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European Union (Amendment) Bill

Volume 472: debated on Wednesday 5 March 2008

[11th Allotted Day]

(Remaining Proceedings on Clause 8 and proceedings on New Clauses and New Schedules)

Further considered in Committee.

[Sir Alan Haselhurst in the Chair]

Before I call the right hon. Member for Richmond, Yorks (Mr. Hague) to move his amendment, may I say to the Committee that we will have a single debate on the amendments that have been selected? It is not usual for hon. Members to write in to signify a wish to speak in Committee, but a good number of colleagues have indicated such a wish to me, so I suspect that this will be a well-subscribed debate. As time limits cannot be imposed by the occupant of the Chair, I would appreciate it if right hon. and hon. Members took account of the fact that there is heavy demand today.

Clause 8

Commencement

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

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

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

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

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

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

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

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

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

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

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

New clause 1—Referendum—

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

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

“Should the United Kingdom approve the Lisbon Treaty?”

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

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

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

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

(4) The question in Welsh is—

“A ddylai’r Deyrnas Gyfunol gymeradwyo Cyfundeb Lisbon?”

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

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

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

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

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

“Should the United Kingdom approve the Lisbon Treaty?”

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

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

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

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

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

“Should the United Kingdom approve the Lisbon Treaty?”

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

New schedule 1—Referendum on the Treaty of Lisbon—

‘Holding a referendum

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

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

“Should the United Kingdom approve the Treaty of Lisbon?”

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

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

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

(4) The question in Welsh is—

“A ddylai’r Deyrnas Gyfunol gymeradwyo Cyfundeb Lisbon?”

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

Entitlement to vote in the referendum

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

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

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

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

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

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

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

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

(b) make different provision for different cases;

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

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) In subparagraph (1)—

“electoral area” means—

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

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

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

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

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

Legal challenge to the referendum result

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

(a) by the Chief Counting Officer, or

(b) by counting officer,

unless the proceedings are brought in accordance with this section.

(2) The proceedings may be brought—

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

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

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

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

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

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

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

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

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

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

New schedule 2—Conduct of the Referendum—

‘Introductory

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

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

Encouraging voting

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

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

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

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

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

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

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

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

Provision of information to voters

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

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

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

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

(5) In this paragraph “the appropriate day” means—

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

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

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

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

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

Combination of polls

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

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

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

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

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

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

(2) The order may include provision as to—

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

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

(c) payments in advance; and

(d) accounts to be submitted.

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

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

(5) In this paragraph “relevant officer” means—

(a) a counting officer; or

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

Accounts relating to expenditure under paragraph 6

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

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

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

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

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

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

(3) The Comptroller and Auditor General must—

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

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

Gibraltar

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the Government of Gibraltar; and

(b) the Electoral Commission.

(4) An order under this paragraph may—

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

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

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

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

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

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

Supplementary provision

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

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

Orders under this Schedule

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(3) An order under this Schedule may—

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

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

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

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

Interpretation of Schedule

12 (1) In this Schedule—

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

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

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

Introductory

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

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

Referendum period

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

Wales

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

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

(b) determines the question in Welsh.

Entitlement to vote in the referendum

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

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

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

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

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

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

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

(b) make different provision for different cases;

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

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) In subsection (1)(b) “electoral area” means—

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

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

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

Encouraging voting

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

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

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

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

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

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

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

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

Provision of information to voters

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

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

(3) In this paragraph “the appropriate day” means—

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

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

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

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

Combination of polls

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

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

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

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

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

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

(2) The order may include provision as to—

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

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

(c) payments in advance; and

(d) accounts to be submitted.

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

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

(5) In this paragraph “relevant officer” means—

(a) a counting officer; or

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

Accounts relating to expenditure under paragraph 6

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

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

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

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

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

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

(3) The Comptroller and Auditor General must—

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

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

Gibraltar

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the Government of Gibraltar; and

(b) the Electoral Commission.

(4) An order under this paragraph may—

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

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

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

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

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

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

Legal challenge to the referendum result

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

(a) by the Chief Counting Officer, or

(b) by a counting officer,

unless the proceedings are brought in accordance with this section.

(2) The proceedings may be brought—

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

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

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

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

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

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

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

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

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

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

Supplementary provision

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

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

Orders under this Schedule

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

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

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(3) An order under this Schedule may—

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

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

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

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

Interpretation of Schedule

16 (1) In this Schedule—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“We will put it”—

that is, the European constitution—

“to the British people in a referendum and campaign wholeheartedly for a ‘Yes’ vote”.

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

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

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

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

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

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

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

A few months later, at their party conference in Blackpool, the right hon. Member for Sheffield, Hallam (Mr. Clegg) proposed a conference motion that stated:

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

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

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

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

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

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

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

“dismissing all calls for a referendum”

and

“playing straight into the hands of the Eurosceptics.”

He said:

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

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

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

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

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

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

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

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

I am spoiled for choice. Let us bring in the hon. Member for Truro and St. Austell (Matthew Taylor).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Spanish Prime Minister has said:

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

The Finnish Europe Minister has said:

“There’s nothing from the original institutional package that has been changed.”

The German Chancellor has said:

“The substance of the constitution is preserved. That is a fact.”

I must proceed for another few minutes.

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

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

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

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

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

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

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

“let the battle be joined.”—[Official Report, 20 April 2004; Vol. 420, c. 157.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No, I am explaining my argument.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Order. That was an extremely long intervention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We know the agenda of the Conservative party.

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

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

No, I need to make some progress.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that must have included the UK—

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

How did the Her Majesty’s Government respond?

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

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

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

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

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

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

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

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

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

No. I want to make some progress.

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

No. I want to make some progress.

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

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

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

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

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

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

“Democratic accountability is under threat…from the Government’s regular use of referendums”.

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

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

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

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

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

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

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

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

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

“does not have the same ambitions as the previous Constitutional Treaty”.

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

“We are not talking about a Constitution. The Constitution has gone.”

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

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

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

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

The treaty of Maastricht—

No. I must make some progress.

The treaty of Maastricht provided the blueprint for economic and monetary union, and added common foreign and security policy. As the right hon. and learned Member for Rushcliffe (Mr. Clarke) has said, it was a

“far more significant piece of legislation determining our constitutional arrangements”,

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

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

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

I want to bring my speech to a close.

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

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

“Amsterdam was a bad Treaty. Bad for Europe and bad for Britain”.

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

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

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

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

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

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

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

Let me return to the differences between the treaties.

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

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

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

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

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

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

I will give way later.

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

I shall give way to the hon. Member for St. Albans (Anne Main) and then to my hon. Friend the Member for Truro and St. Austell (Matthew Taylor).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“What we have now”—

in the Lisbon treaty—

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

on the treaty—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May I help the hon. Gentleman explain why his party cannot decide whether to vote in favour of keeping its promises or to vote against doing so? The explanation was spelt out by the leader of his party, who said that it would all depend on the electoral arithmetic in the House. The Liberal Democrats would vote for a referendum proposal that would b