My Lords, I am grateful to those noble Lords who have sought, through the tabling of these amendments and in Committee, to clarify the spirit of the provisions in the relevant clauses of the Bill by tabling all but one of the amendments before us in this group. I am also grateful to the noble Lord, Lord Liddle, who has just indicated that he is moving his amendment formally in order, quite rightly, to elicit from the Government our case for the amendment that we have tabled within the group.
As my noble friend Lord Wallace made clear in Committee, it has not been and nor should it be the Government's intention to tie the hands of Ministers and their officials who negotiate assiduously in the development of European Union legislation in order to protect and maximise the UK's interests and priorities. The fact is that Ministers and officials have participated constructively for many years in the earlier stages of the development and negotiation of various EU measures, and nothing in this Bill will prevent that from continuing in the same way. When it comes to the point at which the final decision is taken in the European Council or the Council, what the provisions of the Bill are designed to do is to prevent a Minister from voting in favour of a treaty or other measure specified in Part 1 at this final stage, or otherwise allow the adoption of a treaty or measure to happen, unless and until he or she has the approval specified in the relevant clause of the Bill. As we know, this may be an Act of Parliament or it may be an Act and a referendum where there is a transfer of competence or power. The Bill does not prevent the Government from signing up finally to and participating in anything at the EU level, but Ministers would first have to have the support of Parliament and, where necessary, of the British people before doing so.
The amendment tabled in my name in the Marshalled List makes the position crystal clear, and I hope to the satisfaction of noble Lords. The effect of the amendment will of course govern the use of the phraseology we are concerned with throughout the whole Bill, and therefore not oblige us to table a series of consequential amendments because this change to Clause 1, which is interpretive, will govern the whole Bill.
As my noble friend Lord Wallace explained in Committee, the words we are concerned with, "or otherwise supporting", are included to make clear that, at the point of the final and formal decision in Council or the European Council, a Minister would be unable to allow a measure to be adopted in Council or the European Council through means other than a positive vote, which under this Bill would have to be preceded by the necessary national procedures-namely, an Act and a referendum, if required. Articles 235(1) of the Treaty on the Functioning of the European Union and Article 238(4) make clear that abstentions at the point of final and formal decision in Council do not serve to block, but rather are treated as support for the adoption of a proposal requiring unanimity. Therefore, letting a measure through by abstention in the Council and then claiming by way of excuse or explanation, as it were, that although it transferred competences or powers and should have had national approval somehow it slipped through and Ministers could not help it, would not be allowed.
In addition, as many of your Lordships know, in Brussels matters often do not proceed to a formal vote. The chairman may just seek the sense of the room, and if no one dissents, take it that the proposal has been finally agreed unanimously. It is then ticked and it goes through. That could happen only after national procedures, which would require parliamentary approval, while if competences and powers are being transferred, it would of course require a referendum. So the phrase "or otherwise supporting" seeks to ensure that Parliament and the British people can be confident that there is no possibility that any inaction on the part of the Government of the day could allow a measure to be finally decided and agreed without the proper approval of Parliament or the people or, indeed, both. To allow a measure to be adopted in such a way would represent a sleight of hand that would cheat both this Parliament and the public out of their rightful say.
My noble friend also made the point that, in this way the Government were replicating the phrase used by the 2008 Act, which was introduced by the previous Government when Parliament was approving the ratification of the Lisbon treaty. However, we accept the point-made, I think, by the noble Lord, Lord Davies of Stamford-that, although that was the position before, there is no reason why we cannot improve the drafting of provisions from the past, as indeed we can improve on much else that went on during the past Government and seek to do so.
We have reflected further on this point, as we have on all the amendments tabled in Committee, as we should. For the reasons I have given, we have tabled a government amendment to spell out, in the interpretation in Clause 1, exactly what is meant by "or otherwise supporting" and to explain when and where it applies: to wit, that it is only at the final and formal stage in the Council, or the European Council, that the bar on voting for or abstaining on-in other words, otherwise supporting-measures applies, unless or until there is parliamentary and, where necessary, public approval, in which case of course the support could go forward.
We feel that providing this amendment to the definition provides the clarity that noble Lords were seeking in their amendments. It spells out unambiguously the limitations on Ministers and in doing so makes clear-and I make clear now-that this and future Governments may negotiate proposals in future in the same way as they do now and they should seek the views of the scrutiny committees of both Houses in the same way as they do now and undertake any other existing national approval procedures that are required before finally agreeing to a proposal in the European Council or the Council.
That is the position. I hope noble Lords will accept that clarifies the concerns we all had in Committee on this matter and therefore I will beg to move the Government's amendment. This will confirm to noble Lords that we have heard and addressed their concerns. I ask the noble Lord to withdraw his amendment, which seeks an exactly similar effect.
Before the noble Lord sits down, perhaps we could be just a little clearer. I thank him very much for the letter he sent me and other noble Lords about what I described as the chicken-and-egg situation, which is part of this nexus that he has been dealing with. That was a very helpful letter and I would be most grateful if he could agree that that letter should not only go to noble Lords who participated in this debate but could also go in the Library of both Houses, because I fear that sometimes the other place does not take very much cognisance of what is said by Ministers in this House. On this occasion, what is said in that letter, in particular about nothing in this Bill inhibiting Ministers from participating in negotiations other than on the final decision, is very important. I hope he can agree that the letter should go in the Library of both Houses.
On another point arising from what the noble Lord himself said, I have to confess to some slight confusion about how many of the instances of "or otherwise support" get taken out and how many get left in and whether there is not a degree of potential ambiguity from leaving any of them in at all. Perhaps he could just clarify that point. I had at first thought, and from what he initially said this afternoon, that he was actually saying that all the references to "or otherwise support" were going and that the statement would simply be that we would not allow any decision to be taken. That is, I think, the sense of what the Government have been trying to do and what those of us who have been trying to amend this provision are trying to do. However, I am still not quite clear where we are on that point.
On the first point, I will certainly endeavour to see that the words and wisdom of your Lordships' House are spread as widely as possible and that the correctness of our view is recognised, in the way that we are changing the phraseology of the past in an improving way.
As to the question of what is amended by our proposed amendment, I think that I said that by changing the definition in the interpretative Clause 1, that change governs all references to the particular words we are concerned with throughout the Bill. It simply overrides and governs all those references, so that there is no need for your Lordships to be bothered with the task of going through each clause amending or adding the amendment at every stage of the Bill. By putting it in Clause 1, in the interpretative section, we are governing and rendering effective in the light of the amendment everything that is said throughout the entire Bill. That is the position as I would like to put it to your Lordships and I believe that that is the correct one.
I pay tribute to the Minister and to the Government for listening with such deep concern to what seemed to me to be perfectly acceptable phraseology, but which gave noble Lords opposite considerable difficulty. It seems to me odd that something that is comfortable, which we already passed in the UK 2008 Act, should somehow become a discomforting phrase here, but I am none the less absolutely delighted to see that the Minister is able to come forward with what is clearly to other noble Lords a major concession and clarify a phrase which to some of us seemed perfectly adequate. It is always good that we should have a consensus in this House-your Lordships are known for a consensual approach-and I congratulate and thank the Minister.
My Lords, I would not go as far as the noble Baroness in describing this as a major concession in the Bill. However, in the spirit of good will in the consideration of the Bill on Report, we are prepared to withdraw the amendments in my name in the light of what the noble Lord, Lord Howell, has said, subject only to two points of clarification: first, that his letter to the noble Lord, Lord Hannay, will be deposited in the Library; and, secondly, that we are absolutely clear that the amendment to the interpretative clause, Clause 1(7), does therefore govern all the other references to "otherwise support" in the rest of the Bill, and that no one is going to turn around at a later stage and say that a Minister cannot publicly advocate a position, either in the Council or in a wider forum, until the point at which a formal decision has to be taken, so it is possible for Ministers publicly to advocate their support for a position, subject to the final decision having passed all the requirements of this eventual Act.
My Lords, as a final word I repeat that the definition will apply to any use of this wording elsewhere in the Bill. That is the definitive statement I am making, and that applies.
Moved by Lord Howell of Guildford
2: Clause 1, page 2, line 4, leave out from "Crown" to end of line 6 and insert-
"(a) voting in favour of the decision in the European Council or the Council, or
(b) allowing the decision to be adopted by consensus or unanimity by the European Council or the Council."
Amendment 2 agreed.
Amendment 3 not moved.
Moved by Lord Wallace of Saltaire
4: Clause 2, page 2, line 18, after "treaty" insert "also"
My Lords, I shall speak also to Amendment 7. I hope that the noble Lord, Lord Liddle, will regard this too as a major concession by the Government. These two amendments are intended to address a point raised by a number of Peers during our debate on the first day in Committee some weeks ago on what the noble Baroness, Lady Symons of Vernham Dean, described as a probing amendment. The noble Baroness, along with the noble Lord, Lord Davies of Stamford, and the noble and learned Baroness, Lady Butler-Sloss, raised the question of the correct interpretation of Clauses 2 and 3 with respect to the application of the referendum provision to Gibraltar. They raised the concern that the provisions as drafted could result in the need to hold a referendum in the UK even if the proposed treaty change happened to apply solely to Gibraltar and not to the United Kingdom. They said that this would be nonsensical. I agree that in such unlikely circumstances it would be nonsensical.
As your Lordships' House is aware, the Bill concerns only the future transfer of competence or power from the UK to the EU. As I promised at the end of that debate, we have reflected further on this issue. Our view remains that the requirement for a referendum to be held in Gibraltar under the provisions of the EU Bill is not self-standing but is dependent on three things: first, that there is a treaty change which applies both to the UK and Gibraltar and, secondly, that the treaty change would result in a transfer of competence or power from the UK to the EU. Then and only then does the third condition arise; namely, whether the treaty change would also represent a transfer of competence or power from Gibraltar to the EU.
That said, we recognise that it is important to be as transparent and clear as possible. That is the Government's intention. Consequently, we have tabled these two simple amendments to Clauses 2 and 3 to make sure that the meaning is clear beyond doubt. The amendment makes explicit that only if a treaty change were to apply to both the UK and Gibraltar, and the referendum is to be held in the UK, would that referendum also be held in Gibraltar. I beg to move.
I hoped to intervene before the Minister sat down but I missed my cue. I shall be very brief. As the noble Lord and his colleague, the noble Lord, Lord Howell, have been courteous enough to mention me in the context of our debates on these matters in Committee, it would be wrong of me not to say that we on this side appreciate that the Government have genuinely reflected on the Committee stage debate on these two matters, relatively minor though they may be. That is encouraging for us and the hope that we can all take part in improving this legislation and that the result of our labours will not be entirely nil. Does the noble Lord have in mind any specific contingency in which there might be a proposal involving the transfer of powers from Gibraltar to the EU, or is this whole subject merely theoretical? Have the Government provided for it as a purely theoretical possibility, or do they have any issue in mind that might be triggered by this clause?
My Lords, I appreciate the tabling of these two amendments by the Government. I share the view of the noble Lord, Lord Wallace, that they will probably not be thought of as huge concessions almost anywhere. He put that rather generously and he is quite right-they will not. More to the point, they are wise amendments. It may well be that on some future occasion he will wish to land in Gibraltar. He would not want to receive the sort of frosty reception that he would receive if he had done anything to the people of Gibraltar other than what appears as a result of these two amendments. It is a helpful clarification. We are satisfied with it and thank him.
If no one else wishes to intervene, I ought to answer the point raised by the noble Lord, Lord Davies of Stamford. I find it difficult to imagine circumstances in which there would be proposals that would represent a transfer of powers or competences from Gibraltar to the EU. However, I have not looked back at Protocol 3 of the 1972 Act which ratified the treaty of accession and the extremely complicated circumstances in which Gibraltar is treated as a member of the EU but does not take part in all aspects of EU policy. For example, it does not take part in the common agricultural policy, but it takes part in the freedom of movement.
Would the Minister recommend to other European Union member states that have territories that are not specifically part of their geographical parameters-such as Spain and the Canary Islands, and France and her piece of territory in north Africa-that they follow the lead of the United Kingdom in drawing more fully into their embrace the territories that belong to them?
My Lords, I shall not detain the House very long. The question of the different relationships between the Crown dependencies and the EU, and Gibraltar and the EU, is a deeply arcane subject. I read an extremely long report from the Government of Jersey some 18 months ago about the relationship between Jersey and the EU. It is very good bedtime reading for anyone who does not wish to go to sleep. These are very complicated areas. However, I and our advisers cannot at the moment envisage the likelihood of a referendum. We nevertheless hope that this amendment clarifies the situation.
Amendment 4 agreed.
Moved by Lord Williamson of Horton
5: Clause 2, page 2, line 22, at end insert ", and
(d) the Electoral Commission have issued a certificate stating whether or not it appears to them that more than 40 per cent of the persons entitled to vote in the referendum have voted in it.
( ) If the certificate issued under subsection (2)(d) states that more than 40 per cent of the persons entitled to vote in the referendum have voted in it, the treaty may be ratified.
( ) If the certificate issued under subsection (2)(d) states that fewer than 40 per cent of the persons entitled to vote in the referendum have voted in it, the treaty may not be ratified unless-
(b) each House has agreed to the motion without amendment."
My Lords, Amendment 5, and the similar Amendment 8 that is grouped with it, are both in my name. Although these amendments are relevant to the European Union Bill, they are not about European Union policy. They are about the way in which we deal with referendums in this country and the role of Parliament, if any, in relation to referendums. Perhaps this might have the unique result that, when we continue the discussion on this amendment, we might find that Europhiles, Europhobes and Eurosceptics are all on the same side, which would be rather unusual. The amendments have a good-indeed, a noble-parentage, since they are in substance the same as the much discussed amendment by the noble Lord, Lord Rooker, to the Parliamentary Voting System and Constituencies Bill.
The effect of Amendment 5 is quite simple. The Government have proposed that, if, as a consequence of the referendum lock set up in the Bill, a national referendum were to be held on any of the about 50 cases covered by the Bill, that referendum result would be mandatory and Parliament would have no role. This amendment would not change that situation if at least 40 per cent of the persons entitled to vote had voted in the referendum. However, if there were a poor turnout and a smaller percentage of the electorate voted, the result would remain valid but would have to be confirmed by a Motion in each House of Parliament. This will give Parliament its proper representative role if there were, for example, a derisory turnout.
This amendment is particularly relevant to the Bill because all the potential decisions or transfers of power or competence to the European Union covered by the Bill are already subject to our veto and the Government have stated that they do not intend to make any of these decisions or transfers in the current Parliament. Unless, therefore, a sunset clause is inserted-the subject of later amendments-or, if it becomes an Act, a future Parliament repeals the Bill, the legislation has the potential to require national referendums for many years ahead.
What would be the circumstances of these potential referendums? First, they would be about issues where the UK Government had concluded that it would be in the national interest to act. If not, the Government would simply veto the proposal under existing powers. Secondly, a referendum might be about a change to qualified majority voting. There are 40 different cases listed in Schedule 1 on subjects which voters might find of little interest or importance. An example might be a change in the method of voting for the appointment of advocates-general of the European Court of Justice. Such a bizarre national referendum would probably attract a miserable turnout. This amendment would give Parliament an opportunity to take stock. Alternatively, a future referendum might be about a serious treaty change or a group of changes. In Committee, the Minister speculated that in the future this might be the case, although I personally consider it improbable, but in any event there would clearly be a significant turnout in such circumstances. This amendment does not affect the mandatory nature of such a referendum decision.
To conclude, this amendment would bring back a role for Parliament in those cases, and only in those cases, where the British public had demonstrated their lack of interest by a very low turnout in a referendum. I beg to move Amendment 5.
My Lords, I can add very little to the lucid presentation made by my noble friend Lord Williamson. I start from premises which I have described to the House before. My first premise is to regard referenda as unreliable things. The more complex the subject, the less reliable they become. I have said many times that the referenda which I have always been enthusiastic about were those which I was able to introduce at a meeting of the Welsh area council of the Conservative Party in the 1960s-namely, to determine, on a county basis and at seven-year intervals, whether public houses should be open on Sunday. That was put into law within a short time by Henry Brooke and remained there for 35 years, because after five seven-year lapses every county in Wales had finally been liberated, Caernarvon being the last. My noble and learned friend Lord Morris was then able to repeal the legislation. Nobody can argue with that.
Between 1974 and 1979, when I was on the opposition Benches in the other place and was able to do other things, I was on the board of a company called AGB Research, which was one of the largest and most effective market research companies in Europe, specialising largely in the measurement of television and broadcasting audiences. The whole process depended on trying to determine what people thought. In so far as we were dealing with quite simple things about broadcasting, it was easy enough to decide. In so far as we were measuring relative enthusiasm as between butter and margarine, we felt that we could rely on a referendum-style questioning and answering analysis. But unlike many of our competitors, we were always clear that we would never touch political opinion polls with a bargepole because we felt that in that area, however well one tried to do it, the outcome was likely to be less than lucid and less than decisive. For that reason, throughout this legislation I have been wholly lacking in enthusiasm for the introduction of referenda in substitute for decisions taken by Parliament.
We have reached the point when referenda seem likely to remain in legislation, but the least we can do is to try to make those referenda less ill founded than they might otherwise be. If we do not prescribe a minimum along the lines suggested by the noble Lord, Lord Williamson, then we are at the mercy of decisions being taken by almost invisible percentage votes. I do not regard there being much wisdom in a 40 per cent referendum, but I am delighted to be able to follow an example set by the noble Lord, Lord Rooker, who was a colleague in the other place for many years and who, the House may remember, was also the author of the Rooker-Wise amendment on income tax legislation. So for the second time, although it is not like that Rooker-Wise legislation and his name does not even appear on this amendment, I am glad to endorse his wisdom, particularly when it is reinforced by the lucid, compact argument advanced by the noble Lord, Lord Williamson. It is the minimum we can do to exclude the unreliability of this unattractive device. It should be in the hands of Parliament. This amendment enables it to come back into the hands of Parliament if certain conditions are not fulfilled. I speak in support of the amendment.
My Lords, I speak in partial support of this amendment. I cannot say I am very enthusiastic about part of it, but nevertheless I agree with the general thrust. Before I turn to the amendment, I would like to say how much I admire the noble and learned Lord, Lord Howe, particularly his actions in the 1950s in persuading the Conservative party in Wales to agree to a set of referendums on whether pubs should be open on Sundays. I say that because in the valley where I was brought up there was a Labour majority of 35,000, but the club with the biggest membership of all was the local Conservative club. Why? Because it was open on Sundays. He deserves to be commended for his altruism, which deprived the Amman Valley's Conservative party of a considerable amount of beer money.
My Lords, I am not too keen on this amendment for one reason. We have a figure which, if it is not reached, then prima facie at any rate the referendum should not be valid. However, in those circumstances where the turnout does not reach 40 per cent, the result is deemed to be valid because the matter will come back to Parliament and, if each House passes a resolution saying that, despite the turnout being under 40 per cent, the measure should go through, then it will go through. I question the value of that. If you have that in the Bill, it seems to me it is slightly pointless having a 40 per cent plateau. If one is going to have a figure that the turnout must reach for the referendum to be effective, why should Parliament give the Government a second chance of getting their policy through? If there is a condition that you must have 40 per cent, surely if you get that 40 per cent the referendum is valid; if you do not, the logical conclusion is that the referendum is not valid. If it were as simple as that, I would support the amendment entirely. On the other hand, I must say that if the amendment is one the House is prepared to accept, I would certainly go along with it rather than not have anything like it.
My Lords, I find the amendment rather strange. I certainly agree that a poor turnout may be taken as complete lack of interest in having a referendum on the issue, but a poor turnout certainly could not be taken as support for the measure in question. One must remember what sort of measures we are talking about: these are measures that cede more power to the European Union. So if there is a low turnout, the one thing that is absolutely certain-along with the fact that there may be lack of enthusiasm in voting at all-is that there is minimum support for ceding more power to the EU. That seems to me to be an absolutely rotten reason for handing the whole matter back to Parliament. Half the trouble at present, and the reason there is so much distrust over this whole area, is that people feel that, over the years, Parliament has been far too fast to cede more powers to the EU.
As I have said before, it seems extraordinary that when the people give to our parliamentarians the opportunity to use certain specific powers they then spend the whole of a Parliament handing over those powers to other people. No wonder there is a lack of understanding of what is being done in the people's name. It is pretty nonsensical to say that if there is a low turnout in the referendum, we should hand the whole matter to Parliament, which is half the cause of the trouble in the first place. After all, it is Parliament which the public feel, with fairly good evidence, cheated them of the opportunity of a referendum when Lisbon turned up as a rehash of the European constitution. That is one of the causes for the Bill. We are having a Bill now to try to rebuild some of the lost confidence in the EU, and we should judge the amendment by that problem. As far as I can see, the amendment would add to the problem rather than reduce it.
When I heard the noble Lord, Lord Waddington, speak about nonsenses, that seemed to be a cue inviting me to participate in this debate. The noble Lord talked extensively about ceding powers to Europe, but the very essence of the Bill is that the issues subject to referenda are issues that require unanimity in the Council of Ministers. The Government have every power that they need; they have only to say no and by that process they can stop any ceding of powers to Europe or anywhere else. They can deny unanimity. That is not what it is about. The idea that the Bill is the last bastion defending the rights of Englishmen, to stop his rights being transferred to Brussels, is really the argument of the knave who knows better, because it does not do that at all.
If we are to have what I believe to be nonsensical referenda inflicted on us, there has to be at least some measure to give a minimum standard of credibility to the referenda. Like the noble Lord, Lord Richard, I am not particularly happy about the amendment, although I will support it. The idea of putting to a referendum an issue where people can vote for or against does not really transfer sovereignty to the British people. I would far rather see a question with four options: "For", "Against", "Don't know" and "Don't care". If we had that, considering some of the issues which will be subject to referenda, I suspect that it would be a combination of "Don't know" and "Don't care" that would win in every case. The amendment would not give us a great deal of protection, particularly as, as I said, power already rests in the hands of Ministers. If there is such a reluctance of Ministers to use the power that they already have, an honourable retreat is available from Government to the Back Benches, so that they can continue their impotence from there. When the Government have every power that they need, they also need the political will to use it, not to use a fig-leaf argument trying to bind a successor, in circumstances where they seem to be predicting their imminent defeat at the next election.
My Lords, I rise to support the amendment in the name of the noble Lord, Lord Williamson, which is a Tory amendment. I am surprised to find myself sounding more Tory than the noble Lord, Lord Waddington, which is a feat I had not expected to attempt. The noble Lord, Lord Williamson, comes from the West Country, and I suspect him of being a Burkean. At Second Reading, the noble Lord, Lord Taverne, took us through John Locke. The Taverne view against referenda was derived from Locke, and he contrasted that with the evil Rousseau, who led the French in the direction of referenda. I would have preferred to have dinner with Fox, but Burke impresses me on the role of Parliament. The reasons I support the amendment of the noble Lord, Lord Williamson, have nothing to do with the European Union; they have to do with the position of Parliament.
Burke's speech in 1774 was to the Bristol electors who had just elected him. He had the guts to say:
"The wishes of the people should have great weight with their Representative, their opinion his high respect, their business his unremitted attention. It is his duty...to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to them...Your representative [in Parliament] owes you, not only his industry, but also his judgment; and he betrays you, instead of serving you, if he sacrifices it to your opinion".
That seems to me to be the core of Tory philosophy on parliamentary democracy. I agree with all that; it seems to me to be 100 per cent correct.
This Bill is a constitutional innovation. It says that once an Act of Parliament has been passed, it will be struck down by the people if they say no in a referendum. This is not the alternative vote referendum scenario. As Conservative noble Lords may remember, we did not vote for the alternative vote; we voted for a referendum on the alternative vote. In the case of this Bill, the treaty amendments that would have been considered by Parliament, and the 57 varieties of decisions-the baked beans can of decisions-that would have been considered by Parliament would have been subject to Acts of Parliament. They would have received parliamentary approval and then they would go to referenda. That is the first time, I think, that has happened in our constitutional history.
Does the noble Lord think that he envisaged a day when Parliament would be transferring sovereign powers from the people of this country to those of another of country, to people who they could not elect and could not dismiss?
I am sure that Burke was not thinking of the situation of the EU Bill which is before us. The noble Lord is absolutely right. He may have been thinking of a situation in Ireland which developed in ways that bore some resemblance to that during his lifetime, but I am sure that when he was addressing the Bristol electorate his concern was simply with explaining to them how he saw the role of Parliament and the sovereignty of Parliament. It is because I think that he was right about that that I think that we should vote for the amendment of the noble Lord, Lord Williamson, which I hope he will press to a vote. It does not restore full parliamentary sovereignty, but in a situation where-in his words-a derisory turnout had voted, the question of whether Parliament's will should be overruled would be raised. That is a little bit of Burke that would be rescued from the mess of Rousseau that we are in.
I rise briefly to speak enthusiastically in support of this amendment and to thank the noble Lord, Lord Williamson, for his remarks-I agree with them all. I was, like others may be, a little startled when the noble Lord, Lord Tomlinson, began to say that he rather agreed with the first part of the speech of the noble Lord, Lord Waddington. But I understand what he was getting at. The beauty of the amendment is that it can appeal to a whole range of Members of this House in deciding, irrespective of their own particular views on the virtue of referendums, or referendumitis, or the danger of referendums, or whatever, that this would be a good way of making more respectable a given referendum result with a turnout requirement-following the wisdom of the noble Lord, Lord Rooker, in a totally different context-and would make sure that we were not trivialising the exercise in a way that would disconcert the public in a big way. The beauty then is that, if the threshold is not reached, the power goes back to Parliament and the Government as the noble Lord, Lord Waddington, would always wish.
"if we present to the electorate the sort of issues in Schedule 1 and ask them ... to turn out at the polls"- in referendums-
"we are being not only completely unrealistic but deeply insulting to them".-[Hansard, 5/4/11; col. 1694.]
I have left out a few of the smaller words, but essentially that is what he said.
The electorate would say that that is what they elect parliamentarians to decide. We could easily have participation rates of less than 20 per cent, and we would return, therefore, to the Vernon Bogdanor example. I believe that this matter is important for parliamentarians in both Houses, but particularly here, as this House has an opportunity to improve the Bill in a way that government Ministers have already started to do with their generous amendment. We must work hard to restore public faith in the public's ownership of first-rate parliamentary standards of tradition, work and devotion to the public good. My personal view is that I am very fearful of referendumitis and this Bill would deliver a lot of it in the future if the situation were allowed to get out of hand.
Most sensible citizens are highly intelligent and quite rightly regard subjects other than mere politics as far more important and crucial. I often do. I would cite family and children, the local community, jobs and job prospects, football and-even better-rugby, holidays, the kids' results at school and music. Very many of those things are more important than politics. The public want to enhance political quality by leaving the political decisions to their elected representatives, even if some of them in the other place are sometimes rather nerdy people, like Bill Cash or John Redwood. We have to remember the warning words of my noble friend Lady Williams when she spoke of the disastrous example of California, which had become a bankrupt state as a result of excessive referendumitis and foolish populism. This amendment provides a pragmatic way of making the results of referendum-if there has to be one-more respectable. I hope that this House will support it.
My Lords, I wish that the noble Lord, Lord Dykes, would not describe people who oppose his points of view in such terms as "nerds". It does not enhance debate and it is quite unnecessary to lampoon one's opponents.
The amendment has a certain superficial attraction, but we need to be extremely careful what we do. If you say that a decision on an item on which a referendum is to be held can take effect only if 40 per cent of the electorate vote, you could say that about almost every election we have. People are elected to the House of Commons-certainly in by-elections-on a turnout of less than 40 per cent of those entitled to vote. Why on earth should that be legitimate and a referendum on a matter which is to be transferred to European governance not be accepted? We have to be very careful not to create a precedent here which might be used in other circumstances that may be inconvenient to Parliament and certainly to local authorities, where the turnout is very often far below the 40 per cent of those entitled to vote.
The noble Lord, Lord Tomlinson, talked about the various alternatives that might be put on the ballot paper. If you pass this amendment, there is another alternative which is that you can campaign for people not to vote. That is good democracy, is it not? Or is it? If you encourage people not to vote to get the decision you want, that is extremely bad democracy. I do not want to delay the House any further, but I believe that before we vote we should be very careful about what we are doing.
My Lords, the noble Lord, Lord Williamson, as always, made a very careful and thoughtful speech which places me in a slightly awkward position. I find it surprising that there is so much enthusiasm for this amendment from those who accuse the Government of obstructing the process towards greater European integration. They have said that the Government have been putting locks on moves towards further European integration. Here they are putting a padlock on the lock; they are putting another obstacle in the way of European integration. Let us not forget that one will get a referendum only when the Government are proposing to acquiesce in a step towards European integration. Therefore, I find it a little strange that those who are enthusiastic about more integration and think that the Government are being obstructionist about this want to put up another obstacle.
I do not accept the argument of the noble Lord, Lord Williamson, that there is a danger that we will have lots of referendums on trivial subjects such as the number of advocates-general or the voting system for having advocates-general. There are several reasons, which we went through in Committee, why we will not get a whole series of trivial referendums. First, these sorts of changes tend to come along in packages after major treaty revisions and we have been assured there will not be major treaty revisions. It seems unlikely that any one country is going to invest a huge amount of political capital pressing for a change in the voting system for choosing advocates-general. If some power has not been given to Brussels even after the Lisbon treaty and the Maastricht treaty-the series of constitutional treaties we have had-if powers are left to individual countries, there is a very good reason for that. Obviously in previous negotiations countries have not wanted to cede those powers. The idea that we are going to get a lot of referendums on trivial matters is unrealistic and is a chimera. If that was the basis of the noble Lord's argument I would not accept it. There are many subjects that are by no means trivial, such as our borders and our criminal justice system, where it would be wholly appropriate to have a referendum. That is why I am broadly a supporter of the Bill.
I said at the beginning that the noble Lord, Lord Williamson, places me in a slightly awkward position because I was, as some of my noble friends will remember, a very strong supporter of the 40 per cent threshold for the referendum on AV. Indeed, I voted twice against my party on it. I do not like to make personal comments but I got to my feet largely because of my noble friend Lord Dykes, who I have known for many years. On the AV question, my noble friend was a very firm opponent of the 40 per cent threshold to which he has put his name on this occasion. As I am placed in an awkward position and he is also exposed in an awkward position, I am prepared to do him a deal. If he will not support this amendment, I will vote for it.
My Lords, it is worth pointing out that the referendum is now part of our political culture. Indeed, it is not only part of our political culture, but right across the European Union referendums are deployed to get people's views. It is now a fundamental part of the whole democratic process. However, the potential effect of this amendment is to make the referendum advisory. That is the point because if it is below 40 per cent the decision is referred back to Parliament. The essence of that argument is that the result ceases to be mandatory and effectively becomes advisory. That destroys the whole point of the reconnection process.
We are trying through the Bill to reconnect the people of this country with the European Union. It is a big challenge. If we are going to re-engage people in that process we must recognise that, if there is going to be constitutional change, the vast majority of people will want to feel that their voice is represented in the process. We owe that to them. I very much agree with the noble Lord, Lord Stoddart, that the 40 per cent figure is arbitrary. It would be absurd in a local or European election, when sometimes the figure drops below 40 per cent, to reject the result. That is not the way we do things. We must remind ourselves that the vast majority of people will want a referendum if there is going to be an important transfer of powers to the European Union.
The AV referendum showed us that on an important constitutional issue, the people of this country will be fully engaged. They took it seriously and voted in great numbers. I have the greatest confidence that in a matter such as the one before us, the potential transfer of additional powers to the European Union, they will of course be very interested. Therefore, I feel that turnout would be quite high.
We must make sure that people feel that when they vote, their vote counts and is decisive. Otherwise, it will destroy the point of the referendum. The referendum lock should be given without qualification; it is in the spirit of what the Bill is about. The fullest acceptance of the referendum result voted by the people is something that we should recognise. It is our duty as parliamentarians to do so.
My Lords, I voted on two occasions for the Rooker amendment on AV. It is tempting to join the noble Lord, Lord Lamont, in taking the position that there may be a similar argument for supporting here an amendment that requires a 40 per cent turnout. However, the position is not at all analogous. In this situation, the aim is to protect the people of this country from having the powers of their Parliament and Government further diluted it and given away, as has sadly happened in the recent past, with Parliaments breaking their word to citizens and acting in a way contrary to that which they promised-I refer, for example, to the recent Lisbon treaty.
It is very clear that the Bill is there as a protection for the British people, and it would be made meaningless if we said to them, "We are going to give you this lock and protection, but if less than 40 per cent of people vote, we will give power back to the Government of the day who command a majority in the House of Commons". It is not an analogous situation to changing the voting system, where there were powerful arguments requiring an adequate turnout. It is not a situation that Burke would have supported in the slightest; he would have been absolutely against giving away the powers of the British Government and Parliament to another organisation. Either we give citizens a meaningful lock or we do not. Therefore, I feel no discomfort in opposing these amendments, having supported the Rooker amendment on AV; it is the whole point of the Bill.
My Lords, I find myself in disagreement with both my noble friend Lord Lamont and the noble Lord behind him. I am opposed to referenda in any case and do not think that we should judge referenda, even if we are in favour of them, by the particular amendment that is before us. We should judge referenda as referenda. Therefore, to vote for a 40 per cent division between compulsory and advisory on one subject and not to vote for it on another seems not to hang together. The issue is not about the European Union. Everyone knows where I stand on that. It is about an issue which comes from before that. Long before there were these debates on the European Union, there were debates about referenda. I enjoyed debating them and I have not changed my view on them.
The parliamentary democracy which we have is the greatest gift which we have been able to give to the world as a whole. Irrespective of the comments of my noble friend Lord Risby, parliamentary democracy and referenda do not go together, as a matter of fact. The one comes from a different tradition and I am not going to be one of those who besmirches the tradition by referring to the use of referenda by such people as Louis-Napoleon. That would be wrong. But referenda do come from that tradition and not from our parliamentary tradition.
Therefore, I was much enlightened by the reminder which the noble Lord, Lord Kerr, gave us of the great conservative thinker, Edmund Burke. He said that the embarrassing fact of being a parliamentarian is that you do have, in the end, to make up your own mind, even though the popular press, the women's advisory committee of your association, the local doctors' alliance and a whole range of other people tell you that you have got it wrong. I remind noble Lords of what happens if you take that away. It means that nobody with a strong view on abortion, for example, would be able to uphold his or her view in those circumstances. If he or she were to follow the views of the electorate, he or she would not be able to uphold what he or she thought was a moral position. The same would be true about capital punishment. No one would have voted against capital punishment if they had listened to the average elector over the past 30 or 40 years.
Let us not be too easily lulled into that simple concept of the referendum now being part of our democratic heritage. Referenda have always been used-I say this as a committed Conservative-in a way which has tended to favour those who take a very conservative attitude. My noble friend takes a very conservative attitude, so I am happy to give way to him.
May I assume, therefore, that in defence of parliamentary sovereignty and all that of which he has been speaking, my noble friend will assert the right of Parliament, and none other, to decide whether prisoners should have any voting rights at all? Will he be on side in this matter or will he defer to some agency outside Parliament?
I am always worried when my noble friend intervenes upon me but I am very pleased on this occasion to say that I agree with him entirely. This is an issue for Parliament and Parliament should make up its own mind-I have no doubt about that at all. He need not worry. I am a great defender of Parliament. But I ask this House not to allow itself to get into the situation which the Swiss got into. After all, Switzerland was the last country in Europe to allow women to vote. Why was that? Every time they passed it in Parliament, it was the referenda which defeated it. I ask noble Lords to be very careful about this.
Let us look at this amendment. I have great sympathy for the view which the noble Lord, Lord Richard, expressed. It seems to me that this is a very simple concept. We who are arguing for it have accepted that in our view, for bad reasons, we are going to have referenda. We are unlikely to have a referendum on something trivial-I do not really agree with the noble Lord, Lord Williamson; I think it will be likely to be on something of note. It will be on something which the Government have decided not to veto. It is going to be quite a rare occasion. It is going to be something which the Government have presented to Parliament, Parliament is going to vote for it, and it will then be placed before the public. All we are saying is that if less than 40 per cent of the public think it worth while voting, Parliament can reconsider the matter. It can take into account what the public have said and then ask itself what should it do.
I finish by saying that I would say this about a proposal for a referendum on something that I believed my side would win in all circumstances. This is not a matter about the subject; it is about the mechanism. It is that which we should face. May I suggest to noble Lords that this House has got to do its duty in ensuring that when there is a major change, as the noble Lord, Lord Kerr, said, we ensure that it is not one with unforeseen circumstances? All we are saying is that if enough people vote, then it is mandatory; if not enough people vote, it is advisory. That seems to me to be a sensible compromise, so I ask the Minister to help those of us who find this Bill very difficult indeed and at least allow us to have this compromise, which is in the best tradition of British parliamentary democracy.
I am indeed a member of the political class, but I think I see it perhaps with more objectivity than those who tabled this amendment. If your Lordships' House has a vote and less than 40 per cent turn out for it, the result is still valid. If 10 per cent of your Lordships' House votes, perhaps rather late at night, the result is still valid.
I say that those who tabled this amendment really do not understand the disdain of the people of this country for the political class, and that disdain is justified. Look at the position into which our political class has led this country over the past 50 years-since Suez, perhaps, and we got that wrong. Our children cannot learn to read; our prisons are overflowing with the illiterate; our hospitals are dirty; we are failing the old, most of whom end their lives in misery and loneliness; our streets are dangerous; our transport is creaky; our police are overburdened and overbureaucratised; even our Armed Forces are being asked to do too much with too little, and their morale is beginning to crack; immigration is out of control; Islamism is on the march; and our economy is in terrible trouble, the pain of which will, of course, be visited upon the people. I think the British people are justified in thinking very ill of their political class.
Noble Lords may remember that for about two minutes last year I was the leader of the UK Independence Party and, rather against my will, we consulted focus groups, which I always think should be completely unnecessary. Even I was surprised by the answer to the question about what people thought about the political class. Every class of the British people in every area of this country said that they regarded the political class not with dislike, not with disdain, not with distrust, not even with anger, but with hatred. I believe that our system of representative parliamentary democracy, which those who tabled this amendment and the leaders of our political class like so much, is no longer supported by the people, and therefore has broken down.
Do not let us forget that up to the 19th century and the early 20th century most people in this country could not read, so it was reasonable to send representatives to Westminster to take decisions for them. But now people can read. On the whole, they are very much more sensible than the people who represent them and they want referendums. They want referendums not only on the European Union but perhaps across the board, which might be the only way to reconnect the people with their democracy. I believe that their decisions-even if only 15 per cent of them turn out to vote-will be very much wiser than those of our failed political class. Therefore, I oppose these amendments.
My Lords, I shall speak specifically on the 40 per cent threshold and will start by reaffirming the point made by other noble Lords on these amendments going against the Government's objective of re-engaging with the British people, particularly on major EU issues about transfer of power and competency. I want to reassert the coalition's intentions on referendums in other parts of our life. The Localism Bill, which we discussed yesterday, has many arrangements in place for referendums.
It might be helpful to remind the House of the other referendum that took place a couple of months ago. I am not referring to the AV referendum but the one in King's Lynn about an incinerator. After a strong campaign against a local incinerator, the turnout was 61 per cent. It was interesting that there was a division between a county council view and a district council view about whether there should be such an incinerator. The county council view ignored the will of the people. I am afraid that my Conservative colleagues and my noble friends on these Benches suffered some significant defeats in the local elections. Nine councillors were rejected because the people felt that their voice had not been heard after they had been allowed to give it. We miss that opportunity at our peril. I have given that specific example because, in Committee, I raised the issue of the Scottish referendum in 1979 after which there was a significant disconnect. It has taken many years to address it. Some would argue that there is still a legacy of distrust between Westminster and Scotland.
I would prefer the political parties and other groups involved in campaigning for referendums to engage with the public, rather than there being a threshold which, as others have mentioned, could skew the result. You may get not just the "don't knows" and the "don't cares" referred to by the noble Lord, Lord Tomlinson, but those who do not support the motion actively being asked not to vote in order to skew the result. Then the public debate becomes about voting and not about the issue. That would be wrong.
The contrast between these two types of referendum is striking. In the first, a real referendum resulting in engagement with the public undoubtedly has helped the public's perception. The 1975 EU referendum benefited the perception and understanding of the EU for many years. But in Scotland there was a real contrast and, as I have mentioned, serious damage is still there.
Finally, last year, the Lords Constitution Committee stated that there should be,
"a general presumption against the use of voter turnout thresholds and super-majorities".
Let us heed that sage advice and not support the amendment.
My Lords, I find that I am afflicted by the quite well known advice once given to me by the Whips. It was, "Never listen to the debate on any issue". When I saw this amendment I was rather dismayed because, as my noble friend Lord Lamont pointed out, it replicates exactly the proposal which he, I and others put forward on the AV referendum. I found myself thinking, "Now I have got to be against this because I am against Europe taking more powers from Britain. How am I going to reconcile this in my mind?". My noble friend Lord Deben has been very helpful in this regard because it is not about the issue of European powers or the role of the European Community. It is about the relationship between Parliament and referendum.
I am going to upset a number of my noble friends by being on an unpredictable side in this argument. My noble friend Lord Risby said that it is now part of the culture in Europe to have referenda. I am rather alarmed by that, because we have a parliamentary democracy. I support this Bill in its intention, which is to give the people a say before a power is transferred, if that should happen. It seems very dangerous to get into a position where we have what is a constitutional innovation-the concept of drop-dead referenda. The moment the vote is cast, that is it. It has become enshrined in law and Parliament no longer has a say. That is a new concept which has crept into our constitution. When we joined the European Union, we did not have a referendum of that form. The Scottish referendum, with all due respect to my noble friend, was not of that form, either. Parliament was still in control and had the final say. My noble friend Lord Deben has been consistent throughout all the time I have known him in his opposition to referenda. I am not against referenda but they must be supported by a substantial group. We could argue about whether 35 per cent or 40 per cent or 50 per cent is the right number, but there ought to be a clear view expressed by the people.
Perhaps I may take up an earlier point. I know nothing about the incinerator but I have been involved in public life long enough to know that if you want to put an incinerator anywhere, you are going to get a majority in a referendum against it. That is why we have elections and that is why we have Parliament. It is in order to take difficult decisions, which, as my noble friend has said, may very well be unpopular. So I am rather inclined to support this amendment for that reason. It seems to be consistent in supporting the constitutional principles which this House should be concerned about. Tempted as I am by the expediency of the case, I think that argument ought to prevail.
In supporting this amendment, is my noble friend comfortable with the concept of a turnout of less than 40 per cent, which is therefore null, and a no vote by a narrow majority? Bearing in mind that the Government will have instigated this referendum because they want a yes vote, if they get a no vote by a narrow majority and the House of Commons reverses it to a yes vote, is my noble friend comfortable with that idea, because that is what he is advocating?
I am not advocating that at all. It would be a matter for the House of Commons to decide. The House of Commons and this House would have to take account of the nature of the campaign and the strength of the vote and the arguments that are put forward. The pressure of a referendum in itself, however big the turnout, will be a major factor in the considerations which are taken by the elected Members. I am not comfortable with the idea of cutting Parliament out when there may have been a low turnout. By the way, I was also not comfortable with accepting these arguments when I rejected them not many weeks ago in the context of having a threshold on the AV referendum.
My Lords, I want to make three short points. First, I refer to the argument of the noble Lord, Lord Waddington, who always argues his case with great force and effectiveness. However, on this occasion, it seemed rather strange. He said that if there is a low vote, it simply proves the lack of enthusiasm for the European Community and the fact that people will not vote is equivalent to a no vote. The circumstances, as has just been pointed out, will be whether the Government support a change in the law. Suppose the next Government are a Conservative Government. They are not likely to make a major transfer of powers to Brussels. On some of these minor matters in Schedule 1, they might see the advantage in not having a veto and make that part of their case. If there is a very low vote, it is a toss up as to which way it will go, but a 10 per cent vote in favour of a transfer of power and 9 per cent against is a quite a likely result. In effect, the argument put by the noble Lord, Lord Waddington, is that it makes a transfer of power more likely.
The noble Lord, Lord Lamont, says that it is not likely that there would be an individual vote on some of the minor matters set out in Schedule 1 because they would be packaged, which is also what the noble and learned Lord, Lord Howe, has told us on a number of occasions. But a package is particularly unsuitable to the referendum process. Let us suppose that some people in the country are passionately concerned about joining the European public prosecutor's office, while others are passionately concerned not to have an extra judge in the European Court of Justice. Yet others may be very concerned about not having a new protocol for the deficit procedure. All those issues may be part of a package. Which way should people vote if they are in favour of one and against another? What should they do? It makes a nonsense of any sort of referendum.
The second point I want to make is that if this amendment is not passed, we are likely to be left with referendums on some of these minor matters. Are they really going to bind this country closer to Europe and reconnect the public with Brussels? Are they going to make Brussels more popular? Of course it is a result that I do not necessarily approve of, but would it not make referenda less and less popular with the public?
That brings me to my last point. The noble Lord, Lord Kerr, referred to Burke. I should like to comment on that since I was the first person to bring Burke into the argument. In his doctrine, Burke says that the will of the people should always prevail; it is the anti-Rousseau argument. What is interesting is that while there have been some tests of it, although only a very few, they suggest that Burke is actually quite popular. I shall give two examples. In my speech at Second Reading, I referred to a by-election in which I resigned on an issue over which I was unpopular in the sense that a local poll showed a majority of three to two against our joining the European Community. But I argued for the principle of Burke that I was entitled to exercise my judgment, and Burke prevailed by a substantial majority. I can give another example. One of my neighbours where I lived until recently was a Conservative MP I greatly respected. He was the late Norman Miscampbell, who was a Member for Blackpool. Many people will remember that a police superintendent was murdered in that town, and a campaign was launched by his widow to restore the death penalty for the murder of a policeman. It had overwhelming support in Blackpool, but Norman Miscampbell, on principle and very bravely taking the Burke view, voted against the restoration of the death penalty. His fellow Conservative MP in Blackpool, the late Peter Blaker, supported the petition and voted in favour of it. At the next election, Norman Miscampbell's vote increased by somewhat more than that of Peter Blaker. Burke is not unpopular. When they reflect on it, people think it very reasonable that Members of Parliament should exercise their own judgment and not act as puppets.
My Lords, perhaps I may make a few remarks in support of this amendment. I find some of the arguments that have been used against it quite bizarre. The noble Lord, Lord Risby, said that the vast majority of people in this country want these referendums. If so, he has nothing to fear from the amendment. If the vast majority of people in this country want referendums, more than 40 per cent of them will vote when a referendum question is put, and this Bill, as amended, will then provide mandatory outcomes. It has been suggested that this is all about engaging with the British people, but if we cannot get 40 per cent of the people to vote, is that not a failure to engage with the British people? Surely that is precisely what it is, which is why having a threshold makes sense.
I argue that we should not go down the primrose path of thinking that the referendum fashion is sweeping across Europe. First, we are not talking about Europe; we are talking about Britain. I do not see why we should accept that argument as valid in our case. In any case, I have a strong feeling that most people who have supported referendums around Europe now bitterly regret it. In the most recent one, last weekend, the Slovenians voted against raising the pensionable age to something quite a long way below the pensionable age in this country; not, I would have thought, a very sensible thing to have happened-something rather like the incinerator case, I suspect. I am very much in the same group as the noble Lords, Lord Deben and Lord Forsyth. It is not a very good idea to have these referendums. The Government could quite easily have avoided most of the petty referendums by drawing up a much simpler Bill, but they chose to throw in the kitchen sink. Given that, the case for a threshold is really rather compelling and I therefore support the amendment.
It is not the time of night to go into a lengthy disquisition on British constitutional history, but we still live in a representative parliamentary democracy and we still accept that a Government who have a majority in the House of Commons can make laws. However, we are seeking to contradict that with this provision. The amendment that is being moved is a small, modest palliation of that.
This amendment is not in fact about the absolute underpinnings of this Bill, although it is a very tempting set of red herrings that have been laid in front of your Lordships' House. This set of amendments is about whether or not there should be a 40 per cent threshold and, with your Lordships' permission, I would like to comment purely on that point.
The 40 per cent threshold seems to me, as a former Member of Parliament and of the European Parliament, to be a rather odd thing for noble Lords to be considering today. We do not have a 40 per cent threshold in the general election or in the European election, for example. We are perfectly comfortable with assuming that 50 per cent of those who come out to vote is the threshold on which the electorate are exercising their wisdom. I find it extremely difficult to see why, just for this Bill, some noble Lords are so adamantine in their perception that a 40 per cent threshold-and no less-is the absolute minimum they will accept if a referendum is to give a valid answer from the British people.
All noble Lords who have commented on the imperative of parliamentary democracy and Parliament's primacy are, of course, absolutely right. I think that it is Clause 18 of the Bill that, for the first time ever in many generations in Parliament, absolutely clearly defines that it is only through the primacy of Parliament that EU legislation can be accepted at all. It is our responsibility. The noble Lord, Lord Waddington, made the point in his very thoughtful intervention-and I fully support this-that we have been far too fast in ceding power from this Parliament to the European Union. However, I would perhaps remind him that that is our responsibility, certainly in the House of Commons and Government but also, to a much lesser extent, here. The noble Lord, Lord Roper, is in his place, representing the several generations of outstanding work by EU sub-committees in your Lordships' House. That has not been the case in the House of Commons, which has let slip piece after piece of legislation pouring in from Brussels. Indeed, it is the Ministers of the day, from every single Government-from the previous Government and the ones before that-that have fed the House of Commons so little material that somehow it has unwittingly, or in some other mode, let through all of this legislation and the growing burden of all these regulations which are, I believe, oppressing the peoples of the European Union and particularly the peoples of the United Kingdom.
This modest Bill, although it is relatively lightweight, does contain two or three very important points, the first of which I believe is the primacy of Parliament over EU legislation and therefore surely over the outcome of any referendum. It also gives the wonderful possibility of a downhill-driven knowledge base to the British people and some small modicum of authority over what will happen. I very much support the Bill because of those two points.
Coming back to Burke, to the point that was raised in the context of representative parliament, I cannot help but comment, because the flavour comes through so strongly, that some of the arguments that noble Lords are putting forward tend to resonate with those of us whose female forebears fought for the vote for women. In other words, somehow some elements of the population are not fit to bring their judgment to bear on important matters affecting the United Kingdom. It is difficult. Burke, of course, was wonderful, but before him and at his day women did not have the vote. Academics had more than their current bundle of votes per person, so did the landed gentry, so did the aristocracy; well, wonderful, but today is different.
One of the key differences is that today we have modern technology. Only the day before yesterday I had five e-mails, no less, from the great Steve Jobs himself urging me to discard my newly purchased iPhone and my iPad of the week before last in favour of iCloud, where all my data are going to be parked for ever and a day. Modern people, men, women and children of all backgrounds, all income brackets, all of us-I leave aside prisoners because I do not want to interfere with the debate between two prominent powerful members of the Conservative Party on that one-all those people have knowledge now, absolute knowledge, just as much as we do, and they have time, they have energy, they get involved.
My noble friend Lord Dykes commented that-despite the absence of cricket in his tremendous tour de force of commenting on what the British public are interested in-the British people trust their political representatives to make political judgments on their behalf. Noble Lords know full well that the British public have no trust in any politician at all at the moment, although I believe that they have greater trust in your Lordships' House than in the other place. What they do have confidence in is the knowledge that they take, albeit false knowledge, from Wikipedia, from iCloud and from other data that are now so readily available 24 hours a day and which people take, commandeer and use. Therefore, they want to be involved; they are able to be involved; they are knowledgeable about being involved and that is why the heart of the Bill is a good idea.
The 40 per cent threshold is a very odd idea, unless we are going to carry it right forward into the European Parliament, into the general election, into local elections, presumably-we can have a dismal turnout, yet we respect the council that is elected none the less and the mayors that are elected, if they are. I expect that there will be a pretty low turnout if we have elected police, for example. So we do accept that low turnout and we take just over a 50 per cent threshold as a majority. That is the way in which our parliamentary system works, that is the way in which our electoral system works. I can see no rationale, no reasonable argument that has been laid in front of your Lordships' House so far this afternoon, which tells me that I should support this set of amendments. These referenda will be few and far between-probably once every 10 years if the European Union actually proposes a further transfer of sovereign power, which at the moment is highly unlikely. It is busy with the euro, it is busy with the superabundance of enlargement; it is not going to propose anything very important for the moment on these grounds. Maybe once every 10 or 15 years there will be a referendum. Is this of such profound significance that it outweighs the normal way in which we vote in general elections? I think not. The logic is against it because the Bill says that the primacy of the British Parliament overrides everything coming from Brussels in any case. I oppose the amendments.
It has been a long debate and I suspect that there has been a very full review of most of the issues. I am very pleased to be associated with the noble Lords, Lord Williamson and Lord Dykes, and the noble and learned Lord, Lord Howe, in this amendment. I also find myself in very strong agreement with the noble Lords, Lord Deben and Lord Forsyth. I too have been thinking about Burke. It may completely destroy any prospect of my ever sitting successfully on these Benches again, but the reality is that those are the key arguments.
There was such strong support for my noble friend Lord Rooker's original concept of thresholds and the feed-through to the parliamentary system-there are some differences here that I shall explore in a moment-because it was felt strongly that when there were to be significant changes to our constitution or the arrangements under which we are governed, there ought to be a demonstrable degree of legitimacy. Goodness knows, 40 per cent is a pretty modest figure when looking at a level of legitimacy for changes that profound. None the less, it was an attempt to say that there should be some authority for the decision, and that the figure gave at least that degree of authority. One of the arguments adduced at the time was that in the commentary on the turnout in local elections, in particular, dipping below 40 per cent, as it often did, people made very severe criticisms of the quality of our democratic life. When it was higher than that, people tended to think it was healthy. I do not want to say that that seems to be the key reason. I just make the point that on turnouts of less than 40 per cent, results were routinely disparaged. Anybody looking back over the press and other commentary at the time would come to same conclusion.
The constitutional debates in this House were interesting. Many of your Lordships said that once the decision is taken in a referendum we should not try to second-guess the electorate. They will have spoken, however small the turnout and however profound the issue. None the less, they will have spoken. That was never a convincing reason not to look at the prospect of some threshold. That is why I agree so strongly with the noble Lord, Lord Deben. Unfortunately, we look at it from where we are now, with this legislation in front of us.
The reason why I assert that we may be in a slightly different position now is that most of the arguments that my noble friend Lord Rooker produced are still very good. However, the argument today has a slightly different salience. It has been argued that, in relation to Europe, the people of this country have felt disenfranchised. That may well be true; I do not particularly choose to argue that it is not the case. They may well resent having had less say than they believed they should. What is needed in these circumstances may be the indelible mark of people's approval for changes that might have a significant effect on their lives. I can see that. If it is true that we need that new kind of indelible mark, let us make sure that it is a credible mark, which has some authority and dignity and has not gone through on very small figures.
The reason why I believe that this is significantly different from the arguments about, for example, local elections, and different-with the greatest respect to former Members of the European Parliament-from European parliamentary elections, is this.
I was merely making the general point that 50 per cent-plus is our normal modus operandi. It is impossible to see why it should be any different for this referendum.
My Lords, the argument for 50 per cent plus has been widely canvassed recently among the people of the United Kingdom, who formed a very clear view of it, which I agree with. I make this point because it goes to the heart of the difference that we are discussing. The difference seems to be that Parliament will have taken a decision to put the matter to the electorate. The question is: what size or degree of opposition should there be before Parliament is overridden and its decision-the decision that has been advocated by the Government of the day-set aside? The decision that forms the fundamental proposition being put to the people will have been argued for from government Benches, and may well have been argued for from opposition Benches as well, before it ever gets to the point where it is put to the people. The constitutional innovation is that people are being asked to set aside whatever Parliament, and indeed whatever the Government that they have elected, have said. This is a very profound difference from any arrangement that we have seen at any time in the United Kingdom.
On major issues there can be little question but that there should be a proper referendum. The euro has been mentioned. The view of the noble Lord, Lord Lamont, commands great respect from me. I agree with him that borders, taxation, law and order and the examples that he gave are significant issues. This is why, in Committee, a number of noble Lords-myself included-have said that, were they in Government, they would have the confidence to just say no and spare everybody the problem of going through any kind of referendum. Why would we change our law and order? Why would we relax what we regarded as a proper defence of our borders? What Government who took genuine responsibility would do that? Just say no. The respect of the people of the United Kingdom, seeing a Government who said no in these areas, would be profoundly greater than any other kind of mechanism designed to achieve the same result.
Parliament is the proper representative place. Should there be an unconvincingly small turnout, which does not have what I have described as authority, Parliament should, and people will expect Parliament to, fulfil its proper role. If the result of the election were below 40 per cent, Parliament might very well conclude that the decision was still in the best interests of the people of the United Kingdom and use the authority it was elected to use. It might on the other hand conclude that it should not do so. This is the nature of a parliamentary debate and a decision taken on the balance of all the issues concerned.
The noble Lord, Lord Kerr, also described this as a constitutional innovation. I have tried to describe why I believe that is the right description. It is a constitutional innovation of a very profound and difficult kind, and one born of the fear of taking responsibility for taking difficult decisions ourselves as parliamentarians. Of course there are the issues that should be put before the people of the Untied Kingdom; I hope that I have illustrated what those might be. Alongside this are those instances where it is quite right that Parliament and the Government of the day should say no. In light of this Bill, this amendment stands as the optimum extent to which it is possible to defend the historic role of Parliament and to ensure that the responsibility of Parliament is not given away in needless circumstances.
I will make the point of order whether there are interruptions from other parts of the House or not. The noble Lord, Lord Triesman, said that we had had enough of this debate and that, when he got up, no other noble Lord would be able to speak. This is not in accordance with the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords. If noble Lords turn to paragraph 8.139, on page 152, they will see that, as long as the House accepts that they should do so, noble Lords may speak until the Minister gets up. After this, there shall be no speeches. However, before the Minister or spokesman gets to his or her feet, with the permission of the House, any Member of the House may speak
My Lords, if the noble Lord, Lord Stoddart, is correct, as I have got up, this debate now comes to a close.
As always, it has been a fascinating debate with many profound remarks. It has predominantly been a debate about referenda, but I do not agree with the noble Lord, Lord Williamson, that the debate has been entirely separate from the Bill. Speaking as one of the, I suspect, rather few ex-Ministers who have taken a referendum Act through the other place in the distant past-the Northern Ireland referendum Bill-I suppose that, in the eyes of my noble friends Lord Deben and my noble and learned friend Lord Howe, I am damned before I start.
Nevertheless, let me set out one or two of the arguments that have perhaps not been exposed as clearly as they should. We know that the purpose of these amendments is to include a minimum turnout threshold for any referendums arising as a result of the Bill. If the threshold is not met, regardless of the result, hey presto, the referendum would become advisory and not mandatory. This proposition has a whole string of disadvantages, which are not all obvious but become clear if you think about them. First, as many of your noble Lords have pointed out, instead of it being mandatory on the Government, it leaves the British people in real doubt about what the effect of their vote will be. The noble Lord, Lord Triesman, is incidentally entirely wrong that it will be mandatory on Parliaments; it will be mandatory on Governments, though it is true that Governments often, but not always, control Parliaments. However, this goes by the board if we pass the amendment. It will be the end of the British people's mandatory certainty and they will be back where they started, passing the ball back to Parliament and the party and Government controlling parliament. This is where the record has, frankly, not been brilliant or reassuring. This is one of the reasons why we are facing these problems.
We have the glorious assertions of excellent and eloquent spokesmen like the noble Lords, Lord Tomlinson and Triesman, that the only need is for the Government to say no. However, they have not said no. They have said yes, when many people have felt that this yes was the wrong and inappropriate proposition. The fear is that, now that we have said yes to Lisbon, we have said yes about handing many important powers to the European Union. We work with the European Union and believe that they should have powers. However, will it be a no or yes in future? The doubt remains. The doubt must be removed. The reassurance is not there. For the vast majority of the people, the call is for the reassurance to be there. Though the noble Lord, Lord Pearson, will not agree with me, I suspect that the vast majority in this country want us to be good Europeans and to be effective in Europe and effective in allowing Europe to use-and not have us unravel-its vast range of existing competences. They are, however, worried as to whether it will be a yes or a no in future. The noble Lords do not seem to have grasped this central point. It is simply not right to lead people in doubt about what their role will be. It leaves them with a doubt-a dangerous doubt-about whether they will be listened to, about the lack of clarity and about whether their views will count.
The noble Lord, Lord Kerr, brought us back to Edmund Burke. I love Burke. He is one of my favourites. However, he is not particularly my favourite when he warned that democracy only works if, as he put it, there is a policeman within each one of us. It is slightly different from the proposition about parliamentary democracy. We all know perfectly well that Burke was not operating in today's situation. He perhaps did not foresee the iron discipline of party politics, where some parties get a complete grip on Parliament. Has the noble Lord, Lord Kerr, recently read-or ever read-Lord Hailsham on elected dictatorship? In it he would find a heavy antidote to the glorious idealism of the Burkean age, in which the noble Lord, Lord Deben, and Mr Burke could speak out to their conscience freely unaware of any party restraints. I have spent 31 years in the other place and I am afraid that every day I was aware of party restraints.
I cannot see that this 40 per cent threshold would reconnect the British people with the decisions being taken in their name at the EU level; it certainly would not do so. These devices do not serve to solve the problem, as astutely identified by a great many commentators day after day on the radio or in the newspapers. I see that my brief refers to the BBC's Europe editor, who said the other day that,
"Across Europe voters feel insecure, suspicious of an elite with its own vision of an ever closer union but which doesn't necessarily address their hopes or fears".
I would hope that this wise House of Lords, where we wear our party allegiances somewhat more lightly, would support efforts to resolve this concern and to see the European Union on a more solid basis than, frankly, it is today, not only for lack of popular support but because it is facing very serious policy issues as well. For those of us who want to build a better relationship between the British people and the EU and, indeed, people generally and the EU right across the 27 countries-soon to be 28 or more-I would have thought that this is the way to go.
By the same token, the amendment before us undermines that whole aim of the Bill. That is the first point which must be taken into account and cannot be dismissed, unless those who do so think that popular support and consensus are irrelevant, do not arise and that parliamentary wisdom is so entrenched and admired that anything decreed by Governments in Parliament will be immediately accepted-it will not. Secondly, the point has rightly been made that thresholds of this type encourage game playing during a referendum campaign rather than a proper presentation of the arguments to achieve a desired result. For example, if supporters of the yes campaign know that Parliament supports the treaty change in question, they have a huge incentive to keep the vote down below 40 per cent rather than going out and making the case for change.
Thirdly, the Government believe that we should encourage public participation rather than providing reasons for keeping that down. We could wish that the internet age had never occurred and that the days of massive and wide public consultation had not developed, but they have. As my noble friend Lady Nicholson rightly pointed out, are we saying that local elections are not legitimate? We can wave a hand and say that they are different but that is just an assertion. I do not think that they are all that different. Are we saying that the European parliamentary elections are not legitimate? What does it do to the trust in the body politic if a majority have voted no in the referendum but Parliament decided, because it has the power to do so, to go ahead anyway? That would be extremely damaging.
Fourthly, the Lords Constitution Committee, to which some of my noble friends referred, in its wisdom-it is a very wise committee-shares opposition to thresholds. Its report on referendums in the UK concluded that,
"there should be a general presumption against the use of voter turnout thresholds and supermajorities".
Thresholds are bound to distance voters from the issues on which the British people want to have their say. Incentives to campaign to abstain would be vastly increased.
There is a further question. During our first days in Committee on the Bill, the wise noble Lord, Lord Kerr, said that during the debates on the EEC Referendum Act 1975, the noble Baroness, Lady Thatcher-then Margaret Thatcher-had objected to the possibility of the referendum being mandatory. She also said:
"The Government might regard themselves as bound, but the result could not fetter the decision of Parliament".-[Hansard, Commons, 11/3/1975; col. 315.]
That, of course, is exactly our point. That is why I fear that the noble Lord, Lord Triesman, is wrong. These referenda, or the referendum that might occur-I think that it will occur only once every few years, but I will come to that in a moment-are mandatory on government. That is the whole point of the Bill. However, they are not mandatory on Parliament. They cannot be. Parliament's view of the treaty will be taken during the passage of legislation for the referendum. If Parliament did not support the treaty, it would not pass the legislation, so Parliament has its say and remains supreme in every sense.
Your Lordships will recall that this issue was discussed extensively during the first day of the Committee stage and noble Lords raised important issues on the need, or not, for turnout thresholds. There is nothing in this Bill which would bind this or any future Parliament from legislating, notwithstanding the provisions of the Bill, or disapplying the provisions of the legislation or legislating contrary to the will expressed by the electorate in a referendum. The principle of parliamentary sovereignty clearly means that this or any future Parliament could legislate contrary to the referendum outcome if it so wished, although it would have to account to the British electorate for its reasons for doing so.
That also goes to the heart of the question on whether holding referendums in this area is a major constitutional change, as some of your Lordships have asserted. The recent nationwide referendum on the voting system for the House of Commons showed that where an issue is important, people will turn out to vote. The Government believe that the issues covered by the referendum lock in the EU Bill are not the trivial ones that noble Lords keep asserting. They are highly important and sensitive. They involve the red lines and major issues that have been central to British politics and, indeed, the politics of the European Union, for decades and are vastly important to the British people, successive Governments and Parliament. I challenge those who try to diminish them or assert that they are trivial to argue that proposition in a public forum. I do not believe that it can be sustained.
We do not have a "magic bullet" in terms of ensuring a high turnout. We expect both sides of the debate to make the strongest possible cases to encourage voters to express their views. However, what noble Lords are proposing in this amendment would almost certainly ensure that the turnout, and the British people's faith in Parliament, would suffer. To that extent it would be a highly negative move if the amendment were passed. Given the importance of the issues to which we have applied the referendum provisions in the Bill-they are very important-the people should be given a real say.
I know that this House has supported, and given a majority vote to, 40 per cent thresholds in the recent past. However, when comparing this Bill with the AV vote Bill and the subsequent referendum, I would point out that this is not a matter of opinion, as in the AV case, but of a treaty or a reduction in sovereign powers which has to be ratified. That is what would come before the British people. A decision has to be reached and to take that decision away from the people and give it back to Ministers-that is what an advisory referendum would do-may appeal to some but it is flatly against the aims of this Bill, against the restoration of public confidence in the European Union and against the spirit of our times.
I do not believe that there is any great appetite in any of the 27 countries of the Union-shortly to be 28 and perhaps more-for treaty changes, let alone for veto surrenders. I was very impressed by the wise evidence of Sir John Grant, who was our permanent representative in Brussels for four years up to 2007, in the post-Lisbon phase, which, incidentally, was totally different from the pattern of developments in Brussels before Lisbon. He commented on the possibility of a referendum taking place in the next five years on a move from unanimity voting to QMV by passerelle, but he played that down. He added that passerelles were in any case "difficult to use" for the simple reason that,
"everybody's got to agree that some of them are going to be outvoted".
I thought that those were wise words on the reality of whether we are going to see a dribble of small referenda and small changes or whether in fact, as is far more likely, we are going to see an established pattern of changes coming into a large treaty, which will have good and bad bits in it. Just as the electorate has to choose at election time between the good and bad bits of party manifestos, so they would have to make that choice with regard to the next Lisbon treaty, Budapest treaty, or whatever it might be called. I do not think there is any comparison at all with the small referenda we have had in the past-perhaps not the one that I took through Parliament and certainly not the one on Sunday opening hours in Wales. That seemed to me-if I may be forgiven the word, but it has been used-an absurd comparison. I agree with my noble friend Lord Lamont that this pattern of little referenda on little items is utterly implausible. I think the evidence that Sir John Grant gave to the Commons European Scrutiny Committee is far more convincing and based on recent and deep understanding of how the Brussels system actually works today.
For all those reasons, I would urge the noble Lords, despite the superficial attractions of 40 per cent-and they are very superficial-to understand its grave disadvantages. The amendment aims at the very heart of the Bill and undermines a lot of the causes that many of us hold dear about the positioning of this country in the 21st century. That being so they would be wise to withdraw their amendments.
My Lords, it is traditional to say we have had a wide-ranging debate. On this occasion it is true. When I put the amendment forward, I hoped I would get a measure of support from different parts of the House. I have done that, but of course there has been a good measure of disagreement as well. I have also succeeded in doing something I did not set out to do: I have clearly split the Conservative Party and the Liberal Democrats. That will, perhaps, give me a reward in heaven, although I will go on a little longer to say that I will be first to have a reward here in the Chamber.
I would like to make one or two very brief points. The first is that this amendment comes forward because of circumstances that have been dictated by the Government's Bill. They are nothing whatever to do with a blank space about how we are going to deal with Europe. We have a Bill on the table that potentially introduces more than 50 referenda. I do not think we will get those, but in any event what is happening in the near future, to which the Minister referred, is not relevant because the Government is not going to take this action during the current Parliament.
What we are discussing is what sort of referendum regime we want to build into our constitution for the medium term and what role we think Parliament should play in that. I think Parliament should play some part, particularly in those cases where the British public has shown a complete lack of interest in-or even their disagreement or contempt for-the Government's attempt to hold a referendum by voting in negligible numbers. I think it is perfectly reasonable, in those circumstances, for Parliament to take responsibility. That is the basic approach and I stand by it.
I do not want to go into all the other details because I know nothing about the incinerator in King's Lynn. I do not agree with the noble Lord, Lord Pearson of Rannoch, that we have reached the death of the political class. I know they are a bit threatened, but I do not think they are dead. All those issues are beyond me.
One final point is that there have been a good number of comparisons with elections, local elections and so on, which have no 40 per cent bar. I think all those arguments are totally irrelevant. In particular, we had a Second Reading of a Bill yesterday that made possible a large number of referendums on local government. Every one of those referendums was going to be advisory, not mandatory. The position of the Government, particularly the Liberal Democrats, is in favour of advisory referenda and I cannot see why they wish to act differently in this case. I think I have said enough, and I wish to get my reward here and not in heaven. Therefore, I wish to test the opinion of the House.
My Lords, after that great victory for Parliament-let us thank the noble Lord, Lord Williamson, for moving the amendment and being the moving spirit behind it, with other Cross-Benchers-I now speak to the amendments in my name and that of my noble friend Lord Triesman, which are also about the role of Parliament, about strengthening Parliament and substituting the discretion of Parliament for the automaticity of the referendum locks that the Bill contains.
The amendments do not drive a coach and horses through the basic principle of the Bill, which is a requirement for referendums on the big issues affecting Europe's future, but they set up a special Joint Committee of Parliament: the European Referendum Scrutiny Committee. In cases where Parliament had passed an Act under this legislation, that committee would be there to consider whether it was necessary to have a referendum on that Act. In making those judgments it would take account of the criteria in subsection (4) of Amendment 5B. Those criteria include whether the matter was significant, whether it was urgent and where the national interest would lie. It would come to a judgment on whether it felt that a referendum was justified. If a referendum was justified, it would be up to each House, in a Motion, to approve that recommendation. It is important to emphasise-because this is a change in the amendment that we moved in Committee, perhaps to make it more acceptable to sceptics in the House-that if there was not to be a referendum, it would require both Houses to say no to the recommendation of the Joint Committee that there should not be a referendum. In other words, it would meet the point that the noble Lord, Lord Howell, makes that with executive control over the Commons, it would be possible for a whipped vote to defeat the idea of a referendum, because they would have to go against the recommendation of the committee and win that position in our Chamber as well.
What is the point of putting in place this proposal? It is to inject proportionality into the Bill. The Bill contains no proportionality whatever. It is a "thus far and no further" Bill as far as the European Union is concerned. It assumes-and it is an extraordinary assumption-that a Government can today foresee all the circumstances in which change in the European Union might be necessary over the coming years. The noble Lord, Lord Howell, keeps telling us that he sees very little prospect of a referendum occurring in the near future. However, within two years of the approval of the Lisbon treaty we have already had a proposal for a revision of that treaty, under the simplified revision procedure, to create a European stability mechanism, which is necessary to deal with the crisis in the euro area. That is not the result of an attempt to deceive people after it was thought that there would be no treaty changes immediately after Lisbon. That is not the reason. The reason is that, due to the crisis in the euro, circumstances have occurred which no one foresaw and it is necessary to make this minor amendment to the treaty.
As it happens, that does not affect us. However, if there was a change which in a similar set of circumstances did affect us, it would require a referendum. Yet it is hardly the kind of major issue about the nation's destiny that would justify having a referendum. It would therefore be up to the Joint Committee that we would establish to decide on the proportionality of these questions as to whether a referendum was necessary. It is a strengthening-an affirmation-of the rights of Parliament, just as we have voted for a few moments ago, and an important one to make.
I make three main broad political arguments for this. First, if you are seriously committed to Britain's participation in the European Union, you want a British Government to be able to respond flexibly to events and to be a good partner to our partners in the Union. We cannot completely tie our hands in advance when we do not know the future-as the example of the European stability mechanism shows.
The second political argument is that there is no reason why the Liberal Democrats could not support this amendment. As I pointed out before, the coalition agreement in its text drew a very clear distinction between major treaties where referenda would be necessary and minor changes which would require primary legislation in Parliament. This Bill does not represent what the Liberal Democrats signed up for in the coalition agreement. I do not see why they have to besmirch their pro-European reputation by signing up to something that is simply there in order to appeal to the Eurosceptics on the Conservative Benches in the House of Commons. It is very clear-I could read it out but I will not delay the House by so doing-that under the coalition agreement, they could quite happily support this kind of proposal. Within the coalition agreement there is precisely the judgment about proportionality that this Bill does not contain.
The third point is defending the great cause of democracy. The Government argue that there is a great crisis of legitimacy in the European Union. Indeed, there is. But when you look at British politics, there is also a great crisis of legitimacy. When you look at opinion polls and who people trust, you will see that the European Parliament probably has a higher level of trust than many British institutions. In fact, trust in our political parties is, if anything, rather lower than trust in European institutions. I am not saying that because I like that situation. What I am saying is: be very careful if, in the Europe case, you think that the remedy for this lack of trust is to move to a referendum-type democracy-to move to the people being able to vote on anything and everything, which is what this Bill proposes on Europe. There would be absolutely no reason why people should not make the same argument about Westminster and move to referenda on anything and everything. What we would end up with is a situation like California, where propositions are voted through which make the task of running an efficient government wholly impossible. It ends up with contradictory propositions being carried in popular referenda and you cannot have an effective system of government. For all these arguments, we need to keep first and foremost in our mind the need to strengthen the role of Parliament in this Bill.
That is what the amendment does. It does not stop referenda; it does not drive a coach and horses through the Bill; but it introduces that vital element of proportionality by proposing a special committee of both Houses to examine the case for a referendum and gives Parliament the right to decide in which cases referenda should take place. That is in accordance with the principles of the Constitution Committee of the House. I thought that it was a bit rich of the Minister to quote the Constitution Committee on thresholds but to ignore completely its major point that it believes that referenda should be confined to fundamental issues of constitutional importance. This is a mechanism for confining referenda to issues of constitutional importance. For that reason I commend the amendment to the House.
My Lords, I support the amendment. It seems to me that it addresses an issue which desperately needs addressing in the Bill, and that is flexibility. The structure of the Bill, particularly in its elaborate nature, with the 56 possible incidences of referenda, is, frankly, a couch of Procrustes, on which we are busy stretching ourselves and on which, no doubt, our feet or our heads will one day be lopped off. It is very rigid indeed. It leaves very little appreciation to the Government of the day, although of course the Government of the day will have had to agree in Brussels that, in principle, subject to the proceedings in this Bill, they will go along with it. However, then the rigidity comes back in. It is not surprising in a way. The Government proudly call this Bill a referendum lock, the key of which they have taken out and are now throwing out of the window.
I think this amendment is one way to deal with the issue and earlier today we discussed others. I very much welcome the fact that the Government recognise that, in the handling of this "or otherwise support" issue, they needed a bit more flexibility and they have now moved an amendment, which I was delighted to see went through unopposed, which gives a little more flexibility. It enables a Minister in Brussels to say that he would take something back to London and subject it to the procedures under the Bill, but that he would support it. It enables him to say that but, of course, it does not allow it to go through in any legal sense. That is an increase in flexibility. We have just voted for an increase in flexibility for Parliament because, if less than 40 per cent of the British people are prepared to get off their backsides and vote, then Parliament will be able to take a decision itself and the result of the referendum will be only advisory.
It would be splendid if the Government would think a little more about how to introduce more flexibility into the Bill, while not removing the essence of it. I accept that it is supported by a majority in the House of Commons and that it is in the coalition agreement, which says that, if there are major constitutional changes, there will be a referendum. As the noble Lord, Lord Liddle, said, the recommendations of our own Constitution Committee are rather clear on this point but were ignored by the Government. The noble Lord, Lord Howell, quoted the bit he liked, but did not quote the bit he did not like in the Constitution Committee's report. That was a much longer bit, which said that referendums should be used only for major constitutional innovations. If you look at the various clauses of the Bill, you will see that there are stacks of things there which are not major constitutional innovations. This provision will give a little more flexibility there, and I hope that the Government will seriously consider that because flexibility will be needed somewhere down the line. The more care taken with the legislation, the better that legislation will be for the interests of this country.
I say to noble Lords opposite that we on the Liberal Democrat Benches recognise that this amendment is intended to enhance scrutiny and to improve propositions that might be put forward by the Executive. We also accept the spirit of what noble Lords opposite are trying to do. For the record, I do not find, in the copy that I have just looked up, the elements of the coalition agreement to which the noble Lord, Lord Liddle, referred as endorsing this amendment. I would not want to tempt him to read out the entire section on Europe in the coalition agreement, as the hour is late.
I shall speak to the substantive elements of the amendment. We do not believe that it would be right to take such a dramatic step to remove from the Executive, the Government of the day, the decisions about what they will support or not and to give them to a committee of both Houses. We have had a long debate about Parliament and the importance of parliamentary scrutiny and so on. In Committee, we heard a lot of argumentation across the House regarding urgent situations and what would happen because decision-making was so late and would be so stymied. I find that the methodology proposed here would certainly add to the amount of time that would be taken to deal with measures if a Joint Committee had to rule on them. There would also be the issue of reintroducing some rather subjective concepts: urgency and national interest. We have had debates on those subjects; both are highly subjective. We are also conscious of the judicial review implications contained in the Bill.
Finally, the amendment seems to miss the underlying theme of the Bill, which is that the Executive make a call on a proposal, bring it to Parliament, Parliament agrees it and then the public are to ratify that decision through a referendum. As we have repeatedly heard from the ministerial Bench, the Bill is designed to reconnect the British public with these policy issues that emanate from the European Union. The public will be empowered, through the processes proposed here. To take that away and to give it to a Joint Committee of both Houses seems to me to entirely miss the point of the Bill. On that basis I suggest that it goes contra to where we had got. Before I conclude I give way to the noble Lord,
The noble Baroness has said that one of the reasons why she did not want to support the amendment was that she was worried that it would raise the possibility of judicial review on the decision about whether a referendum was necessary. According to this amendment, that decision will be taken by a parliamentary committee-in this case a joint parliamentary committee-so how could there possibly be a judicial review? That would be contrary to the Bill of Rights.
I think I can see the point that the noble Lord is making. I wonder whether he is interested in hearing my reply, as he is now engaged in another conversation. As I understand the amendment, the committee would make a recommendation to the Government on the basis of urgency, significance and national interest. I think the decision of the Minister, in accepting or not accepting the recommendation, would be subject to judicial review.
For the reasons I have enunciated, I can see that the amendment is well meaning but I urge my noble friends to oppose it.
My Lords, the clause makes no reference to the Joint Committee advising the Government. The Joint Committee would have the responsibility for making a decision. By definition, if the decision is made by a parliamentary committee-a Joint Committee or other parliamentary committee-it could not be subject to judicial review.
Since the noble Lord continues with the matter, I will detain the house for a moment. What is the point of a recommendation coming out of a Joint Committee if the Government ignore it?
My Lords, I have listened carefully to this debate and there is one thing that we can say about ourselves: we are at least consistent in our inconsistency. We were talking earlier about 40 per cent thresholds and yesterday we were talking about 5 per cent thresholds, and some of us have been subjected to referendums over the years whether we like them or not. Therefore, the important argument about parliamentary democracy which was put forward eloquently by the noble Lord, Lord Deben, and others does not quite register. I fear that this amendment suffers from the same weakness that it is the purpose of the Bill to try and resolve-that, effectively, Parliament is making these decisions. We hide behind the words "major constitutional significance"-some people may say they are weasel words-because what is major to me might not be major to the noble Baroness. We then take away from the Government of the day any significant role unless they rely on their party positions to whip people into particular positions.
The noble Lord, Lord Liddle, referred to the fact that the Government had to be able to respond and be a good partner to our European colleagues. I believe that the United Kingdom has been an exceptionally good partner over the years. However, simply because we have particular constitutional architecture concerning how we take decisions that affect us in no way invalidates us as a good partner nor does it invalidate a Government's ability to respond. There are many decisions that require an urgent response. I see no reason why that cannot continue.
It is only when there is actually a change of substance that time will be taken to ratify that. Even when we have been talking about the current economic position in Europe we have been looking at the stability arrangements and others, and we know that these are going to take 18 months to 24 months to get through on existing arrangements. Therefore, I do not believe that this country would be unable to respond and act as a good partner. Nor am I frightened by the prospect that if we enhance our constitutional arrangements our European partners will take the huff and stop dealing with us. I do not believe that for one moment. It is our business. I believe that the Commission accepts that it is our business to decide whatever structures should be put in place. That is the way of the world. Other countries do it. Other countries have referenda; other countries have a variety of constitutional locks. As the European Union grows, I suspect we will enhance the variety of different decision-making processes that come in. Why should we be worried about that?
I do not think that people on the street are running around saying, "I wonder if we are a good partner with our colleagues in Paris or Bonn". I do not think this is something that registers with the people. What does register is if they are told one thing and then something happens that is the opposite of what they were told or promised. That comes back to why there is a need for such a Bill. Whatever its inelegancies-and I can see that there are many-it is there because we have broken a trust. There is a huge gap between what we as politicians think and what the public think of us. It has only been the recent financial crisis and the situation with bankers that we now have somebody we can look down upon. Until then, we were really at the bottom of the pile.
The truth is that we are, and have been, inconsistent. We have chopped and changed on referenda. Burke was quoted extensively-I am no scholar on Burke-but he was operating in the 18th century.
Yes, and all the better for it. However, time has moved on and things have evolved from what we did when kings were able to come into this building and chop people's heads off. Our constitution continuously evolves. Just because we are attracted to the idea that a representative should be free to come into Parliament and express his or her opinion on behalf of those they represent-and people believe that to be a sacrosanct position-in the way the modern world has developed, the referendum genie is out of the bottle whether people like it or not. You are not going to be able to push it back in so the question is, what triggers it? Do we leave the trigger with the institution which has led us to the position where this Bill is on the table or do we put in some safeguards so that people know they will get their say?
I think that there is little alternative but to give this a try. It is not something that will last for ever-it might change. After 10 or 20 years it might no longer be sustainable and we need to improve it. We have moved on, people have moved on, communication has moved on and, thank God, people are educated to a much greater extent. Years ago, when people came into these buildings they represented the masses outside who could not read or write. Perhaps very few people had any grasp of what was going on around them. Their world was confined to their farm or, in more recent years, to a factory. Today, the people out there are much more sophisticated and probably know more than many of us in here. We have to respect that and trust the people.
We all make mistakes and sometimes referendums produce results that we do not like. The same happens in elections: it is the peril of the democratic world. However, we should look at the alternatives around the world. Whatever faults we may have, ours is a better system, but it has to evolve. I fear that this amendment, if passed, short-circuits and defeats the whole purpose of the legislation. Therefore, I am unable to support it.
I agree with the noble Lord, Lord Empey, because the purpose of the Bill is to give the people of this country the final say on what happens in terms of our relationship with Europe. If we allow this amendment to go through-and I totally oppose it-the effect will be to open it all up again so the discretion is left with Parliament. That is where the whole problem started. Successive Governments have misled this country about the implications of the treaties that we have signed. They have always been understated.
I spent much time as a Government Whip in another place saying to my colleagues, "Don't worry about this, it is just tidying things up and putting things in order. It does not really have any impact on the way we do business here." Every single time I said that I was lying through my teeth. Government have been lying though their teeth from the very start when we entered the economic community. We said to everybody, "Don't worry, there are no issue of sovereignty here. We are joining a free trading area. A free trading area is a wonderful idea and we want to get into this as quickly as possible".
When we joined the European Economic Community, we were already in the European free trade area. I am old enough to remember that the debates focused on the difference between a free trade area and the treaties that established the European Economic Community.
That was not the story that I was told. If I had realised the massive implications for the transfer of sovereignty as a result of signing, I would not have supported the referendum on the question of our membership of the European Union.
There has been a tremendous amount of deception. Not only is it an understatement of what we have signed up to, but it is a process of grandmother's footsteps-a little bit at a time, always understating the implications. Therefore, with reference to the amendment, if we leave it with Parliament to make the decisions about whether the implications of the business are worthy of a referendum, we are right back in the position of deceiving the people of this country and will merely sow more mistrust and undermine the whole purpose of the Bill, which is to reassure the British people that if there is any question of us being drawn further into the European Union we will put it to them to decide whether it should happen.
My Lords, there is another reason to disagree with the amendment. Any Joint Committee composed of Members of your Lordships' House and the other place is bound to be stacked in favour of the Europhiles. In your Lordships' House, we now number some 800 Members, of whom I think only eight are prepared to say, more or less in public, that we should leave the European Union. That compares with some 84 per cent of the British public who want a referendum on whether we stay in the European Union at all-which has nothing to do with the Bill-and more than 50 per cent who believe that we should leave outright. In recent years, I have often pointed out that the composition of your Lordships' Select Committees is skewed in favour of Europhilia, even by the standards of your Lordships' House. I have not made a recent examination of the members of the main European Select Committee or its sub-committees, but I am prepared to bet that not a single member of those committees agrees with at least half the British people, and perhaps only two or three of them could be regarded as vaguely Eurosceptic.
In the House of Commons, some 26 Members have joined the joint Better Off Out group and have voted in a refreshingly Eurosceptic direction on the Bill and other matters. The Joint Committee of both Houses of Parliament of course will be stacked by the Whips and will, in the recent tradition of both Houses of Parliament, get wildly out of tune with the British people-something that the Bill is supposed to do something to correct. The amendment goes in entirely the opposite direction and I hope that it will be resisted.
My Lords, I need to recant. In Committee, I was against the amendment on the grounds that it complicated things. However, now it seems that it may be the only hope for dealing with a problem that I had hoped would be dealt with by another route. I was young, innocent and idealistic; I did not realise that we would end up cheering a government concession that means that, in the Bill, "support" is a term of art defined at the beginning, and the various prohibitions on Ministers of the Crown in any way supporting X, Y and Z does not mean that they cannot propose, advocate or support them in Brussels-just that they cannot vote for them. This is a huge advance and I am beginning to understand how difficult the legislative process is.
Clauses 2 and 3 have two different procedures, depending on whether the treaty amendment emerges by the classical method plus a convention, or by the accelerated method that is meant to deal with emergencies. We have two different procedures, and one of the paradoxes is that we have a significance test in the second but not in the first. Therefore, we envisage that any treaty amendment by the first, traditional method plus the convention must be significant. The second curiosity is that I thought that a treaty amendment was a treaty amendment, whichever route it came by. The third curiosity is that the accelerator method, covered in Clause 3, is meant to be used in an emergency, but we do not have any emergency or urgency test built in.
The charm of the amendment, as I now see, is that it brings in these tests. It would get significance into the traditional method, where it is not at the moment. It would also bring in urgency and the national interest, which perhaps is not a bad idea. It is a complication and it is a great pity that we have not had any clear rationale for the separate methods that depend on the origin in Brussels of the treaty amendment. However, we are where we are and clearly the Government are not going to give us any concessions on that. Therefore, faute de mieux, I support the amendment of the noble Lord, Lord Liddle.
My Lords, I begin by dissociating myself entirely from the statement of the noble Lord, Lord Liddle, that somehow the Bill gives encouragement to referenda and public votes "on anything and everything". That was his phrase, but it could not be further from the truth. It would be impossible to think of a proposition that is more remote from what the Bill is intended to do. The Bill is about transfers of power and sovereignty-over a wide range of issues, I concede-from the United Kingdom and this Parliament to the European Union. I am left almost speechless; what is unimportant or trivial about that? These are issues that we have dealt with again and again-the famous red lines that successive Governments have found to be of extreme importance to Britain. The argument is not that we should not be involved with the European Union in all these areas, but that we should retain a veto power if we are pressed too far; that all the powers that are needed have been conceded under the Lisbon treaty; and that those that were left out-the remaining issues where unanimity must prevail, where the veto must be kept in place and where no further treaty competences should be transferred-are all the important remaining ones, which many of the 27 countries insisted on preserving.
These are the important issues: defence and security, national security, military issues, national tax, fiscal and energy policy, provisions under the EU budget, financial management of the EU, citizenship and elections, foreign policy and social security. These are not trivial issues that can be dismissed. What prevails in these comments is a devastating lack of understanding of the importance of the remaining issues that are not within the competence and power of the EU because the nation states do not feel that it is necessary for them to be there-and, on the contrary, think that they should remain under national and sovereign control. Therefore, the starting point of many of these comments is so far removed from what is in the Bill and what the Bill is concerned with that I find it very hard to find a bridge of words to link the two, but I will try my best.
Under these amendments, decisions on whether a referendum on treaty change or a decision-these are big issues-should be held would be made by a special committee of both Houses. This is similar, though not identical, to the debate we had on amendments in Committee. They were limited to Clause 6 decisions, and seem to have widened the scope of the so-called European referendum scrutiny committee to cover treaties and Article 48(6) decisions. This is a big assignment of discretion to this parliamentary committee. How this committee would come about, I am not too sure. I have to say in the best of spirits to the noble Lord, Lord Kerr, that if he thinks that this committee would be free of interference from the Government or party-political pressures of various sorts, then his innocence is not entirely lost.
I am at least pleased that this amendment recognises that consideration should be given to the need for a referendum when treaties or Article 48 decisions are to be made. This is a clear step forward from the status quo, where it was entirely down to Ministers to decide whether a referendum was to be held and where, as we have sadly seen, Ministers and Governments can and do change their minds-hence many of our problems. The amendment appears to have retained the provisions in the Bill-which is good-that all treaties and Article 48 decisions must in future be ratified through an Act of Parliament. At least it retains a greatly increased role for Parliament, which this Bill stretches for and seeks to provide. This is a definite advance.
Moving from ministerial discretion over whether a referendum should be held, to parliamentary discretion over whether a referendum should be held, really is not sufficient. What we would have is an extra step in the process of deciding whether to have a referendum, which I suspect would merely diminish further rather than increase the confidence and trust of the British people when compared to the current provisions in the Bill and to what the Bill is trying to do. It would cut right across, and therefore potentially diminish, the work done by the European scrutiny committees of both Houses, which-despite the overrides, which one must concede have been too frequent-has been valuable in giving some impression to the general public and to the electorate of this country that there are some brakes on the system.
Why would the arrangements for the proposed European referendum scrutiny committee diminish public trust? The answer is that because whereas the Bill is, with the exception of the narrowly defined significance test, very specific about which transfers of power and competence would lead to a referendum-that is what this whole Bill is about-these amendments would do away with the certainty. In agreeing the Bill as drafted, Parliament would be giving a clear signal to the public as to when a referendum would be held. If the amendment were agreed, the whole process would be lost in a whirlpool of subjective political judgments and, I have no doubt, of manoeuvres as well, and of all the pressures that operate through our political system-perfectly properly, because that is the way that a democratic system works. The idea that they would be absent and that an isolated, divinely independent judgment could be reached by this committee is absurd and naive.
These amendments require the committee to assess all treaties and Article 48 decisions against significance, urgency and the national interest. These are highly subjective terms which are capable of a far wider range of interpretation than the criteria in Clause 4, which have been carefully analysed and crafted. This amendment moves the whole debate away from an objective consideration of whether power or competence has been transferred from the UK to the EU. It moves it away from objectivity to subjectivity of precisely the kind which works against trust and against confidence, and against support for the whole European Union project which I thought so many noble Lords wanted to see reinforced.
Government and Parliament will of course take into consideration issues of urgency, importance and certainly the national interest when negotiating a treaty change, and in passing Acts to ratify treaty change. These are centrally important issues, but they are not the right criteria on which to decide whether a referendum is needed before a treaty change or an Article 48 decision is ratified.
The other problem with these amendments is that the decisions on these highly subjective issues will be made, frankly, by a small number of parliamentarians. I have said that we are not quite sure how they would come to be on this committee. The way this committee is set up means that it could only ever deny the public a referendum, which is what is promised under this Bill. I do not like to say it, but when my noble friend Lord Hamilton points it out, it is a fact that the British people's trust in the institution of Parliament and the political parties within it has, in this area, been eroded over the years, particularly on issues of Europe; I sometimes think that on other issues it is grossly exaggerated. One always marvels at how many people are generally critical of the political class, but when they start talking about individuals-the hard-working Members of Parliament-they say, "Oh no, our person is splendid. It is just the general lot we do not like". It can be overdone. However, on the issue of Europe, it is quite clear, by every measure that we have seen of the public's support and the general tenor of the public debate, that a lack of trust is noticeable. People have been promised a referendum on a treaty change, only to see it taken away again. This is reflected in the number of people who do not value the EU, who do not trust it or who simply do not seem to grasp its work, aims or purposes. There is a sense of apathy, because people feel powerless to influence decisions which affect their daily lives. To deny this really is to shut our minds to the good and valuable side of the EU's work, which I believe is enormous and often underestimated.
The coalition Government intend to address this cynicism, apathy and lack of trust. The aim is to reconnect the British people directly to the key decisions on the EU and assure them that, while there are now vast powers and competences in the EU's hands, any further expansion of these would have to be very carefully argued and in many cases put to the British people for their approval. It remains a mystery to me why the Opposition still somehow argue that there should be these extra powers-that we are going to need these future treaty changes-but what for? One is left groping the air, trying to understand the mystery of it all. It is a sort of apophatic doctrine, that somehow there are issues ahead so complicated that the people cannot put them into words or understand them, and that these require the flexibility which the noble Lord, Lord Hannay, keeps returning to.
We know that the British people want a say. The June 2009 survey by the European Parliament found that eight out of 10 people in this country agreed that future EU treaty changes should be decided by referendums. Fewer than one in 10 disagreed. These amendments do not represent the modern reality about transparency and openness that we in the coalition Government want, and which reflects a modern attitude to participatory democracy. They are a step back in time which may be nostalgic and romantic, but they take us away from reality and away from the future.
"you are moving even further away from a situation where the general public has any confidence at all that its views are considered when vital decisions are made".-[Hansard, 16/5/11; col. 1230.]
However well intentioned these amendments, they cannot serve to enhance this Bill or its underlying virtues and purpose. The Bill is deliberately designed to set out as clearly as possible which treaty changes would require a referendum, while avoiding the need for trivial referendums. That seems to me to be a scare story which I hope we are not going to hear repeated because it is not connected with the reality, the intention or the possibilities which arise from this Bill. Leaving it to the discretion of a committee of parliamentarians to decide whether a referendum is needed will do nothing whatever to reconnect, re-engage and regain the trust of the British people. I believe this is an amendment that we could do without and that does not help the Bill or the underlying purposes, which I believe most noble Lords in all political parties and in none basically want reinforced. I think these amendments go the other way and take away from us the purposes and goals that we should be pursuing, so I ask the noble Lord to withdraw the amendment.
My Lords, I have to confess that I am staggered by the Minister's reply. He misrepresents the position of the Opposition, and I do not think he understands the content of the Bill that he is putting before this House. Let me briefly say why. He goes on at length about allowing people to vote on decisions that affect their daily lives. Is he putting this forward as a general principle? Do the Government think that there should be a vote on the merits of their health reforms and the changes to their health reforms? How many people in the country do they think would vote for that? The idea that this Government stand for a general principle of giving people the right to have a say over decisions that affect their own lives is a nonsense.
Why is it that this principle should simply be applied to the European Union and be applied in a way in which the Government do not appear to understand what they are doing? The Minister says that we are saying that this Bill will require referenda on anything or everything. In the case of the European Union, there are 56 instances where this Bill requires a referendum. Is it seriously being suggested that there are 56 issues of profound importance affecting Britain's future in Europe which would require a referendum? I suggest not. We know what those major issues are. We will have amendments later to confine the referenda to those major issues. It is a nonsense to suggest that we should have referenda on 56 issues. As far as Europe is concerned, that is anything or everything.
There is a point-blank refusal on the part of Ministers to understand the need for some flexibility when we are dealing with the future. I do not think that the government Benches understand the point of an Article 48(6) simplified revision procedure, which is under Clause 3. It is to deal with circumstances which we cannot foretell, yet in every circumstance, apart from very limited exceptions, this legislation says that such an amendment would require a referendum. It is the view of every expert on the European Union that that is going to inhibit greatly Britain's ability in future years to play a leading role in the European Union.
As for the Minister's remarks about how parliamentary committees are all fixes and you cannot trust what they say, I thought that he had respect for the workings of Parliament and for the workings of the Constitution Committee of this House, for instance, which puts forward very objective reports, despite the party composition of its membership. I would have thought that if we agreed, as this amendment proposes, to a parliamentary process for deciding what was proportional, such a parliamentary committee would do its job independent of the Executive in such a way that we could all respect its judgment.
I am afraid I am unconvinced by the Government. I am not prepared to withdraw the amendment, and I wish to test the opinion of the House.