European Union (Amendment) Bill

– in the House of Lords at 3:33 pm on 11th June 2008.

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Votes in this debate

Moved accordingly, and, on Question, Motion agreed to.

Clause 8 [Commencement]:

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, I hope that in Amendment No. 32 in my name and that of other noble Lords, I have this time got the Welsh language right and that all the words in that wonderful tongue are correct.

This debate starts with something of a mystery. As we have argued and debated our way through the text of the treaty and the Bill, most of us can see—and it becomes clearer page by page—that the words are almost identical to those of the former constitutional treaty. In most places they are absolutely identical. The constitutional treaty met a sticky end when it was voted down in referenda in the Netherlands and France some years ago. The mystery is this: if our eyes can see the identical words, how is it that—while we see one thing—Ministers insist on seeing something quite different? Of course, the answer requires no detective work at all. We do not need Hercule Poirot to see exactly what has happened. The treaty drafters and this Government have rather cleverly achieved an illusion by using a methodological device to argue that the constitutional concept has been abandoned. That is the position of the Government as I understand it.

This switch is obviously ingenious and delights all the Sir Humphreys, but that view has virtually no support Europe-wide. In fact, almost all Europe's leaders have been frank and candid about what has been done and about the digital enhancement that has taken place to make the text look different. The only body that is constantly quoted as insisting on the difference is the Dutch Council of State. Throughout our debates, that body has been paraded as a fig leaf for the apologists, but when I came to look at the details of its report to the Netherlands Government, even that august body revealingly let slip in that report—should your Lordships be interested, it is on page 9 and again on pages and 10 and 14—that the Lisbon treaty's goals are,

"in keeping with the EU's constitutional development", and that the differences with the constitutional treaty, which was turned down, amount to no more than "shifts in emphasis" and the "abolition of symbols".

The truth is that the treaty and the Bill are the outcome of weak negotiation by a weak and failing Government propped up, of course, by the Liberal Democrat Party. The treaty is crammed with measures that the Government earlier fought desperately to reject. Quite aside from the Bill, the treaty itself and the negotiation give us a very poor deal indeed. As someone said the other day, not since the Convention of Cintra has there been anything as bad out of Portugal.

It is on almost precisely this text now before us that all three parties promised a referendum. All three parties said that they would give the people a say. None of us knows what the people would say nor the outcome of a referendum were there to be one. People in the Republic of Ireland will tell us tomorrow in a referendum what they think. They have had an excellent campaign and debate and it seems that the outcome is close. Some people say that it depends entirely on the weather. In thinking about the Irish referendum, we incidentally note and reject the patronising view that the treaty would be too difficult for the British public to understand and that it can be comprehended only by the sublime genius of the minds of the Foreign Office.

We do not know what the outcome would be. We do not know what impact there would be if the treaty falls as a result of the Irish rejection, although we have some reports from Brussels, including the FT's excellent Quentin Peel, that far from stymieing the EU advance, it would clear matters up and that the smaller member states are longing for the whole thing to be dropped. Mr Peel quotes a Brussels official as saying that few tears would be shed if the whole thing were dropped. We do not know what the impact would be, although we have had many dire predictions. Nor do we know the full purpose of the treaty and what effects it will have on our constitution.

There are legions of known unknowns in this treaty. There are provisions that allow new provisions and powers that permit new powers, and it is full of what astronomers call dark matter. The other night, in an exchange at a late hour, the noble Lord, Lord McNally, said that this goes further than any other treaty on accountability. But it goes further than any other treaty in its open-endedness as well. It leaves countless doors and windows open for the new departures, transfers of power and treaty changes without proper parliamentary control. That is the nature of it and I am not sure that any such Bill—people have referred to Maastricht and so forth—with such open-ended features has ever been presented to Parliament before. As a dodgy company floatation prospectus might say, its aim seems to be to carry out an undertaking of great advantage by means and for purposes which will be explained later. I fear that the directors of the South Sea Company would have recognised that approach.

We do not know any of those things. However, we do know that the public are being hoodwinked—and the public know that as well. The latest YouGov poll shows that 65 per cent know it is the same text as before. They believe that Labour has broken its promise. Some 51 per cent of those polled want a referendum say on this. The Lord President may have come across this poll and may know something about it. The only misnomer in this excellent poll is the phrase YouGov. We do not "gov". A failing Government try to "gov" and a so-called listening Government do not listen. The Government say they want to be closer to the people yet take good care to keep as far as they can from them on this issue. The same goes for the Liberal Democrat party and its belief in listening to and being closer to the people—not, it seems, on this issue.

Photo of Lord Harrison Lord Harrison Labour

My Lords, will the noble Lord recommend to his colleagues at the other end of the House that when they vote this evening, they should take notice of polls? A poll published today in the Daily Telegraph says that 65 per cent of the British people support the Government's position on 42 days.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, I am sure they will have a lively debate on this issue and no doubt the same point will be made. That does not stop me making it now and refuting the proposition that nobody really wants this referendum when so many people do.

Much as I like the phrase "you gov" it does not seem to operate in this case because a Government who want to be trusted prove themselves thoroughly untrustworthy. A Government who say that the treaty will wonderfully benefit the UK nevertheless refuse to seek confirmation from the people. There is not much "you gov" there. We are told again and again that this treaty is different when we can plainly see—this is the frustrating part—that it is the same. We know that two plus two equals four but the Government keep asserting—they do not even argue, they assert—that it makes five.

All three parties faithfully promised to grant the public a say on such a fundamental and overtly constitutional project: all my honourable friends, opposite Members' honourable friends, all noble Lords themselves, all in the Liberal Democrat Party, all in the Labour Party and, for that matter, all in my own party. The Government have now defaulted on their promise; they have defaulted on their pledge. As for the Liberal Democrats and their rather bizarre conduct during the course of our debates, I frankly do not lie awake at night worrying about the future of the Liberal Democrat Party, but I do lie awake worrying about the future of your Lordships' House if it cannot even keep a Government to their manifesto promises. If we cannot muster any amendment

Photo of Baroness Ludford Baroness Ludford Liberal Democrat

My Lords, I apologise to the noble Lord and thank him for giving way. He is talking a lot about promises and pledges. To go back to the substance of this argument for a referendum, in 1973 the Conservative Government did not offer a referendum on our entry into the then European Community. Can he explain why not?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, I am sorry but I did not hear every word that the noble Baroness said. She is experienced in these matters but it has been the argument all along that first, we have here an accumulation of powers being transferred from Parliament and secondly, as I have tried to explain, this is a uniquely open-ended Bill. People say, "What about the Maastricht treaty?" or "What about the Single European Act?" Yet this treaty is unique in its open-endedness. That is why it has got such a chunk of attempted accountability in it. It is not nearly enough but it has admittedly got some accountability phrases and provisions in Clause 6. We believe that this is a development beyond what is sensible for the future of Europe and that is why we argue as we do.

If we cannot muster any amendment to such a momentous Bill, which, after all, has implications right across national life and which the other place, frankly, skimmed over, as everyone has pointed out, then we are obviously and plainly failing in our duty here in your Lordships' House. That worries me and leads me to the view that we have handled this matter wrongly or some of your Lordships have taken the wrong approach. All public and political leaders agree that we should trust the people and that trust in Parliament has declined, is declining and needs to be restored. Here is the opportunity to do that. This is the amendment which will turn words back into honest action. This is the amendment which will at least take one significant step towards restoring that trust. That is why I beg to move.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 3:45 pm, 11th June 2008

My Lords, the noble Lord has argued his case well and deserves tribute from all of us for the way in which he and his colleagues, often with limited resources, as he said honestly, have subjected this Bill to considerable scrutiny. He has also put forward the key arguments for consideration by your Lordships' House—has there been a broken promise in respect of the referendum and, more generally, what is the case for a referendum which should be addressed by us now and in the future?

I personally disagreed with the Prime Minister's apparently snap decision, with limited consultation, to promise a referendum on the constitution, and in my conclusion I do not rely on the argument that politicians are entitled to change their minds or, indeed, on the American line that promises are meant to run on and not to stand on. The argument stands on its own merits that a promise was made on the constitution and, therefore, quite properly the noble Lord poses the question: is this effectively the same as the constitution, save for the symbols, the flag and so on? In short, how significant are the differences?

We can of course have the war of quotations and I give the noble Lord credit for not entering into that during his address today. I start from the proposition that there is an arguable case on both sides and it is a matter of judgment. I am prepared to accept that the Lisbon treaty is sufficiently different for the UK, with new elements safeguarding our interests, and that those differences include the protocol in respect of the charter, the key undertakings in respect of the common foreign and security policy and the new safeguards in justice and home affairs.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

My Lords, the noble Lord says that a new element is the freedom of the Government to have their own foreign policy, but if he looked at the Labour Party's manifesto containing the pledge that there would be a referendum, it said that the constitutional treaty already preserved freedom for this country on foreign policy—that is, the red line on foreign policy was achieved at the time that the Labour Government promised a referendum.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, that red line was maintained. If the noble Lord took the trouble to read the report prepared by the European Union Committee of this House, he would see that our essential interests were wholly safeguarded in respect of CFSP. There were only two relatively minor elements, for example, in which the European Court of Justice was able to have a role in CFSP, which were much debated in this House. I have come to that conclusion on those areas and I am fortified in my view that there is a sufficient change by the fact that at least nine of the 27 members of the Union proposed to hold referendums on the constitution; only one now proposes to hold a referendum on the treaty, and that is Ireland, which is constitutionally bound to do so. Those countries have exercised their judgment in the same way that I have.

The second issue is that in my judgment the democratic case for a referendum is very weak indeed. I believe that the noble Lord said that the outcome may well depend on the weather. That is hardly a strong democratic argument. Looking over the experience of referendums in this country, the proposal has little relevance to the merits of the case, but rather to the tactical decision, depending on which side of the argument one is. I confess to the House that as regards the referendum in the 1970s on Wales, I was among those who opposed the Government at that time and I argued—I think the noble Lord nods to this—for the referendum, in part, on good tactical reasons. I suspect that the Conservatives' failure to hold a referendum in respect of the Single European Act and on Maastricht was based on similar tactical reasons and not on the merits of the case. Clearly, the case for referendum bristles with problems in practical terms. It depends who puts forward—

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I am grateful to the noble Lord, who has impeccable democratic credentials. Can he not see the point that, because every single political party in the last general election made a commitment that there would be a referendum, this was not an issue in the general election campaign and that people sought to have the debate at a later stage? By denying a referendum now, that debate is denied the people on this vital issue.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, the noble Lord misses the basic point. That pledge was in respect of the constitution.

Noble Lords:

Oh!

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, my judgment is that this treaty is sufficiently different from the constitution to merit a different approach. I should just give headlines on the other matters: the practical difficulties. It depends on who poses the question and the wider context. My experience of the Welsh referendum in 1979 was that 80 per cent of the people of Wales were against the devolution proposals of the Government. In 1997, 50 per cent were in favour and 50 per cent were against. Does one imagine that there was some mass conversion over that period? No, it was the fact that, in 1997, an incoming Labour Government with an overwhelming majority put forward the proposal, so it depended very much on who posed the question and the wider context. There was a weak Labour Government in 1979, who was highly unpopular, and in 1997, there was a popular Labour Government with a very substantial majority. It depends when the question is put. For example, in Sweden there was general antipathy to the European Union. There was only a brief window of opportunity when the pendulum of Swedish opinion swung in favour of the European Union and by happy chance, or unhappy chance, the Swedes had their referendum at that time. So public opinion can be highly volatile, as we saw in Sweden.

There can be problems in interpreting the result. If there is a very low participation rate, does one ask what is sufficient in terms of public opinion? Perhaps the real issue is that one cannot reduce such a complex matter to a single issue. I recall that President Mitterrand said that in referendums the French people always answer the wrong question. I was one of those who, on the French referendum on Maastricht, appeared on platforms in France arguing for a "yes" vote at that time. It struck me that the issue was not that of Maastricht, but whether or not one liked President Mitterrand, and there were issues about immigration and textiles which were wholly unrelated to the Maastricht treaty. In the Irish referendum tomorrow, there are questions about abortion, defence and neutrality, which do not appear in this treaty. The question cannot be reduced to a single issue. The fundamental issue is that although in Parliament one can debate and negotiate with opposing groups, in the popular vote one cannot negotiate with the people. If, perchance, the Irish people were to vote against tomorrow, who would know what the particular issues were on which they rejected the treaty?

Photo of Lord Elton Lord Elton Conservative

My Lords, surely that is the whole point. Europe would then be under a necessity of discovering what it was and maybe changing things to suit it.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, I am interested in learning from the noble Lord how one so ascertains; should one have another public opinion poll and on which issues—they may be abortion, neutrality or the threat to the system of corporate taxation in Ireland. But it is clear that various devices have been used—that was the case in Denmark, for example, and it led to the second referendum on opt-outs; in Ireland, there could be yet another chance as on the previous occasion. But one cannot negotiate with the people to find out what their main reasons were for rejecting a particular proposal at the time.

In conclusion, what is portrayed as a democratic advance, particularly when the rules of the game have been changed, is less impressive on close examination. We are in a parliamentary democracy and, in my judgment, Parliament should decide.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

My Lords, we on these Benches must start by congratulating the Conservative Front Bench on correcting the Welsh spelling of the question in this amendment. Just before we came here, we had done a little research on what "Libson" was about, but the spelling was corrected yesterday.

I hesitate to criticise the Conservatives because over the past week my party has been bombarded by letters from various Conservative leaders in the Commons and Lords. The letter that we received yesterday from William Hague made it quite clear that he had not read Monday's Hansard when he wrote to protest at the position that we had taken. I hope that the Conservative Front Bench in the Lords will occasionally manage to get their colleagues in the Commons to pay more attention to the way in which we discuss, debate and revise in this House in Committee and on Report.

Perhaps I should start by criticising the Labour Government. We are where we are because the Labour Government have, for the past 10 years, failed to make a constructive case for British membership of the European Union. Since they have failed to make that constructive case, the British debate has slipped further backwards towards what one has to call the Daily Mail view—of European integration as a threat. We have heard echoes of that from the noble Lord, Lord Howell. We heard of the Convention of Cintra and had the image of the poor British holed up in a corner of the Continent and forced to submit to humiliating conditions dictated by the French. That is what he implied by that reference.

I have to say to the noble Lord, Lord Howell, that, as I have worked through the details of the Bill—I speak as someone who has worked on the European Union for a long time—I have been struck by the relative modesty of the changes that it makes. They are useful and constructive changes, but this is not a revolution. This is an evolutionary process of amendment.

I want to make a passing comment, since the Irish referendum campaign is clearly preoccupying us, on the Irish "no" campaign. The Irish Times has made it clear in two or three articles in past few days that there is a peculiar coalition of eccentric right-wing millionaires with strong links to the American neoconservatives and left-wing socialists and nationalists in Sinn Fein, and that is not itself such as to encourage enthusiasm, particularly in view of the fact that it has refused to say where its funds have come from—perhaps from non-domiciled and offshore people, as with some people in the Conservative Party.

I note that the noble Lord, Lord Howell, has added his name to this amendment and, from the tone of his introductory speech, I assume that if there is to be a referendum, he will campaign actively for people to say "no". I note that his colleague, the noble Lord, Lord Hunt of Wirral, does not have his name to the amendment and, from the number of things that he has said in the course of our discussions in this House, it is quite clear that he will be campaigning for a "yes". So we have a Conservative Party that is likely to be divided on the issue, which is very reminiscent of Harold Wilson's Labour Party.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 4:00 pm, 11th June 2008

My Lords, I ask the noble Lord to return to the point that he himself raised, which was the right honourable William Hague's letter to him. Can he explain why Liberal MPs get sacked from the Labour Party?

Noble Lords:

Oh!

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I mean the Liberal party; the two are very difficult to distinguish in this House. Why do Liberal MPs get sacked for refusing to abstain on the referendum question? In this House the noble Lord and his colleagues are going to vote against the referendum, whereas their colleagues told the British people that they would support it.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

My Lords, perhaps the noble Lord, Lord Forsyth, has not seen the letter that William Hague sent yesterday, which referred to Monday's debate and suggested that the Government had made no concession whatsoever on parliamentary scrutiny. I will answer the other question as I continue with my speech.

If one is making a comparison between Harold Wilson and David Cameron, I note that Melanie Phillips, in Monday's Daily Mail, drew the comparison between David Cameron and Hamlet. She stated that the opposition leader's stance,

"turns Mr Cameron into the Hamlet of the European debate—an awesome talent for speeches denouncing tyranny, but a complete inability to act against it".

Melanie Phillips is, of course, much more strongly in favour of the former Tory policy adviser the noble Lord, Lord Blackwell, whom she says argues that:

"Britain should renegotiate the terms of its EU membership, restricting it to trade agreements and common security and environment policies".

As we know, there is a range of opinion on the Conservative Benches. On Monday, the noble Lord, Lord Vinson, said that the European Union is incompatible with British democracy. That is a fairly strong statement.

We look forward with interest to hearing the range of views on this referendum on the treaty. I say to the noble Lord, Lord Forsyth, that it is a referendum, not the referendum; there are different sorts of referenda and we shall hear various views from the Conservative Benches—from the noble Lord, Lord Campbell of Alloway, for example.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, the noble Lord referred to renegotiation. I respectfully ask whether it is the policy of the majority of his party that we renegotiate.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

My Lords, the noble Lord may have misunderstood me. Many on his Benches want the next Conservative Government—if there is to be one—to promise that, if elected, they will renegotiate the Lisbon treaty. I remind the noble Lord, Lord Campbell of Alloway, that this is exactly the position taken by Harold Wilson in 1973-74 with his referendum promise to cover up the divisions within his Labour Party, if and when it returned to government. But Harold Wilson, at the very least, had the sense to offer his party, and the public, a referendum on the underlying issue—do we stay in the European Community, as it then was, or leave it?

The Conservatives are attempting to avoid that question by offering a referendum only on the treaty. The position of my party, as we have made entirely clear, is that if we are to have a referendum it should be on the underlying issue—do we stay in, or do we leave? The Conservative Party is unable to answer—

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, the Liberal Democrat policy is more bewildering. The other day we had an amendment on precisely that matter. The Liberal Democrats did not vote for it; they voted against it. Where on earth are we?

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

My Lords, I believe that the noble Lord, Lord Howell, was in the House at that point. I think I observed a number of Conservatives voting against that amendment. We made it entirely clear in the House when the noble Lord, Lord Howell, was present—and, I think, awake—that we were not prepared to vote for a UKIP amendment based on a strongly anti-European line. I know that the noble Lord sits there on the Front Bench having to feed the UKIP monster and he does it relatively well. He puts stuff into the UKIP mouth and it is still not entirely satisfied, but much of what he says—and I have to say that we have some mutual confusion—

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, my name was attached to that amendment and I spent some time explaining that I was not a member of UKIP and had no intention of being so.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, the noble Lord simply cannot get away with this. The Conservative Party is in a quite different position from his own. If I am not mistaken, his own party moved an amendment in the House of Commons calling for an "in or out" referendum. The Conservatives did not do that, so they cannot be criticised for not supporting an amendment which the Liberal Democrats moved in the House of Commons. However, the noble Lord's party most certainly can be criticised. Why does it not make up its mind?

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader, House of Lords, Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Home Affairs

My Lords, I do not wish to detain the House. I simply wish to say that the position of my party throughout has been that it is in Britain's long-term interests to remain a member of the European Union. The present position of the Conservative Party is that it wants to stay half in and half out. However, William Hague, who used to say that the Nice treaty would bring about the end of British democracy, now says that the Lisbon treaty will do that and that the Nice treaty is just about acceptable. When the treaty is ratified, we need an intelligent debate in this country on Britain's long-term future in the European Union and how that fits with Britain's position in the world and our foreign policy. My party will lead that debate and we hope that the Government will be willing to join it. We shall be very interested to know where the Conservative Party stands on this altogether.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I do not believe in referenda, and the Conservative Party has previously shared that view. The noble Lord, Lord Howell, says that I am wrong about that.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, I must not interrupt too much but in 1973 I took through the House of Commons a Bill for a referendum in Northern Ireland. That happened with the full support of my party and, indeed, the noble Lord's party as well.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, whatever the noble Lord says, I do not believe in referenda, and I have said that. I believe that referenda are essentially alien in the political democracy in which we thrive. MPs are ultimately answerable to the electorate at the general election, and that should be so. The referendum in 1975, in which I ashamedly voted no, clearly had that demerit. A referendum gives one the opportunity to ventilate one's feelings on a very wide scale, not least on the general record of the Government in office at the time. The real issue on which a decision is now required is whether we should remain a member of the European Community. All too often, that issue is sidelined, and unfortunately all experience vouchsafes that.

A referendum on the treaty begs the question of why we did not have one on far more fundamental issues affecting Europe. The voices of the Conservative Party at that time were somewhat muted. The case which the Opposition make for a referendum now revolves around a statement made by Tony Blair when leader of the Labour Party. Accordingly, one is impelled to ask why other statements made by him were not accepted by the Conservatives. Suffice it to say that that statement made by Blair was, in my judgment, wrong, albeit in entirely different circumstances from those which we are considering today. Of course this treaty has certain similarities to the former treaty—that is not surprising—but it is not the same. That has been the subject of many debates on this Bill and I will not enlarge on this theme today, although the issue has been touched on by my noble friend Lord Anderson.

It is somewhat dismaying that certain politicians, particularly but not exclusively in the Conservative Party, are now prepared to embrace something which they never would touch in government. The logic of their actions is not only opportunistic but extremely perilous. On this issue they have exhibited a unique intellectual barrenness. Not so long ago it voted for, and as a Government believed in, the European Union. Now it has changed and it is sad that it cannot admit that that change has occurred. It stands virtually alone in the European Union. None of its fellow conservative parties in Europe adopts its stance but it has certain allies; for example, the French hunting party, Sinn Fein and Marianne Thieme, the leader of the Dutch Party for the Animals. The Conservative Party is prepared to risk everything. Can we really stand alone when we consider our position with China, India, Russia and the wider world? Is it not important to have an effective voice on climate change, starvation and disease, which affect countless millions in the third world? Are we not more likely to be heard as an influential member of the European Union than if we are outside? Why put all this in danger?

Putting aside the Conservative quest for the Man Booker Prize for fiction, are they unconcerned about other issues raised in the treaty, such as the reduction in the size of the Commission, the share of our vote in the European Union, the end of rotating presidencies, children's rights—which are dealt with in the treaty for the very first time—climate change, international development and much else? This treaty is far more extensive and significant than the constitution which was previously in place. What, then, is the ultimate goal of the Conservatives? Some want to exit from the European Union altogether, while some prefer, for dubious political ends, to play around with this matter, casting no credit on those whom I otherwise respect highly; namely the noble Lords, Lord Howell and Lord Hunt. They took a very different line when they served in government, and I am sad that they have departed from that today.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 4:15 pm, 11th June 2008

My Lords, I have added my name to this amendment because of a simple word which has already been quoted by the noble Lord, Lord Howell, in his admirably clear opening speech. It is the word "trust". In 1979, in the May of the general election, I was commanding the troops in Belfast. On the Monday of that week the then Secretary of State, now the noble Lord, Lord Mason, invited a number of us to have a drink with him at Stormont before he returned for the election. At the end of the party, his civil servants formed a double line down the stairs to his car, and as he appeared they began to sing, "Will ye no come back again?". He put up his hand and said, "Cut that out. Did you not hear our Prime Minister say last October that we had lost the trust of the country? If a party in Government has lost the trust of the country, it will not be elected. I do not expect to get back on Thursday. Thank you for what you have done and goodnight". He then walked down to his car.

The business of trust has always seemed to me to be hugely important. As a layman in this matter—I am told that Cross Benchers are best described as radicals of the extreme centre with the right to lash out in every direction—I could not help but read the three manifestos produced in 2005. The Labour Party manifesto stated:

"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 wholeheartedly for a 'Yes' vote to keep Britain a leading nation in Europe".

Of course we want to be a leading nation in Europe, but that was a firm commitment. As the noble Lord mentioned, a large number of people in this country believe that it was a commitment, and despite the admirable care, determination and attention to detail with which this treaty has been debated in this House, nevertheless for the public there is the matter of trust in their Government—the Government having said that whatever it was, a constitution or whatever, it would be put to them. It is not deserving of trust if that opportunity is denied.

Photo of Lord Blackwell Lord Blackwell Conservative

My Lords, it is a great privilege to follow the noble Lord, Lord Ramsbotham. As he says, the question before the House today is not whether this House approves of referendums and not whether this is a good treaty, but simply whether the Government should be held to their promise to hold a referendum on the constitutional treaty. The Government have erected two lines of defence in order to fend off this possibility.

Their first line of defence is that the treaty is different, and no doubt we will hear that again when the noble Baroness winds up. She will say that the treaty is different because it replaces existing treaties, whereas the Lisbon treaty is an amending measure. You do not have to be a lawyer to understand that it is the treaties that result at the end of the process which have to be looked at, not the process by which you get there or what the treaties are called. You have to compare the text of the constitutional treaty with the European treaties that result at the end of the Lisbon process. I will go on to argue that those two treaties have very similar texts, and it is those texts—those we have at the end of the legal process—that will have a legal and constitutional impact on the UK. The texts of both treaties are primarily existing treaties. In both cases, the existing treaties have been maintained in large part—some amendments were added to the constitutional treaty and the whole text reprinted, while in the case of the Lisbon treaty, the amendments were put in and the whole text was reprinted as a consolidated text. The Government have now provided those for us. To pretend that the two texts are different because they were arrived at by different processes makes for an extremely dubious argument. However many times the Government repeat that these two texts are different, as if repetition on its own will give the statement substance, it is clear that that line of defence has no substance at all.

Their second line of defence is to say that if you do insist on comparing the texts, it will be clear that they are different. It is an argument the Government have avoided as far as possible—perhaps for the obvious reason that they know the difficulty they would have if this House engaged in it—and they have refused to this point to provide a comparison of the texts of the two treaties side by side.

In recent weeks, we have had a breakthrough and I am extremely grateful to the Lord President for her correspondence with me on this topic and for putting it in the Library of the House. In that correspondence, the noble Baroness put forward an analysis by Professor Peers which compares the texts of the two treaties. He suggests that there are 35 differences between the text of the constitutional treaty and the consolidated text after the Lisbon amendments—that is 35 differences in treaties containing 400 articles and 328 pages, including the protocols.

I have asserted in previous debates—and the Government have not rebutted it—that there are only two articles in the constitutional treaty which have not been transferred, in whole or in part, to the consolidated treaty text following Lisbon. I believe three articles have been added to the Lisbon text. The vast majority of these 35 differences—some 30 in all—are simply changes to the wording of articles which appear in both texts and the rest of the articles are the same. The issue for the House is to judge whether those differences are significant.

There was another breakthrough earlier this week when the counsel for the Government, defending their case in the High Court against Stuart Wheeler, made their case by saying, "Of these 35 differences, we would like to point to five which are particularly significant". So now we are getting very close to the chase. What were these five? It is important that I should read them out because they are quite interesting. The first was extending the opt-out on policing and criminal law. I agree there is an extension there. The second was additional warning powers for national parliaments on subsidiarity. Noble Lords can make their own judgment as to how significant that is. The third was the protocol on the Charter of Fundamental Rights, which a committee of this House has said makes no difference to the legal standing of the charter. The fourth difference was an express statement that national security is the responsibility of nation states. The fifth difference was the flexibility clause, Article 308 as was, that will now not apply to foreign policy. As the noble Lord, Lord Lamont, said earlier, if those are significant differences from the constitution, you wonder what the assurances we were given at the time of the constitution were worth. It is up to the House to decide whether those five significant areas we are now homing in on justify not having a referendum where the constitutional treaty required one.

None of these 35 textual changes affects any fundamental aspects of the constitutional treaty on which a referendum was promised. None of them deals with any of the extensions of competences; none of them deals with the extension of QMV; none of them deals with the collapse of the Third Pillar, other than in relation to the increased ability to opt in or out; and none of them deals with the increased powers of the president, the European Court and the European Parliament. So none of the fundamental aspects of the European constitution which led to the commitment to hold a referendum have been changed and the Government are down to using fine amendments to the drafting to escape from their commitment. It is, of course, a judgment that the House has to make, but I believe that both the first and second lines of defence collapse under scrutiny.

This leads one to conclude that the only reason the Government are making these arguments is to get themselves off the hook. It is therefore up to this House to stand up for the British people and to protect the promise that was made to them by all the main parties, including my own, that they would have a say and that this constitution would not be passed without their consent. The British people have not been asked that question and have not given their consent. I say to those on all sides of the House who support the direction of the European Union and believe that this is a good treaty, that if they allow the Government to get away with a short-term, expedient win on the referendum, it will only be at the expense of building up the scepticism of the British people and their resentment of the arrogance of those in power. They will have only themselves to blame for the scale of the backlash against the European Union and all those to do with it that will inevitably result.

Photo of Lord Tomlinson Lord Tomlinson Labour

My Lords, some rather intemperate accusations have been made, such as a "breach of trust with the British people". Let us examine exactly what happened. My right honourable friend Tony Blair made a promise on 20 April 2004 that I believe was fundamentally wrong, and I said so at the time in your Lordships' House. Nevertheless, that promise was made, but in the context of there being a constitutional treaty that would be a constitution for Europe. I say to the noble Lord, Lord Blackwell, that when he goes through the minutiae of comparing texts, he should bear in mind that there is a fundamental difference between something called a constitution, which is a constitution and has the role of a constitution, and an amending treaty to the existing one.

I will give evidence not only of my views but of views that other Governments have taken. For example, the Government of Denmark—much admired in some of our discussions in Committee and on Report by some of the Eurosceptics in this House—were committed to a referendum on the original constitutional treaty. Denmark was one of the member states that had clearly made that the case. In the discussion following the collapse and withdrawal of the constitutional treaty and then the negotiation of the amending treaty, the Danish Justice Ministry reported to the Danish Parliament on the reform treaty. Its view in its published legal analysis was that under the Danish constitution, if powers are transferred to an international organisation by a treaty, that treaty can be ratified only by referendum. It concluded, however, that:

"for Denmark, the Lisbon Treaty does not transfer new powers to the Union. On this basis, the Justice Ministry concludes"— and advised Parliament—

"that Denmark can ratify the Lisbon Treaty by normal procedure".

So the Danish Government, the Danish Parliament and the Danish people took exactly the same decision as we are being recommended to take in this country. It is a question not of a breach of trust but of a complete change of circumstances. As we heard in Committee—I do not propose to go through it in detail—that is not only the question for ourselves and Denmark; it is also the position in relation to the Netherlands, one of the two countries which, following its then constitutional obligation, had a referendum on the constitutional treaty, which was rejected by the people in that referendum. The Netherlands then referred the new amending treaty to Dutch constitutional experts. The Council of State, having examined the changes, reported that:

"Unlike the Treaty establishing a Constitution for Europe, it"— that is, the reform treaty—

"provides no arguments for a gradual expansion of the EU towards a more explicit state or federation".

On the basis of that, the council concluded that there was no need, and no constitutional obligation, to have a referendum.

We are in the company of good parliamentary systems and good systems of democratic control in those national parliaments—Denmark, much admired by Eurosceptics, and the Netherlands, a good and fundamentally democratic country—and we are following precisely principles and practice. The amendment is an exercise in mischief-making that should be rejected by the House.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative 4:30 pm, 11th June 2008

My Lords, I proceed with some hesitation and anxiety. It is not the first time in my career that I find myself speaking from the Back Benches out of line with the Front Bench, and it is something that I hesitate to do even on this occasion. I do so because I am above all concerned with what is likely to be the least damaging outcome of this long series of transactions for British interests in the long run and our position within the European Union.

I start from a premise which regards referenda as alien devices in our constitution. I would not have had a referendum in 1975—I shall come back to that later. Important decisions of this kind are to be taken by a democratically elected Parliament. We get into a bad habit if we go on down the referendum road. It is with only that question that I intend to deal.

I do so by looking at the dreadful warning of the 1975 referendum. I know that it came out with the right result for almost everyone at that time. That was a piece of luck and depended on a number of other much more fundamental factors. My fear is that a referendum on this issue under this Government at this time will produce an outcome which is disadvantageous to our country.

I draw two lessons in that respect from our experience in 1975. Nobody can doubt that the decision then being taken was of fundamental importance. Macmillan was the Prime Minister who made our first application to join the Community in 1961. He opened the debate in August 1961 by saying that it was,

"perhaps the most fateful and forward-looking policy decision in our peacetime history".

He was right about that. His successor, Edward Heath, when he came to open the debate on the White Paper in October 1971, said:

"I do not think that any Prime Minister has stood at this Box in time of peace and asked the House to take a positive decision of such importance as I am asking it to take tonight".—[Hansard, Commons, 28/10/71; col. 2202.].

Those were the views of two distinguished statesmen about the fundamental question of our accession to the European Community, as it then was.

Neither of them considered at that time that it was necessary to depart from our traditional democratic parliamentary method of deciding it. It was left to Parliament to decide. The first lesson that I draw is that it was not necessary, sought or argued that we should in relation to a decision of such importance of course proceed to the people. It was taken for granted by everyone that it should be taken by Parliament. We came to have the referendum in 1975 not because of any fundamental change in that issue but because of conflicts, tension and strife within the then Labour Government. That is the sharp difference. It was recognised until that happened that a referendum was not to be desired.

There are three reasons to be drawn from that for believing that it would be wrong to have one now. At least that referendum addressed beyond any doubt a single, intelligible, major, fundamental issue, and that was the issue that was presented to the electorate at that time. The electorate were not presented with a 1,000-page bundle of miscellaneous documents—despite my diligence over many years, I confess that I have not read them all; I am not a master of many of the details. However, I could have coped with the 1975 referendum question, which was:

"Do you think the UK should stay in the European Community (the Common Market)?".

That question is relatively simple to understand and hugely fundamental. If you are to have a referendum at all, that is the kind of question to put—not this extraordinary shambles that provokes such dissent and the debates that we are having.

Moreover, if the Government had failed to secure the affirmative resolution that they wanted from that referendum, that would have had serious implications, but only for the United Kingdom. We were asking ourselves what we should do; it did not matter one jot to the well established, existing Community members. On this occasion it is quite different, having seen the impact throughout the Community of votes that have gone the wrong way, whether in Denmark, France, the Netherlands or—where it may go the wrong way tomorrow—Ireland. It was a different, fundamental question—very simple, and with a referendum quite different from ours.

Even so, although it went the right way, having the referendum in 1975 damaged the interests of the United Kingdom. First, it eroded our credibility, standing and influence within the Community. Happily, I am able to say that restoring our credibility and effectiveness in the Community thereafter was undertaken overwhelmingly under the leadership of my noble friend Lady Thatcher, but that was repairing damage done even by a referendum that had been won. Even then, it had a damaging effect on us, because it also distracted from other business that the UK should have been addressing and had a divisive impact on the Government of that time.

Photo of Lord Gilbert Lord Gilbert Labour

My Lords, the noble and learned Lord keeps saying that certain referenda went the wrong way. Leaving aside the Stalinist echoes of that remark, I infer that to mean that they went the way that he disagreed with. He has said that if there is a referendum under this Government, the results will be disadvantageous for the United Kingdom. Would it be fair to infer from that that he thinks that the people, were they so trusted, would vote no?

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, I am not going to become a prophet, but it is going to be doubly difficult to have confidence in the decision that the people might return at such a referendum. I do not disguise my own belief that we ought to retain our position as an increasingly effective member of the European Union. Moreover, I am glad that that is the objective of all the political parties represented in this House, except UKIP. I am delighted, for example, that my own party, through its leader and its spokesman on foreign affairs, has left nobody in any doubt that we intend to and must remain within the European Community, or European Union as it is now.

I have not dealt with the mistrust argument, although I recognise its power. I just do not believe that we should go through a referendum procedure to remedy the betrayal at which people are entitled to point. That is not right. It is not right to use this House to correct the misdeeds of the democratic Chamber, nor, in this respect, to correct the misdeeds of the Government themselves. I put that on one side, but with great regret.

Photo of Lord Elton Lord Elton Conservative

My Lords, if we are not here to correct the errors of the democratically elected Chamber, what are we here for?

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, perhaps not all my arguments are as sound as each other. There may not be much strength in that argument, but I feel some unease about this allegedly disreputable, non-elected crowd daring to intervene in the betrayal of the election by the electees. That, however, may be too sophisticated an argument.

On the referendum, I am not predicting the answer because I do not like it. I made it clear that we definitely need to be in the Union, playing an effective role. I am prepared that that should happen on the basis of the treaty of Lisbon, which is neither in my judgment necessary nor ideal as a treaty in that form. Yet it is there, and a rejection of it now by this country would lead to a shambolic situation about our status in the Union thereafter.

One of the matters that one can take account of is very simple. It is quite possible that if this treaty were put to a referendum unsullied, on the strength of its own merits, it might be endorsed on any view of it. But if it is to be put before the electorate by a Government who have already discredited themselves by their initial betrayal and are, above all, in the pit of dismissal, derision and abuse, I can hardly see the case being presented successfully by a Prime Minister who is at a record low point with the electorate. It would be an unnecessary referendum being presented by unattractive advocates in circumstances that are not good.

We should stand by our long-standing procedures, as did Ted Heath, Harold Macmillan and the party that took the fundamental decision to take us into the European Union. We should have the courage to say, "I'm sorry, people, but this is something for which our parliamentary democracy is in the last resort the right tribunal to make this decision"—and proceed on that basis. It may not be the most popular thing to advocate in the House, but I think that it is the right thing to do.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I am conscious that the noble Lord, Lord Bruce-Lockhart, wanted to get in earlier, but it is actually the turn of the Cross Benches. I am in the House's hands as to how noble Lords want to do this, but I know that he would like to speak early, for his own reasons. If the noble Lord, Lord Owen, would allow it, that would be fine.

Photo of Lord Bruce-Lockhart Lord Bruce-Lockhart Conservative

My Lords, thank you very much. I apologise to the House for having been unable to take part in the debate earlier. I apologise in particular because it is such an immensely important debate.

On the referendum and the manifesto commitment, I agree with the noble Lord, Lord Ramsbotham. It is an issue of trust, but also simply of honourable government. You cannot make a major manifesto commitment, as it was in the eyes of the public, and then act almost with contempt in not honouring it. Manifesto commitments of such importance must be honoured, and the issue of trust and democracy is tremendously important.

The Government's main argument on the manifesto commitment is that the changes to the treaty are not significant. That is not a strong argument. I and many others in this House would say that there are significant changes but, as the noble Lord, Lord Howell, pointed out, there are also the changes that have been set out and acknowledged by other European state leaders as significant. They have been entirely clear about that. Therefore, the main argument is defused. Even if it were not, it is set aside by the simple issue of honouring a manifesto commitment.

I want briefly to say something about my own experience of Europe in general. Unlike, I suspect, many in this House and across the country, I was brought up, until the age of 10 or 11, entirely in France—in Paris—Germany and Austria. I was brought up in a family which read Goethe in German, and played and sang Schubert in the evenings. They may today be described as Europhiles. They had a great regard for European culture, but that has nothing to do with desiring a political union across Europe. Secondly, in the 1975 referendum, I, like many people here, voted to stay in, but what I voted for was not a European Union but an EEC, as it was described. I voted for a European Economic Community and nothing more.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

My Lords, I am grateful to the noble Lord for giving way, but this is—to go back to his French lessons—a canard. It has been repeated, but it is wrong. The 1971 White Paper set out the programme of ever closer union and all the rest of it. That was certainly set before the British people.

Photo of Lord Bruce-Lockhart Lord Bruce-Lockhart Conservative 4:45 pm, 11th June 2008

My Lords, the vast number of people I speak to all say exactly the same thing: they voted for a European Economic Community. Since then, there has been huge change. Little by little, stealth by stealth, we have given away sovereign powers over many areas, including judicial, legal and environmental matters, fishing, employment, human rights and business. Sovereign powers have been given away, which we never thought would happen in 1972.

Then came my experience of working in Europe. In 1998 I was asked to take on the rather ridiculously Gilbert and Sullivan-style title of president of the Trans-Manche region. This was a grandly titled, artificially devised region between Kent, where I was involved, Nord-Pas-de-Calais in France, Flanders and Wallonia. I thought that this would be a good thing to do. It would encourage transport, business and tourism links with European countries. I brushed up on my French and went into it with great enthusiasm, but I found, after a few months, that the system added absolutely nothing. My local government officers said that it was like wading in treacle. Our experience, having started with huge enthusiasm, changed to one of feeling that there was simply nothing to be got out of this. The bureaucracy and endless meetings with commissioners were simply not producing anything. After one year my time was up, and the following year we pulled out because we felt that, despite trying immensely hard and starting off with immense enthusiasm, we simply could not achieve anything.

Finally, I have already spoken of the sovereign powers that we have given away. I feel immensely strongly that we have given away more sovereign powers in the few years between 1999 and 2008. With regard to the treaty and the manifesto, even if we give away only insignificant powers, those are not acceptable. The whole premise of the Government is that we are not giving anything away. That cannot be true because we have been asked to give away having a president of Europe and there are other examples. To say that we are giving nothing away and therefore do not need a referendum simply cannot be right. Therefore, I fully support the amendment.

Photo of Lord Owen Lord Owen Crossbench

My Lords, I rise to support a referendum and to concentrate some of my remarks on those made by the noble and learned Lord, Lord Howe, and in particular his assertion that a referendum is an alien concept. I am afraid that history is important to this issue. In March 1972, the other place was faced with an amendment for a referendum before we could accede to the treaty to join the European Community. There was considerable debate. On 15 March, the Labour Party leadership came out against a referendum. On 16 March, President Pompidou declared that there would be a referendum in France on the question of enlargement from six to nine and taking in the United Kingdom. On 24 March, the then Prime Minister, Edward Heath, announced that there would be a periodic referendum in Northern Ireland to decide the question of whether Northern Ireland would ever join with the Republic. On 29 March, the Labour Party's leadership decided that there would be a referendum and that they would vote for the amendment. That amendment was not carried, but the Labour Party, in its manifesto for the 1974 election, made a commitment to a referendum and faithfully carried that out and legislated for it. It may have been reluctantly, but the noble and learned Lord supported that referendum and, I might add, he was a member of the Government in 1972 when the pledge for the Irish referendum was made. Indeed, he was a distinguished legal adviser of that Government.

We then persisted to a situation where the Labour Party in opposition decided that it would come out from the European Community without even a referendum. I diametrically differ from the noble and learned Lord in his view that that 1975 referendum was irrelevant and damaging. In my view, it was the central issue that meant that when the Labour Party went to the country on that manifesto in 1983, it was rejected. Having been given the chance to decide whether to stay in or stay out, the British people wished to retain that choice. It was a fundamentally stabilising and welcome factor in changing the mind of the Labour Party to become, as it is today in Government, an enthusiastic supporter of the European Union. It also laid the foundation for a broad consensus on European Union membership which still lasts across the parties, for all the divisions, today. History will show that Harold Wilson showed a lot more courage than he was given credit for in 1972—more courage than I was ready to give him credit for in 1972, when I voted for Britain's membership.

It goes on longer than that. This is not an alien concept. We have had three general elections—in 1997, 2001 and 2005—in which all three parties committed themselves to a referendum on the question of whether we should join the euro-zone. My views are well known in the House. I have campaigned against that on economic and political grounds but fundamentally on economic grounds. As we now face the downturn in the world economy and the problems of adjustment for the UK economy there must be pretty few people in this House who are not glad that we have the compensating measure of being able to devalue and are not held in a fixed exchange rate.

It goes further than that. The noble Lord said that he had disagreed with the decision of the then Prime Minister, Tony Blair, to have a referendum when he announced it in 2004. That is not really the important decision. Of course he was Prime Minister but he went on to compound that judgment by putting it in his manifesto in the 2005 election. So did the other two parties; all three parties fought that election on a referendum. This is, with respect to the noble Lord, not an alien concept. He may fundamentally disagree with it and there may be many people in this House who believe that this is a parliamentary democracy and they do not wish to see referendums. Yet that commitment in Northern Ireland has been a positive one. I have profound doubts whether we would have been able to have the successful negotiations that started under the noble Baroness, Lady Thatcher, as Prime Minister and went on through her successor John Major and then on with Tony Blair. Those who feared that they would be forced against their will by a government who were not prepared to listen to them found solace and satisfaction in that there would have to be a referendum.

As people have become more alienated for many complex reasons from what I call representative government, the sort of democracy which I support, from time to time it is necessary to accept that there are some issues which split parties and families and are easier and better dealt with by a referendum. Having defended the constitutional place of referendums—not frequently, I do not want to become a plebiscitary democracy—I want to retain the concept that a government are elected on a manifesto which they broadly speaking maintain for a four-year or five-year term and are judged overall during that period when they come back to the electorate. However, from time to time, and particularly when they promise in an election to have a referendum, that new way of democratic expression should be maintained, honoured and not spurned or despised.

On the present referendum, it is extraordinary that we should be debating this in the House when tomorrow the Republic of Ireland will be holding a referendum. Two days ago the Financial Times wrote an editorial. There is a letter in today's Financial Times from which, in that to some extent the Irish now hold this issue in their hands, it might be worth reading just a few lines:

"On what basis do you"— the Financial Times

"assert that putting the Lisbon treaty to a plebiscite is absurd? Surely the great strength of the European project is maintaining and enhancing peace while promoting a common prosperity in a democratic way. If so, let us ensure that the emerging entity is grounded in Pericles' observation: 'Although only a few may originate a policy, we are all able to judge it'".

That Irish correspondent goes on to say something else. He does not go to the classics, he invokes another wise statement:

"As citizens in a republic governed by a written constitution, we have voted frequently on proposals to manage the world's largest trading bloc".

He means the European Union.

"The only absurdity in this referendum is that those who drafted the Lisbon treaty ignored Jonathan Swift's observation: 'Providence never intended to make the management of public affairs a mystery to be comprehended by a few persons of sublime genius'".

When we decide in an election, the vast majority of the public have not the slightest idea of our various manifestos, commitments and the detail of the legislation. They make a broad assumption, a broad judgment, about who is competent, who they trust, and whether they need an alternation of power to ensure the best aspect of democracy—that power changes at fairly frequent intervals.

The key question today is this: no one denies that they were promised a referendum; the defence is that this treaty is different. I personally think that it is different and I can point to different elements, subsections and clauses with which I agree. But in view of the fact that there has been a manifesto commitment, our judgments are not anywhere near as important as those of the people. Opinion poll after opinion poll shows that the majority of the people of this country do not see any fundamental difference between the constitution and the treaty. The people also tell us something else, which is profound. They want to be able to express their views on this.

I do not know what will happen in Ireland tomorrow. Just as the Dutch and the French people held the destiny of the European Union in their hands and voted "no", on—whatever may be said and wherever you sit—a treaty which was great deal better than that put forward by Giscard d'Estaing, which the then Prime Minister said he would have supported, it is much easier to look at this treaty. Nevertheless, the people think that this is still an issue on which they should have the last word.

I would go further if the Irish were to vote for this treaty and if Britain were to be alone in making a decision. I must say something that will probably annoy and surprise quite a number of people. For many of the reasons that were made clear by the noble and learned Lord, Lord Howe, I still think that it is in Britain's interests to play a full and constructive role. Despite my anger that the Government have not taken the opportunity to put in some of the parliamentary brakes that have been discussed on restricting the competence of the European Court of Justice to do exactly what is in the treaty and try to narrow down the interpretation of the treaty in the law courts of this country, and despite my belief that there will come a time when the new Supreme Court will be given the powers that the German people have retained in their constitutional court—we will create something similar in this country and the sooner, the better—I would campaign for the treaty, because I do not want us to be put on the margins of Europe. That is a personal decision. It would be one vote in a referendum. It might not win it or it might.

It is defeatism for those who support this treaty to say that they cannot win a referendum. If you are democrats, you should have the courage of your convictions and go out and win it. I, for one, would support it in those circumstances.

Photo of Lord Brittan of Spennithorne Lord Brittan of Spennithorne Conservative 5:00 pm, 11th June 2008

My Lords, I, like my noble and learned friend Lord Howe, greatly regret that this is a rare occasion when I differ from my Front Bench. I would add to what my noble friend has said; like him I have been a Minister in a Conservative Government and had the honour to serve under my noble friend Lady Thatcher. There was many an occasion on which I relied on the support and loyalty of my Back-Benchers, even if they were not altogether sure that they agreed with me. There were some occasions when that loyalty was strained too far, but I respected and admired that. It is not likely that I differ from the Front Bench on this issue, but one has to retain one's independent judgment and this is a matter of sufficient importance that I feel obliged to do that.

I object to referenda on fundamental constitutional grounds. I disagree with what the noble Lord, Lord Owen, has said, both on constitutional theory and on the history. I want to say a word about both. I am a believer in parliamentary government and in parliamentary democracy and it is for exactly those reasons that I was very sympathetic to the amendment put forward by my noble friend Lord Goodlad, which would have required Parliament to approve any change in the opt-in, opt-out situation. I really believe that and I think that the consequence of going for referenda is to debase and to weaken the long tradition of parliamentary democracy which is so important for this country.

It is all very well for the noble Lord, Lord Owen, to say that he is not a believer in plebiscitary democracy and that he does not want referenda to be held that often, but, on this occasion, he tells us, the people would like one. The truth is that, for every public opinion poll that has ever been taken on any issue, however minor, if you were to ask the people whether they would like a vote, the answer would always be yes. What does one expect people to say? That is no foundation for a fundamental change to our constitution, even if it were to be comparatively infrequent.

If referenda are to be held, they should be held only in the rarest circumstances, when really major constitutional decisions are taken, involving a substantial transfer of sovereignty. Having heard and followed the debates as closely as I could, and having read the treaty, I cannot bring myself to say that it involves a substantial transfer of sovereignty. Compared with the Maastricht treaty, the Nice treaty and all the other treaties that have been put through, this is important and necessary but comparatively piddling. It is piddling in constitutional terms and necessary and important in political terms. It is necessary and important in political terms because it makes the necessary changes to accommodate the enlargement of the European Union, for which all parties in this House argued strongly and for which we had to fight to get. It is necessary and important because it provides greater possibility of Europe speaking with one voice on important matters, such as foreign affairs, energy, climate change and so on. It is in our interests that Europe should speak with one voice, but it is also important to remember that in constitutional terms it is piddling in the sense that it is not a substantial transfer of sovereignty.

Take, for example, one of the most important aspects of the treaty, which has been the subject of much debate: the creation of a more permanent president of the European Union. That is desirable because it makes it more probable that there will be continuity, enabling a common view to be built up. However, the really important thing is that that president has no more power than the existing transient six-monthly president of the European Union. He is not given any more power at all. It is merely the creation of an institution which we hope, with reason, will lead to agreement being reached, but if agreement is not reached, unanimity will still be required. That is just one example and I shall not bore the House by giving many examples of why this is not a substantial transfer of sovereignty.

Then we come to the historical argument that there has been some sort of change in the convention. Of course, the concept of having a referendum is not new in this country and of course, people have wanted them and argued for them, usually, although not always, for opportunistic reasons, but the fact is that apart from the very special case of local referenda, in Ireland, Scotland and Wales, there has not been a single national referendum since 1975. My reading of the history is slightly less benign than that of the noble Lord, Lord Owen. A referendum was introduced because the Labour Party was bitterly divided and the only way to maintain the Government in power was to have a referendum on whether to stay in.

Photo of Lord Brittan of Spennithorne Lord Brittan of Spennithorne Conservative

My Lords, if my noble friend allows me to finish the point, I shall certainly give way. That is something that we would do and Ministers would be able to vote in different ways, as they did. The noble Lord said that that introduced stability—hardly stability when, not many years after that, the Labour Party went into an election asking to pull out of a European Union, membership of which had been approved by the very referendum that was introduced by a Labour Prime Minister.

Photo of Lord Elton Lord Elton Conservative

My Lords, can my noble friend not see what he is doing? What the public outside the House see is a former Commissioner arguing a case which he thinks does not have to be put to the public, probably because the public will not understand it. That is so arrogant and so offensive to the electorate that it is not a profitable thing to say in the House.

Photo of Lord Brittan of Spennithorne Lord Brittan of Spennithorne Conservative

My Lords, the personal imputation, laid by somebody who has previously been my noble friend, is beneath contempt. I deeply resent it. I am saying what I say and talking about the history of this matter and the constitution because I believe that this is in the interests of this country. I was explaining why I think that the constitutional system of this country—parliamentary government—is something that we should all treasure.

Photo of Lord Brittan of Spennithorne Lord Brittan of Spennithorne Conservative

My Lords, I am not going to give way again. I have given way once and I have dealt with the point, for what it was worth.

As far as the history of the matter is concerned, as I said, I do not believe in the rosy view of history presented by the noble Lord, Lord Owen. The fact of the matter is that this system—the holding of referenda—has not entered the constitution. People have argued for it, but it has not actually happened. For the reasons that I have given and out of my respect for parliamentary government, it should not happen.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I am very much obliged to my noble friend. May I ask a very simple question? I hope that he will not be angry with me. How will we accommodate the distress of the people, who have, frankly, had a promise reneged upon, which they understand in a way that my noble friend does not? How will they be dealt with, other than by a referendum unless and until the next general election? In the mean time, is there any other way?

Photo of Lord Brittan of Spennithorne Lord Brittan of Spennithorne Conservative

My Lords, I assure my noble friend that the last thing in the world I wanted to do was to express anger towards him or arouse anger in him. He made a fair point. Of course, what the popular opinion is on this is relevant and important, but it is not decisive. Whether this treaty is different from the last one is arguable and has been argued and I do not propose to take the time of the House on it.

Although I do not pound the streets of Richmond, as I used to when I was its Member of Parliament, all the evidence, whether in Richmond or elsewhere, suggests that although much is written about this in the press, it is not an issue about which the public feel very strongly; it is an issue about which the media feel strongly.

There is a point to be made about the promises made by the parties. As I have said, I will not try to parse the treaty or say whether it is different from the previous one. The fact that political parties—rightly or wrongly; in my view wrongly—promised a referendum on the previous treaty should be decisive for the House in deciding whether or not to require a referendum to be introduced. We have to exercise our personal judgment and make a personal decision about whether it is in the interests of this country, in terms of the evolution of the constitution of this country—whether we want to have more referenda—and in terms of the impact of what we are doing on Europe.

No reference has been made to the Salisbury convention in this debate, although it was discussed in previous debates. The Salisbury convention was a prudent, self-denying ordinance of the House not to use its legal power to frustrate the will clearly expressed by an incoming Government in their manifesto. It is quite a different matter for this House to say that it has the right not just to refrain from stopping a Government implementing their promises, but to force a Government to implement their promises. Whatever the considerable merits of your Lordships' House, which we all agree about, it is not an elected body, and it is peculiarly inappropriate to say, "Not only should the Government keep their promise but we, of all people, are insisting that they do so by a particular form of populous democracy—that is, a referendum". There is something faintly ironic, and beyond, in this House arrogating to itself the intention or the right to do that. It is for those reasons that I cannot go along with the proposal that there should be a referendum.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, for obvious reasons, I am not trying to work out exactly whose turn it is to speak, but the Liberal Democrats have not had a speaker for a long time. So after the most reverend Primate the Archbishop of York has spoken it will be their turn. But we will make sure that all noble Lords get in, so please do not worry.

Photo of The Archbishop of York The Archbishop of York Bishop

My Lords, I listened to the noble Lord, Lord Ramsbotham, and was persuaded by his argument on trust and how the three parties put in their manifestos that there will be a referendum. But what was that referendum about? It was about a constitution and if you want to persuade me that the treaty is the same as a constitution you have to do better than simply say, "The element of trust is important".

Of course trust is important. As a man of the cloth, I believe in trust; I believe in honesty and fairness. But let us put that trust in a context which is actually important, otherwise we are going to behave like that true story of an American warship that was found in Newfoundland, giving out a signal saying, "Turn round, turn left, turn right". It saw these big lights as it was moving forward. The message came back, "You turn left". It was thought that it had destroyers on board and it went on and on. Then finally, someone said, "We can't turn, we are a lighthouse". You cannot simply go forward because you have the intention of being something—it is a question of content, context and reality.

When I read manifestos I see that they are simply an expression of intention. That intention for them to be carried out often requires Acts of Parliament. The Government must be frustrated by their own manifesto because Parliament has said "No". Because we are living in a democratic institution which allows Parliament to be the high court of the land, it means that whatever intention anybody had, they are subject to its particular parliamentary democracy. I believe that parliamentary democracy is the answer. If you ask anybody if they want to vote on any subject, and we see this quite a lot in the Church of England, they do. But does that mean that that is always the right question?

These manifesto commitments are subject to Parliament. The rule of this House is to revise legislation from the other place and improve on it. Would the six amendments improve the treaty? Would they improve the legislation which has come from the other place? I do not hear that. What I am hearing is, "Delay it. Let's go to the public". That is not the way to improve legislation or revise it in this Chamber. The role of this House as a revising Chamber is going to be in a far worse position by simply saying, "We are going to delay it because we want a referendum and because, by the way, all three parties had that in their manifestos". The good thing is, as the law is passed, it always talks about the,

"advice and consent of the Lords Spiritual and Temporal, and Commons", whereas the Lords Spiritual do not have it in their manifesto. I do not have to have to go for a referendum. I do not have to be persuaded because it was never in our House. But I need better arguments.

I came to this country, running away from Amin's troubles, in 1974. We had not been able to vote there for a long time. I came to this country because I was from the new Commonwealth and I was able to vote in all kinds of elections. The first election in which I took part was in a referendum in 1975. I read about, and understood, what I was being asked to vote on, and I voted "Yes". The problem is that if there is a referendum now, being one of the Lords Spiritual in this House, I no longer have a vote, so I ask not to be deprived of what I had lost in Uganda.

Finally, if you ask whether the Queen will still be supreme in Parliament under the new treaty, will the answer be yes?

Noble Lords:

Yes.

Photo of The Archbishop of York The Archbishop of York Bishop

My Lords, will this Parliament still be the highest court in the land?

Noble Lords:

Yes.

Photo of The Archbishop of York The Archbishop of York Bishop

My Lords, will foreign policy, defence policy and law and order still be governed by this country?

Noble Lords:

Yes.

Photo of The Archbishop of York The Archbishop of York Bishop

Then why, my Lords, are we making this fuss?

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Ministry of Justice, Scotland, Scottish and Northern Ireland Affairs

My Lords, the challenge is to follow that. I heard the noble Lord, Lord Owen, describe a part of Britain's constitutional history, on which I remember being closely associated with him. I remember standing shoulder to shoulder with him on most of the issues that were discussed at the beginning of this country's membership of the European Union in the 1970s, but I part company with him today on its precise relevance to the issue before us.

The question of whether Britain should join the European Community, as it then was, was of immense importance. Even if one took the view, as I did, that in a parliamentary representative democracy referenda are not ideal because they tend to lead, despite the disavowal of the noble Lord, to a plebiscitary notion of how we should govern ourselves, it was arguable then that this was an issue that should be decided by the public.

By any objective test, the Lisbon treaty is a very different matter for this country. Having served, along with the noble Lords, Lord Tomlinson and Lord Kerr of Kinlochard, on the convention that drafted the constitutional treaty, I am bound to say that in my judgment, even if the constitutional treaty had been adopted, it is arguable whether it would have been sensible to have a referendum. I know the political arguments—I heard them in my own party—as to why we should have one. Once again, it was arguable that this treaty, drafted and signed by 27 members, which purported to establish a framework that would in some sense be final and a framework for further jurisdiction by the European Court of Justice, was of such emblematic importance that it was necessary or appropriate to have a referendum. In the case of the treaty of Lisbon, which is just one of a series of amending treaties, I cannot understand why the Conservative Party in opposition finds it necessary to argue that it should be treated any differently from those that it was responsible for negotiating in connection with the Single European Act.

Photo of Baroness Quin Baroness Quin Labour

My Lords, I am grateful to the noble Lord for giving way. In order to reinforce his point, I refer to the example of the Netherlands that was quoted earlier. The Dutch people are, I believe, as deeply attached to democracy as we are in this country and yet there seems to be little clamour in the Netherlands for a referendum on this treaty. Is it not the fact that the Netherlands has largely accepted the advice of the independent Council of State that the two treaties are very different?

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Ministry of Justice, Scotland, Scottish and Northern Ireland Affairs

My Lords, I accept that entirely and I was coming to that point. I take the view that the treaty of Maastricht had a much greater effect on the governance of this country, as did the Single European Act, over which the noble Baroness, Lady Thatcher, presided and which was also of much greater significance in terms of the transfer of sovereignty. It is an absolute travesty to talk about the transference of sovereignty in the Lisbon treaty. The mere repetition of this by the rag press in this country should not disguise from sophisticated Members of this House the reality of the limitations of the Lisbon treaty.

Photo of Lord Vinson Lord Vinson Conservative

My Lords, I am grateful to the noble Lord for giving way. As a member of his party mentioned my name earlier, I would like to make a small intervention about the lack of sovereignty and about our current relationships with Europe. The Lisbon treaty is special because it is the final salami slice of a transfer of yet another great whack of our ability to govern ourselves. I would like to come back to that later but this is the point that the noble Lord is missing in his peroration.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I am sorry, I always seem to be doing this to the noble Lord, but interventions need to be questions at this stage in our deliberations.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Ministry of Justice, Scotland, Scottish and Northern Ireland Affairs

My Lords, the Lisbon treaty is of such a different order of magnitude that many of the countries that were committed to holding referenda on the constitutional treaty decided not to go down that route and to use their more normal constitutional provisions. To me that is almost as significant as the differences between the substance of the constitutional treaty and the terms of the Lisbon treaty, which the noble Lord, Lord Blackwell, enumerated in some detail. The only sense in which I disagreed with him was in his evaluation of the importance of these differences. I believe that they are profoundly different in that they modify the extent to which this country will be driven forward by decisions within the European Union in the areas where we have an opt-out.

The most powerful question for this House was put very succinctly and clearly by the noble Lord, Lord Ramsbotham, as is not entirely surprising for those of us who have come to know and admire him. He raised the issue of trust which is core to this debate. But I would put it to him and to other noble Lords that the British public has a right to expect of this Parliament that it will use its judgment in the circumstances of the day to decide whether a course of action advocated and promised at an earlier date is relevant and in the interests of the country.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Ministry of Justice, Scotland, Scottish and Northern Ireland Affairs

No, my Lords, I wish to finish this point. Those who are treating this as a matter which could be easily decided by the public one way or the other are overlooking how this action is perceived in other European countries today. There is, for the European Union as for this country, a growing danger of marginalising ourselves in the debates of the Union, and there is a growing danger that as the world becomes more fragile, more vociferous and less mindful of what lead to the setting up of the Union, through our navel gazing we will cease to play the part we ought to play—the influential role. When we take actions of the kind being proposed here, in the circumstances of the day, when so much has changed in the European Union and the treaty over the past two or three years, it is a kind of self-indulgence and an abnegation of our responsibility to use our judgment about what is appropriate in fulfilling our role as Members of this Parliament.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 5:30 pm, 11th June 2008

My Lords, I am the last of the four who put their names to the amendment to speak, so perhaps the noble Lord will give way. I shall not be very long.

The questions I want to ask are simple: was a promise made to the electorate; is the promise still applicable; and should it be honoured? Everyone is agreed that there is no doubt that all three parties made manifesto commitments, and certainly the Labour Party made a commitment to put the constitutional treaty to the electorate by way of a referendum. That takes one on to the second question: is it still applicable? The only reason I have heard for it not being applicable is that we are now looking at a different creature from that considered by the Constitution Committee. I have this to say to noble Lords: I served on that committee under the chairmanship of the noble Lord, Lord Grenfell, when we were looking at the constitutional treaty. Today I looked back at the report published at the time, the 41st report of the committee in 2003-04, where we reported on the convention's draft constitutional treaty on the future of Europe.

In passage after passage of that report there are references to the proposals we are now considering under the current Bill and have been talking about for weeks. I put it to noble Lords that what we now have in the Lisbon treaty is a repackaging of what was in the constitutional treaty with some changes and some add-ons. To me that makes not the slightest difference if at the heart of it is the old constitutional treaty—it is all there. I do not think that Mr Blair or Mr Brown promised that there would not be a comma added, a change made, or even the 35 changes referred to by the noble Lord, Lord Blackwell. We have the essence of it here, and lawyers are perfectly capable of looking at it to see whether the essence remains. We have been doing that in tax avoidance schemes for years.

I was told that if I looked at the report of the Dutch Council of State, I would be impressed by it. Indeed, my noble friend Lord Hannay is an enthusiast. With great respect to the Council of State, I have to say it deploys arguments of a character which carry absolutely no conviction with myself or, I should have thought, with many lawyers. On page 11, the report states that the Charter of Fundamental Rights is no longer within the treaty, as it was in the constitution. However, Article 6 tells us that it is to have exactly the same standing as if it were included; the point is of treaty quality. To me, it does not make a fig of difference whether it has been moved out and does not form part of a pillar. The council goes on to say that the second element to be used in assessing the proposed reform treaty is the division of competences, while the next sentence states that the division will not be substantially affected by the proposed reform treaty. It then points out that there are differences, but that the substance is not changed.

When we come to the symbols, the name of the treaty establishing a constitution reflected a particular vision of European co-operation. The existing treaties were to be repealed and replaced by a treaty which is a single, binding constitutional document embracing the entire constitutional order, and was unprecedented in the Union's political history. But what if those same provisions are just scattered like peppercorns by way of amendments over the existing treaties? It is all there, but the fact is that it is not labelled as a constitutional treaty. It goes on to point out that the state symbols have been removed: that there is nothing about an anthem and there is nothing about a flag. But the anthem still plays and the flags still fly in front of every hotel. There is an omission, it states: it is no longer said that EU law is supreme. But there is a declaration to that effect; no one doubts that that has been the case law for many years.

After all that, it states that the significance of these changes should not be underestimated. I suggest that the changes are of no material importance and that what we have is the old Lisbon treaty. The two treaties are recognisably the same—they are not identical of course—and a promise has been made; that promise ought now to be fulfilled.

In his maiden speech at Second Reading, which impressed me very much at the time, the right reverend Prelate the Bishop of Chichester reminded the House of a figure known to me in my youth—not personally but I knew of his reputation—George Bell, the Bishop of Chichester. He was a figure of towering moral strength but I shall mention only one or two of his achievements. In the 1930s he rescued, or did his best to rescue, churchmen who were being tyrannised by Hitler; he moved on to help Jews to escape; he was the first churchman to go to the Isle of Man to see that remarkable array of scholars, engineers, lawyers and so on who were arrested overnight and whisked off there. His courage was such that he stood in the then House of Lords—not this building because it had been blitzed—in wartime and said that the policy of obliterating Berlin was immoral and that there was no justification for pursuing it. For me, he is a towering moral figure and I cannot help asking myself how he would regard a Government failing to carry out a manifesto pledge of this character.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords, perhaps I can come back to the fundamental case put by the noble Lord, Lord Howell of Guildford, in moving the amendment. As I understand it, his case is based not on whether referendums are good or bad, not on whether this treaty is good or bad and not on whether the Opposition, when they were in Government, had a referendum on the treaty for which they were responsible. His is a very straightforward point: he claims that the Government promised a referendum on this treaty at the time of the last election and that, in all conscience, therefore, the Government should hold the referendum now. That, as I understand it, is his fundamental case.

My fundamental case is very straightforward too: it is that this treaty is not the constitutional treaty upon which a referendum was promised. At the time of the defining of the mandate for the new treaty at the intergovernmental conference, all 27 heads of Government agreed that:

"The constitutional concept, which consisted in repealing all existing Treaties and replacing them with a single text called 'Constitution', is abandoned".

That was not a statement of Her Majesty's Government; it was a statement by the heads of all the Governments at the IGC.

The old former constitutional treaty would have been legally unprecedented. I have heard no one challenge that point. The abandoned treaty would have legally abolished the European Community and the European Union and would have refounded the European Union under a single constitutional order. The EU, in legal terms, would have become a new entity based on a single new founding treaty. The constitutional treaty, had it been passed, would have abolished all the previous treaties that we have discussed in your Lordships' House. The Single European Act, the Maastricht treaty, Nice and Amsterdam would all have been replaced by a single treaty.

Photo of Lord Blackwell Lord Blackwell Conservative

My Lords, the noble Baroness says that no one challenges that. I put it to her that all of us who have spoken so far in favour of the referendum have challenged her point. If treaties that contained exactly the same clauses were to be replaced by one constitutional treaty, why is the legal effect any different if the treaty clauses here are exactly the same? It is a nonsensical argument.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords that is not the point I am making. I am not arguing that there are not similarities; of course there are. No one is arguing that point. The point is that, constitutionally, what the old treaty would have done was legally unprecedented. That was my sole point. I have not heard that argument put, and I am sure that the noble Lord and his friends would have put it very forcefully. Mine is a different point from the one that I have heard the noble Lord put.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords, I have answered that point and I would like to get on.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I have a different point. It is serious; I am genuinely seeking information from the noble Baroness. Is the constitutional treaty that she is describing, which is so different, the same document that her colleague in Government, Mr Peter Hain, described as a simple tidying-up exercise? Can she not see that the Government have got form on this and have lost trust? That is why the referendum is so important.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

Again, my Lords, the noble Lord is sidestepping the point I am making. I am not talking about what the right honourable Peter Hain may have said; I am making my point about whether or not the old constitutional treaty was legally unprecedented. I believe it was. The legal authorities say that it was. What Mr Hain may or may not have said in this respect, interesting as it may be politically and a jolly good way of making a bit of a political point, is not relevant here. If we really are having a serious debate, which the noble Lord says he wants, let us do so without the political point-scoring.

I return to my point, not the points made in another place. The abandoned treaty was legally and constitutionally unprecedented. All the previous treaties that we have seen amended their predecessor treaties. The constitutional treaty, had it survived, would not have amended them but would have abolished them, and it would have introduced a single written constitutional treaty for the European Union. The Lisbon treaty, by contrast, follows the pattern of previous treaties in constitutional terms. It amends existing treaties. In effect, it does constitutionally what the Single European Act, Maastricht, the Nice treaty and the Amsterdam treaty did: it makes amendments to its predecessors. The previous treaties neither repealed nor replaced their predecessor treaties. The old constitutional treaty would have done that, and this one does not. That is the fundamental case I am putting.

Photo of Baroness Deech Baroness Deech Crossbench

My Lords, perhaps I may raise a point about the constitution. We in this country, unlike the rest of Europe, have no definition of a "constitution". The constitution of this country is not contained in one document.

Noble Lords:

Order!

Photo of Baroness Deech Baroness Deech Crossbench

Does the noble Baroness not agree that this is simply a red herring?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I want to make the same point as before; I will be completely consistent. At this stage noble Lords may intervene to ask a question, not to make a point. If the noble Baroness wishes to ask a question, that is great. If not, the point could be made if the noble Baroness wished to make a contribution.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords, at the end of the noble Baroness's intervention she asked whether my point was a red herring. Let me answer that if it is going to get the House excited. No, it is not, for precisely the reason that she stated. If we had had the old constitutional treaty, we as a country would have been signing up to a constitutional position that would have been unprecedented for us. We have not had that sort of element in our constitutional make-up before. I thank the noble Baroness for making the point so very well on my behalf.

That is the fundamental difference between the constitutional treaty and this treaty. In fact, if the Opposition were to win this argument—I do not believe that they will; I certainly do not believe that they ought to—the country would then have a referendum on something constitutionally different from the undertaking to have a referendum on the old constitutional treaty. That would have been a referendum on a treaty which would have been the totality of the existing provisions of European Union treaties for the past 50 years, which have made up so much of our constitutional position in Europe. A referendum on the Lisbon treaty, however, would be a referendum only on this single amending Act. It would be an Act of no more importance than its four immediate predecessors. That would be a very different proposition from that of a referendum on the old constitutional treaty, and that is why no promise has been broken.

The 27 Heads of Government knew what they doing at the IGC when they decided that mandate for the Lisbon treaty, when they decided that the constitutional concept of a single text called a constitution is abandoned—everybody agrees that that is the case. They recognised the clear difference between the proposition in the old constitutional treaty and that in the Lisbon treaty in terms of their constitutional impact. So should this House and so should the Opposition. It really is time for them to abandon their argument, which, however hard they try, they simply cannot stand up.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative 5:45 pm, 11th June 2008

My Lords, it is this side now. We have heard from the Cross-Benches. The noble Lord, Lord Neill, spoke previously.

I shall be brief. I want in part to answer the point made by the noble Baroness, Lady Symons. If she is correct in her prediction that the Government will win this vote tonight, the Government will live to regret it. They may live to regret it as quickly as Friday when we hear the result of the Irish referendum. Even if they do not do so then, I believe that what Nick Clegg said before he was leader of the Liberal Party and before he changed his mind on this issue is true. He wrote in the Guardian that if the parties in this country were going to deny a referendum about the treaty to the British public it would increase cynicism not just about politics but about politicians dealing with Europe. He said that, if denied a referendum, the public would think that the politicians did not, as he put it, have "the cojones" to carry the argument about a referendum to the public. There was something rather ironic in the noble Lord, Lord Wallace, attacking the Labour Government for not taking the argument about the treaty and Europe to the public when what he was doing was to argue against taking the issue to the public.

Comparisons have been made with the Maastricht treaty, with which I was involved. On the most important aspect of the treaty of Maastricht, which was the possibility of the introduction of the euro to this country, the Conservative Party—followed by the Labour Party—promised to have a referendum were the euro ever to be introduced. That pledge, on that most important part of the Maastricht treaty, still applies and is still upheld not just by the Conservative Party but by the Labour Party as well.

It was the Foreign Secretary, David Miliband, who said on 3 July 2007 (at col. 803 of the Official Report) that the Maastricht treaty involved "a smaller transfer of power" than this treaty. He may not have meant it; it may have been a slip; but perhaps it was a slip in which he spoke more wisely than he knew. However, the point is not a sterile argument about one treaty compared with another. The fact is that we have had a whole series of treaties—Maastricht, Nice, Amsterdam and Lisbon—all of which have gone a bit further. Have we reached a tipping point? Have we reached a point at which the accumulation of powers justifies this issue being put to a referendum as was promised by all political parties at the previous election?

The public have demonstrated, again and again, that they would like a referendum. It has been demonstrated in opinion polls. My noble friend Lord Brittan said that if you ask the public whether they want a referendum about anything, of course they would always say yes. Possibly; but if they have actually been promised a referendum they are quite likely to want it even more. We have had referenda organised in 10 parliamentary constituencies under the auspices of the Electoral Reform Society, in which large numbers of people have voted and shown that they do not wish to accept this treaty. In one such referendum held in the constituency of Eastleigh, represented in another place by Mr Chris Huhne, more people voted for the principle of having a referendum than had for Mr Huhne at the general election.

On the point that the treaty of Lisbon differs from the constitutional treaty, at the very beginning of our debates the noble Baroness—although she handled each debate with great charm and skill—said, rather insidiously, that we should not have any quotations from foreigners. I could not really understand why: could it just be because almost every head of state is on record as having said that the differences between the treaty of Lisbon and the constitutional treaty are non-existent? With one exception, I will adhere to what the noble Baroness said. I will not quote the Belgian or Finnish Foreign Ministers; I will not quote Bertie Ahern, or the Italian or French Prime Ministers, but they all said it, again and again. I will not quote their actual words, but when the now Lord Chancellor, Mr Jack Straw—I do not think he is a foreigner—was asked in another place what constituted a constitutional treaty, and therefore made a referendum necessary, he said that you ought to have a referendum if it is a constitutional treaty, and what constitutes that is having an EU President and an EU Foreign Minister. Well, we have a different name for the Foreign Minister but those two proposals, which he said justified a referendum, are still here.

The noble Baroness, Lady Symons, argued that the constitutional treaty is very different from the Lisbon treaty, and that it repealed existing treaties whereas the Lisbon treaty does not. Yet, as my noble friend Lord Blackwell pointed out, she did not say that while the constitutional treaty abolished the treaties, it then went on to write the provisions back into the text. So, what is the actual difference? Now, this is where I will break the rule and quote one foreign politician, because President Giscard d'Estaing, the author of the constitution, gave the answer when he said:

"In the treaty of Lisbon, the tools are largely the same. Only the order in which they are arranged in the toolbox has been changed. Why this subtle change?".

I quote this because it is as revealing as all the other quotes that I am not using would have been: they tell us the motive. He went on:

"Above all, it is to head off any threat of referenda by avoiding any form of constitutional vocabulary".

There, we know it.

I could, indeed, also quote the correspondence that the German presidency under Angela Merkel circulated in canvassing this idea of using the device of having not a constitutional treaty but an amending one, with its political advantages. If there is any doubt that there is no difference between the two, it was made clear by my noble friend Lord Blackwell in pointing out that the Government have very kindly not just given us the treaty, but printed the consolidated text. With that and the amending treaty within it, we can compare it with the original constitutional treaty, and they are virtually the same.

The other point made was that Britain was perhaps signing a different treaty from that signed by other countries, because of the Government's red lines. But the point that I made to the noble Lord, Lord Anderson, needs an answer. I pointed out to him that at the moment when the Government made their promise to have a referendum they had achieved many of their objectives on the red lines. In particular, they had achieved the objective that foreign policy was not subject to control outside this country. The noble Lord answered me by saying that the red line remained in place, but that is not the point. The promise was made that we would have a referendum, even though the red line had been achieved. They said that the treaty, even with the red lines, deserved a referendum, so why are we not having one now?

The noble Lord, Lord Owen, said, in his usual very even-handed and fair way, that there were differences between the two, but they are not large. I agree with him. There is the difference in how the Charter of Fundamental Rights is treated, subject to a protocol. But many people, including Select Committees in the other place, have argued that the protocol is not guaranteed to be watertight, and many academic lawyers have argued the same. So it would hardly seem that that by itself justified the abandonment of the commitment that was given to have a referendum.

This is a sad day for politics. I make no criticism at all of those who, like my noble friend and my noble and learned friend sitting beside me, have always been against referenda and who have made clear in the past their opposition to referenda on this sort of issue. Maybe the arguments are not overwhelming and maybe there never should have been a promise to hold a referendum; maybe it was not wise and maybe the treaty is not as different from others as I profoundly believe that it is. The fact is that the Government made a promise and should stick to it. The Liberals also went along with it, but they have not just ratted—they have re-ratted and re-re-ratted. First, they were for a referendum, then they were for abstaining, adamant for drift—and now they are firmly against a referendum. Who knows where they will be tomorrow?

If this amendment is defeated tonight, it would certainly be bad for our involvement in Europe but, above all, it is bad for politics in this country.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, there have been only two Liberal Democrat speakers, so they are probably owed an extra speaker, if that is all right with the House. The noble Lord, Lord Moran, need not worry—he will speak.

A noble Lord:

Lord Kerr!

Noble Lords:

Lib Dems!

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, I am grateful to be the third Liberal Democrat to speak at this debate. I begin by saying very directly that I find the words of the noble Lord, Lord Lamont, for whom I have very considerable respect, offensive to an extraordinary degree. The Liberal Democrats, ever since 1981, when we were formed as an alliance and then became a merged party in 1987, have been consistently in favour of this country's full membership of the European Union and of many of the ways in which we believe that we can confront the dreadful issues that now face us in the world. We have been the most consistent of the three major parties in this country, in that regard.

Let me go back historically for a moment. The Conservatives, under Mr Edward Heath, were the leading voices in favour of the European Union. Very shortly afterwards, they entered into some of the most far-reaching understandings, which carried this country into a considerable level of integration on the economic front under the leadership of Margaret Thatcher. They continued in that same guise until the time of the premiership of Mr John Major—a deeply divided premiership, in which the Conservative Party began the process of reaching fission on the issue of the European Union. Then, finally, in opposition, they have come out increasingly against the Lisbon treaty and, for that matter, moves towards greater integration in other areas of policy, such as climate change. This has not been the story of a consistent party.

The Labour Party, in the days when I still belonged to it, was very much in favour of the European Union after the 1975 referendum. I shall have a word or two to say about that in a moment. By 1980 it had already changed its policy through 180 degrees, and decided that it wanted to leave the European Economic Community, as it then was. In 1981 it confirmed this at that year's conference, deciding that it was committed to leaving. It stuck by that decision in the 1983 manifesto. Since that time it has been, first, indecisive, and then, in 1997 under the leadership of Tony Blair, enthusiastically supportive of the European Union. It is, again, a picture that has been very much coloured by what were seen to be the political advantages or disadvantages, in which the European Union itself played a secondary role to electoral and partisan considerations. I must reject what I regard as the rather cheap crack to the effect that, in some ways, the Liberal Democrats do not know where they are. On any proper reading of the last 25 years, they have known exactly where they are.

I turn from that to the noble Baroness, Lady Symons of Vernham Dean, who said, with her usual cogency, something important that has not played a prominent part in this debate. In subsuming all existing treaties, the changes that would have been made under the constitutional treaty proposal were more far-reaching than those in the treaty of Lisbon. Indeed, it would simply have prevented a whole set of parliamentary debates on earlier treaties, such as those of Nice and Maastricht, and even going back to the treaty of Amsterdam. She is absolutely right about that. It was a very far-reaching change in the category of legislation, which brought it within a different sphere from that of the treaty of Lisbon. I will not go into detail, although there are some interesting details. For example, in evidence given to the European Union Committee, Professor Dashwood specifically proposed that, under the treaty of Lisbon, the CFSP was defended and treated according to separate rules and understandings from those that would have been the case under the constitutional treaty. That was accepted by the European Union Committee. There are other examples, particularly in the field of foreign affairs, where one can point to a considerable distinction.

I return to an earlier point for a moment. The noble Lord, Lord Owen, took us back to the 1975 referendum. In doing so, he was right to distinguish between what was probably the single most fateful debate that this country has had since the Second World War on where its future lies, and the many other treaty changes with respect to the European Economic Community and the European Union. It is an issue of such majesty that I believe there is a case for a referendum. At that time, I disagreed with my colleagues, Lord Jenkins and the noble Lord, Lord Thomson of Monifieth, when they resigned from the Shadow Cabinet in opposition to the referendum. I thought that in rare, exceptional cases, where the whole future of a country was being decided, there was a case for a referendum. It is absolutely crucial, in the interests of Parliament and parliamentary sovereignty, that the distinction is clearly made. Those who are pressing for a referendum on the Lisbon treaty are blurring a crucial line.

Let us ask why. If referenda—although there are some cases for them—are to be truly representative of the attitudes of the people, they must be governed by rules and conventions that hold. The 1975 referendum was closely bound by such rules. Both sides—and both sides crossed party lines—got together to decide that every single household should receive a statement from each side and a statement by the Government. I repeat: both sides were cross-party. Money was spent on enabling the people to understand the issues at stake. Compare that to today. The British people have been deprived—I have to say this—by the previous Government of virtually any serious attempt to let them know exactly what is going on in the European Union. The difference is like that between night and day. There has been virtually no attempt by the Government, under Mr Blair, to rebut some of the wildest charges made against the European Union, There has been no attempt to correct the record, even where the issues are purely factual. For years, we have all read rubbish about the behaviour of the European Union. No attempt has been made to correct it.

To hold a referendum for politically opportunistic reasons, against the background of a country deprived of information by its own Government, is a very different proposition from that of 1975, when people were fully informed. Some will remember the famous, long-ago remark of the great Minister for Health, Aneurin Bevan, who said that you do not need to look into the crystal if you can read the book. The book is being unfolded right now, across the St George's Channel. What does that book tell us? The main reason given by Irish voters for voting no, according to Irish opinion polls, is:

"We do not understand what this referendum is about".

That is a perfectly good reason, but as the noble and learned Lord, Lord Howe, has said, how many British voters would be able to say what this particular referendum would be about, not because they are stupid, but because nobody has given them clear information? It is not about one thing—

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, it is not about one thing, one principle, one vision, one purpose. It is about a whole ragbag of mechanical changes, all different from each other. For the life of me, I cannot see how one can hold a referendum on that.

Photo of Lord Willoughby de Broke Lord Willoughby de Broke UKIP

My Lords, under the elections and referendums Act, surely the public would be entitled to form their own opinion on that, and the Government would be obliged to give people the information that they require. That is why they would be fully informed about the issues, whether they were pro or against. That is a legal obligation on the Government.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, I take the noble Lord's point, but you cannot catch up with seven years' not knowing in, at most, a few weeks of knowing. I conclude by pointing to one last factor, which it is crucial that we take into account. I have mentioned the way in which, tragically, referenda can now be effectively influenced. I will go further: they can sometimes even be bought. In the Republic of Ireland, Libertas, the main funder of the no side of the argument, has recently refused to give information about where its donations come from, simply reiterating that it has kept within the law, and refusing to answer questions about that law. This is a moment when Parliament must decide for itself what the proper spheres for referenda are. I strongly urge that they be very tightly constrained. It must also decide what the proper preparations are for a decent, democratic referendum. None of this obtains in the current case and it is, therefore, the responsibility of Parliament—as was said so forcefully by my noble friend Lord Maclennan—to take decisions, use its judgment and do what, long ago, Edmund Burke said we should do: to give our judgment to our fellow citizens.

A noble Lord:

My Lords—

Noble Lords:

Cross Bench!

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, it is the turn of the Cross Benches. Perhaps the two noble Lords could decide between themselves. They will both have an opportunity to speak.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I rise not because of the reference made by the noble Lord, Lord Howell of Guildford, to Sir Humphrey, which I did not understand at all, but because what I want to say follows on exactly from what the noble Baroness, Lady Williams, just said.

In today's Times, we read in the main leader that:

"A change in voting weights is an inevitable consequence of the arrival of new members", in the European Union, and that it would be "disingenuous" to talk of the treaty as a "tidying-up" operation. It is more than that, according to the Times. If you read that, you would assume that this treaty reduces British voting weight because of the arrival of new members. I do not think that the Times reported what the Select Committee said in our report, and what the facts are. The Select Committee report stated:

"The new system for calculating a qualified majority is more equitable and takes more account of population than the current QMV rules, and the revision is significant. The UK's voting weight increases from 8 per cent to 12 per cent".

Would a reader of the Times leader this morning have reached the conclusion that the UK was gaining 50 per cent in voting weight in the Council of the European Union? I worry about a referendum on the basis of that kind of reporting in the Murdoch press and a lot of other sections of the press.

I also worry about a referendum on the basis of some of the descriptive arguments about the treaty advanced during our debates. If the treaty is a huge and unacceptable erosion of national sovereignty, as some have argued, usually late in our debates, why do the foreigners not spot that? Do we have a different definition of national sovereignty or attach additional weight to national sovereignty? Or are they just stupid? In Budapest, those who can remember 1956 will know that national sovereignty has real meaning and real value. So why did the Hungarian Parliament approve the ratification of this treaty by 325 votes to five? In Warsaw, the vote was 384 to 56. Those countries have a real understanding of what national sovereignty means because they have just regained it. They have read this text, and they know that this nonsense about huge diminution of sovereignty is simply not true.

A referendum is also inappropriate to this text for another reason given by the noble Baroness, Lady Williams, and from the Liberal Democrat Front Bench by the noble Lord, Lord Wallace of Saltaire. This treaty is no big deal. It is a modest, sensible series of small reforms. It adds up to a great big book because there are a lot of small reforms. The size of the reforms, individually, is not great, but they are all worth having. I do not mean to play down the significance of making the Union work better—a little more transparently, democratically and efficiently. That is what the treaty, if ratified, will do.

I do not want to exaggerate: the noble Lord, Lord Wallace of Saltaire, well knows, because he has heard it at home, that the Council is working perfectly well unreformed. It is, but the Council with a reformed presidency will work better. It is a small reform, but it is worth having. Of course, the talk of a democratic deficit in the European Union is grossly overblown. It always has been. The Council consists of the elected representatives of the member states. But the idea of increasing the role of the European Parliament will improve democratic control a little. It is no big deal, but it is worth doing and it is a good idea. Of course, ensuring that when the Council legislates it does so in public is not a big reform, but it should have happened a long time ago and it is good that it is in this treaty and will happen now. Of course, national parliaments could improve their scrutiny systems without this treaty, but the yellow card subsidiarity system will help them do that. That is a good thing. Of course, the Commission could go on with as many Commissioners as member states, but it would be better to see the Commission reduced so that there are no more Commissioners than there are Commissioners' jobs to be done. That is what this treaty would do. Those are not enormously important reforms. They do not raise issues of national sovereignty, but they are worth doing.

I make one further point. I was impressed by the speech of the noble Lord, Lord Owen, and I understand his position. But most people in this House who call for a referendum intend to vote no. Most people in this House who call for a referendum intend to campaign for a no vote.

Noble Lords:

No!

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I may be wrong. Perhaps we could hear. Perhaps people will tell us which way they will vote. Let me phrase it better. Many of those who are now campaigning for a referendum might, I suspect, be campaigning in a referendum against this treaty.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, how does the noble Lord reach that conclusion? Has he done a poll? Has he taken a sample? What has he done?

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I came to that conclusion by an eccentric method—I sat here through rather long debates.

My final point relates to what the noble and learned Lord, Lord Howe of Aberavon, said in his very wise speech. Let us suppose that today's amendment were carried and accepted by the Government, and there were a referendum and that, as a result, the United Kingdom was unable to ratify the Lisbon treaty, which therefore did not come into effect and was a dead letter. What would be the effect on the United Kingdom? How would UK interests be affected in that situation? From my experience, I believe that our interests would be seriously damaged.

Opposition spokesmen sometimes suggest that if this treaty were cleared away and finished, the European Union would breathe a great sigh of relief and move to a different prescription—the one that we hear about from some quarters on the opposition side of the House. They speak of a free trade area, and a looser, more liberal Europe. I know of no evidence for that theory. I know of no evidence to suggest that that is what would happen. Such evidence as I have seen suggests that it would not happen. The prescription for that kind of Europe was elegantly, comprehensively and beautifully made in the European convention by Mr David Heathcoat-Amory from the Conservative Party in the other place. At the end of the convention, he had seven supporters in a convention of 207. None of them was a member of a governing party, nor a member of a party in a governing coalition. If the United Kingdom found itself in the same position as Mr Heathcoat-Amory was in the convention, we would have some support, as he did. We would presumably have Sinn Fein and certainly Monsieur Le Pen—odd company, in my view, and not company that we should be seeking. There would be a low chance of our finding any government party to join us in our prescription. There would be no chance of our finding the required unanimity to change the treaty in that direction. That is why I am against a referendum, lest the consequence be that we find ourselves in that position. The treaty is no big deal; but for the UK to refuse to ratify the treaty would be a very big deal indeed. That is why I am against the amendment.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, this treaty is full of important matters, but I am not going to go into those because this debate is about whether we should have a referendum on the Lisbon treaty. It is completely wrong of the noble and learned Lord, Lord Howe, and the noble Lord, Lord Brittan, to suggest that this House should not pass an amendment of this sort. If this House cannot discuss and pass amendments to decisions of the House of Commons, what on earth is it here for? The Salisbury convention says that the House of Lords should not try to thwart the Government when they have put something in their manifesto, but that does not mean that this House should not make amendments and send them back to the House of Commons for it to reconsider. That is what I want to talk about.

As other noble Lords have said, the people of this country believe that they were promised a referendum on the constitution. They believe that the Lisbon treaty enacts the measures contained in the constitution and that the Government have cheated them in refusing to honour their manifesto pledge promising a referendum. That is the fact of the matter. It is clear that nothing will move the people from that view. A deep resentment will continue to be felt for a long time if this Bill is passed without provision for a referendum.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, would the noble Lord agree that it is within the constitutional obligation of the House, as acknowledged in our functions, to enable the electorate to receive the benefit of our understanding, as has been put by the noble Lord, Lord Ramsbotham? Would he accept that as a constitutional obligation of this House as constituted by appointment?

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, this House has the right and duty to speak its mind, discuss things in detail and, if it takes a view different from the House of Commons, send things back to the House of Commons for further consideration. That is exactly what I was coming to.

At the next general election there will certainly be a number of organisations recommending voters not to vote for any MP, of whatever political party, who failed to support the amendment for a people's referendum when it was moved in the House of Commons. In many seats, particularly those held by Labour, only a few votes could make the difference between holding and losing the seat. The political landscape has changed considerably since the House of Commons rejected a referendum on the Lisbon treaty. The 2008 local election results were a disaster for the Labour Party, and the losing of the Crewe and Nantwich by-election an added catastrophe. Recent opinion polls show that the Labour Party is polling the lowest support over a long period of time. I say to Labour Members in particular, it could well be that Labour MPs would welcome the opportunity to reconsider their position. It may well be in the interests of individual Members of Parliament and of the Labour Party in general.

Only this House—nobody else—can give all MPs the opportunity to reconsider their position on whether the people should be consulted on this treaty. By passing these amendments and sending the Bill back to the House of Commons for further consideration of the referendum issue, Labour Members of this House would be doing their colleagues in the House of Commons a great service. My recommendation is that the House of Commons should be given another opportunity. That is what this House is about. It gives the opportunity to the House of Commons, the elected House, to think again. It by no means agrees completely that there should be a referendum, but it will allow the colleagues of Labour Members in this House to think again and perhaps vote differently.

Photo of Lord Patten of Barnes Lord Patten of Barnes Conservative

My Lords, like my noble and learned friend Lord Howe, I have always been against referendums. To take up the point addressed to my noble friend Lord Brittan, I was against referendums when I was a European Commissioner, when chairman of the Conservative Party, a Cabinet Minister, a Member of Parliament and director of the Conservative research department. Despite my boundless regard for the Shadow Leader of the House, I am not going to change my opinion today, next week, next month or next year.

I have just two points to make this late in the debate and I will do so briefly. One argument we have heard is that we should vote in favour of a referendum in order to keep the Government clean—a big enterprise but that is the proposition. We owe it to public integrity to vote for a referendum because of what the Government said in their manifesto. I do not doubt the sincerity of what the noble Lord, Lord Ramsbotham, said on this. There are perhaps one or two question marks about one or two other people's arguments in favour of this proposition which sound occasionally a tad meretricious. I do not want to throw myself on the assegais in defence of the Government's honour, and occasionally when I listen to their arguments about why they have been against a referendum—something they should never have promised in the first place—I am able to contain my enthusiasm within the bounds of public decorum.

I do not want to get too deep into that argument but to make one simple point. Confessional time: I have written three-and-a-half manifestos. I have been a member of Governments who I suspect have not always kept every manifesto promise they have made and on which they were elected. If in this House we get into a constitutional tizzy every time a Government do not keep an election promise we are going to require a productivity rate of stellar, Asian proportions. So it is not a hugely good argument, although it is a reasonable political point for my noble friends to make.

I breezed into one or two of the debates in Committee. I have not taken part in the Bill: it reminds me a little of Francis Pym's observation that it is dog and bone for any debate in this country on Europe—the same old bone dug up time after time. During the debates that I heard the most interesting and agile argument was made, not surprisingly, by my noble friend Lord Forsyth, was a terrific debater in the other Chamber too, from which we have both been ejected, and who is a terrific debater in this Chamber. My noble friend said that this treaty was very different from Maastricht, for example, because we put the Maastricht treaty into our manifesto, we were elected on it in 1992 with 43 per cent of the vote, and, therefore, there was no requirement on us to accept the case for a referendum.

It is true that we were elected—some of us, not me—on that 1992 manifesto. I do not seem to remember every Conservative who was voted in on that manifesto taking the view that they should support the Maastricht treaty. I was some way off. I had to read about it in the South China Morning Post, but I seem to recall that a lot of people did not take the manifesto argument in that period, and there were even Members presently in this House who voted against the Maastricht treaty and voted in favour of a referendum on it. I shall come to that in a moment.

Secondly, my noble friend's argument does not take account of other European treaties and legislation on which we have not had referendums. Our old friend the Single European Act, the biggest practical extension of qualified majority voting we have ever seen, was driven through on a guillotine on a three-line whip, as quite a few of us in this Chamber know very well. I am only sorry that my noble friend Lord Tebbit is not in place, because he was party chairman at the time.

There is a third issue. As some noble Lords will know, I had something to do with the 1992 election campaign which we fought with the Maastricht treaty in our manifesto. I recall the advice that we gave to candidates, for example, in something called Questions of Policy. I shall not quote it, because it might be a shade embarrassing. The advice was that if candidates were asked why we should not have a referendum, they should say that this was not part of our constitutional practice; and we quoted again and again the reasons against a referendum, adduced with great eloquence and force by my noble friend Lady Thatcher in her speech on 11 March 1975. That speech was much quoted when, in this House, we voted on 14 July 1993 on whether or not there should be a referendum on the Maastricht treaty. Several of my noble friends here today went back and quoted that speech in extenso.

I want to quote another speech made in that debate. It was wise at the time and is singularly wise today. It was made by my old boss, the late Lord Whitelaw. At the end of his remarks arguing against a referendum, he said:

"The other place has rejected a referendum ... that is a fact which must surely be of crucial importance in the argument ... Your Lordships' House is now being asked to overturn this very clear decision. This proposal cannot be represented as the action of a revising Chamber, neither does it provide any opportunity for compromise. It is in fact the clear rejection of the elected Chamber's decision on a constitutional and voting question. For good measure, that is being proposed by the unelected House of Lords".

He continued:

"No Prime Minister—certainly no Prime Minister that I have ever known—and no government or House of Commons could be expected to accept such a clear challenge and reverse their decision. Therefore, even if the vote were carried in your Lordships' House, the result would not be a referendum. Instead, there would be a damaging controversy between the two Houses and further delay, which would do much harm to our nation".—[Hansard, 14/7/93; col. 263.]

I say amen to that.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords 6:30 pm, 11th June 2008

My Lords, my noble friend is talking about one of my old bosses, as well, who I greatly admired and, indeed, loved. But in that debate on 14 July 1993, to which my noble friend referred, the name of another old boss of mine of sorts came up—Sir Alec Douglas-Home who had become Lord Home. He presided over a review committee in the House of Lords, which concluded that regular use of referendums as instruments of constitutional protection should be contemplated within a wider framework of constitutional reform. We are in the midst of constitutional reform; we have it in a Bill before this House. Enormous constitutional changes are proposed and implied in this Bill. Is my noble friend quite sure that all the tradition and history, which is powerful but should not be our master, points in the direction in which he is leading?

Photo of Lord Patten of Barnes Lord Patten of Barnes Conservative

My Lords, as my noble friend spoke, I was leafing through the debate of 14 July 1993. Thus far, I have failed to turn up the speech by the late Lord Home; perhaps it was made sub fusc. But Lord Home argued for precisely what the noble Baroness, Lady Williams, argued for. He argued, within a constitutional settlement, for an agreed way in which we could take on the issue of referendums. If it ever comes to a vote on that in this House, I will vote against the use of referendums; but at least that vote would be an attempt to put that argument into a broader constitutional context.

Finally, I have not changed my views. My noble friends who will vote against a referendum tonight have not changed their views. I do not think that the European Union is changed fundamentally, except that it now has 27 members, which is why, as the noble Lord, Lord Kerr, said, we have to have the institutional arrangements in this treaty. It will not be a terrible disaster if the Irish vote no, and I will make that point; but the European Union would work better if we had those arrangements in place. I have not changed my views. Some others have changed theirs. My strong prediction is that after the next election, they will find that they have to change their views back again as we come with a crashing and grinding of gears to face up to the fact that we are living in the real world and have responsibilities in it for the national interest.

Photo of Lord Moran Lord Moran Crossbench

My Lords, treading gingerly on a ground on which a succession of political heavyweights have preceded me, I will be brief, unlike many who have taken part in this debate. I had my say about this Bill at Second Reading. I still think that the Government cannot go on disregarding public opinion, especially on an issue like this, which will accelerate the integration of Europe and go far towards establishing a single European state in which we would play a modest part. My conclusion then was that our people must be given a choice. That remains my view.

The Government, by resisting calls for the referendum they promised, have become detached from those they purport to govern. The Government seem increasingly indifferent to what people think and are indeed contemptuous of their views. An attitude like that often marks the dying stages of a Government. Some politicians, if they do their people an injury, tend to think that will fade away in due course, but it is seldom forgiven or forgotten.

Tomorrow, the Irish people will exercise their right to decide whether to subscribe to this treaty. Their constitution, unlike ours, allows them a free vote. If we were to vote today against allowing our people to take part in a referendum and the Irish should, as seems possible, vote no, that would be a signal humiliation of this House. The amendment, however, gives our people a voice—something that they were promised and ought to have. It deserves the support of every one of us who believes that the electorate has a right to express its views in a matter of major constitutional importance that will affect their lives and those of their children. I will certainly support it. I do not wish to be ruled by Brussels bureaucrats. As was said in another context—I believe by Henry II—not today, not tomorrow, not ever.

Photo of Lord Radice Lord Radice Labour

My Lords, we have had an impressive debate with some powerful speeches, but the speech of the noble Lord, Lord Patten, was extremely impressive indeed. I am on record as saying in this House on 10 December 2003 that there was no case for holding a referendum on the constitutional treaty. My judgment was that, unlike under the Single European Act—a point made by the noble Lord, Lord Patten—or the Maastricht treaty, there was no major shift in powers between the nation states and the European Union and that there was therefore no case for referendum.

Like the Foreign Secretary, I was surprised that the then Prime Minister, Tony Blair, promised in 2004 that we should have a referendum. When asked, the Foreign Secretary said that there was no way on the basis of constitutional significance that the treaty merited the decision that the Prime Minister took.

If a referendum was not necessary for the constitutional treaty, as I do not believe that it was, it is certainly not necessary for the Lisbon reform treaty. That is the view taken by all other member states. Of course it is true that Ireland has yet to vote and we will see what happens—I will say a word about that in a moment.

I agree with the noble Lord, Lord Blackwell, who made an excellent speech, that there are similarities between the two treaties, and I congratulate him on all his hard work, but my disagreement with him is that I do not believe that either the constitutional treaty or the Lisbon reform treaty merited a referendum. As the noble Lord, Lord Kerr, said, they are no big deal.

A powerful argument was made by my noble friend Lady Symons when she reminded us that the constitutional treaty abolished all existing treaties. She was supported by the Dutch Council of State, of which the noble Lord, Lord Neill, was rather critical. I perhaps read what it said slightly more carefully than him, and there was a lot more than the bits that he quoted. It stated that,

"the proposed Reform Treaty is substantially different from the Treaty establishing a Constitution for Europe".

It also agreed that:

"The constitutional concept, which consisted in repealing all existing Treaties and replacing them by a single text called 'Constitution' is abandoned".

Instead of setting up a so-called constitution, the Lisbon treaty returns to the customary amendment procedure for existing European treaties, as applied in the treaties of Amsterdam and Nice. My noble friend has established a strong point there, which I do not believe has been answered during the debate.

There is also the Danish Justice Ministry, which has produced a penetrating legal analysis—I do not know whether the noble Lord, Lord Neill, has read it—that said that, for Denmark, the Lisbon treaty does not transfer new powers to the Union. That must also be true for the UK, especially in view of the opt-outs and so on that we negotiated. The report concluded that Denmark could ratify the Lisbon treaty by normal procedure rather than by having a referendum.

We should oppose the amendment moved by the noble Lord, Lord Howell, and settle the matter here in Parliament. It is true that an Irish referendum is being held tomorrow; we all await the result with interest—a matter which is a question for Ireland and for the EU. Whatever happens, Her Majesty's Government would be right to defeat the amendment, with the help of other parties and other noble Lords in the House, to hold a Third Reading in a fortnight's time, and to ratify the Bill.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP 6:45 pm, 11th June 2008

My Lords, I am aware that I have become unusually controversial in your Lordships' House on this subject—irritating those noble Lords who support the project of European integration and boring those who have kept an open mind—so it is generous of so many of your Lordships to stay in your seats now.

Very briefly, I feel that I should recall the EU's genesis—the basics of how it works—which is boring but important. The powerful idea that gave rise to the European Union is that the nation states had been responsible for the carnage of two world wars. Those nation states, with their unreliable democracies, had therefore to be emasculated and diluted into a new form of supranational government, run by a Commission of technocrats. That is the big idea. It is from that idea that we have the EU's claim to have brought peace to Europe since 1945, which I do not have time to query now, although I will just mention the part played by NATO.

It is also from that big idea that we have the EU system of law-making, with all EU legislation proposed by the unelected Commission in private, negotiated in private by COREPER or the committee of permanent civil servants from the member states, and passed in private in the Council of national Ministers. It is true that the elected European Parliament has growing influence over that process, but it cannot propose legislation and it is not in its interest to resist it.

D

It is vital that these facts should be recorded, not only for the benefit of those Lords who have not followed the detailed machinations of the Europhiles, but also for posterity as future historians seek to discover how such a once great nation was reduced to a condition of ruin and irrelevance.

Submitted by David Wright

Photo of Lord Dykes Lord Dykes Spokesperson in the Lords (Europe), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Cap Reform), Environment, Food & Rural Affairs

My Lords, I apologise for interrupting the Second Reading speech that the noble Lord is making yet again, but does he agree that the British newspapers occasionally, reluctantly—

Noble Lords:

Question!

Photo of Lord Dykes Lord Dykes Spokesperson in the Lords (Europe), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Cap Reform), Environment, Food & Rural Affairs

My Lords, I am asking a question. Does he agree that the British newspapers occasionally, reluctantly, mention Holland and Denmark, but also other leading countries—France, Italy and Spain—with a history of referendums, which have said that a referendum is not necessary at this time and that it should be a parliamentary process? The new countries, where one might think that there would be a referendum inclination, have said that parliament will do, in all cases.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

My Lords, I was just trying to sum up, for some of your Lordships who have not followed the story in detail so far, the position of the United Kingdom—this great democracy of ours.

I got as far as saying that after the laws have been through that process, they are enforced by the Commission and the Luxembourg Court of Justice, against whose rulings there is no appeal. The founders of the project, Jean Monnet and others, made no secret of their goal: that 80 per cent of all national legislation should come to be made under that system, leaving national parliaments in charge only of the rest. That is just about where we have now arrived since we joined in 1972, after a series of treaty changes that other noble Lords have mentioned. Those treaty changes have, without doubt, steadily increased the EU's share of our national legislation. There really is no doubt that the Lisbon treaty will take that process further, as noble Lords have said.

None of that has featured much in general elections, because all the main parties, the BBC and our political class generally have supported it. Many in your Lordships' House support it, and its extension under the Lisbon treaty. That is understandable. Your Lordships' House is well endowed with former politicians and civil servants who have given much of their successful lives to building and supporting the project of European integration. They believe strongly that the United Kingdom must be at the heart of that project, whatever its disadvantages, if we are to play our part in this globalising world against terrorism, climate change, world poverty and on the international stage generally. We have heard much of that tonight.

However, a large and growing majority of the British people are not convinced. They feel powerless that their voices and their votes no longer count with their political class and that too much of the unwanted regulation which blights their lives comes from Brussels and not from people who are responsible to them. That is perhaps partly why 40 per cent of them no longer bother to vote in general elections. They have a point. Modern Governments are elected by around 40 per cent of the 60 per cent who vote, or some 24 per cent of the electorate, but those Governments then go on to make perhaps only 30 per cent of our national law, and less in the vital area of our industry and commerce. So one can understand people's growing frustration with the new Brussels system of governance and their anger that their well tried and hard won democracy should have been taken from them without their explicit or informed consent.

Noble Lords:

Oh!

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

My Lords, your Lordships would do well to think on it. The heart of our democracy is that the people elect and dismiss those who make their laws. They no longer do.

I do not pretend that our democracy would be restored if the British people voted down the Lisbon treaty in a referendum, but at least we would stay where we are—at the treaty of Nice—and the referendum campaign would, at last, produce the full and open national debate which has not taken place since the referendum of 1975. That means that no one under 50 has had a chance to vote on this great issue of how they are governed. Of course, there would be disappointment in Brussels because the treaty could not be ratified. They would be in the same sort of position they were in after the Dutch and French people rejected the original constitution. However, the project would continue, just as it did then.

Some noble Lords may not be aware that the pace of European legislation has increased by 25 per cent since the constitution failed, so the suggestion that the EU would fall apart without it has turned out to be unfounded. Likewise, the City of London has thrived, despite our not joining the euro. The hope must be that a rejection of the Lisbon treaty by the British people would lead to a fundamental reappraisal of the project in Brussels, and that we might go back to the EU's Laeken declaration—it wanted to bring the project closer to the people but was frustrated by the constitution, which went in the opposite direction.

Those who accuse the Conservatives of wanting a referendum on the Lisbon treaty because they really want to leave the EU altogether are quite simply, and to me regrettably, wrong. I would not have joined the UK Independence Party if I had thought, after speaking to many influential Conservative friends, that there was a chance of that being so under its present leadership. We support the amendment because we see it as giving rise to an informed national debate and to the failure of the Lisbon treaty. To us, that is a worthy aim in itself and one which we share with the Conservative Party. However, we shall continue to believe that the United Kingdom would be much better off out of the project entirely, both constitutionally and economically, as I have tried to show on many previous occasions, and indeed from the point of view of our influence on the world stage. We will never accept that we have to surrender our right to govern ourselves in order to collaborate with our friends in Europe or with friends anywhere else on the planet.

A noble Lord:

My Lords, perhaps the noble Lord would rephrase that.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch UKIP

My Lords, I thought I made it clear that I was referring to my party.

Our debates thus far have largely looked into what the future might hold under this Lisbon treaty. I conclude by asking your Lordships not to forget the past. When we remember where we have been, we can sometimes see more clearly where we should go. Let us not forget that over the past few hundred years, in their thousands, in their tens of thousands, in their hundreds of thousands and, yes indeed, my Lords, in their millions, good British people have willingly given up their lives to create, and to safeguard, our system of parliamentary democracy and the absolute sovereignty of the Crown in Parliament—the British Crown, in this Parliament. They have been joined in that great sacrifice—certainly one of the greatest sacrifices the world has ever seen—by many more from the Commonwealth and from our great cousin the United States of America. Has all that just become old fashioned, out-dated, and no longer relevant in this brave new globalising world? I hope not. In all humility, I suggest that we should now remember all those who made that sacrifice, and let their descendants decide how we proceed. They did not die for this. I support the amendment.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I realise that making an intervention at this hour of the night is pretty dangerous stuff, as I am in fear of being howled down. I agree with many noble Lords, including the noble Lords, Lord Anderson and Lord Owen, and my noble friend Lord Howell, that we live in a parliamentary democracy and that therefore referenda are a bad thing. I am against referenda. The difference in this case is that, at the last general election, each party, in turn, agreed that it would have a referendum. Plenty of people may say that this treaty is different from the constitution and many arguments have been made. My noble friend Lord Lamont produced one of them saying that this is the same thing but in different words. The electorate were promised a referendum and that is why I believe they should have one.

Photo of Lord McNally Lord McNally Leader, House of Lords, Spokesperson in the Lords, Ministry of Justice, Liberal Democrat Leader in the House of Lords

My Lords, my greatly missed friend, Lord Richard Holme, used to remind me of an American chairman who would bang his gavel and say, "Everything to be said on the subject has already been said, but unfortunately not everyone has finished saying it". From the mood of the House, I suspect that we are eager to hear the Lord President and the noble Lord, Lord Howell, so I shall be brief.

First, the noble Lord, Lord Ramsbotham, raised the issues of trust and honour, and I hope that he will accept that they are not unique to one side in this argument. I know that, if the French and the Dutch had voted yes, my party would have supported a referendum on the treaty that would then have been brought before this country. I have no doubt in my mind about that. However, I am also clear—this point, I think, was very well made by the noble Baroness, Lady Symons—that what we have before us in the Lisbon treaty is different and can and should be treated differently from the treaty proposition that was promised for a referendum. I understand and respect the fact that other Members have taken a different view, but that is my honest opinion and it is held with just as much honour as that held by the noble Lord, Lord Ramsbotham.

A point that has been made once or twice during Report is a certain lack of consistency by the Liberal Democrats. I do not like reading my own speeches but, by God, they stand up well. On 22 October 2007, I told the Lord President:

"it is now time for the Government to move on to the front foot in this argument. Given that kind of lead, the Conservative opposition will be seen for what it is: a piece of shoddy opportunism to paper over its own divisions on Europe. If the Government give such a lead, I can assure them that they can rely on the votes of these Benches in seeing this amending treaty through this House".—[Hansard, 22/10/07; col. 872.]

On 17 December 2007, I said,

"we will support the Government in their desire for Parliament to endorse this treaty via the European Union (Amendment) Bill, so long as the Bill is presented in a positive and forward-looking fashion".

I went on to say,

"The real hypocrisy is not among those who want to ratify the treaty, like all parliamentary treaties, by parliamentary means, but among those who argued for enlargement but now wish to deny Europe the means to make enlargement work." [Hansard, 17/12/07; col. 495-96]

Those were the original positions I took at the beginning of this process and it is the position that we take on these Benches this evening. This has been one of the debates to be remembered in the House, with some very high quality contributions from all sides, made with sincerity and great eloquence. I will not delay the House any longer. Those on these Benches will support the Government, as I promised. I look forward to the replies from the Lord President and the noble Lord, Lord Howell.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office) 7:00 pm, 11th June 2008

My Lords, I begin by echoing the sentiment of the noble Lord, Lord McNally, about the quality of the debate. It has been a great privilege to sit through some of the most extraordinary and terrific speeches that I have heard in your Lordships' House.

I have singled out a few of those speeches for comment. I must pay tribute to the noble Lord, Lord Bruce-Lockhart, for whom it was a particular effort to come here today; he spoke with great eloquence, although I did not agree with him. The most reverend Primate made some entertaining and interesting points, many of which I agreed with. The noble and learned Lord, Lord Howe, and the noble Lord, Lord Owen—both former Foreign Secretaries—spoke with great eloquence from different perspectives and we were richer for that. The noble Lord, Lord Patten, made one of the most brilliant speeches I have heard in a long time.

Many other noble Lords spoke extremely well and I pay tribute to all of them for their speeches, whether or not I agreed with them. This has been a substantive debate and it shows Parliament at its best. It proves beyond doubt that the Government's approach in saying, "This is the place to scrutinise, deliberate and debate", is exactly right. I will come on to the issues that noble Lords have raised about referendums but I do want to make that point. This is what we are here for. It is even more so what another place is here for. I believe we have fulfilled our obligations in scrutinising this treaty. I pay tribute, as I will again at Third Reading, to the Opposition, the Liberal Democrats, the Cross Benches, the right reverend Prelates and all noble Lords who have participated, because we have done our job extremely well.

A lot has been said about the purpose and role of referendums, or occasionally referenda— if I am not mistaken, the plural is "referendums", but I will leave that aside—and the question of opinion polls and YouGov opinion polls in particular. For any noble Lord who has not made the connection, I declare the interest that my husband is president of YouGov. When the YouGov poll took place, he and I were on a boat in France, so it is nothing to with us, guv. Noble Lords would also expect me to say that I have no knowledge or information on anything to do with opinion polls conducted by that company—we keep a complete Chinese wall between us and anything that it may do. However, I look with great interest at all the opinion polls on the subject.

The noble Lord, Lord Brittan, and the most reverend Primate and other noble Lords said that the truth in the history is that when people are asked whether they would like a referendum on all subjects, they will rightly say yes. We have to keep +the context of what is being said.

I was struck by what the noble and learned Lord, Lord Howe, and the noble Baroness, Lady Williams, said—the noble Earl, Lord Ferrers, also raised this at Second Reading—about the complexity of the question. When the referendum took place, all those years ago now, it was on a straightforward question—a question that people could answer with great certainty. One of the great issues for us is that the complexity of the treaty, because we scrutinised it line by line, has been revealed—I refer to the changes that have been made, the red lines and so on. We must be clear that in using referendums we are also ensuring that we give people the right responsibility, which is to answer questions that are put before them, and those questions must be able to be answered properly. I hesitate to say that explaining what the justice and home affairs opt-ins would be to the population at large may be quite complicated. There is an issue about Parliament making its mind up about what its responsibilities and role are and when it is right and proper to ask those questions of the public.

I also note what was said about the weather in Ireland. I understand the point; on issues of this complexity, it concerns me that the weather might be the determining factor. I cannot decide—the noble Lord, Lord Howell, must forgive me for this—whether, if there were a referendum, the Conservative Party would campaign for yes or no. I hope that the noble Lord, Lord Howell, will answer that question for me. Indeed, I might press him to, because I really am unsure what the position would be; it is an important issue. If there were a referendum, I know where the Liberal Democrats would be; I know where the members of UKIP would be; I know where those on my Benches would be; I probably even know where some of the Bishops might be; I know where some of the Cross-Benchers would be; but I do not know where the Conservative Party officially would be. I have asked several times, but have not really had an answer to a question that is important in the context of those who push in relation to trust; we need to know, in particular, what the Conservative Party would do—if this Bill reaches the statute book, as I hope it will, next week, and if there is ratification across 27 member states—whether the Conservative Party leadership will reopen this. If they were fortunate enough to win the support of the British electorate and become the Government, would they accept—as Mr Cameron seemed to be moving to doing in his article earlier this week—that what is done is done? I think the noble Baroness, Lady Thatcher, said in a speech in 1975 that two years on from when things have happened is not the time to start reopening that which went before.

Noble Lords have said how isolated Her Majesty's Opposition are in Europe, for which I am very sorry. This is a great party and some of the best and most brilliant speeches made in your Lordships' House this afternoon in support of the European Union were made by noble Lords sitting on the Opposition Benches. I hope that the Conservative Party will move back to the position of strength—to being supporters of Europe, so that we may all together be in that great position in that way.

It is my contention that it is our job to do our job and the European Council's job is to do its job. Whatever happens in Ireland, it will be for the European Council, which will meet at the end of next week, to deliberate and discuss. The 27 heads of state must make their own decisions.

I will comment on the debate extremely briefly. Six reasons have been given for having a referendum. The first—the obvious one—is the manifesto commitment: this is exactly the same as a constitution and there should therefore be a referendum on it. The noble Lord, Lord Ramsbotham, talked about trust; the noble Lord, Lord Blackwell, has been very consistent; he also delivered, I meant to say earlier, yet another very good speech. But, as my noble friend Lady Symons, said in a very powerful speech, the constitution is entirely different. It is a founding document; it is quite different to what is before your Lordships' House now, which is in a similar vein, as many noble Lords who were responsible for dealing with previous treaties, have pointed out. We do not accept that it is the same thing. Out of the nine countries that held or plan to hold referendums, none, bar Ireland—which has to do it under its constitution—is planning to hold a referendum on this treaty. That means that we are in good company in recognising that this is not the same thing.

The second reason is that the Lisbon treaty is a constitutional treaty. As noble Lords have explained, far more eloquently than I can, it is not; it is different. Noble Lords say that the content is the same, is similar, may be similar, or possibly has similarities. The noble Lord, Lord Blackwell, quoted part of my letter. He obviously did not quote all of it—I will not go through it all—but if noble Lords read everything I said, I hope they will draw a slightly different conclusion to that.

Yesterday, for fun, I was looking up what the DNA similarities are between human beings and other animals. Apparently, I am 60 per cent a fruit-fly, 98 per cent a mouse and 95 per cent a guinea-pig. That does not make me a guinea-pig or a fruit-fly or a mouse—I hope.

We are very clear that there may be similarities. Things were brought forward from the constitution because they were important innovations in how we operate together. That does not make us the same—I am not a fruit fly. As I have already indicated, some of the safeguards in this treaty were not even in the constitutional treaty.

Then there is the argument of the cumulative effect of all the treaties we have had in the past, meaning that we have got to the point where we need a referendum. I reject that. The sixth and final reason that has been given over the course of all our debates over the past months has been that we have held a referendum on other issues so we should hold a referendum on this. I am not going to dwell on that point because I do not think that anybody has raised that today as a conceivably good issue.

I just want to comment to the noble Lord, Lord Blackwell, on the case that is before the courts at the moment. I have to question the appropriateness, while the case is still before the courts, of raising what was said by government counsel. I am not surprised that the noble Lord was able to get a copy of what the counsel said—I am sure that it is now in the public domain in any event. However, the noble Lord will understand that I am not proposing to comment on it.

Photo of Lord Blackwell Lord Blackwell Conservative

My Lords, perhaps I may just let the noble Baroness know that I did check that it was appropriate because the case was adjourned yesterday evening.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I am well aware that the case was adjourned yesterday evening, but the decision has not yet been handed down. That is why I am not proposing to comment on it at this point.

I want to end very briefly with the issue of politics. After all, politics is politics. There are people in your Lordships' House who, whatever I say, genuinely believe that the Government made a commitment and that the treaties are exactly the same. I hope that they have read them line by line and I hope that they have done the work and analysis to reach that conclusion. I do not see how they could have reached that conclusion, but I genuinely believe that they have.

There are those who will see this referendum as an opportunity to campaign to remove ourselves from the European Union—either altogether, or to renegotiate our position. This is a vehicle or a method. It is a completely legitimate thing to do. I do not regard anything that I am saying here as illegitimate. I am just pointing out what is going on—hastening, in a sense, our departure from Europe.

There are perhaps also those who see this as an opportunity to land a blow. Politics is politics and people will use the issue of trust to say something about the Government, the Prime Minister, Members of your Lordships' House and so on. That is for them.

For my part, however, I am clear: the constitution is gone. It was declared gone at the IGC. This is an amending treaty by any reading and under any set of circumstances. We have negotiated a strong position for this country. I want us to play our full part in Europe, to get beyond the negotiations and discussions we have had in your Lordships' House, important though they are, and tackle the problems that we face together—on poverty, climate change, our relations with other countries, working together to promote human rights and providing greater protection for our citizens so that they can live, work, study and travel in the European Union and enjoy the benefits of being a part of it. I want us to speak with one voice or, as the most reverend Primate said, to make a fuss, on behalf of our people in the European Union, to make it better. That is the commitment of this Government.

I take what was said by the noble Lord, Lord Wallace, at the beginning. Perhaps we have not done enough to promote our own in Europe, but my goodness, I intend to start doing that if I have not already done so. We should pass this Bill, reject the amendment, take our place in Europe and get on with the things that really matter to our citizens.

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, I knew that this would be a superb debate and it has been. I feel privileged and humble to have had the opportunity to take part in it. I shall try to be brief in summing up some of the contributions. There obviously is not time to comment on every wonderful speech. I hope that this does not embarrass the noble Baroness, Lady Symons, but I should like to put her speech at the centre of my considerations. She it was who put, as clearly, simply and eloquently as one could, the case against which our amendment is aimed. She it was who put the question: is this different? The noble Baroness, Lady Symons, asserted with vigour that it was different and that the constitutional concept had been abandoned. That is what we have to assess. I believe that not to be so. It is view against view and I will try to support the case the other way.

The secondary role was played in our debate by the good Dutch lawyers who are much quoted, although I think that my noble friend Lord Neill of Bladen demolished their credibility to a considerable extent. Indeed, when you read on page 13 of their report, as I am sure all of your Lordships have, that they assert that the Lisbon treaty does not codify the supremacy of the European Court of Justice or the EU law, one realises that it must a be rather questionable document, because it does. In the treaty provisions precisely, the supremacy of EU law is codified and made absolutely clear. It has been confirmed in all our debates in Committee by the very learned and wise lawyers, judges and others in this House whose opinions are immensely valuable. They have all confirmed that the ECJ is the supreme court, that its rulings cannot be challenged—there is no appeal against them anyway—and that it is supreme in all areas which fall under the ECJ. This treaty brings a whole new group of areas under the ECJ. The rulings of the ECJ are supreme and override our national view.

I say that merely to emphasis the point that those who question the constitutional importance of the treaty, or who say it is merely tidying up, not very much or no big deal, really cannot have grasped what is stated in the treaty. In the decision to collapse the Third Pillar and bring the vital issues of justice, home affairs and many others into the purview and coverage of the European Court of Justice, it is constitutional. Even the Dutch lawyers admit that. Therefore the proposition that somehow the constitutional concept has been abandoned withers and collapses.

Does it have the same effects? My noble friend Lord Blackwell put this devastating question: if all the measures that were in the constitutional treaty are there, who is to explain that it does not have the same effects this time, just because it is written in a slightly different form? Of course the same measures will have the same effects and provide the same basis for the same rulings by the European Court of Justice, as would have been the case under the constitutional treaty.

Finally, is the text the same? Here again we seem to have a difference, like ships passing in the night. I have before me the text of the two treaties and I find again and again, page after page, paragraph after paragraph, word after word that it is identical. It is the same text. As the noble Baroness, Lady Symons, rightly and eloquently said, it is in a different wrapping, but it is the same text. If that is not taken as fact from this Dispatch Box then let us turn to the great Foreign and Commonwealth Office, the sponsoring department, which in 2004 put out a guide to the European Union to explain the constitutional treaty. The other day it put out a guide to the Lisbon treaty with a foreword by the Prime Minister, Mr Brown. I have to tell your Lordships that out of 15 pages of explanation, 12 are identical. It is the same advice for treaties that are said to be different, and I am afraid that that stretches credulity to breaking point. Your Lordships may wish to vote on other considerations but I ask that they do not do so on that.

Perhaps I may say a word on the issue that came to the fore in many excellent speeches—the question of whether we like referenda. I do not like them very much. In principle, I think that we should handle them cautiously; in practice, they occur again and again. There have been many under this Government and all parties have promised them in their manifestos for various things, including my own party in 1997 regarding the euro. The truth will have to be faced by some of my noble friends who have used phrases such as "time and time again", "in the past" and so forth. The world has moved towards the referendum mode for very obvious reasons. Quite aside from the fact that referenda have been promised, we now live in a world where 2 billion people are on the internet and the world wide web, and two-thirds of households in this nation are online and interactive. People are empowered, they have views and they wish to put those views forward. This is not the world of five or 10 years ago; it is the world of the information age, which totally transforms the way in which opinion is formed and the way in which democracies will work.

I am very sorry for those who say that they do not like referenda but there will be a lot more of them. They will come again and again. There will of course be resistance to them and there will be many cases where it is felt that a more refined judgment filtered through Parliament is much better, and that view is probably right. However, there will be more and more of what the noble Baroness, Lady Williams, calls "exceptional cases". I believe that we have one before us now.

Parliamentary democracy in this very difficult age—it is getting more difficult—will flourish only if Parliament acts with consistency and integrity and sticks to its promises, but it will not flourish if it disregards promises or if parliamentary control is bypassed.

Photo of Lord Kinnock Lord Kinnock Labour 7:15 pm, 11th June 2008

My Lords, before the noble Lord sits down, can he now use the last part of his speech to answer the question addressed to him in my noble friend's peroration? If he had his way this evening and the amendment supporting a referendum were carried, and if that became the adopted position, on which side of the ensuing campaign would he be active? Would he be active for the "yes" side in favour of the adoption of the treaty or the "no" side?

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, the noble Lord attended some of the earlier debates but he did not attend the ones where I made it clear that I believe that the treaty is badly negotiated and is a bad offer. I would certainly be opposed to it; I have never had any doubts about that. We all know that the treaty contains all sorts of things that the noble Lord's Government and party were totally against from the start. They fought desperately to keep those things out of the treaty but they have been included. The only people who are in love with the treaty are the Liberal Democrats. His own party is not very keen on it, to tell the truth, and I think that the Prime Minister has distinct doubts, but the noble Lord is caught in a trap.

Noble Lords:

Oh!

Photo of Lord Howell of Guildford Lord Howell of Guildford Shadow Minister, Foreign Affairs, Deputy Shadow Leader, Parliament, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, that is the position in which the Government have found themselves. I was talking about Parliament, about which we all care. We want to see this House of Lords upholding its duties, which are to amend and improve and to argue with consistency and accuracy about what is necessary, and we want Parliament to be trusted in the way that everyone always calls for. However, if we push through a measure without the say of the people—the say of the people which is encouraged in a document about the present European Union, which says:

"You can join the debate and have your say on the future of Europe", but apparently they cannot have their say on the future of Europe—and if we reduce to mere scrutiny the realities of parliamentary control, then Parliament itself will suffer.

The truth is that in this debate, despite the sincerity of the arguments of the noble Baroness, Lady Symons, and others, we have really won the argument. We would have won the key votes as well if the Liberal Democrats had not adopted their bizarre and supine approach to everything and anything to do with this Bill, because I believe that the arguments are on our side. I respect what has been put up against us but I do not think that it stands up in the face of the facts, in the face of the Foreign and Commonwealth Office, in the face of the arguments of Europe's leaders, as the noble Lord, Lord Lamont, said, or in the face of the frank and candid assessments of those who founded the constitutional treaty on which the text is based. Because of all those things, it really is time to put this matter to a vote and to test the opinion of the House.

On Question, Whether the said amendment (No. 29) shall be agreed to?

Their Lordships divided: Contents, 218; Not-Contents, 280.

Division number 1 Lisbon Treaty — Change the date upon which the Treaty will come into force — rejected

Aye: 212 Members of the House of Lords

No: 272 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 254 Members of the House of Lords

Absents: A-Z by last name

Resolved in the negative, and amendment disagreed to accordingly.

Noble Lords:

Oh!

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I want to repeat to noble Lords the figures for the vote because the Monitor is wrong. The Contents were 218 and the Not-Contents were 280.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, I beg to move that further consideration on Report be now adjourned. In doing so I suggest that the Report stage begin again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chief Whip (House of Lords), HM Household, Chief Whip (House of Lords)

My Lords, I urge noble Lords to leave the Chamber because we are about the start the next debate.