Report (1st Day)

Part of European Union Bill – in the House of Lords at 6:00 pm on 8th June 2011.

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Photo of Lord Howell of Guildford Lord Howell of Guildford Minister of State (Foreign and Commonwealth Office) (International Energy Policy) 6:00 pm, 8th June 2011

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.