of power, as there was in the cases of the Scottish Parliament and the Welsh Assembly. Even the shift to an elected mayor is a big shift in the balance of power for the people in that locality. That is the test that is applied in every case.

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David Gauke (Shadow Minister, Treasury; South West Hertfordshire, Conservative)

If I understand the Foreign Secretary correctly, he has just said that the constitutional treaty did not involve a fundamental shift of constitutional powers. If that is the case, why did he favour a referendum on the constitution?

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David Miliband (Foreign Secretary; South Shields, Labour)

We went through this in detail on Second Reading. The argument was that it was vital, in the words of the former Prime Minister, to "clear the air" on the European issue— [ Interruption. ] That was the argument that was put— [ Interruption. ] I am reporting to the House what the Prime Minister said at the time. What I believe is important is that we look at the content of the treaty. The content of the treaty cannot justify the claims that have been made about the shift in the balance of power or about the facts in respect of this case.

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David Miliband (Foreign Secretary; South Shields, Labour)

I shall take a last intervention from the right hon. Gentleman, who has long taken an interest in this issue.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

Not that long— [ Laughter. ] Well, not as long as some of my colleagues. I am a little confused about the Foreign Secretary's position. He said that the reason for granting a referendum was that there was a fundamental shift in power. He then went on to say that he did not think that there was a fundamental shift in power from the constitution, and that the reason for granting a referendum was that it would clear the air. Do we have it now that the principle behind granting a referendum is that, whenever the air is not clear, we should clear it by holding a referendum?

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David Miliband (Foreign Secretary; South Shields, Labour)

We do not. We have it very clear that there should be a referendum when there is a shift in the fundamental balance of power. I want to go— [ Interruption. ] I am sorry, but that is a very clear point, and it is important that I address the case at hand.

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Kenneth Clarke (Rushcliffe, Conservative)

The right hon. Gentleman is creating an entirely new constitutional principle—namely, that we hold United Kingdom referendums when there is a shift of power. We held no United Kingdom referendums on Scottish or Welsh devolution, and the reason that we did not was that the Government were not sure that they would win. They would certainly have found a lot of English MPs—even on their own side—opposing the proposals. We have no doctrine of referendums in our constitution. He is inventing the doctrine simply to get out of this extremely unwise election promise. He knows perfectly well that the previous Prime Minister should never have cynically promised a referendum in the first place.

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David Miliband (Foreign Secretary; South Shields, Labour)

The important issue is that we have experience of one referendum on the European Union, of referendums in respect of Scotland and Wales, and of referendums in respect of local government. Those referendums were all called because of the issue of the balance of power.

I want to go through the allegations that have been made about this important issue, because some of them are absurd and can be dismissed. There are also substantive issues— [ Interruption. ]

The Second Deputy Chairman:

Order. We must not have that kind of intervention from the Opposition Front Bench.

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David Miliband (Foreign Secretary; South Shields, Labour)

There is no power in the treaty for new tax-raising powers for the European Union. There is no replacement of the UK seat on the UN Security Council. There is no danger of French police stalking the streets of London. There is no risk of unwanted changes to our social security system. All those allegations have been made in the course of these debates. Alan Duncan, who speaks for the Conservative party on energy issues, said that there was a proposal to allow the European Commission to cut off gas supplies from Milford Haven and send them to Ingolstadt. There is no such proposal in the treaty. There is no provision to prevent the UK from supplying oil to another non-EU NATO member at a time of crisis.

Those are some of the absurd claims that have been made. They have been alleged again and again, and, just like the claims that the Amsterdam treaty would mean the abolition of Britain and that the Nice treaty would mean the end of NATO, none of them is true.

We know the agenda of the Conservative party.

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John Gummer (Suffolk Coastal, Conservative)

Would not the right hon. Gentleman find his case much easier to make, without any of this persiflage, if a promise had not been made that there would be a referendum? Those of us who are opposed to referendums in principle did not support that promise, but he did. The problem for the House is that we have a Government who gave in to Mr. Murdoch's pressure for a referendum in order to safeguard the support of The Sun before the election.

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David Miliband (Foreign Secretary; South Shields, Labour)

Until I heard the second half of the right hon. Gentleman's intervention, I was going to say that I was about to come to the issue that he had raised on the difference between the constitutional treaty and the Lisbon treaty.

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David Miliband (Foreign Secretary; South Shields, Labour)

No, I need to make some progress.

Absurd claims have been made about what the treaty does, but there are also some important changes in the treaty. We support them, but the right hon. Member for Richmond, Yorks and the Conservative party do not. The details are worth clarifying because they show conclusively that the treaty does not constitute a fundamental shift in the balance of power.

The treaty will increase British voting weight in the Council of Ministers. It will replace the rotating presidency of the EU with a nominated President of the European Council. It will reduce the number of Commissioners, so that they can become a more coherent group. It will increase the power of national Parliaments, in a way that I shall detail in a moment. It will merge Commission posts and allow Commission and Council officials to work more closely together on foreign policy.

Nothing in the treaty affects the existing powers of EU member states to run their own foreign policy, including at the UN. The treaty, in law, excludes the European Court of Justice from having substantive jurisdiction over foreign policy. This is what the treaty says:

"The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions".

That is treaty text. The Foreign Affairs Committee—whose Chairman is here—concluded that

"it seems highly likely that, under the Lisbon Treaty, the Common Foreign and Security Policy will remain"—

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William Cash (Stone, Conservative)

On a point of order, Sir Michael. The Foreign Secretary said that he was dealing with important matters of constitutional change and the balance of power. He is now reciting a number of matters that have come out of the treaty but that have nothing whatever to do with constitutional change.

The Second Deputy Chairman:

Order. These are not matters for the Chair. They are matters for debate now.

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David Miliband (Foreign Secretary; South Shields, Labour)

The issue of what the treaty does in respect of foreign policy, justice, home affairs and other matters is central to the question of whether it shifts the balance of power in this country.

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David Miliband (Foreign Secretary; South Shields, Labour)

May I just finish my quotation from the Foreign Affairs Committee, as it is important in this respect? The Committee rightly said that

"it seems highly likely that, under the Lisbon Treaty, the Common Foreign and Security Policy will remain an intergovernmental area, driven by the Member States."

That recognition in respect of foreign policy is matched in other areas, including, critically, the issue of justice and home affairs, which has been raised by the Liberal Democrats.

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Frank Field (Birkenhead, Labour)

While it is important for the Foreign Secretary to set out what he thinks are the differences, are we not as a party up against one fundamental fact—that the voters out there think that they were promised a vote on what we are discussing? Given that four out of 10 voters decided not to vote at the last election and that we were returned by only 21 per cent. of the total electorate, does he think that what we are proposing will help to push up the turnout or not?

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David Miliband (Foreign Secretary; South Shields, Labour)

I think that many factors will drive up the turnout at the next general election —[Interruption.] My right hon. Friend says that the passage and contents of the Bill will play into that, and I am sure that that is the case, but I think that we would all agree that it is in our interest to drive turnout up not down. I would say back to him that we are honour bound to recognise that there are big differences between the constitutional treaty and the Lisbon treaty, and part of our job in politics is to explain those differences.

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Michael Connarty (Linlithgow and East Falkirk, Labour)

I heard the Foreign Secretary pray in aid the comments of the Foreign Affairs Committee, so it might be useful to put on the record the full and correct quote, which has been much abused, from the European Scrutiny Committee. The question is whether the new treaty produces the same substantial effect as the constitutional treaty. We said that that is the case only

"for those countries which have not requested derogations or opt-outs from the full range of agreements in the Treaty",

and we then referred readers to the table and the annexe in the report. In praying in aid for his case, my right hon. Friend might reflect on the wording of a defeated amendment proposed by Mr. Cash, which referred to the proposition that the reform treaty was

"substantially equivalent to the Constitutional Treaty, even if it is not the same."

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David Miliband (Foreign Secretary; South Shields, Labour)

As it happens, I am about to come on to another quotation from my hon. Friend's Committee, which is important for justice and home affairs matters.

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David Miliband (Foreign Secretary; South Shields, Labour)

I shall take an intervention on foreign policy first.

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John Baron (Whip, Whips; Billericay, Conservative)

Is not the Foreign Secretary trying to create a smokescreen by addressing some of the more absurd claims about the treaty? Why does he not address the fundamental questions put by my right hon. Friend Mr. Hague, one of which is that many European leaders have stated that there is very little difference between the constitution and the treaty? Why does the right hon. Gentleman think that that is the case?

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David Miliband (Foreign Secretary; South Shields, Labour)

I am coming on to that, but every single European leader and every single Head of Government said that the constitutional treaty had been "abandoned"—their word, not mine; it had not been diluted or reformed, but "abandoned".

Several hon. Members:

rose —

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David Miliband (Foreign Secretary; South Shields, Labour)

I am going to make some progress because it is important to come on to justice and home affairs. I will take some further interventions later.

Nothing in this treaty will reduce the UK's sovereignty over immigration, asylum, visas, police co-operation or civil law. Why? Because, as my hon. Friend Michael Connarty said, we have secured an extension of the UK's current opt-in arrangements. The UK has a right to choose when it wants to share power by joining EU arrangements in those areas. Let me quote what the European Scrutiny Committee said on the subject. It concluded that it was

"clear from the 'opt-in' arrangements that the UK is free to decide whether or not to take part, and to that extent is able to protect the distinctive features of the legal systems of the UK".

Similarly, nothing in the charter of fundamental rights extends the ability of any court—European or national—to strike down UK law. Professor Alan Dashwood of Cambridge university, a leading expert in this area, concluded that

"the Charter is not, in itself, a source of rights but simply provides a record of rights that receive protection within the Union, from one source or another".

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Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

Is it not the case that one of the core changes is that the treaty not only extends competences, but means that many new policy areas will now become shared competences? Over time, disputes in those policy areas will be determined by the European Court of Justice. As declaration 17 annexed to the treaty shows, that takes primacy over this House, which is a huge shift of power.

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David Miliband (Foreign Secretary; South Shields, Labour)

In respect of article 17, that has been the fundamental issue regarding Britain's membership of the treaty of Rome since 1957. If the hon. Lady objects to that, she should have an objection to our membership of the whole of the European Union.

1:45 pm
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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

The Foreign Secretary has prayed in aid some comments of the Foreign Affairs Committee, so may I remind him that that Committee also said:

"We conclude that there is no material difference between the provisions on foreign affairs in the Constitutional Treaty which the Government made subject to approval in a referendum and those in the Lisbon Treaty on which a referendum is being denied"?

Is that an absurd claim? As far as I am concerned, my constituents in Aldershot want a referendum. Mr. Field is absolutely right that the Labour party will pay a big price for denying the people the right to have their voice heard on this matter.

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David Miliband (Foreign Secretary; South Shields, Labour)

I would never describe the Foreign Affairs Committee's conclusions as absurd. However, to give just one example, under the constitutional treaty all foreign policy activity was merged into a single treaty pillar. Under the Lisbon treaty, there is a wholly separate area of European affairs dedicated to foreign policy. If ever the hon. Gentleman wanted a guarantee about the continuing intergovernmental nature of foreign policy, there it is.

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Graham Stringer (Manchester, Blackley, Labour)

I am following my right hon. Friend's attempts to define the Lisbon treaty. Can he think of a better definition than this—that the treaty

"ensures the new Europe can work effectively, and that Britain keeps control of key national interests like foreign policy, taxation, social security and defence. The Treaty sets out what the EU can do and what it cannot. It strengthens the voice of national parliaments and governments in EU affairs"?

That, I think, is the essence of what my right hon. Friend has been saying. Fortunately, it comes from our manifesto of 2005, which defines the constitutional treaty. Can he tell us the difference between that definition and his definition of the Lisbon treaty?

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David Miliband (Foreign Secretary; South Shields, Labour)

There are big differences. First, the structure of the constitution abandoned all previous treaties that governed the EU. This treaty does not do that. Secondly, in respect of a range of policies—notably on justice and home affairs, but also on other areas—the content is different. Thirdly, in respect of the consequences, the constitutional treaty was alleged by many Conservative Members to be a slipway to a superstate. Under the Lisbon treaty and the conclusions of last month's European Council, there is an agreement that there shall be no further institutional reform for the foreseeable future. So in structure, in content and in consequence, this is different.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

When the votes were held in France and the Netherlands and the constitutional treaty as it stood was stopped, the Germans decided under their presidency to hold all these discussions again and sent round a letter—its existence was denied, but it did exist—to all the Governments, including the British Government, asking how best to resuscitate the process. One question asked was:

"How do you assess the proposal made by some member states"—

that must have included the UK—

"using different terminology without changing the legal substance, for example with regard to the title of the treaty"?

How did the Her Majesty's Government respond?

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David Miliband (Foreign Secretary; South Shields, Labour)

I would be happy to write to the right hon. Gentleman on that particular issue, but I would say that there are important differences between the constitutional treaty— [Interruption.] I do not have in my briefing pack the letter we sent back to the German presidency in June 2005, but I am happy to find out for the right hon. Gentleman. What is important, however, is the fact that the constitutional treaty has important differences from the Lisbon treaty.

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Angela Smith (PPS (Rt Hon Yvette Cooper, Chief Secretary), HM Treasury; Sheffield, Hillsborough, Labour)

rose—

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Peter Lilley (Hitchin and Harpenden, Conservative)

On a point of order, Sir Michael. Is it not a convention that when this House debates important matters, papers emanating from the Government spelling out policies are placed on the Table? The Foreign Secretary has finally admitted that the Government replied to the German letter. [Interruption.] The answer is there in the hands of— [Interruption.]

The Second Deputy Chairman:

Order. The right hon. Gentleman is right in some circumstances, but his point applies only when Ministers are quoting from state papers. In any case, it would appear that the situation has now been resolved.

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David Miliband (Foreign Secretary; South Shields, Labour)

The point has been made that discussions were ongoing at that stage, but I understand that we did not respond to the letter that was sent by—

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Kenneth Clarke (Rushcliffe, Conservative)

I think that I am likely to be voting with the right hon. Gentleman tonight, but I am not sure that I shall be able to agree with any of his arguments in favour of that proposition.

Given that the right hon. Gentleman's Government negotiated this treaty, will he explain why it is in Britain's interest to ratify it, and what improvements it makes to the operation of the Union? Will he stop all this nonsense about its being different from the constitution when it is plainly the same in substance, and explain why it is better not to hold a referendum but have the issue decided in Parliament? He is getting into trouble because of the deviousness and, at times, the ridiculousness of the arguments he is using, which are far removed from the main points.

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David Miliband (Foreign Secretary; South Shields, Labour)

As I said a few moments ago, the increase in British voting weight in the European Council and the changes in respect of foreign policy are important and useful changes that will help British work in the European Union.

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Angela Smith (PPS (Rt Hon Yvette Cooper, Chief Secretary), HM Treasury; Sheffield, Hillsborough, Labour)

The numerous interventions from Conservative Members demonstrate their inability to understand the difference between the Lisbon treaty which we are discussing now, and the earlier abandoned constitution. Does that not indicate that Eurosceptic thinking has taken over mainstream policy in the Conservative party?

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David Miliband (Foreign Secretary; South Shields, Labour)

That is an important point and one to which I shall return at the end of my speech, although I do not think that the allegation can be made of all Conservative Members.

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Gordon Banks (PPS (Rt Hon James Purnell,  Secretary of State), Department for Work and Pensions; Ochil and South Perthshire, Labour)

Will my right hon. Friend give way?

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David Miliband (Foreign Secretary; South Shields, Labour)

No. I want to make some progress.

The right hon. Member for Richmond, Yorks talked a great deal about the passerelles, which he said introduced a new "ratchet" clause. Such clauses have been around for 22 years, and have been used on one occasion. They were first introduced by the Single European Act, and have been extended in every subsequent treaty. Far from being novel or an innovation, they are an established part of the EU machinery. Contrary to what the right hon. Gentleman alleged on the radio this morning, there are new powers for nation states. Not only must every Government agree to them, but every Parliament has new rights as well. Furthermore, it is not true that the treaty extends qualified majority voting in a way that undermines the British national interest.

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Gordon Banks (PPS (Rt Hon James Purnell,  Secretary of State), Department for Work and Pensions; Ochil and South Perthshire, Labour)

Will my right hon. Friend give way?

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David Miliband (Foreign Secretary; South Shields, Labour)

No. I want to make some progress.

Sixteen changes do not affect us, because we are not in economic and monetary union and we have opt-ins on justice and home affairs. Fifteen are purely procedural—for instance, the procedures on the Comitology Committee, and the internal rules for appointing the Committee of the Regions and the Economic and Social Committee. Those are not threats to the constitutional balance in this country. Twenty changes break down barriers to action in areas where that is clearly in the UK interest, from energy to development and disaster assistance.

Today the right hon. Member for Richmond, Yorks announced that he opposed all those changes. So he is abandoning the UK interest in key areas. That means no strengthening of EU research capacity, no swift route to protecting British business ideas and no new impetus for the promotion of energy security, let alone disaster aid. That is not defending the national interest; it is abandoning it.

As for the foreign policy high representative, is it true that the treaty subverts the power of national Foreign Ministers under the auspices of the EU? No, it is not. The high representative will answer to Foreign Ministers, and foreign and defence policy is retained in a separate treaty.

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Denis MacShane (Rotherham, Labour)

Has the Foreign Secretary had time to read a short but very compact biography of Edward Heath which I wrote last year? In it he will see references to all the previous EU treaty debates going back to the 1960s. The arguments have not changed, save that then the League of Empire Loyalists, the national executive committee of the Labour party, the Communist party and the Monday Club opposed Europe, whereas now it is the mainstream Conservative party that opposes it.

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David Miliband (Foreign Secretary; South Shields, Labour)

My right hon. Friend makes a very good point. I hope he will send me a signed copy of his book for me to take away on my summer holidays. Perhaps he would also like to provide an executive summary to help me through the more detailed aspects.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

I hate to say this, but I agree with the shadow Foreign Secretary. He said:

"Democratic accountability is under threat...from the Government's regular use of referendums".

That is why I have never supported the idea of a referendum, particularly a referendum on a treaty. It seems to me that if the people of Britain were to say yes or no, we would not know precisely to what elements of the treaty they were saying yes or no. We would not know whether they were agreeing with Mr. Cash, with Mr. Heathcoat-Amory, or with Labour Members who would like to see very different changes to the treaty.

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David Miliband (Foreign Secretary; South Shields, Labour)

My hon. Friend makes an important and good point. The record of the right hon. Member for Richmond, Yorks in opposing referendums in the 1990s, both in practice during the Maastricht debates and in theory in his writings, is well known.

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Clive Efford (Eltham, Labour)

I think that when the arguments about the referendum die down people will understand that the mainstream Conservative party is, quite simply, flatly opposed to our continued membership of Europe.

Has my right hon. Friend noticed that he has been intervened on three times by former Secretaries of State who voted for the paving Bill that preceded opposition to the Greater London council? I do not recall any reference to any democratic process or any manifesto during that procedure. Does my right hon. Friend not find their selective memory somewhat astonishing?

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David Miliband (Foreign Secretary; South Shields, Labour)

My hon. Friend has used his own very good memory to good effect in exposing the hypocrisy of the Conservative party on this issue.

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Gordon Banks (PPS (Rt Hon James Purnell,  Secretary of State), Department for Work and Pensions; Ochil and South Perthshire, Labour)

Will my right hon. Friend give way?

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Gordon Banks (PPS (Rt Hon James Purnell,  Secretary of State), Department for Work and Pensions; Ochil and South Perthshire, Labour)

Mr. Clarke said that, while he thought he could support the Government in tonight's vote, he did not think he could support much of the Foreign Secretary's argument. May I play matchmaker, and give the Foreign Secretary and the right hon. and learned Gentleman an opportunity to agree on something—that failure to ratify the treaty would plunge the United Kingdom into crisis, as the right hon. and learned Gentleman was reported as saying on television this morning?

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David Miliband (Foreign Secretary; South Shields, Labour)

I certainly believe that it would send us to the margins of Europe, which would be very damaging to the national interest.

At every stage the Lisbon treaty amends existing treaties instead of replacing them, contrary to what was done by the constitutional treaty. The constitutional treaty restarted the EU from scratch. It abolished previous treaties, and created a new one. The constitutional treaty did not make special provision for Britain in respect of justice and home affairs. The reform treaty does, in inordinate detail and in respect of all JHA measures. The constitutional treaty left open the opportunity for the right hon. Member for Richmond, Yorks to advance specious arguments about a European superstate.

Those are the reasons why the Law Society of England and Wales says that this treaty

"does not have the same ambitions as the previous Constitutional Treaty".

It is why eight European Governments who promised a referendum on the constitution no longer consider it necessary. It is why the Conservative Prime Minister of the Netherlands, Mr. Balkenende, has said:

"We are not talking about a Constitution. The Constitution has gone."

It is why Giuliano Amato, who was prayed in aid by the right hon. Member for Richmond, Yorks, says that what was agreed was "a cluster of amendments", not "a new constitution". It is why Professor Damian Chalmers, a leading authority at the London School of Economics, says that this is

"probably the most limited reform, with the exception of the Treaty of Nice, that we have seen in the last twenty years."

So the content of the treaty does not justify a referendum, and the comparison to other treaties does not either.

The Single European Act—which was piloted through the House by the Conservative party—set out the terms for the creation of a single market, created the concept of the convergence of economic and monetary policies, and provided for co-operation on foreign policy. No referendum was required; I wonder why. [Hon. Members: "Why?"] The reason why is that it did not shift the balance of power in this country.

The treaty of Maastricht—

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David Miliband (Foreign Secretary; South Shields, Labour)

No. I must make some progress.

The treaty of Maastricht provided the blueprint for economic and monetary union, and added common foreign and security policy. As Mr. Clarke has said, it was a

"far more significant piece of legislation determining our constitutional arrangements",

but still we had no referendum. Indeed, the right hon. Member for Richmond, Yorks voted against a referendum on the issue, along with all other members of the current shadow Cabinet.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

rose—

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David Miliband (Foreign Secretary; South Shields, Labour)

The hon. Gentleman has been so polite and persistent that I am happy to give way to him.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

I am grateful to the Foreign Secretary. Will he acknowledge that this is the key difference? Not only was a promise to hold a referendum on the Maastricht treaty not given, but in the manifesto before the election there was a pledge to ratify it if the Conservative Government were re-elected. This case is completely different. The simple point is that the Foreign Secretary's Government promised a referendum, and are breaking that promise today.

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David Miliband (Foreign Secretary; South Shields, Labour)

I do not know how many times I must say this before the hon. Gentleman recognises that it has been said. The constitution is not what is before us today. Before us is a Lisbon treaty which is not the constitution.

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David Miliband (Foreign Secretary; South Shields, Labour)

I want to bring my speech to a close.

On day five of the debate, on foreign affairs, the right hon. Member for Richmond, Yorks, who speaks for the Opposition—[Hon. Members: " Brilliantly."] He is a very good after-dinner speaker, although I am not sure about the content. The right hon. Gentleman let the cat out of the bag. He could not think of one change in the treaty that he supported—not a single one. He wants to rely on the previous arrangements agreed at Nice, but what did he say about the Nice treaty? He opposed that, too. He claimed that the European security and defence policy provisions were a step towards "a superstate" and that they would progressively "move away from NATO." So he does not support the Nice treaty.

What about arrangements before that, such as the treaty agreed at Amsterdam? The right hon. Gentleman opposed that, too. He said:

"Amsterdam was a bad Treaty. Bad for Europe and bad for Britain".

There is a pattern here. The right hon. Gentleman opposes every single treaty that comes before us: no to the Lisbon treaty, no to the Nice treaty, and no to the Amsterdam Treaty. No, no, no: we have heard that before from the Dispatch Box.

That makes the key point that the Conservative party has a fundamental problem: 18 years after Mrs. Thatcher's departure from office, it is still haunted by the Thatcherite policy on Europe, and 16 years after Maastricht, the rebels on the fringes of the party are now calling the shots. It is no wonder one of the Conservative party's MEPs has described its Europe policy as a poisonous fungus eating away at the heart of the party.

The question before us is simple: do the contents of the treaty constitute a fundamental shift in the balance of power? The answer is no. The responsibility is ours, as Members of Parliament; I say, vote down the amendments and let us do what we are paid for.

2:00 pm
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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

It is already clear from the debate that the key question is whether the Lisbon treaty is the same as the constitutional treaty. There is a strong case that Members who promised a treaty referendum at the general election and who agree with Mr. Hague that the treaties are the same should back the Conservative amendment, and that those who do not agree with him should not support it. However, Members who are in favour of a referendum on the principle, as the Liberal Democrats are, but not on one on Lisbon on the grounds that it is different from the old constitutional treaty, should abstain tonight, as we will.

The Conservatives have said throughout our proceedings that the old and new treaties are more or less the same. They are wrong. The truth is that the treaties are different in nature—different in the very essence of what they mean—and that for the UK especially there are key differences in substantive detail. The fact that the Conservatives try to ignore that does them absolutely no credit—and neither does their shabby complicity with the Government yesterday, when they conspired to restrict choice and curb free speech in this House. They have gagged open debate on Europe in this House, and we will make sure the voters know that.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

I am fascinated by what the hon. Gentleman is saying. I must ask him a very simple question. Alongside the Government, he has consistently made a strong case that the treaty is not the same as the constitution—that they are very different. That is the substance of his case. We think that the Government are reneging on their position, but they are voting against the amendments to hold a referendum. Why is it that, with his strong case, the hon. Gentleman cannot bring himself to vote either against the referendum or for it, but instead just sits on the fence?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

It is a shame that the right hon. Gentleman, who is a distinguished Member of this House, is not listening to what I am saying, and what we have been saying day in, day out. We have strongly argued that our pledge at the last election would be best honoured by an in/out vote; that is the nearest we can get to honouring it now that the constitutional treaty is dead.

Let me return to the differences between the treaties.

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Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

Let me just ask the hon. Gentleman this: my right hon. Friend Mr. Hague, the shadow Foreign Secretary, made it clear that not only have we tabled amendments today, but Mr. Davidson has tabled one too, and it gives the option of having a referendum not only on the Lisbon treaty but on the in/out question that Mr. Davey asks for. Why then are the Liberal Democrats not going to support that amendment, which could, of course, be amended in the other place, and instead are just going to sit on their hands? Is that because they are going to adopt the principle of constructive abstention—a new concept in this House—or is it because they are too frightened of their constituents?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I do not know if the hon. Gentleman has actually read the amendment tabled by Mr. Davidson. It is an amendment that does not pose a question. Its tabler—we are looking forward to hearing from him shortly—has said that if the amendment were agreed to, his Government would put the question that we Liberal Democrats have been asking for. Yesterday, however, his colleagues voted against that; they voted against even allowing us to debate it. So why on earth does he think that we are going to vote for an amendment that offers those on his Front Bench the possibility of posing a question that they have refused to debate? It is an absurdity; it is one of the most ludicrous amendments ever to come before the House.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

I have never read a Liberal Democrat manifesto, and I have no intention of doing so in the near future. For all I know, the hon. Gentleman might be right to say that the best representation of his party's case would be to have a referendum on whether Britain should be in or out of the European Union. However, there is a serious point to today's debate, which is this: surely the Liberal Democrats can make their mind up whether there should be a referendum on the treaty itself? I know what the hon. Gentleman really thinks; he thinks there should not be. He should therefore join us in the Lobby tonight.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

Let me try once again, for the hon. Gentleman's benefit. We have made it absolutely clear that we are in favour of the principle of a referendum on the European question, because we want to honour our pledge at the last election. We are not going to vote against the principle of a referendum tonight, which is why we are abstaining. We wanted the chance to debate our referendum question, but the hon. Gentleman, working with the Conservative party, conspired to prevent that. He should be ashamed of that position.

Several hon. Members:

rose —

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I want to make some progress; I will give way again later.

Let me return to the differences between the treaties, and in particular the different natures of the treaties. One treaty was of supreme constitutional significance; the other treaty simply makes modest reforms. One treaty replaced all the past EU treaties with one document; the other is merely an amending treaty. One treaty would, effectively, have given the people a chance to vote on the principle of Britain's membership of the EU, and the other would give the people a chance to vote on whether they wanted to cut the number of EU Commissioners by a third.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I will give way later.

The truth is that the Conservatives do not want to know the facts about the differences between the treaties. Why? Because they are embarrassed about their sorry legacy. The treaties that saw the most significant transfer of power, the Single European Act and Maastricht, were pushed through this House by Tory Governments, with not a word from the Tory Front Bench about a referendum. As my right hon. Friend Mr. Beith said, those on the Conservative Front Bench have only ever promised referendums when in opposition, and only on the minor treaties such as Amsterdam, Nice and now Lisbon. That shows how confused and opportunist their position is.

Several hon. Members:

rose —

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I shall give way to Anne Main and then to my hon. Friend Matthew Taylor.

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Anne Main (St Albans, Conservative)

If the hon. Gentleman thinks that this treaty is simply a bundling-up of a few amendments that he feels is necessary, why does he not support the Government tonight and ensure that we do not have a referendum, which they might well lose?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I refer the hon. Lady to the record, as I have answered that question at three separate stages.

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Matthew Taylor (Truro and St Austell, Liberal Democrat)

Did my hon. Friend notice that when the shadow Foreign Secretary, Mr. Hague, listed changes to the EU that had been set out in manifestos or passed through referendums, he omitted to mention the Single European Act—a surprising omission, given that that was the fundamental change that moved us from the Common Market to a single European Union? The truth is that the Conservative party has no record on this in government; it says a lot in opposition because it plays the field and seeks support from anti-Europeans, but in practice in government it votes entirely contrary to that. That does the Conservative party no credit at all.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

My hon. Friend is absolutely right. The difference between the Lisbon treaty and the constitutional treaty is to do with that very point. The constitutional treaty would have allowed people a vote on the Single European Act and the Maastricht treaty, and Nice and Amsterdam. We should have had a referendum on that, because it was a genuinely constitutional treaty wrapping up all the other treaties in one document. The Lisbon treaty does not do that. A vote on Lisbon offers no vote on Rome, no vote on Maastricht and no vote on the Single European Act. It really is that simple.

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John Redwood (Wokingham, Conservative)

I am grateful to the Liberal spokesman for giving way. Does he not understand that people outside this place want a vote on what we are debating today, and think that that was promised to them by the Liberal Democrats? Now that he is so steeped in broken promises, and if he does not honour his words from the last election, why would they believe anything that the Liberal Democrats promise at the next election?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

The right hon. Gentleman would have done his case some good if he had voted with us yesterday. He would have enabled this House to vote tonight on a range of options, but his failure to do that means that when he makes such interventions today, he does not serve his own purpose.

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Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

May I take my hon. Friend back to a point that he made a few minutes ago? He made it very clear that the outcome of an in/out referendum and its implications would be very clear, but he also said that a referendum as proposed by the Conservative party would enable people to decide, for example, on whether to reduce the number of Commissioners. Could he confirm that, even if people voted as he has just described, it is not clear that that would lead to a reduction in the number of Commissioners? Indeed, it is not at all clear what the outcome of a no vote in a Conservative referendum would be.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

My hon. Friend is absolutely right, and when the right hon. Member for Richmond, Yorks was challenged on this point, he could give no answer. In fact, there were many points today when he could give no answer.

I do not believe that we should judge the differences between the two treaties on a word-count, but the Committee might be interested to know that the constitutional treaty contained 157,000 words and the Lisbon treaty contains 44,000 words. That is the difference: one of the documents had all the treaties in it, and the other does not. Only the Conservatives could deny that significant difference.

Several hon. Members:

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I have given way already, and I promise that I will give way later, but first I want to make a little more progress.

I have been focusing on the difference in the nature of the treaties for a very good reason. We Liberal Democrats believe that referendums should be used not willy-nilly, but with care and sparingly, for issues of constitutional significance. Even for issues of constitutional significance, it is not always clear to me that we need a referendum. I do not think that anyone in any party argued for a referendum when this House passed the Human Rights Act—or, indeed, back in 1950, when the European convention on human rights was signed. We rarely, if at all, hear arguments that there should be a referendum on reform of the House of Lords or the Freedom of Information Act, so there are many constitutional issues on which people do not think there should be a referendum.

We believe that such analysis is directly relevant when one comes to make the judgment about whether a European treaty deserves a referendum. Treaties that make modest institutional reforms to make the European Union more efficient for enlargement, such as Lisbon, simply do not have the constitutional impact that some Members wish to ascribe to them.

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Kenneth Clarke (Rushcliffe, Conservative)

Does not the history of our European debates demonstrate that people demand referendums only when they think that they are going to win them, and that the Liberal Democrats vote for a referendum only when they are confident that they are going to lose the vote, so that no referendum will actually happen?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

The right hon. and learned Gentleman has been a real ally during the debates on the Lisbon treaty, but I think that today he is not being one. He will not be surprised to know that I disagree with what he says.

2:15 pm
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Kate Hoey (Vauxhall, Labour)

Mr. Clarke, who has a very principled position on referendums, has said today—unless I have got him wrong—that the treaty and the constitution are the same. Is the hon. Gentleman saying that the right hon. and learned Gentleman is misleading the House?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I would not say that about the right hon. and learned Gentleman, but I would like to quote him on this treaty. He said just last year:

"What we have now"—

in the Lisbon treaty—

"is far less important than Maastricht. I think the idea we have a referendum"—

on the treaty—

"is frankly absurd. Some of the Eurosceptics will have demanded a referendum just about the date on the top of the piece of paper."

The right hon. and learned Gentleman, because he has suffered under them, knows exactly how bizarre the positions of the Eurosceptics are.

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Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

Of course, the consistency of my right hon. and learned Friend's position is that because he believes that a referendum is inappropriate in this case, he is going to vote with the Government. The logic of the hon. Gentleman's position is that he should be voting with the Government, too, because he does not believe that a referendum is appropriate. Is not the real reason why he does not have enough of the courage of his convictions to vote with the Government the knowledge that some of his own Liberal Democrat colleagues are reluctant not to vote for a referendum, because they know that they would be breaking their promises at the last general election?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

That was not a very good try from the hon. Gentleman. He said that we were afraid of a referendum. We are absolutely not afraid of a referendum. His party could have supported us yesterday, and we could have had another question on a referendum debated today.

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Jeremy Browne (Shadow Minister, Home Affairs; Taunton, Liberal Democrat)

Has not Mr. Clarke perfectly summarised the Conservatives' position? In the 18 years for which they had a majority of MPs in this House and could have had a referendum at any point they wanted, they chose not to—but just at this point, when they do not have enough MPs to win a referendum vote, they have suddenly become in favour of one.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

Absolutely; my hon. Friend describes the Conservatives' position completely.

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Malcolm Bruce (Gordon, Liberal Democrat)

The Conservatives have consistently failed to acknowledge that if they were to win the vote tonight, they would be in deep trouble. They have in no way explained how, if they won a referendum on a no vote, they would take the matter forward, how the British people would have voted and why they would not in fact plunge Britain and the United Kingdom into a state of paralysis in terms of our continuing relations with the European Union. The Conservatives can only vote as they intend to vote tonight knowing that they will lose.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

My right hon. Friend is absolutely right, but I have to say that the position for the Conservatives is even worse. The only other parties in Europe that would support their position are Sinn Fein, a rag-bag of fascist and communist parties and the Dutch animal party. Those are the European parties with which they would be left to negotiate. The truth is that the Tories are isolated with extremists in Europe.

Several hon. Members:

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I want to make some progress, but I will take interventions later.

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Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

Will the hon. Gentleman give way on that point?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

No, I want to make some progress. [ Interruption. ]

The Second Deputy Chairman:

Order. The hon. Gentleman has indicated that he wants to make some progress but will take interventions later.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

The Minister has informed me from a sedentary position that the new Government of Cyprus, who are communist, are actually supporting the treaty. I did not intend to do a disservice to them, so I am grateful to the Minister for that.

In examining the difference in the constitutional nature of the two treaties, I have been taking advice from the speeches of the right hon. Member for Richmond, Yorks. Back in 2006, he made a very interesting comment on the nature of European treaties. He said of the defunct constitutional treaty that

"the fact that it was a Constitution, not simply a treaty, would have revolutionised the EU."

There we have it—a revolutionary document, or a simple treaty? Referendums are the democratic way— [ Interruption. ] Revolutions are important in our government, and I would suggest that referendums are the democratic way to judge constitutional revolutions, but they are absolutely not the way to referee institutional reforms. That is why we Liberal Democrats believe that the only way to honour the pledge on Europe that most Members of this House gave at the last election is an in/out referendum.

We heard yesterday, and we have heard today, accusations that people think that this is some sort of ruse—that somehow, we have made it up, that we imagined it all of a sudden. Let me take the House back to the history of the pledge that we made. My right hon. Friend Mr. Kennedy, the then leader of the Liberal Democrats, explained before the general election what we considered our pledge to mean. When arguing the case for a referendum on the constitutional treaty, he said:

"It's time for this debate—time for us to decide what we actually want from Europe. I believe, once the argument has been joined, the consensus will be that it's better to be in than out."

He was right; that was the significance of our referendum pledge on the constitutional treaty.

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Peter Lilley (Hitchin and Harpenden, Conservative)

May I help the hon. Gentleman explain why his party cannot decide whether to vote in favour of keeping its promises or to vote against doing so? The explanation was spelt out by the leader of his party, who said that it would all depend on the electoral arithmetic in the House. The Liberal Democrats would vote for a referendum proposal that would be defeated, but because their joining us would mean that a referendum would take place, they have decided to abstain.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

That is absolutely not the case.

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Peter Bone (Wellingborough, Conservative)

I have listened to many of the Committee proceedings, during which the hon. Gentleman has made a strong case for the Lisbon treaty. He made exactly the same point in The Scotsman . He cited the right hon. Member for Ross, Skye and Lochaber, a former leader of the Liberal Democrats, saying that a vote on the Lisbon treaty would effectively be an in/out referendum. If that is effectively an in/out referendum, why on earth do they not vote for it?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

My point was that a vote on the constitutional treaty was the relevant in/out referendum. The hon. Gentleman has been honourable in his approach. He is from the "Better Off Out" group and he voted with us on 14 November, when we were grateful for his support.

Several hon. Members:

rose —

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I shall make some progress.

I have dealt at length with the difference in nature between the treaties, so let me deal with the differences of substantive detail. When one looks at the really big changes proposed in the old treaty, one finds that, as has emerged from the debate, by far the biggest one was on justice and home affairs. To be specific—as this debate so far has not been—the proposal that the EU would have competence over cross-border police co-operation and cross-border aspects of criminal justice represents, to any fair-minded person, a big shift. It is arguable whether it is of major constitutional significance, but it was the biggest proposed transfer of power in the original treaty.

What happened to that transfer provision in the time between the old and new treaties? It remained for other member states, but the United Kingdom negotiated new opt-ins. That is a massive change. When pressed, the right hon. Member for Richmond, Yorks had to acknowledge that, in a way that Conservatives had not done during the rest of our proceedings. What is even more interesting about the UK opt-ins negotiated at Lisbon, which were not in the old treaty, is that they went much further; indeed, they took power back from the EU. Britain gained new opt-ins on aspects of JHA in areas that the Conservatives had signed away at Maastricht. That is one of the greatest ironies of this debate. The Conservatives not only want a referendum on a document that is significantly different, but in opposing the Lisbon treaty, they oppose powers being brought back to this country.

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George Howarth (Knowsley North and Sefton East, Labour)

Is not comparing the Lisbon treaty with the former constitution rather like comparing Mr. Cash? The similarities are superficial but the differences are profound.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

The right hon. Gentleman has it in one, and I congratulate him.

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David Chaytor (Bury North, Labour)

I return to the reference to Maastricht. This is our 11th day of debate on the Lisbon treaty. Has a member of the official Opposition explained at any point during those 11 days, which have involved many hours of debate each day, how the Lisbon treaty contains an issue of greater constitutional significance than was contained in the Maastricht treaty?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

Absolutely not; there has been a deafening silence. Interestingly, up to this point the Conservatives could not wait to intervene on me, but when I made the point about substantive difference and JHA they would not comment or intervene. They have been found out.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I shall give way to the hon. Gentleman. I hope that he will be able to say what the differences are.

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William Cash (Stone, Conservative)

I would rather deal initially with the reference to my right hon. and learned Friend Mr. Clarke and me. It is perfectly apparent from our proceedings that he, like me, has been honest in his convictions on this issue. Our approaches have been based on our assessments of the way in which Europe should go, and that is why we have so much in common and why, despite our differences, we can maintain a parliamentary friendship.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I doubt whether a love-in is emerging in the Conservative party. I do not know whether the hon. Gentleman wants to be a therapist, but I do not deny the veracity of what he says.

When one examines both treaties, one finds some similarities. I have never sought to deny that, but the similarities are on the modest measures—on the less significant, non-constitutional issues. People have tried to quantify the similarities by number—the right hon. Member for Richmond, Yorks talked about that—but, interestingly, not by importance. They have also quantified them by saying how much of the Lisbon treaty was in the constitutional treaty, but not by saying how much of the constitutional treaty is in the Lisbon treaty; those are two different things.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

No.

Let us examine some of the many similarities. Both treaties sought to change "ecu" to "euro" and "economic community" to "European Union" in all the past treaties. Both treaties contain a hatful of useful reforms, from energy liberalisation to information sharing about sex offenders, from cutting the bureaucracy to strengthening accountability. Are those the reasons why any of us promised a referendum? Absolutely not. Is it contentious to co-operate on tackling terrorism more effectively? Do we need a referendum on that? Why are the Conservatives so worried about Britain being more able to influence countries in eastern Europe? Is it to clamp down on the trafficking of guns, of drugs or of people? As has been said, when the facts change and the treaties change, people should have the courage to admit that.

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Gisela Stuart (Birmingham, Edgbaston, Labour)

I would like to challenge the hon. Gentleman's use of the word "modest". I think it is good that the size of the Commission will be reduced, because I want an effective Commission, but we must consider the institutional structures. There is a basic principle that at any one time every country should be represented in the Commission. Once the Commission's size is reduced that will no longer happen. That is significant, so the treaty contains big changes. Some may be good, others not so good, but the word "modest" does not apply.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

I am afraid that I disagree with the hon. Lady. The idea that that is a constitutional issue deserving of a referendum is wrong. She will have to talk about the transfers of powers; that is the issue. The transfers of competence in the treaty concern things such as space policy. I do not know whether other hon. Members think that we should have a referendum about space policy, but I do not believe we should.

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

No, I will not give way, because I want to make some progress. As the House knows, the Liberal Democrats believe that there should be a referendum on Britain's membership, because as pro-Europeans, we want to argue that case. We believe that such a referendum would enable us to get on to the front foot for the first time in a generation to argue the case for Europe. More importantly, it would enable us to set to rest people's concerns about Europe and rebuild the deep coalition for Europe. Whether on climate change or on globalisation, on beating terrorism or on tackling international crime, the arguments for the future role of Europe are as strong as the past arguments for a Europe that has helped to bring peace and prosperity, democracy and human rights to our once battered and divided continent.

With so much at stake, there is a price to be paid for a strategy of Eurosceptic appeasement, which some pro-Europeans have adopted. That appeasement process means that deliberate misrepresentations of Europe go unchallenged, policies that are in the interest of Britain are not adopted, and the power of Britain's voice and influence at the European table is diminished and reduced. How long can we go on appeasing the people who hold such views? They are damaging Britain's national interest. The Foreign Secretary and his colleagues must address that point, because they are in danger of becoming the arch-appeasers.

The Prime Minister will jump when Mr. Murdoch calls, but arrived deliberately late for a European summit with 26 other countries. Rather than running away from their pledge on a referendum, Labour should have joined us yesterday. After all, it was Tony Blair who said about the referendum in 2004:

"It is time to resolve once and for all whether this country, Britain, wants to be at the centre and heart of European decision making or not."

For once, he knew the historic significance of what he had signed.

2:30 pm
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Kate Hoey (Vauxhall, Labour)

Will the hon. Gentleman include in the Liberal Democrats' next election manifesto a pledge to have an in/out referendum? If so, will the electorate believe them, given that their last manifesto said that they wanted a referendum on the treaty?

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Edward Davey (Leader's Chief of Staff & Chair of Campaigns & Communications, Cross-Portfolio and Non-Portfolio Responsibilities; Kingston and Surbiton, Liberal Democrat)

The hon. Lady still has not got it, and I am slightly worried for her. I will argue for the inclusion of an in-out referendum in our manifesto, but we shall decide that in the proper way. I do not think that the Foreign Secretary or the right hon. Member for Richmond, Yorks are writing their manifestos tonight either.

It is time that we took the Europhobes on and called their bluff. I am sceptical about Eurosceptics. On the whole, they are really anti-Europeans and Europhobes, seeking to adopt a veneer of respectability and unwilling to see that to reform Europe is to be in Europe, at the table, arguing for your views. With a referendum on membership, the weakness of that position would be exposed, and with the yes vote winning through, as I believe it would, Britain could be unshackled from the chains of appeasement and ensure that European policy was based once again on a clear calculation of the national interest, and not on the interests of a weak Government avoiding screaming anti-European headlines.

We know from the polls that it is the referendum on membership that the British people really want. The MORI poll last weekend was the only poll of the British people that has asked the relevant question—whether

"if there were to be a referendum on Britain's relationship with Europe, would you prefer it to be a referendum only on the Lisbon Treaty, or a referendum on Britain's membership of the EU."

In that poll, more than two to one backed the in/out option.

Unfortunately, that option is not before the House because Labour and the Conservatives ganged up to gag the proposal the British people want. It has been rejected by the Conservatives because it would split them from top to bottom. By gagging debate and by opposing the vote that the British people really want, the Conservatives have once again lost the plot on Europe. They deserve to lose the vote tonight.

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Stephen Byers (North Tyneside, Labour)

I wish to support the position taken by the Foreign Secretary and to argue against the amendments and new clauses. I shall make three particular points, which I shall do briefly as I know that many hon. Members wish to speak.

My first point concerns the history of the manifesto commitment in 2005. Secondly, I shall argue that the Lisbon treaty is a clear departure from the constitutional treaty that was being considered at that time—some of those differences have already been outlined. Thirdly, I shall discuss the constitutional position of this House and the role that we play in taking key national decisions.

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Bob Spink (Castle Point, Conservative)

I shall present a petition later today on a referendum on this treaty. The Clerks have asked me to change the people's words from

"rat on a manifesto commitment"

to

"renege on a manifesto commitment".

Does the right hon. Gentleman accept that that is a more decorous description of the policy of his party and the Liberal Democrats on this issue?

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Stephen Byers (North Tyneside, Labour)

No, and I shall explain why. The hon. Gentleman has a principled position on the European Union, which a fair number of his colleagues share—they want to get out. The past 11 days of debate have made it clear that the new leadership in the Conservative party has not been able to move the party to the centre of British politics, where the majority of people believe that we are better off as part of the European Union. There is still a group in the Conservative party that has a stranglehold on policy on Europe, and it wants to take Britain out of the European Union. I am grateful to the hon. Gentleman for confirming that he is part of that group.

My first point concerns the history of the manifesto commitment in 2005. In 2004, the then Prime Minister took the view that the constitutional treaty that was being developed in the European Union, with the help of some of my hon. Friends, who played a key role, was in essence a refounding of the institution. The constitutional treaty aimed to repeal all the existing treaties and replace them. The former Prime Minister believed that that was of such significance that it formed a new constitutional structure for the European Union. He came to this House and said as much on 20 April 2004, when he made his position clear about the need for the British people to vote on the constitutional treaty.

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Graham Stuart (Beverley and Holderness, Conservative)

The right hon. Gentleman makes a persuasive case, but will he accept that he has failed to persuade the British people? In all the polls and other evidence that we have, the British people remain overwhelmingly of the belief that this treaty should be subject to a referendum.

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Stephen Byers (North Tyneside, Labour)

The people have not yet had the opportunity to hear my argument. When they have, we might see a shift in public opinion. I shall await that with eager anticipation.

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William Cash (Stone, Conservative)

I cannot remember whether the right hon. Gentleman was at the heart of Government when the decision that he mentions was taken by the then Prime Minister, but I understand—I have heard this from several sources—that the then Foreign Secretary and the then Chancellor of the Exchequer, who is of course now Prime Minister, effectively forced the then Prime Minister into accepting a referendum on the grounds that the constitutional treaty had real implications for the sovereignty of this country and for voters. However, the European Scrutiny Committee has said that this treaty is substantially equivalent to the constitutional treaty. Does that not mean that this treaty should be subject to a referendum?

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Stephen Byers (North Tyneside, Labour)

My second point is about the differences between the constitutional treaty and the Lisbon treaty.

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Jim Cunningham (PPS (Mr Mike O'Brien, Minister of State), Department for Work and Pensions; Coventry South, Labour)

Does my right hon. Friend agree that more needs to be done to explain the treaty to the British people? So far, the Eurosceptics have got away with blue murder in their interpretations of the treaty.

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Stephen Byers (North Tyneside, Labour)

It is a failing of all the main political parties that we have not had the courage or the ambition to make the case to the British people that the European Union provides them with massive benefits. Those of us who have been in government can rightly be criticised for that failure over the years.

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Michael Ancram (Devizes, Conservative)

The right hon. Gentleman knows that many issues arise in general elections and that it is often difficult to concentrate on just one. If he is keen to sell the concept of Europe and how it is changing through these treaties to the British people, what better way to do so than in a referendum campaign?

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Stephen Byers (North Tyneside, Labour)

I am trying to explain why the manifesto referred to just the new constitutional treaty, and why we are not therefore breaking a promise. There is a different argument, which I will come to later, about the merit or otherwise of a referendum on a range of issues, and the constitutional reasons for that have been articulated very well over the years by Mr. Clarke, who has explained why referendums are not the way forward in a representative democracy such as the UK.

Let me go back to the debate about the manifesto commitment and to the point made by Mr. Cash. Without going into the details of what happened over Easter 2004, who said what and the outcome, as a result of those discussions the then Prime Minister came to this House on 20 April 2004 and made a commitment that there would be a vote of the British people on the new constitutional treaty, which was subsequently reflected in our 2005 manifesto.

The point that many hon. Members fail to recognise is that the manifesto was absolutely clear and referred specifically to the new constitutional treaty. We made a commitment to have a vote on the new constitutional treaty, and we definitely meant that constitutional treaty. When we put those words in the manifesto, there was no doubt that we were referring to the new constitutional treaty, which was what we had in mind when we included those words in our manifesto. We did not have in mind the Lisbon treaty.

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Stephen Byers (North Tyneside, Labour)

I have a choice; both hon. Members are very Eurosceptic, so I am not getting a balance. I shall take the intervention from Mr. Bone.

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Peter Bone (Wellingborough, Conservative)

I understand the right hon. Gentleman's argument, but I have the text of the 2005 Labour party manifesto. The argument for the referendum was made not because it was a constitution, but because of what the constitution did. The manifesto states:

"The Treaty sets out what the EU can do and what it cannot."

It then lists the very things that the Lisbon treaty will allow the EU to do. Is the right hon. Gentleman's argument slightly off, because it does not seem to agree with the manifesto?

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Stephen Byers (North Tyneside, Labour)

As I had a role in putting together the manifesto, I am clear about what it said. I think that the words that I have used clearly reflect the manifesto. I know that my right hon. Friend Sir Gerald Kaufman has a copy in front of him, and he might clarify the situation.

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Gerald Kaufman (Manchester, Gorton, Labour)

The manifesto is very clear. It states that we will put the

"new Constitutional Treaty...to the British people in a referendum and campaign whole-heartedly for a 'Yes' vote to keep Britain a leading nation in Europe."

The reference to that treaty was specific. The manifesto also specifically stated that the Labour party would not split, as it did in 1975, and that the whole party—everybody who signed up to the manifesto—was committed to campaigning for the constitutional treaty in a referendum.

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Stephen Byers (North Tyneside, Labour)

My right hon. Friend makes the point about what was said in the manifesto very well. It contained a clear and specific reference not to any European treaty but to the new constitutional treaty. The House and the British public need to be aware of that.

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Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

Let us focus closely on that specific point. I am happy to concede that it is clear that the Lisbon treaty and the previous constitutional treaty are two different documents. If he is arguing on the narrow point that a manifesto commitment to a referendum on document A does not bind the Labour party to a referendum on document B—and if he is stopping at that—he has a logically consistent case, but why did the British people think that he was giving that commitment? Did they think that he was giving that commitment on the individual document or on its substance? If the contents of document B are the same as those of document A, the British people are entitled to think that he is breaking his promise if he does not give them a referendum.

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Stephen Byers (North Tyneside, Labour)

I am grateful for the hon. Gentleman's concession, but the manifesto and our promise to the British people were absolutely clear. The manifesto specifically mentions a definitive treaty—the new constitutional treaty—and not any old treaty. I accept the criticism that we may not have adequately explained the distinctions between the two to the British public. All of us who have campaigned politically must bear that responsibility, and perhaps we need to do more about it.

2:45 pm
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Denis MacShane (Rotherham, Labour)

Was my right hon. Friend in the House when the then shadow Foreign Secretary, Dr. Fox, stood up after the French and the Dutch had killed the treaty and said, "I'm a doctor; I know death when I see it. The constitution is dead, Mr. Speaker." I agreed with him. The Conservative party now wants to do a political Lazarus act: it wants to bring back to life that which it has declared dead to fight a battle that was won and lost in 2005.

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Stephen Byers (North Tyneside, Labour)

I agree with my right hon. Friend. I was not in the House to hear the then shadow Foreign Secretary accurately articulate the position. To go beyond our manifesto commitment, the constitutional treaty was, of course, killed off by the votes in France and Holland at the end of May and beginning of June 2005. There was an attempt to resurrect the constitutional treaty. Some talked about returning to the French or the Dutch to try to get a positive vote in favour of the European constitutional treaty, as it then was. I recommend to the House a piece that I wrote for The Times at the beginning of June 2005, which said that no meant no and that the constitution was dead as a result of the decisions made by people in France and Holland.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

I do not mean to detain the right hon. Gentleman for any length of time. May I take him back to the point about the manifesto, because the debate runs around it? The truth is that the manifesto is wonderfully general, and the words used are intriguing—they prompt some questions. The manifesto states:

"The new Constitutional Treaty ensures the new Europe can work effectively, and that Britain keeps control of key national interests like foreign policy, taxation, social security and defence. The Treaty sets out what the EU can do and what it cannot."

That is exactly what the Government say about the treaty of Lisbon, and it is no different from the way in which they sold the constitutional treaty in 2005. There is therefore no reason why they should not vote for a referendum.

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Stephen Byers (North Tyneside, Labour)

Yet again, I must disagree with the right hon. Gentleman. The promise for a referendum referred to the new constitutional treaty, and we can then discuss what people believed that it stood for and so on. However, the promise concerned the new constitutional treaty, which, as we have heard, was voted down by voters in France and Holland and an attempt to resurrect it was effectively killed off. When we took over the EU presidency in July 2005, we had a period of reflection and, to everybody's benefit, we managed to shift from the concept of a constitutional treaty to considering a measure that is far more modest in its effect—the Lisbon treaty. There was a period of reflection, and the view was taken that perhaps too much power was being given to the EU and that it was far better to get consensus from nation states, which the Lisbon treaty now reflects. That was the background to the manifesto pledge, and the commitment was to a vote on the new constitutional treaty.

There are many differences between what was discussed in 2004-05 and what we have as a result of the Lisbon treaty. The Foreign Secretary has taken us through some of the major differences in content. I was interested to hear the shadow Foreign Secretary on the radio this morning. It is unfortunate that he is not in his place, because he came up with the totally illogical argument that a referendum was needed not because of content but because of some great principle that there should be a vote. He failed to address the substantive differences between the constitutional treaty and the treaty of Lisbon, but he knows that they are major and significant. He is looking for an argument to escape from the difficult position he would be in if he had to compare the content of the two treaties.

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Graham Stuart (Beverley and Holderness, Conservative)

Does the right hon. Gentleman not accept that after the rejection of the constitutional treaty by voters in France and Holland Governments produced a document that would achieve pretty much the same things? They made what they felt were sufficient changes to deny that it is fundamentally the same. Will he not accept that this treaty is intended fundamentally to do the same job as the constitutional treaty, and that changes have been made cynically to avoid giving the people a say, not only in this country but in others across Europe?

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Stephen Byers (North Tyneside, Labour)

No, I do not agree with that. Interestingly, there are different constitutional situations in different countries. My understanding is that nine countries planned to hold referendums on the old constitutional treaty, of which one was the United Kingdom. Because it was regarded as a constitutional matter, not just a political decision, many countries were legally obliged to do so. Because the Lisbon treaty is so different, there is no need to have referendums in most of those countries—I think that Ireland is the exception.

The view taken by the Dutch Council of State—an independent body that advises the Dutch Government on the steps that they must take to ratify treaties—is particularly instructive and helpful. It is a constitutional requirement that there must be a referendum on a constitutional matter, and that body advises the Dutch Government on particular measures. Its conclusion on the constitutional treaty in 2004 was that it had to be put to a referendum, because it would change the Dutch constitution. Its conclusion on the Lisbon treaty was quite different, stating that it

"provides no arguments for the gradual expansion of the EU towards a more explicit state or federation. The treaty is substantially different from the treaty establishing a constitution for Europe."

So there was a significant difference in the view and recommendations of the independent Dutch Council of State. There is clearly a difference between the two treaties, which is why eight of the nine countries that originally planned a referendum no longer do.

The treaty of Lisbon contains a modest set of proposals that will provide a stable framework to allow EU expansion to be more effective. The differences between it and the constitutional treaty are major and significant. The Foreign Secretary took us through a few of them, and, although I do not wish to detain the Committee by going through a long list, we should be prepared to recognise them.

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Mark Hendrick (PPS (Rt Hon Jack Straw, Lord Chancellor), Ministry of Justice; Preston, Labour)

Have not the Opposition chosen not to recognise those differences because they wish to kill the treaty? The fact that they do not have the numbers in Committee to kill it means that calling for a referendum is their last resort.

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Stephen Byers (North Tyneside, Labour)

I agree absolutely. That is the hidden motive behind the Conservative party's position. The 11 days of debate have shown the extent to which it remains divided on Europe and that a large number of Conservative Members want this country to leave the EU.

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Malcolm Bruce (Gordon, Liberal Democrat)

I am grateful. Is not the situation worse than the right hon. Gentleman says? The Conservative party is suggesting that, if the treaty were ratified, functioning and operational, and there were a change of Government in this country in two years' time—[Hon. Members: "Hear, hear."] They say "Hear, hear", but they would disrupt the workings of 27 member states and effectively terminate Britain's constructive engagement in Europe.

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Stephen Byers (North Tyneside, Labour)

That is a helpful intervention, and the response of Conservative Members says it all. The Conservative party has no time for the whole concept of the EU, and it is turning its back on the EU just at the time when we probably need it more than ever, because of what is happening in the world in general. As I have said, I shall not go through the detail of the changes in the treaty, as my right hon. Friend the Foreign Secretary did that very well.

My final point concerns the responsibility of Members of this House. I have no doubt that, because of my speech today and the way in which I will cast my vote this evening in the Division, I will lose votes in my constituency. Some people will not vote for me at the next general election because of the position that I am taking. That is part of the democratic process and a representative democracy, and I am prepared to accept it. I will make the case as best I can, but I recognise that in a democracy, we take decisions in the House and take responsibility for them.

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Graham Brady (Altrincham and Sale West, Conservative)

Does the right hon. Gentleman not accept that at the last election, given the manifesto pledge on which he stood, people who felt strongly on the European issue would have felt that they could still vote for him? They were materially misled and are not being represented as they would wish.

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Stephen Byers (North Tyneside, Labour)

Clearly the hon. Gentleman was not listening to the points that I made earlier. I hope that my constituents will pay me a bit more attention than he has. We made the promise in relation to the new constitutional treaty, which is no longer in place, and we shall see whether people are prepared to accept that. The hon. Gentleman confirms my point about the nature of our democratic accountability as Members of Parliament. I do not think that every single issue must be subject to a referendum, because referendums can be an excuse to hide divisions in political parties.

I agree very much with the point that Mr. Clarke made last year:

"It always was crackpot to argue that it was transferring great powers to Brussels and there's an important constitutional change. It doesn't justify a referendum and it never did."

I agree absolutely with that statement of the position. We need to take a decision here in Committee and be accountable for so doing.

The debate has shown the divisions in the Conservative party and, more importantly, the failure of its leader to bring it into the centre ground of British politics. He is a hostage to his Eurosceptics, and it is interesting to see that the hostility towards Europe in the Conservative party is still so powerful that a new leader, who is trying to remodel and reposition the party, has totally failed to do so on Europe. As time goes by, the other policy areas on which he has failed to move the party will be revealed.

We need Europe more than ever at this time of globalisation and rising protectionism, which we are seeing in the American presidential debates. We need measures to tackle climate change and deal with mass migration, and we need a functioning and effective EU to meet those challenges. Now is not the time to walk off the stage; it is the time to be at the heart of Europe arguing for our national interests. That is what Labour Members intend to do, and that is why the treaty should be ratified by this House.

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Michael Ancram (Devizes, Conservative)

I am grateful for the chance to take part in the debate. I had hoped to speak about the referendum on Second Reading, but unfortunately I was suffering from flu and had no voice that day, so I had to leave my comments until today.

The debate on the amendment will be remembered most for the impressive sight of the Liberal Democrat party marching with sound and fury courageously towards the fence on which it has been ordered to perch tonight. The other thing that has struck me during the debates on the Bill is the backcloth of the Labour strategy towards Europe; it is based on the extraordinary belief that if they do not allow the British people the chance to express through a referendum their growing doubts about the European Union they will somehow come to love the European Union. That is gravely to underestimate the British people.

We are told that a referendum is not needed because the treaty does not, in effect, do very much. That has been the main argument. It was even the argument when we were talking about the constitutional treaty: we were told that it, too, did not do very much. However, even if that were true, which it is not, as my right hon. Friend the shadow Foreign Secretary impressively indicated earlier, it takes only a small step to walk through a doorway into another room; it takes only a small step to cross a dividing line. I believe that the treaty is the latest and the most significant step down the road of ever-closer union to the project of a united Europe which is at the heart of the policies of so many other Governments in Europe.

We fool ourselves if we believe that somehow the treaty is not actually taking us one step further down that road, yet the British people have never been allowed to say whether they want to go down that road. Each step—each of the recent treaties—has been described in the House as insignificant, as not doing very much, but each, like grandmother's footsteps, edges us closer and closer towards the goal of a united Europe.

My growing disillusion with the way in which Europe is developing is shared by many others in the UK who, like me, did not start out as Eurosceptics. I supported the Common Market in the first and only referendum but, over recent years, my Euro-friendliness has been increasingly tested by a series of treaties, each incrementally diminishing the sovereignty of this Parliament and, therefore, of the British people without the British people ever being asked whether they wanted that to happen.

3:00 pm
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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am intrigued by the argument that the right hon. and learned Gentleman is developing, but what is his response to the facts? He is talking about a federal superstate, but the entire professional staff of all the European Union institutions is smaller than the staff of Hampshire county council. Will he also respond to the point that on average 40 per cent. of gross domestic product goes on public spending, yet the European institutions spend only 1 per cent. of GDP? Where does the paranoid delusion that he is attempting to articulate come from?

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Michael Ancram (Devizes, Conservative)

I am not talking about the bureaucracy of the European Union, but about the wishes of the British people. That is, in essence, what the debate is about. The Europe achieved by the treaty of Lisbon is unacceptable to the British people; it crosses the dividing line. However big or small a step it is, we are moving into a new Europe where, as we have already heard, we will have a president, a foreign secretary, diplomats and all the trappings of what so many of the Europhiles in Europe want—the beginnings of a European state.

If I am wrong about the treaty being unacceptable, why do the Government not ask the British people whether they believe it is unacceptable? If I am right—as I have every reason to believe that I am—the Government have no mandate to force through the treaty without any form of consultation with the British people, either in a general election or a referendum.

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

I, too, am intrigued by the right hon. and learned Gentleman's argument. If he is saying that all the other countries in Europe are moving along a federalist path and he wants to stop moving in that direction, does that not imply not just voting no to the treaty but withdrawal from the EU?

Photo of Michael Ancram

Michael Ancram (Devizes, Conservative)

I shall deal with that point later. I believe that the European Union as currently constituted is unacceptable. That is not a new view of mine; I expressed it many times from the Dispatch Box when I was shadow Foreign Secretary. At the last election, I stood on a manifesto that called for renegotiation to create a more flexible Europe, and I still believe that that is what we should do.

Refusing the British people a referendum will not diminish their doubts about the Europe that is being imposed on them, it will strengthen them and, paradoxically, it will increase Euroscepticism in the UK.

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Patricia Hewitt (Leicester West, Labour)

I am extremely grateful to the right hon. and learned Gentleman for giving way, especially as I was unable to be in the Chamber for the earlier part of the proceedings. I am interested in his repetition of his view that there should be renegotiation not only of the treaty but of Britain's terms of membership. Would he care to name the parties and Governments in the rest of the EU who share his view, and would be interested in entering into such a renegotiation?

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Michael Ancram (Devizes, Conservative)

I am putting forward my view and I shall explain why in a moment. As we get nearer to an election, my right hon. Friend the shadow Foreign Secretary may put more flesh on the bones of what he has described as not letting things rest where they are.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

I apologise to my right hon. and learned Friend for delaying him, but the question was ridiculous. It provokes two points. First, what would be the point of being elected to this place if we always felt scared that we might be a lone voice, even if we believed passionately in something? There would be an end to democracy. Secondly, in Holland and France a majority of people rejected the constitutional treaty. How alone is that?

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Michael Ancram (Devizes, Conservative)

I wholly agree with my right hon. Friend. Our point is that, to talk in the terms used by Labour Members, the debate ignores the views of the British people. I give this serious warning: if we continue to ignore the views of the British people as we advance down the road towards what in Europe is euphemistically called "the project", the British people will become angrier and angrier about the decisions that emanate from Europe and Euroscepticism will become stronger.

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Mark Hendrick (PPS (Rt Hon Jack Straw, Lord Chancellor), Ministry of Justice; Preston, Labour)

The right hon. and learned Gentleman talks about the sovereignty of this place, yet he wants to give power to make decisions about whether we accept the treaty to the citizens of the UK—to back-heel it. Sovereignty is either with the House or the people.

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Michael Ancram (Devizes, Conservative)

I do not know what the hon. Gentleman thought he was doing when he fought the last election, when he was asking the British people to support him.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

rose—

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Michael Ancram (Devizes, Conservative)

I want to make some progress.

What would be the consequences of not holding a referendum? The question what would happen if there were a referendum and the vote was no has been asked a lot. The answer to that is that the provisions of the treaty would not apply across Europe as a whole. The status quo would be maintained. I would regard that as unacceptable, but a no vote would not change the situation; it would leave the European Union where it is at present. However, if we do not have a referendum and the treaty is implemented, creating a Europe that is unacceptable, the only option for changing that situation would be renegotiation. The failure to hold a referendum now would strengthen the moral right of the British to ask for renegotiation to create and secure a more acceptable Europe. We do not have to do that aggressively—I have always been someone who believes that reform rather than confrontation is the right way in Europe—but the treaty will create a running sore, not just in the UK but in other parts of Europe, which can be dealt with only by renegotiation.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

Does the right hon. and learned Gentleman not accept the basic political facts of life? It takes two to tango and 27 to renegotiate, otherwise he is arguing for leaving the European Union—whether he says it in a loud voice or, like Mr. Duncan Smith, in a quiet voice.

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Michael Ancram (Devizes, Conservative)

The hon. Gentleman is arguing that even if we in Britain feel that the Europe we are in is wrong, or getting worse, unless other people in Europe are with us we have no choice but to continue down the road to a European state. I do not accept that argument and I do not think the British people will either. If we cannot find partners and secure renegotiation, we have to look seriously at asking to renegotiate our status within the European Union because the European Union will have left us with no option. If Europe still rejects that, we may have to ask ourselves seriously what we are doing in a Europe that is grinding inexorably towards something that we know our country would not live with. I hope that we never reach that point, but the inexorable advance of an ever-closer Union—without the British people's consent, as given in a referendum—has driven me and many others to recognise the possibility. The Government should make no mistake: it is their arrogant refusal to give the British people their promised referendum on the treaty that opens up that scenario.

The Bill treats the British people with contempt. The amendment would at least allow the British people to say what they want to say about what the Bill is trying to do. If the amendment fails tonight, the Government, paradoxically, will have unleashed political energies that could eventually lead to the unbundling of the European Union.

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Ian Davidson (Glasgow South West, Labour)

Many of the questions associated with the treaty are immensely complicated, but at their core is the simple issue of whether we keep the promise that we made at the general election to hold a referendum.

I remember the timing of the decision to have a referendum well, because I regarded it as a great success at the time. It is worth while reminding the House that the then Prime Minister, Tony Blair, announced a referendum in the House of Commons on 20 April, before a decision had been reached on what the constitutional treaty was to be. It is not the case that once the constitutional treaty had been produced and examined, the Prime Minister said, "This is so important that we need to have a referendum." The referendum was announced before the constitutional treaty had been produced in its final form. As was suggested earlier, that clearly indicates that the decision was taken in order to clear the air. The decision to have a referendum did not depend on the detail of the wording, but on the general principles that were being advanced.

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

On the referendum on the constitution, it is material that the constitutional form was already determined. The details might have been up for negotiation, as the hon. Gentleman suggests, but the constitutional form of the treaty was already clear.

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Ian Davidson (Glasgow South West, Labour)

Ah, yes; the consolidation argument, which states that if a variety of treaties are brought together in one document, it is entirely different from making amendments to existing documents, even though the two processes achieve exactly the same objective. My view is that the new treaty contains essentially the same substance as the original constitution, and that the commitment that we made ought still to be honoured.

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James Clappison (Shadow Minister, Work & Pensions; Hertsmere, Conservative)

The hon. Gentleman makes an important point. Chris Huhne seems to know more about what is going on in Europe than the former Foreign Secretary, Margaret Beckett did, because she came before the European Scrutiny Committee at the beginning of June and said that there had been no negotiations or discussions—nothing at all—and that there was no point in coming before the Committee as nothing had been decided.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

May I take the hon. Gentleman back to a point that I made to the Foreign Secretary, who gave an evasive answer? It concerned a letter from Angela Merkel to the Heads of State of all the principal negotiators. Having discussed with them, in negotiations, what they wanted, she asked them, in her question 1:

"How do you assess the proposal made by some Member States not to repeal the existing treaties but to return to the classical method of treaty changes while preserving the single legal personality and overcoming the pillar structure of the EU?"

That is the hon. Gentleman's case exactly; they are one and the same process.

3:15 pm
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Ian Davidson (Glasgow South West, Labour)

Let me take a step back to what I was saying. Tony Blair, the then "dear leader", made the announcement on 20 April. Why did we make the announcement then? The answer is simple and straightforward: because we wanted to park the issue out of the way in the run-up to the general election. We wanted to have the referendum after the general election, so that the forces of darkness on the other side of the Chamber would not have that weapon to beat us with during the general election. I welcomed that; I saw it as a great advantage to us, as it prevented us from giving the forces of darkness a weapon that they would have used against us. I was also strongly in favour of a referendum.

Let us be absolutely clear that it was not the case that the Prime Minister agreed to have a referendum on the basis of detailed knowledge of the exact wording of the constitution. It was an evasive tactic, which I am glad to say was successful, and we went on to win the general election. From that arose the commitment in our manifesto. I am glad to say that I have my copy of that little red book with me today. Unlike some hon. Friends on the Labour Benches, I was never a Maoist or a Trotskyist, so it is the only little red book that I have. People can usually spot the former Maoists and Trotskyists, because they become the most extreme exponents of new Labour.

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Stephen Byers (North Tyneside, Labour)

As someone who had a part to play in drawing up the little red book for the 2005 election, I hope that my hon. Friend will refer to the clear commitment given in May 2005, before the general election, about the new constitutional treaty. At that stage, we knew exactly what the new constitutional treaty was. He is right to say that in April 2004 that was not so, but by the time of the manifesto, we knew precisely what the new constitutional treaty was, and that is what we referred to in the 2005 manifesto.

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Ian Davidson (Glasgow South West, Labour)

I am grateful to Comrade Zhou for raising that point, but it is important to accept the context in which the exact wording was written. Let us remember why we did what we did. The Prime Minister made a statement indicating that there would be a referendum on whatever appeared in the document, in order to park the issue before the general election. When the document appeared, of course the party said, "This is the document on which we will have a referendum." The Prime Minister could hardly say "We'll have a referendum" on 20 April, and then say, once he saw the document, "No, we will not have a referendum." Of course the one followed on from the other. He would have said that there would be a referendum, and the manifesto would have reflected that we were going to have a referendum on the document, whatever was in the document. It is not fair or true to say that a referendum would have been ruled out, had the current document been produced at the time.

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Mike Gapes (Ilford South, Labour)

The hon. Member said that he was in favour of a referendum. [Hon. Members: "Hon. Friend."] Yes, he is my long-standing friend, and we fought Trotskyists together 30 years ago. Given what he said about his support for a referendum, can he tell us whether he has always been in favour of having a referendum on European treaties, including in 1992, when he was first elected, and on the Nice and Amsterdam treaties?

Photo of Ian Davidson

Ian Davidson (Glasgow South West, Labour)

I cannot remember whether I have been in favour of a referendum on every European treaty, but I was certainly in favour of one on the Maastricht treaty. On that occasion, I was in a minority in my party, as I am now, but the difference then was that the Government, not having made a commitment to a referendum, were not obliged and honour-bound to have one, unlike us; we are so obliged. I voted for a referendum on Maastricht, and I am grateful to my hon. Friend for allowing me to bring that up, but the situation then was different, because that Government did not make a commitment to having a referendum. We did.

I have heard many arguments against referendums, and many people regret the commitment that we made at that time, but regretting the commitment is not the same thing as saying that we did not make it. I understand the point about repenting at leisure, and I believe many people are doing so, but let us remember why we entered into the commitment in the first place. It was for base electoral reasons, and I am glad we did so. None the less, we must honour the commitment that we made.

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Gerald Kaufman (Manchester, Gorton, Labour)

If my hon. Friend says that he was bound by the manifesto commitment in the 2005 manifesto, will he clarify that he was bound by the whole of the manifesto commitment, which stated that the Labour party would

"campaign whole-heartedly for a 'Yes' vote"

in that referendum? Is not the only Member of the House of Commons who was elected on the Labour ticket but not bound by the Labour manifesto Clare Short, once our right hon. Friend, who said that she was elected to the House on her own personal manifesto, and who suffered the biggest anti-Labour swing in the whole general election?

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Ian Davidson (Glasgow South West, Labour)

I confess that although I had a substantial personal vote, it did not single-handedly elect me to the House. There is a commitment in a manifesto from a Government on how they will take matters forward. Clearly, as the document is always a compromise between competing interests, some will be less than totally enthusiastic about elements of it. I forget which ones I was less than totally enthusiastic about. [Interruption.] The referendum may well have been one of them.

I return to the question whether the treaty is the same document as the constitution. Much of the discussion about that is a little like the question of how many angels can dance on the head of a pin. I take the view that we gave a commitment to hold a referendum only on that constitutional form. As I indicated, I believe that we made a clear commitment to have a referendum on what was produced at the end of the day.

We should ask ourselves whether promises matter to people. In my constituency I suffer, as I am sure many other hon. Members do, from a pervasive cynicism about politicians in general—not about me, because most constituents think their own MP is okay; it is the other lot that they do not like. There is an assumption that politicians and parties cannot be trusted and that we will say anything to get elected. That is not constructive or helpful, particularly to those of us on the left, because we depend on popular support to put forward a programme that seizes some of the instruments of power and changes society in the way that we want. It is necessary for us to command popular support in a way that is not quite so necessary for others.

Abandoning our proposal for a referendum because of nuanced differences and because somebody is prepared to argue that this does not mean exactly the same as that, gives out entirely the wrong message and confirms the view that we collectively, as a political class, cannot be trusted. Let us be truthful. One of the real reasons why we are not having a referendum in Britain and why the elites of Europe are not having referendums in their own countries is that they do not have confidence in the people producing the right result.

If there was, for a moment, a feeling among those on the Government Benches that if they went for a referendum, they would win it, they would be off to a referendum like a shot. Let us not forget, for example, that Portugal wanted to hold a referendum on the treaty to demonstrate how committed it was to the European ideal, but Portugal was persuaded out of that view by the French and the British, in particular, leaning on them, saying, "If you do that, it would set a precedent that would cause us enormous difficulties because we can't carry our people with us in a referendum. Therefore you should not allow your people to have a vote on the question." That changes somewhat the implication that the treaty is so trivial that nobody in their right mind in Europe would want a referendum. The situation has been rigged to some extent by the pressure put on smaller countries not to have referendums that would be inconvenient to their colleagues.

Let me deal with what happened when the constitution was discussed and debated in France and Holland. I am happy to say that I played my part in those defeats. I was across in France speaking at French Socialist party rallies and meetings on the constitution. I spoke partly in French, but I was applauded entirely in English in order that I could understand what was being said. It was an international gathering where speaker after speaker from other countries stood up and said to the French,

"Do not believe that you who are against the constitution in France are alone in Europe."

Throughout Europe, in every country where doubts were expressed—this tended to happen more in the smaller countries, such as Holland, Denmark and Ireland—the people expressing those doubts were told, "You're the only ones who object to the constitution. If you go against it, you will be isolated. You might very well be expelled. It will be the end of civilisation as we know it. The money will cease to come from the European Union." All of that was untrue. Members will remember what happened when France and Holland rejected the proposals. They did not get expelled, and nor would we. There was not an enormous crisis in the European Union which brought the payments, the fraud and so on to an end. It carried on pretty much as before, with a period of discussion, then a period of reflection.

A period of reflection would be expected to allow the elites to think about where they had gone wrong, whether they ought to choose a different path and what that path should be. Indeed, some of that happened. They thought about where they had gone wrong, but they identified that as a problem of presentation. They came back with exactly the same thing in a slightly different form, but the valuable lesson that they had learned was not to make the mistake of asking their peoples what they thought of it this time round. That is where we are. Whenever there has been the opportunity to do so, the elites of Europe have managed to avoid giving the peoples of Europe any opportunity to discuss whether they should accept the treaty.

Let me turn to the Liberals, more in sorrow, if I may say so, than anything else. How does it happen that such a once proud party is reduced to this? One thinks back to the great principles that they stood for on occasion, and how they contributed to debates, even though sometimes they were a pain in the neck and other parts of the anatomy. Nevertheless, they are now in a position whereby, on the great issue of the day, they walk out or abstain. I can understand how they were bullied into it by the threat of Shirley Williams and others leaving them if they were prepared to countenance a referendum.

Let us be clear: some Liberal lords are prepared to fight to the last drop of Liberal blood to maintain their position. Greater love hath no MP than this, that he lay down his seat for their lordships. The Liberals in the House of Commons are prepared to lose parliamentary seats simply to keep Shirley Williams happy. I have not come across a single Liberal who believes that the policy is popular or that much of it is understood by the electorate.

Photo of Christopher Huhne

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

rose—

Photo of Christopher Huhne

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

It is not, but I was listening with great interest to the hon. Gentleman's pick-and-mix attitude to the Labour party manifesto. Perhaps he missed my hon. Friend Mr. Davey pointing out that polling evidence shows that our policy is more popular than any other on referendums. Indeed, it is twice as popular, not only with Liberal Democrats but with the whole of the public. If the hon. Gentleman wants a popular referendum, he should go for the in/out referendum, not his half-baked one.

3:30 pm
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Ian Davidson (Glasgow South West, Labour)

If I remember correctly, the Liberals' poll posed the question, "Would you prefer this referendum to that one?" My proposal allows them the possibility, albeit a narrow one, of posing both questions—

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

rose—

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

Will the hon. Gentleman give way?

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Ian Davidson (Glasgow South West, Labour)

I will, but not immediately. I want to answer one point before moving to another.

I believe that the Liberal Democrats are being deliberately evasive about not reaching a decision on a yes/no referendum, and wanting to pose the question in terms of in or out. It is a bit like answering the question, "Are you a man or a mouse?" with, "I am a hamster." It is a deliberate distortion of the options available. Where does the Liberal party stand on yes/no? If we agree to hold a referendum, what will the Liberals do in the country? Will they advise their supporters simply to abstain?

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

rose—

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Ian Davidson (Glasgow South West, Labour)

I am finishing with the hon. Gentleman's first point.

Many of us know that the Liberals have a policy—it is almost a principle—of saying one thing in one part of the country and a different thing in another. Will they say one thing in one part of this building and another in the other part? Will the Liberal lords be whipped into abstaining, too, or will they have a free hand? If the latter, proceedings in the Lords will be interesting.

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

I thank the hon. Gentleman for at last getting on to new clause 18, which is odd—perhaps the most bizarre amendment ever tabled. It would allow the Government to change the question in a referendum to almost anything. How does he suggest that the Government might change it? The new clause would allow them to ask, "Is the moon made of green cheese?" Secondly, it would provide for a supplementary question. What chance is there of a Government, who yesterday led their troops through the Lobby to deny the House even the possibility of discussing an in/out referendum, ordering an in/out referendum subsequent to new clause 18 being accepted? Surely new clause 18 is either pointless or useless.

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Ian Davidson (Glasgow South West, Labour)

That was a fine speech. If the hon. Gentleman believes that new clause 18 is the weirdest amendment he has ever seen, he has not been here very long and he clearly does not read many Liberal amendments. Indeed, if I remember correctly, "Is the moon made of green cheese?" appeared in a Liberal "Focus" leaflet. The supplementary question was, "If not, would you wish it to be so?" That is an example of a relevant second question.

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David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

I am glad that the hon. Gentleman thinks so. That is precisely the sort of question that new clause 18 would allow to be asked in a referendum. Does not that make it absurd?

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Ian Davidson (Glasgow South West, Labour)

I am never entirely sure whether the Liberal Democrats are quite as silly as they pretend— [Interruption.] The hon. Gentleman raised a point with me; he might at least do me the courtesy of listening to my reply. My intention is to reach out to the Liberal Democrats and be helpful. It is clear that they want an in/out question. My new clause is the only way to achieve that; it is the only option on offer that gives any possibility of that question being asked— [Interruption.] Let me complete the point. I am strongly in favour of a yes/no question being asked. I am prepared to concede that, if there is sufficient public pressure, we should have an in/out question as well. Only the Liberal Democrats and the UK Independence party want that, but none the less I would be prepared to vote for it, and I did.

However, the responsibility for garnering public support for the idea ought to be with the Liberal Democrats. I have left open the possibility of introducing an in/out question if the Liberal Democrats managed to persuade the Government of that—as I and others managed to persuade our dear leader on 20 April 2004 to accept a referendum on Europe. The policy had been entirely against a referendum, and huge numbers of my colleagues were against it—until the policy changed, when huge numbers of them were in favour. Indeed, I could not find any who had ever been against it.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

No, no, no—that is not fair.

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Ian Davidson (Glasgow South West, Labour)

That was then, if I may remind my hon. Friend; he was not quite the rebel then that he is now.

My new clause offers the Liberal Democrats their only opportunity. If they are genuine about wanting an opportunity to have that second question, as distinct from playing games, they will have to vote for my new clause.

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Matthew Taylor (Truro and St Austell, Liberal Democrat)

To avoid playing games, will the hon. Gentleman explain something to the Liberal Democrats? If he, as a Labour Member, cannot persuade the Government to deliver the referendum that he wants—or, indeed, an in/out referendum, which he says he also supports—how does he think the Liberal Democrats would persuade a Labour Prime Minister?

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Ian Davidson (Glasgow South West, Labour)

I dare say that I will get a great deal closer than the Liberal Democrats did yesterday. I fail to understand how the Government could be frightened by the Liberal Democrats who are abstaining. If they want to start persuading the Government about anything, threatening them with an abstention is not the best way to send shivers down their back—"Ooh! The Liberal Democrats are going to abstain! Oh my God!"

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Graham Brady (Altrincham and Sale West, Conservative)

As ever, the hon. Gentleman's speech is entertaining; it may also be having a remarkable impact. Is he aware that the press are now reporting outside this place that three Liberal Democrat Front Benchers have already resigned since he started speaking?

Hon. Members:

More!

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Ian Davidson (Glasgow South West, Labour)

I thank hon. Members for cheering in European. That is what—three in 24 minutes? Sir Alan, how long have I got? I apologise to colleagues who might not be allowed to speak at all, given the circumstances.

The question is actually a serious one. If the Liberal Democrats find themselves unable to support the new clause drawn up to help them, will they guide us on something that I am sure we all want to know? If my new clause is successful, what will they do in the yes/no referendum? Will they simply sit on their hands throughout?

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Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

As we have made abundantly clear, and as the hon. Gentleman knows very well, we are very much in favour of our membership of the European Union and that is what we would argue in any yes/no referendum.

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Ian Davidson (Glasgow South West, Labour)

In that case, why do the Liberal Democrats not have the courage of their convictions and vote against a referendum? Why do they not get off the fence, let voters in their constituencies know where they stand and take the results? Mr. Byers said that he was prepared to lose votes as a result of his position on this matter, which is a great deal easier for him to do, with a majority of 17 million, than it is for many of the Liberals who have very small majorities, but if people have the courage of their convictions, they should have no difficulty in doing that.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

My hon. Friend is asking how the Liberal Democrats would vote if there were a referendum, but as the main tenor of his argument has been that our manifesto committed us to a referendum and to arguing for a yes vote, he should, in all honesty, be standing before this Committee saying that he would argue for a yes vote in such a referendum—unless he wants his voters not to take his word at face value.

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Ian Davidson (Glasgow South West, Labour)

My hon. Friend underestimates me. In a leaflet, I made it absolutely clear to my electorate where I stood on this question. I cannot remember the exact words—I carry the little red book with me, but I do not have my election leaflets with me at all times. I would be happy to send him a signed copy, which he can put in a frame and deal with as he wishes. I made my position on the European Union clear. Let me move on, if I can, and draw my remarks to a close—

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Patricia Hewitt (Leicester West, Labour)

My hon. Friend appears to be explaining to the House that he has a personal opt-out from the 2005 manifesto. If that is the case, does he not accept that one of the many reasons why the treaty is not a treaty providing for a constitution, on which we did indeed promise a referendum, is precisely that we have secured opt-outs from several of its provisions, and that several of its other provisions are wholly different from the provisions in the constitutional treaty?

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Ian Davidson (Glasgow South West, Labour)

I am grateful for that intervention from the Member for Boots. When I heard that a Member from Leicester was to be the next European Commissioner, I thought of the former Europe Minister, my right hon. Friend Keith Vaz, rather than herself.

Let me be clear about the question of a personal opt-out. Some of the opt-outs that we have achieved are better than what was there before. Some are improvements, and I welcome them. However, I have grave doubts about the extent to which they will remain outwith the control of the European Court of Justice. Many of the opt-outs that we have achieved will not stand up to sustained attack from the Court.

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Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

Does the hon. Gentleman accept that there is a long tradition of Back Benchers being allowed to disagree with Front-Bench policy, and to stand in an election on a manifesto without signing up to every part of it? The Government, however, are going back on a commitment that they put in their own manifesto. Furthermore, is he not surprised that there appear to be two classes of Lib Dem Front Bencher? There are those in the Lib Dems' so-called inner shadow Cabinet, who apparently have to resign from their positions if they want to keep their promise to have a referendum, but other Front-Bench Lib Dem spokesmen of a more junior variety are apparently being allowed to keep their positions even if they vote for a referendum.

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Alan Haselhurst (Deputy Speaker)

Order. I have been very indulgent over the length of interventions, and sometimes their content, this afternoon. We should get back on the straight and narrow, and I also suggest that Mr. Davidson keep an eye on his parliamentary language. He has been going for 33 minutes now; as we have not had any other reports from outside— [ Laughter. ]he should remember that many other colleagues wish to contribute.

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Ian Davidson (Glasgow South West, Labour)

I was hopeful that more news would come from the front. I always thought that being a Liberal Front-Bench spokesman was somewhat akin to being a eunuch in a harem—singularly decorative, but not particularly useful.

I draw my remarks to a close by saying that the confusion on the question of whether the constitution is the same thing as the treaty is not only confined to the general public. Indeed, I am grateful to have a copy of the agenda for the most recent executive meeting of the Labour Movement for Europe, on 25 February 2008, item four of which refers to

"Progress of EU Treaty on EU Constitution".

The agenda refers clearly to the constitution, while the minutes of the meeting indicate not only that the LME was instructed to use the words "reform treaty" not "constitution"—it was obviously making a mistake in that regard—but that a decision was made to

"speak to David Miliband, to see what role the LME could play".

It is a help that the LME keeps sending me its material, but if even it is confused about whether the treaty and the constitution are the same thing, the general public can be forgiven for being confused.

3:45 pm
Photo of Chris Bryant

Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

rose—

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

When my hon. Friend and I were playing in the parliamentary rugby team in Paris last September, I remember that he said that he thought that 122 Labour rebels would be voting with him tonight. What is his prediction now?

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Ian Davidson (Glasgow South West, Labour)

Yes, I remember that tour, too. I remember a number of things that my hon. Friend said, but I have always taken the view that what goes on tour stays on tour.

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Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

Many of the things that went on during that tour will stay on tour, but my hon. Friend went on telly from Paris to state all that.

The Chairman:

Order. I do not want the debate on this amendment to go on tour, either.

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Ian Davidson (Glasgow South West, Labour)

I will refer no further to what happened on tour, although I should remind my hon. Friend that I still have the photographs.

This debate comes back to the question of honesty in politics. I know that a lot of people bitterly regret that we made that promise, but make it we did. If we make a promise that was so explicit—it was on page 80 of the manifesto—

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Ian Davidson (Glasgow South West, Labour)

I thank my hon. Friend. However, the promise came after a major statement in the Commons by the then Prime Minister that totally changed party policy on a referendum and therefore had much greater significance than simply a couple of lines in the manifesto. If we want to stop the disillusionment with and cynicism about politics, we must recognise that the people out there expect us to keep our promises. That is why I believe that we on the Labour Benches are honour bound to abide by our commitment to a referendum.

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Kenneth Clarke (Rushcliffe, Conservative)

There has only ever been one United Kingdom-wide referendum in this country. I had the pleasure of campaigning hard in that election and of finding myself on the winning side. I very much hope that we never have a second referendum, and I am rather appalled that I should be taking part in a debate so many years later in which people are pressing to have another UK-wide referendum.

The precedent was a bad one. In my opinion, Harold Wilson called that referendum for totally cynical reasons, as is widely acknowledged on all sides. He was concerned about party management, almost regardless of which way the result would go. In the event, the pro-European side won quite easily—by a two-to-one majority, I recall—and the people who had demanded the referendum immediately reneged on their undertaking to abide by the result.

A referendum was demanded in those days by the people who were the most numerous Eurosceptics—the ancestors of Mr. Davidson. Benn and the left regarded the European Union as a capitalist plot, and the moment they took control of the Labour party in the early 1980s, they started campaigning for immediate withdrawal from the European Union, with no more referendums. The whole thing was a sad and cynical exercise, which fortunately did not do too much lasting damage.

Over the years, the only advocates of referendums as an addition to our constitution whom I can think of—the landmark people—have been Tony Benn and Jimmy Goldsmith. Both of them represented Eurosceptic opinion, but until recently they were, comparatively speaking, voices in the wilderness.

We do not have to go back too long to find a time when people in this House who really believed in the value of referendums were hard to find. Indeed, it was quite easy for them to be swept away. I served under three Prime Ministers: Ted Heath, Margaret Thatcher and John Major. I am glad to say that under each of them, we overruled demands for referendums—almost always on Europe—with the support of the mainstream of the Labour party. It was the accepted wisdom of parliamentarians that we were against them.

I am astonished to find the atmosphere so completely changed now. In fact, it worries me that members of the political ruling class of this country have now lost their self-confidence and their ability to rely on their legitimacy as parliamentarians to such an extent that no one among them dares defy the media, the hard-line Eurosceptics or any other people who demand a referendum, because they find themselves faced with a parliamentary majority that they seek to overturn.

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Mike Gapes (Ilford South, Labour)

I very much agree with the right hon. and learned Gentleman. It would be helpful to the House if I could quote the words of Baroness Thatcher. As far as I can recall, she quoted Clement Attlee describing a referendum as

"a device of demagogues and dictators".

Does the right hon. and learned Gentleman agree with that view?

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Kenneth Clarke (Rushcliffe, Conservative)

I remember it. I cannot remember the precise words, but it is actually true. The origin of referendums lies with people such as Napoleon and Mussolini. They were populist people who wished to override their parliamentary institutions and to appeal to the people on carefully chosen issues.

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Kenneth Clarke (Rushcliffe, Conservative)

I do not want to get into the history of referendums with my hon. Friend. The history of our debates goes back long and far, and remains perfectly amicable, but neither of us is going to persuade the other. I should like to make some progress. I have made my general point, and there are few original arguments to be made on either side of it. My hon. Friend Mr. Cash and I have made most of them in our time.

Unusually, I find the official position of all three political parties quite bewildering. I do not envy their Front-Bench spokesmen. They have had considerable difficulty in putting forward their near-incomprehensible positions. The Conservatives are quite unable to explain how the treaty differs from Maastricht and the Single European Act, upon which we consistently refused a referendum.

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Kenneth Clarke (Rushcliffe, Conservative)

Let me deal with the other two parties as well. The Labour party is quite unable to explain sensibly why the treaty is so different from the constitution that it should now be released from the obligation that it entered into—for pre-electoral reasons, as the hon. Member for Glasgow, South-West rightly said—to hold a referendum. I believe that those reasons were mixed up with Mr. Murdoch as much as with the electorate.

On the Liberals' position, with great respect, I am sorry that I upset their spokesman, Mr. Davey, with whom I have usually agreed throughout these debates on the treaty. The fact is that he has drawn the short straw. He had to get up and explain why, having promised a referendum on the constitution, he thought that the treaty was so different that he was not going to vote on it at all. The position of all three parties is almost impossible to explain.

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Stewart Jackson (Whip, Whips; Peterborough, Conservative)

I am listening with great interest to my right hon. and learned Friend's compelling analysis. Does he see a causal link between the lack of self-confidence in the House and the incidental accretion of power to the European Union, which he himself has supported so strongly over the past 30 years?

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Kenneth Clarke (Rushcliffe, Conservative)

I have supported it; I believe that it has been in the British national interest. We have pooled our sovereignty with the European Union and I think that that has been overwhelmingly to our benefit. The treaty will develop the institutions of the European Union, which will make it easier to make decisions. We shall then be able to make better progress in areas that are particularly important to the United Kingdom, and get away from the tedious obsession with institutional reform, referendums—and all the rest of it—that has poisoned our politics for so long.

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Gerald Howarth (Shadow Minister, Defence; Aldershot, Conservative)

I accept that my right hon. and learned Friend has shown great principle in his stand on these matters, but does he accept that as Members of Parliament we are trustees for the time being of the powers inherent in the British people? We hold those powers in trust. In the exceptional case in which we collectively decide that we wish to hand those powers that we hold in trust to another body outside our control, should we not seek the express consent of the British people? That express consent has not been given. What the British people have seen over the last 30 years is a transfer of power from this Parliament elsewhere. They have never been given a proper opportunity to have their say, yet at the general election they were promised a referendum, precisely on this transfer of power.

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Kenneth Clarke (Rushcliffe, Conservative)

I disagree with my hon. Friend; he and I have never really seen entirely eye to eye on this issue. I do not believe that this treaty represents a massive further transfer of powers, and I can only refer my hon. Friend to earlier debates in which I have taken part and got involved in those arguments. I was actively involved at the British end of the Single European Act. I discussed the British position with the then Prime Minister as we tried to move towards the single market. That was a massive transfer of power—the biggest since the original European Communities Act 1972, when we openly talked about pooling our sovereignty, and stood at the election to defend that decision. The Single European Act was the context in which we went in for qualified majority voting on a grand scale, because it was in British interests to do so. That is where the passerelle provisions came in; they are a sensible way of dealing with routine matters without having to go through the whole rigmarole of having an intergovernmental conference and all the rest of it.

There have been no new arguments in this debate. All the way through the debates on this treaty, I have been reminded either of Maastricht or of the Single European Act, the only difference being that even bigger issues were involved in the previous treaties than in this one— [Interruption.] I said that I would not go on about the merits much further—

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Kenneth Clarke (Rushcliffe, Conservative)

If my right hon. Friend will forgive me, other hon. Members are waiting to contribute. I cannot give way all the time, and I am not going to give way even to my hon. Friends who agree with me, some of whom may also be trying to catch your eye, Sir Alan.

Finally, let me deal with a question that really must be addressed: if we find that a referendum is carried, what happens then? That is relevant; the question cannot be avoided. It will change the course of history only if we get a no vote. That illustrates my objection to referendums. The trouble with introducing a referendum into a constitution, as Mussolini well understood, is that it renders Parliament powerless. In this case, it would also render the Government powerless.

I happen to believe that good democratic Governments often have to take tough and unpopular decisions. They do not do that if they live by newspaper headlines and focus groups; indeed, that gets them into the mess that the present Government have got themselves into. Governments have to take unpopular decisions that the focus groups do not like—that is what Margaret Thatcher did—and then offer themselves for re-election to see if they can survive democratically when, some years later, people see the consequences of what has been done.

Let us say that on this occasion we finish the parliamentary process, in which the majorities have been about two to one in favour of the treaty of Lisbon, and we then hold a referendum. Given that everyone I have so far met who is demanding a referendum actually intends to vote no, what do we do then? [Interruption.] Someone says that we should carry on with the present treaty. The hon. Member for Glasgow, South-West addressed this question, but effectively tried to sweep it away. The fact is that everyone across western Europe is absolutely fed up with the tedious process of carrying through reform of institutions, which it was previously thought would be pretty routine and agreed by most people, after the enlargement of the Union. If 26 other countries succeed in ratifying the treaty—that means the Irish succeeding with their referendum—and then the British come along and say, "Sadly, although we, the Government, agree with ratification, and Parliament agrees with it by two to one, we've just got a no vote at the demand of The Sun newspaper. What do we do now?", it cannot be assumed that everyone else will renegotiate.

My right hon. and learned Friend Mr. Ancram at least accepted that major renegotiation would have to be faced up to. The idea that the other 26 Governments, all of which will have gone through the process of getting the treaty ratified—which will have been politically costly for some of them—will then turn around and say to the Brits, "Well, of course we shall now have to negotiate a European Union on a completely different basis," is, like many of the other arguments I have heard during these debates, absolute fantasy. It would not happen.

4:00 pm
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Kenneth Clarke (Rushcliffe, Conservative)

I will in a moment.

I think the hard-core opponents of the treaty know that perfectly well. I have heard a lot of people say, "I am not against the European Union, I am against the treaty," and there are a handful of them whom I believe, but I do not believe many of them. At the very least, the people who want the referendum believing that they will win a no vote—and none of them would demand a referendum if they thought they would lose it—know that it would cause a deep, deep crisis in our relationships with the rest of the European Union.

Among the European politicians whom I know are many friends of Britain, who would despair on finding that yet another neurotic spasm was taking place in the British political system, and that we were asking for everything to be reopened. There are provisions in the new treaty allowing members who want to leave to do so. We could start a negotiation on the basis of an association agreement. It takes a long time to secure such agreements, but Iceland, Norway and Liechtenstein have managed to achieve them, and we could do the same if that is where we wish to be. But if there were a no vote, our role in the European Union would be finished and the House would be left with the consequences. The majority of us would not agree with the position we were in. It would be quite a decisive moment for our foreign affairs policy and our role in the world.

I am not impressed with our position in foreign affairs. Both main parties supported the invasion of Iraq, the biggest foreign policy disaster in recent years, and we have a totally discredited American President and Administration. The President now has more support in the House of Commons than he has in Congress, and we do not know where we shall be with whoever wins the next American election.

The European Union is finally getting its act together in improving its decision-making capacity so that it can move on to deal with economic reform, energy security, climate change, international development and our relations with the Russian Federation. All those are areas in which we need a common position. I would include foreign and security policy in other areas as well, but let us start with Russia. The EU is trying to achieve what we ought to regard as a triumph: an enlarged Union of 27 nation states, including states of the former Soviet Union, ready to move forward. And what do the Eurosceptics say? "We will carry on as we are, left with George W. Bush, and try to detach ourselves from the European Union as it embarks on these great issues"? They do not even know themselves what they would negotiate if they found themselves in an isolated position.

I shall not go any further into the merits of the bigger issues, but they would all be affected by a no vote in a referendum, which would repudiate Government and the parliamentary majority. There are big, big issues facing the United Kingdom in foreign affairs, and I think that we have been handling them badly for most of the past 10 years. They should be resolved in this House of Commons by a Government who are accountable to parliamentary representatives. To resort to the populism of allowing the media to believe that they can determine such matters in referendums would take us into even worse waters than I believe we are in at the moment.

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Gerald Kaufman (Manchester, Gorton, Labour)

I agree with a great deal of what Mr. Clarke said. For instance, I strongly agree with his attitude to referendums. The only referendum of which I have thoroughly approved is the one that was held when I lived in Leeds, on whether cinemas should open on Sundays. That was a very sensible referendum, but I cannot think of many other sensible referendums.

Referendums are exotic European notions, held in countries such as Switzerland. Although I in no way make any comparison to Members of this House who favour a referendum in today's debate, it must be said that Hitler was a great one for referendums. When he held a referendum in March 1936, his campaign poster urged:

"Every vote for the Führer!"

That is the kind of populism that lies behind referendums, and I do not like them.

I was a member of the Labour Government who held a referendum on Europe in 1975. In my view, it was daft to hold it—but Anthony Wedgwood Benn urged it on the Prime Minister, and nothing more needs to be said about any notion urged on anybody by Anthony Wedgwood Benn. The result was not the one that Benn wanted, however—there was a yes vote with a majority of two to one—and he has campaigned against it ever since. I think that he might be out somewhere now with Brian Haw campaigning for a vote in favour of a referendum. The fact is that people accept referendum results only when they agree with them. Members of the Government had a free vote in the 1975 referendum, and I voted no, although I have since become a good deal wiser about the importance to this country of membership of the European Community and the European Union.

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Graham Stuart (Beverley and Holderness, Conservative)

The right hon. Gentleman is making a powerful argument against the use of referendums. Did he speak out so powerfully when the Labour party announced it as a policy ahead of the 2005 general election and promised a say to the British people?

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Gerald Kaufman (Manchester, Gorton, Labour)

I was coming to that very point. The Government promised a referendum on the European constitution in their 2005 election manifesto. In my view, they were daft to do so, but I am a sycophantically loyal Back Bencher and I accepted it; after all, whatever it was, it was not the longest suicide note in history. Therefore, although I did not believe in holding a referendum, as it was in the manifesto on which I was elected, I was bound by it.

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Gerald Kaufman (Manchester, Gorton, Labour)

Will the right hon. Gentleman allow me to proceed for a moment?

It is important to remind the Committee—I have done so twice, but I shall do so again—of that manifesto commitment, to which I and every other Labour Member of Parliament was bound. It said of the new constitutional treaty:

"It strengthens the voice of national parliaments and governments in EU affairs. It is a good treaty for Britain and for the new Europe. We will put it to the British people in a referendum and campaign whole-heartedly for a 'Yes' vote to keep Britain a leading nation in Europe."

It was not, therefore, a commitment to hold any kind of referendum; it was a commitment that everybody elected on the Labour ticket would have to campaign for a yes vote.

I have a feeling that my hon. Friend Mr. Davidson would have picked and mixed on that part of the manifesto. I have great personal affection for him, as he knows, but I have to tell him that he was wrong about another matter as well. He said that if the Liberal Democrats could get away with it, they would campaign in one part of the country for one thing and for another thing in another part of the country. That is not so. If they could get away with it, they would campaign in one street for one thing and in the next street for another thing. A Liberal Democrat Member of Parliament in Manchester was elected to this House on the false pretext that the Christie cancer hospital would close. Two and a half years later, it is still open, so I would not trust a Liberal Democrat on anything whatsoever. The Conservatives are my opponents and I know where I am with them; I would far rather trust them than the Liberal Democrats, who—well, I had better not go on, because you will not permit certain language in this Committee, Sir Alan. I will now give way to Mr. Heathcoat-Amory.

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David Heathcoat-Amory (Wells, Conservative)

I thank the right hon. Gentleman. His party is committed to holding a referendum on the euro if the Government apply to join—a proposition first agreed by the Cabinet in which my right hon. and learned Friend Mr. Clarke served, so the principle of a referendum has been agreed on all sides. What, therefore, is so odd about having a referendum, and keeping our promise to have one, on the treaty of Lisbon?

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Gerald Kaufman (Manchester, Gorton, Labour)

I have just explained, laboriously, that we have no commitment to holding a referendum on the Lisbon treaty. There was no such thing as a Lisbon treaty in the 2005 election—it was not envisaged that there would be such a treaty when we were fighting that election. We were committed to—I was committed to—the constitutional treaty to which our Labour Government were committed. Although I will support the Lisbon treaty because I am so loyal to this Government that it actually hurts me, that is not the same as the constitutional treaty on which we had the manifesto pledge. My hon. Friend the Member for Glasgow, South-West talks about the explicit promise in the 2005 Labour party manifesto. There was an explicit promise, but it was to campaign wholeheartedly in favour of accepting, supporting and endorsing the constitutional treaty that was then extant.

It is interesting to reflect on the Conservatives' attitude to referendums up to now. In the 1990s, they signed up to the Maastricht treaty, which was fundamental—far more so than this treaty or the constitutional treaty that we committed ourselves to supporting in 2005. It turned the European Community into the European Union. It was much more far-reaching than the Lisbon treaty. Did the 1992 Conservative manifesto promise a referendum on the Maastricht treaty? You must be kidding!

A good deal of reference has been made today to the Labour party's 2005 manifesto, but let us look at the Conservative party's 1992 manifesto:

"The Conservatives have been the party of Britain in Europe for 30 years...The Maastricht Treaty was a success both for Britain and for the rest of Europe. British proposals helped to shape the key provisions of the Treaty including those"— [Interruption.]

If the right hon. and learned Member for Rushcliffe will allow me just for a moment—I am sure that he would not want to sully this quotation:

"British proposals helped to shape the key provisions of the Treaty including those strengthening the enforcement of Community law...subsidiarity and law and order...All Member States must live up to their obligations under Community law. At Maastricht, we"—

the Tory Government—

"secured agreement that the European Court will be able to fine any Member State which fails to do so."

That is what they signed up to.

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Kenneth Clarke (Rushcliffe, Conservative)

As there is much debate about commitment to party manifestos, does the right hon. Gentleman recall, as I do, that one or two Conservative Members of Parliament elected on that manifesto appeared not to pay the slightest attention to it when we debated the Maastricht treaty only a few years later?

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Gerald Kaufman (Manchester, Gorton, Labour)

I shall come to that. When this House divided on whether there should be a referendum on Maastricht the votes in favour totalled 124 and the votes against totalled 363.

When Mr. Shepherd, for whom I have great respect because he has been totally consistent on these issues for a long time, sought in this House to secure a referendum, one Tory Minister said that

"every time we have such a referendum it is, in a sense, an abdication of responsibility by the House and the Government of the day."

That was said by a member of the Government of whom people on the Conservative Front Bench were members.

That Minister continued:

"This Government intend to make no such abdication of their responsibilities; nor do they intend to invite the House to abdicate from its responsibility...The treaty that we have...will require the approval of the House as a necessary pre-condition of ratification by the Government...the House will express the will of the British people in the matter. That will be expressed by freely elected Members of the House in the way that British democracy has traditionally settled these matters, whether they be large or small."—[ Hansard, 21 February 1992; Vol. 204, c. 627-30.]

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Gerald Kaufman (Manchester, Gorton, Labour)

I want to get to the end of this bit, because I find it very interesting.

Another Foreign Office Minister said:

"I say simply that I believe our parliamentary democracy is strong enough to survive without referenda."—[ Hansard, House of Lords, 30 June 1992; Vol. 538, c. 661.]

That was the Conservative Government's attitude on the Maastricht treaty.

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Gerald Kaufman (Manchester, Gorton, Labour)

I shall of course give way to the hon. Gentleman, who was secretary of Oxford university Labour club when I was a member.

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Sir Peter Tapsell (Louth and Horncastle, Conservative)

As I recall, I was simultaneously a member of the Communist club, the Liberal club and the Conservative club—we joined all the clubs for half a crown each.

Has the right hon. Gentleman noted that since the Conservative party, with the support of the Labour party, passed the Maastricht treaty, it has not won a general election? We intend to win the next one.

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Gerald Kaufman (Manchester, Gorton, Labour)

The only Conservative leader since Margaret Thatcher not to have lost a general election is Mr. Duncan Smith, and that was because he did not get the opportunity to lead the Conservative party into a general election.

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Gerald Kaufman (Manchester, Gorton, Labour)

I will proceed a little more.

When this House debated the Maastricht treaty, the hon. Member for Aldridge-Brownhills tabled a new clause calling for a referendum.

I shall quote the arguments put by the then Foreign Secretary, Douglas Hurd, who always defeated me in debate when I was shadow Foreign Secretary—and when I had the Home Office brief—because of the painful condescension with which he greeted my vehement arguments. Douglas Hurd, who was 10 times the Foreign Secretary that Mr. Hague will never be, said of the referendum on Maastricht proposed by the hon. Member for Aldridge-Brownhills:

"The decision for Britain lies where it belongs—in the hands of the British Parliament."

He claimed that to have a referendum

"would be a blow to the standing of the House in years to come. We would be saying to our constituents, 'We have examined the matter, but we do not intend to take a decision. We are going to throw the treaty, with all its diverse controversies and complications, into your laps to make of it what you will.'"

He rejected a referendum on the much more far reaching Maastricht treaty, saying:

"It cannot be right to refuse to do our job".—[ Hansard, 21 April 1993; Vol. 223, c. 455-6.]

I have told the Committee already that I am as sycophantic in adherence to the Whip as anybody in this House. I abase myself before my Whip, who is in his place to listen to me. I hope that he will let me off one or two debates as a result. [ Laughter. ] When the Maastricht treaty came before the House, I—sycophantic as always to the Whip—voted against a referendum, as, incidentally, did my right hon. Friend the Prime Minister. However, we were not the only ones: others included the present shadow Foreign Secretary, the present shadow Defence Secretary, Mr. Howard, who became leader of his party, and the present Opposition Chief Whip

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Gerald Kaufman (Manchester, Gorton, Labour)

I see that the right hon. Gentleman voted against a referendum as well. I have the full Division list if anybody wants the names. Of those who obeyed the Tory Whip by voting against a referendum on the Maastricht treaty, 70 are still Tory MPs today. I have a feeling that, with the exception of the right hon. and learned Member for Rushcliffe and a few of his principled colleagues, every one of them will vote for a referendum this evening.

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John Redwood (Wokingham, Conservative)

I am glad that the right hon. Gentleman has given way, because I think I can spare the Committee some of this misleading, rambling account of ancient history. We voted the way we did, first, because we made no promise at the general election that the people would get a vote; and, secondly, because we offered a referendum on the guts of the Maastricht treaty—the single European currency, which we did not favour. That was the referendum lock. His party offered the people a referendum, but it is now refusing it, so the ancient history is completely irrelevant.

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Gerald Kaufman (Manchester, Gorton, Labour)

The right hon. Vulcan—er, Gentleman—may try to wriggle out of the position that he took as a member of the Conservative Cabinet and the fact that he voted against a referendum on Maastricht, but nobody will be impressed. He said one thing as a member of the Government, to keep hold of his red box, his car and ministerial salary, but now, totally irresponsibly, he is ready to switch his position. In the 19th century, a former Conservative Prime Minister, Benjamin Disraeli, described the Conservatives as an organised hypocrisy. The only difference between then and the 21st century is that the Conservatives are no longer organised.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

I enjoy following Sir Gerald Kaufman. We have agreed on some things; we do not always agree on everything. First, let me state my position, as he did not read my name out from his list. I voted for the referendum on Maastricht. I voted against a lot during that period, but for a referendum, and here I am, still on the Back Benches, which shows what follows all that rebellion.

I wanted to keep my remarks short, as I know that others wish to speak, but those who believe me when I say that will be mad, because I am a politician and will therefore go on a little bit. Mr. Davidson was right. At the Dispatch Box as Leader of the Opposition—wonderful days—I questioned the then Prime Minister about the issue with no effect, and I asked him for a referendum eight times. Eight times in a row he told me categorically that no such thing was necessary because what was about to happen was not consequential and—what was the phrase used by the Foreign Secretary?—not fundamental. Nothing was so important that it changed our relationship, and so there was no need for a referendum. It was not until after I had gone, sadly, that he gave the pleasure to my successor of agreeing to a referendum. I thought that was a bit mean at the time, because things might have been different—who knows? Never mind; I do not want to go back there.

That is the main point. The hon. Gentleman was absolutely right: we can only reach one simple conclusion. I know that there is a huge debate running and rolling, which is full of history and memory. I love these European debates, because we have a sort of private conversation with each other about what we did 10 years ago, what our antecedents did 100 years ago and what we might be doing in 10 years' time. However, he was right to say that the truth was that the then Prime Minister, with some trusted and confidential friends, made a decision. As they rolled towards an election, they decided that they would not survive it unless they answered the question about the referendum, which the Conservative party claimed was the way to settle the issues about the constitutional treaty. That was very simple.

We are all politicians—although that might have escaped the notice of one or two colleagues—and we have to win elections. That is the simple sine qua non of being on the Government or Opposition Benches. Occasionally—surprise, surprise—Governments make cynical decisions. The decision on the referendum was a cynical decision made by the Government to get them past the election, and they decided to deal with the rest as it followed.

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Mark Hendrick (PPS (Rt Hon Jack Straw, Lord Chancellor), Ministry of Justice; Preston, Labour)

Does the right hon. Gentleman recall the Conservative party asking for a referendum on the Nice treaty before the 2001 election? We made no promise of a referendum, and we still won that election.

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Iain Duncan Smith (Chingford and Woodford Green, Conservative)

Come on! I must tell the hon. Gentleman, who intervenes quite a lot, that the politics of the situation dictates what happens at the time. In the time running up to Nice, his Government were not in trouble or difficulty and were able to envisage the coming election with some sanguine sense of success. Things were different by the time they hit 2004 and 2005. The reality was that the decision was taken.

The intriguing thing, which really bothers me, is that as I watched and listened to the Foreign Secretary, it occurred to me that I had never seen somebody speak for a Government who has looked so contorted and so twisted, and who has so turned in one argument against another. At one moment, his point was only that it was fundamental, but then it was not fundamental; then we were clearing the air, but then we were not because we were clearing fundamentals instead. The argument went round and round. If he reads it in Hansard tomorrow, he will say to himself, "What an awful day I had. I had to say something that I know is fundamentally not true. There is no major difference between the Lisbon treaty and the constitutional treaty. What happened in between was a political imperative."

It is worth remembering that Valéry Giscard d'Estaing said something with which my right hon. and learned Friend Mr. Clarke has agreed, although the latter supports the Government's position on securing the ratification of the treaty. Mr. Giscard d'Estaing has said:

"In the Treaty of Lisbon, the tools are largely the same. Only the order in which they are arranged in the tool-box has been changed. Why this subtle change? Above all, it is to head off any threat of referenda by avoiding any form of constitutional vocabulary".

I do not know why we dance around as though this were a silly game. The truth is that the Heads of State and Governments of all the countries that negotiated the constitutional treaty have said to each other, "We have got ourselves in a real mess over this. We allowed the public and politicians who are not responsible members of the Government to play a part"—politicians such as my right hon. Friend Mr. Heathcoat-Amory and Ms Stuart, who speaks so cogently on these matters.

The member states believe that allowing the vox populi to get involved by having referendums in France and Holland put a kibosh on the whole thing, so they concluded that they would not do that again. They learned the lesson of all this nonsense about consulting the public, which is that EU Governments do not get what they want by doing that. They believe that they have a purpose that was laid down by their forefathers, and that they must see it through.

Europe's bureaucrats have known for years that the way to get things done is never to ask the public if they want them to be done, because the answer will inevitably be no.

4:30 pm
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John Hayes (Shadow Minister, Innovation, Universities and Skills; South Holland and The Deepings, Conservative)

Contrary to what we heard earlier, is it not true that a mature political class and a confident Parliament refer to the people on matters of such supreme importance? It is a sign of the lack of confidence of parliamentarians and the political class that they have refused to do so.

Photo of Iain Duncan Smith

Iain Duncan Smith (Chingford and Woodford Green, Conservative)

It is, but that should not surprise my hon. Friend, because he has been a student of the matter for long enough.

I draw the House's attention back to the intriguing one-sided correspondence with the Government after the collapse of the constitutional treaty and prior to their decisions and the intergovernmental conference. It is reported in the European Scrutiny Committee's third report of Session 2007-08 that the Foreign Secretary's predecessor stated that there was

"no negotiation in the run-up to the June Council until we saw the text for the first time only a couple of days before the June Council itself".

Everybody believed that that was when the new treaty was produced, but it was not. We know as a result of a leaked letter that Angela Merkel's Government contacted the other Governments as part of the process of rebuilding the treaty.

The Germans are wonderfully efficient. They are so efficient that they always keep their records and put everything in them. They are not trying to hide anything from their public, as our Government are. We can congratulate them on that. With ruthless efficiency, they rounded up what members of Governments had said to them in discussions and negotiations. They asked such things as how they could find ways to get the treaty through without having to show that the existing treaties would essentially have to be repealed. One question asked:

"How do you assess the proposal made by some Member States not to repeal the existing treaties but to return to the classical method of treaty changes while preserving the single legal personality"?

Another asked:

"How do you assess the proposal made by some Member States using a different terminology without changing the legal substance"?

Those are not just questions that the German Government or Angela Merkel wanted to ask. Essentially, they arose from minutes of meetings with either officials or Ministers of other countries.

The letter is fascinating because it blows the Government's position out of the water. The Government and Angela Merkel knew all along what the process was all about. Having learned the lesson of what had happened to the constitutional treaty, they wanted its provisions back. They felt that they could not proceed without them. My right hon. and learned Friend the Member for Rushcliffe is honest about that; he believes that Europe needs them to proceed to the next stage, as did Angela Merkel and many other European leaders. The letter shows that they needed to find a way to avoid any reference to the public, such as a referendum.

The first point about which we should be clear is that the process is a classic, cynical political mechanism. If we believe that, we shall not go far wrong. I do not want to engage in the arguments about whether there were three or 38 things in the treaty—or, as the Liberal Democrats said on television today, that there are so many thousand words versus another so many thousand. It is all meaningless nonsense. The truth is that everybody believes the treaty is basically the same as the constitution. The collapse of the pillars and the