Commons Amendments and Reasons
Moved by Lord Howell of Guildford
That this House do not insist on its Amendments 3 and 5 to which the Commons have disagreed for their Reason 5A.
5A: Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we now come to the consideration of the other place’s response to your Lordships’ amendments to this important legislation. Your Lordships will recall that we examined this Bill in great depth over eight sittings in Committee and three days on Report, so I hope we can deal with these matters thoroughly but also reasonably briefly. Your Lordships' House rightly took a good look at the detailed provisions of the Bill. We did our duty in scrutinising it, and we saw fit to make a number of amendments to the Bill—15 in all.
I shall make a brief comment to set the scene before coming to the Motion. There were four sets of issues which led us to focus on these matters today. The Government listened to the well and strongly put arguments on, first, the construction of Clause 18 and proposed amendments in the other place, which we will come to later. We also listened carefully to the arguments put forward on three other sets of issues: the turnout threshold, which is the Motion immediately before us; the proposed changes to the shape of Clause 6; and on the introduction of a sunset—maybe it should be renamed “suspension”—clause. The other place also looked at these things very carefully. On Monday last, the other place disagreed, as do the Government, with your Lordships' amendments on those three latter issues, and it is now for this House to consider and decide whether to insist on your Lordships’ amendments or to accept the message from the other House.
The first of these issues is the subject of this Motion, which relates to Amendments 3 and 5 that were moved with great eloquence by the noble Lord, Lord Williamson of Horton. We had two debates on them, one in Committee and one on Report, and on Report your Lordships voted in favour of these amendments by 221 votes to 216. In contrast, the other place considered these amendments and disagreed to the Lords amendments without division, by consensus.
As my right honourable friend the Minister for Europe summing up the core issue said during the debate in the other place,
“The outcome of a referendum should, in our view, be determined by the will of those who vote and not by how many turn up to vote”.—[Official Report, Commons, 11/7/11; col. 65.]
It remains our view that it is vital that in any referendum held in accordance with this Bill people are able to go out and vote in the knowledge that their active engagement in the process will count and that their vote will count. A threshold for any referendum held in accordance with this Bill would stymie the entire intent of the Bill.
In short, without going over again all the arguments that we have so carefully examined in your Lordships' House, installing a mechanism whereby the will of the electorate is automatically declared unimportant and the power to decide is passed back to Parliament is not the answer, nor is it the answer in the view of the House of Lords Constitution Committee. I shall not delay the House with a quotation from that Committee about the undesirability of thresholds. We saw that on the single occasion where a threshold was used, in 1979, the clearly expressed will of the people was frustrated. That example was used on Monday last by the shadow Minister for Europe who said that it is why many,
“Labour Members have reservations about the use of the 40% threshold”.—[Official Report, Commons, 11/7/11; col. 75.]
In November last year, Chris Bryant MP, who was Minister for Europe under the Labour Government, said that referendums were not a good idea. What interests me—I think that your Lordships also would like to know—is whether noble Lords opposite share those reservations, which they appeared not to share on Report. Please can we know whether they have changed their view?
It now falls to your Lordships to consider whether to insist on these amendments, given the opposition, once again, to the threshold from the other place and given the clear and well informed doubts on all sides about the wisdom, sense and advisability of having thresholds injected into referenda for either these or wider matters. I hope that your Lordships will decide that we need not pursue this issue further. I beg to move.
My Lords, we have not proposed any amendment to Motion A, which has been moved by the noble Lord, Lord Howell of Guildford. Accordingly, we accept the decision of the House of Commons to refuse any role for Parliament in the event—a perhaps rather unlikely event—of a referendum with a small or even derisory turnout. It is regrettable that, not just in relation to this Bill but in relation to other issues more widely, we have not established how we might deal with such cases. As we see in the Localism Bill and elsewhere, the referendum is likely to play a much bigger role in government in Britain in the future and on more issues.
Although in this case the House of Commons has refused the role which this House proposed for Parliament, no doubt the noble Lord the Minister will agree that because Parliament is sovereign it could in the future, if it so wished, amend the Act to insert a role for itself as we proposed in relation to a low or very low turnout in a specific referendum. But that issue does not arise today.
My Lords, I want to associate this side of the House with what the noble Lord, Lord Williamson, has said. The matter will not be pressed today but I would ask the House to understand the reasons in the briefest sense for why this was argued and why I think, even in the earlier example of devolution decisions in the past, people were keen to see some sort of threshold. The proposal for a 40 per cent threshold is not a benchmark which would be insisted on for every kind of vote in every kind of circumstance, although some people might in many circumstances wish to see that figure exceeded.
We are talking about changes in quite fundamental constitutional arrangements. It seems quite reasonable to say that there should be some degree of consensus that is visible and substantial when a major constitutional change is to take place. These changes in relationships with Europe would be significant constitutional changes, which is precisely why this legislation is before the House in the first place. It would be wrong to say that it is not simply a matter of how many turn up to vote because whatever the proportion was you would still have to win the vote as well in order to achieve the result.
To conclude, a number of constitutional changes are before your Lordships’ House in this parliamentary Session. We have had them on constituencies, on AV and in this Bill. We will probably see some in any Bill about reform of your Lordships’ House. In introducing piecemeal constitutional change, always with the possibility of it being adopted without there being real and genuine safeguards, we will end up with a set of jig-saw pieces from different jig-saws all shaken into the same box and without prospect of being joined together in any realistic way or without people making realistic decisions about the overall impact of what we are doing. We deny ourselves the safeguard today and, once again, I suspect that we will regret it.
My Lords, I consider that the very strong and articulate arguments put forward by the noble Lord, Lord Williamson of Horton, and very carefully considered by this House, deserve a little more than the rather supercilious dismissal of the whole argument by the other place:
“Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote”.
One might say that that is almost contemptuous. I support what the noble Lords, Lord Williamson of Horton and Lord Triesman, have said, although I do not expect them to press the matter to a vote.
However, I want to make one other reference, because it shows that the noble Lord, Lord Triesman, is right in saying that this issue cannot simply be put on a shelf and forgotten. Let me give three very quick quotations to the House. The first quotation is:
“The Government is under pressure from Tory MPs to reform industrial relations laws so unions would have to secure a turnout of more than 50 per cent in ballots before action could go ahead”.
The second quotation is:
“The Confederation of British Industry has suggested a 40 per cent threshold”,
before any industrial action can take place. Finally, third quotation is from the Conservative Mayor of London, Mr Boris Johnson, who has argued for a “50 per cent threshold” before London Underground could determine a strike.
This is an example of the fact that it is not enough to dismiss the proposals as if they were superficial and politically driven. It is clear in one area after another that the issue of thresholds is alive and relevant, and that already, in other spheres of legislation, there are very strong arguments that thresholds must be seriously considered. I advise the House to be a little careful about simply dismissing the argument for some kind of threshold.
My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.
I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.
I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.
Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.
Moved by Lord Wallace of Saltaire
That this House do not insist on its Amendments 6 to 13 to which the Commons have disagreed for their Reason 13A.
13A: Because the decisions concerned would involve an increase in the competences or powers of the European Union in relation to the United Kingdom and should therefore require approval by referendum as well as by Act.
My Lords, we now turn to the list of decisions in the existing treaties which were previously subject to the requirement of approval by Act and by referendum under Clause 6 but which for the most part would require approval only by Act as a result of your Lordships’ amendments. As with the previous amendments, the Government listened carefully to the arguments put forward after the amendments were agreed by a vote of 214 to 209 in this House. The other place considered these issues further two days ago after having examined in detail the make-up of Clause 6 during its consideration at the start of this year. It has disagreed with your Lordships’ amendments on the basis of our opposition to these changes and by consensus. In so doing, the shadow Europe Minister, Wayne David, said:
“Of course, Members in the other place are entitled to their views, but we have reservations about the proposal that referendums should be confined to these three subject areas, and it is important to put on the record that my comments set out the Labour party’s position”.—[Official Report, Commons, 11/7/11; col. 75.]
It now falls to your Lordships' House to consider whether to insist on its amendments on the basis of the approval of this clause, twice over, by the other place. I would be particularly interested to learn from noble Lords on the Front Bench opposite whether they will reflect the Labour Party’s position today or continue to adopt a different approach.
In moving the amendments on Report, the noble Lord, Lord Hannay of Chiswick, stated that,
“the long list of potential referendums is excessive and disproportionate”.—[Official Report, 13/6/11; col. 552.]
While I appreciate that there are strongly held views on this issue, I should like briefly to repeat why the Government do not agree with this view. The coalition’s programme for government sets out at the start of the section on Europe that,
“no further powers should be transferred to Brussels without a referendum”.
All the decisions listed in Clause 6 in its previous form would constitute such a transfer, as recognised by the other place in its reason for disagreement. As we have made clear previously, Clause 6 consists of five self-standing decisions of great sensitivity, such as on whether to join the euro or to give up national border controls, and seven sensitive national vetoes using a passerelle and avoiding formal treaty changes.
We are debating this Bill in the context of a wide malaise within the European public across most EU member states and a worrying disconnect between the Brussels institutions and the national publics of the member states. Michel Barnier, European Commissioner for the Internal Market, said in a recent speech in Berlin:
“For 60 years we have been building Europe for its citizens and in their name; but too often we have been doing it without them. A malaise has taken hold and the gap between Europe and its citizens has gradually widened”—
that is to say, not just within the UK but across the EU. The deference on which Europe was built, which was given to managerial élites in Brussels on behalf of its peoples but without their informed understanding and consent, and through which substantial powers were transferred to Brussels, has now disappeared. We have to rebuild public confidence in institutionalised co-operation among European Governments. We have to carry our voters with us, not sweep through complex multilateral commitments over their heads.
Successive Governments in Britain have failed to make the case for positive European engagement over the past 20 years or more. Suspicions of French and German intentions, woven into an anti-European narrative, have been endlessly recycled in much of the British media. Some noble Lords might like to reflect on whether there ever was a Faustian pact with the Murdoch press in its Anglo-Saxon but anti-European stance, whereby it would support British Governments so long as they maintained an opposition to stronger European co-operation and in particular to international regulation of media ownership and competition.
If I may speak as a Liberal Democrat, I am entirely comfortable with the constructive approach that this coalition is taking to relations with our European neighbours, large and small, and its positive engagement with the institutions of the European Union. However, it will take us time to regenerate public confidence and to rebuild public trust. The provisions of the Bill, including those of Clause 6, are there to reassure our sceptical citizens that the British Government will not attempt to slip past them unexplained further transfers of power or competence to institutions which at present, sadly, inspire limited loyalty and widespread mistrust.
The other place has now considered the scope of Clause 6 on two occasions. In both cases the other place has approved that the scope of the referendum requirement should incorporate the 12 decisions. On the second occasion it did so by overwhelming consensus. It now, therefore, falls to your Lordships’ House to consider whether or not to insist on its amendments, but I beg to move that it accepts the view of the other place.
13B: Clause 6, page 5, line 49, at end insert—
( ) Where this section requires that the referendum condition is met before a decision is approved, the referendum condition will only be mandatory where a Minister of the Crown lays before Parliament a statement indicating that in the Minister’s opinion the issue in question is of major economic and constitutional significance.”
My Lords, I beg to move Motion B1 in the name of my noble friend Lord Triesman. The original amendment which this House carried reduced the number of referendum locks in the Bill from 56 to three—that is not counting major treaty change. That was the amendment that we carried and that has been considered by the other place. This amendment substitutes for the position we took on that occasion the view that referendums should be mandatory only where, in the view of the Secretary of State, they are of major economic and constitutional significance. I assure noble Lords opposite that that is fully in line with the policy of the Labour Party.
When the Bill first went through the House we were told many times by the noble Lord, Lord Howell, that all the issues covered were constitutionally or economically significant, but when you actually look at it, that cannot be the case. When you look at the questions of moving from consensus, or unanimity, to majority voting listed in Schedule 1 to the Bill, they cannot conceivably be regarded as constitutionally significant. For instance, there are matters such as the approximation of national laws affecting the internal market, the guidelines of economic policies and excessive deficit procedures. As we know, on one of these items—the British Government changing the list of military products exempt from internal market provisions—the noble Lord, Lord Kerr of Kinlochard, pointed out that we had been arguing for this as a country in our national interest for years in the councils of the Union. So the Bill contains far more referendum locks than those that could be regarded as of major constitutional significance.
Noble Lords on the government Benches are fond of quoting the Lords Constitution Committee when it suits them. What they fail to quote is the major conclusion of the Lords Constitution Committee on referendums—that they should be used only on matters of major constitutional significance. They cannot conceivably argue that all the items covered here pass that test. If we do not apply this test, as in this revised amendment, we are making a major move from a representative democracy to a plebiscitary democracy and that is something that should be of as much concern to Eurosceptics as it is to pro-Europeans.
The other problem with this plethora of locks, as we have argued before, is that they will gravely inhibit the ability of any British Minister or Government to represent our national interests in Europe on a flexible basis as issues come up. No Government will volunteer to hold referendums, not because they fear Euroscepticism but because, as has been shown by all the academic evidence that has studied them, referendums are, in the main, decided by the people on issues other than the question being asked. That is what you get in a plebiscitary democracy. All kinds of issues are decided on questions that are nothing to do with the subject of the referendum. If it is impossible to put issues to referendums, then Britain will be very constrained in its European policy. If this is continued for 10 or 20 years, it is bound to lead to a process of British self-marginalisation in the European Union.
I do not believe for a second that that is what the noble Lords, Lord Howell and Lord Wallace, and the Benches opposite want. However, the truth is that the Adullamite cave of anti-Europeans in the other place and in the Conservative Party, who have insisted on putting the Bill in the coalition agreement, want to make Britain marginal in Europe because they want the Bill to lead to Britain coming out of the European Union.
The noble Lord was telling the House how frightful it would be if the United Kingdom were to leave the European Union. I do not know whether he has seen the latest state of public opinion in this country, which is very much at odds with your Lordships’ House. If the noble Lord cares to read a newspaper—which may not be his regular reading—in the shape of today’s Daily Mail, he will see that the public now would vote by 50 per cent to 33 per cent to leave the European Union if a referendum were held tomorrow. Your Lordships are even more out of touch with the British people of your own generation because among the over 60s the percentages are 61 per cent to leave and only 29 per cent to stay in. That is a poll carried out by YouGov@Cambridge for the political news website Dods PoliticsHome, so it is quite respectable. The noble Lord and your Lordships who do not like the Bill are completely out of touch with British public opinion.
That is because the argument for British membership of the Union has not been made forcefully. That is why we need to do that in future. However, we are not going to do that as a result of this Bill. That is where noble Lords opposite are wrong.
All our political institutions suffer from major distrust. If, again, you consider the polling evidence on trust in Parliament or trust in the Government, you will find that there is as much mistrust in the British Government, the British Parliament and the British political parties as there is in the European Union. Of course, one does not underestimate the degree of scepticism among the public, but it is ironic that we are discussing the question of Europe today when the Murdoch press is in such difficulty in its relations with the British people. I do not know how many noble Lords in this House have received mail and been approached by members of the public because of the amendments that we carried when the Bill went through the House before, but I suspect very few. The real public anger today is directed at the media—particularly at the Murdoch press and at News International, which more than other organisation has used its position to obstruct positive British policy in the European Union. By going along with this Bill we are sacrificing representative democracy and Britain’s ability to pursue an effective policy in Europe.
I do not think, as I say, that is why the proposers are putting this Bill forward. I think that the Liberal Democrats are rather embarrassed by this piece of legislation, despite what the noble Lord, Lord Wallace, has told us.
It may upset the noble Lord, Lord Pearson of Rannoch, greatly but I have a lot of friends in Brussels. One of them passed on to me a letter that Nick Clegg, the Deputy Prime Minister, had sent to Andrew Duff MEP about this piece of legislation. Towards the end, it says:
“In addition, any referendum to ratify a Treaty change covered by the EU Bill’s referendum lock must first be preceded by an Act of Parliament in order to provide Parliamentary approval and to make provisions for the holding of a referendum”.
We all agree about the Act of Parliament. He goes on to say:
“This would, for example, enable a future Parliament to decide that the provisions in the EU Bill should not apply by amending the Treaty change Bill to that effect”.
The only way I can read that statement is that the Deputy Prime Minister believes that the provisions of what would become the European Union Act 2011 would not apply if, in future legislation ratifying a European decision or a European treaty, a clause was inserted that the question was not constitutionally significant and therefore did not justify a referendum. I would very much like to know whether the Minister agrees with that interpretation of the Deputy Prime Minister’s letter; whether he agrees and accepts that in any future Act ratifying an EU decision a Minister could insert a clause rather along the lines of our amendment; and if so, why the Government refuse so adamantly to accept this sensible amendment? I beg to move.
My Lords, the noble Lord, Lord Liddle, called his amendment sensible. We should be clear that it is a wrecking amendment. It requires the Government to assert that a proposal is of major constitutional and economic significance. The noble Lord himself said that no Government voluntarily submit to a referendum. No proposal would come into the scope of this Bill unless the Government had supported it and had voted in favour of it in the European Union, so we can take it that the Minister and the Government would be behind whatever proposal was being put forward. We are then asking the Minister to volunteer to put a referendum through the terms of his amendment. As he said, no Government will voluntarily do that. We have the example of the Government’s record on the Lisbon treaty, which by every measure should have been put to a referendum but which the Government solemnly told the House did not require one. It is partly because of that that we have the mistrust to which the noble Lord, Lord Wallace, referred.
Because of the Lisbon treaty we now have a treaty that allows many changes to the fundamentals of our treaty relationship with Europe, including the removal of vetoes on a whole range of policies covered by Clause 6, and amendments to the scope of the institutions and the powers of the European Union itself through the passerelle clauses. All are to be done through the agreement of Governments without the need for a treaty change, and therefore without the need for a referendum on a treaty change. That is why we need Clause 6: because the Lisbon treaty enabled those changes to be made without a treaty change, and Clause 6 ensures that that is picked up. The noble Lord’s amendment would completely destroy that provision and overturn the view of the other place.
My Lords, as the person who tabled most of the amendments that are the subject of this debate, I should say a few words. One is meant to rejoice when a Minister eats a large quantity of humble pie. I have to say, I am not rejoicing at listening to the noble Lord, Lord Wallace, eating humble pie for having helped to lead his party to the various majorities that confirmed the Lisbon treaty. Frankly, it is a sad day when the Liberal party recants from the policy that it has pursued for so many years, saying that it is out of touch with the people and has not taken sufficient account of their views.
Leaving that to one side, I took the trouble to listen to the debate in the other place. I think I was the only Member of your Lordships’ House who did so. It was rather a sad occasion, much less well attended than this one. I am glad to see a wonderful cross-section of the views held in this House, which will no doubt be vigorously debated in the minutes or hours that follow. There was practically nobody there. When the noble Lord says that the decision was adopted by consensus, it was the consensus of around 15 or 20 people. They were mainly the people who went into the Lobby against the Government on Clause 18 and managed to muster 22 votes. They are therefore people who, by their own admission, would much rather than Britain was not in the European Union. That is a perfectly respectable position to take; it is the position that the noble Lord, Lord Pearson, takes.
On the matter that we are discussing now, I support the amendment. No one, including me, is persisting with the amendments that we tabled to the Bill and were voted on in this House. They would have reduced the number of referendums substantially, though not to only three. The amendment did not affect the provisions that would have required a referendum if any general constitutional treaty, such as Lisbon, Nice, Maastricht or the Single European Act, had come forward. That was not covered by the amendment that was rejected by the House of Commons. Only the numerous provisions that provide for 56 other referendums were covered.
I should like briefly to make three points in favour of this amendment. First, on marginalisation, given the problems with holding a referendum at particular moments in our parliamentary cycle, there is a risk that people may be minded to vote for reasons that have nothing to do with the question on the ballot paper. Therefore, a British Government would be compelled to reject a change in Europe that they believed to be in the British interest and wished to support because they did not feel able to go to the country in a referendum. This is exceedingly serious. That is why we should all listen rather carefully to someone I respect enormously, Sir John Major, who said at Ditchley in the annual lecture that he gave last Saturday that Britain was at risk of being a semi-detached member of the European Union. I know that is not the object of the Government. I have heard many government spokesmen flatly deny that and say how active we are. However, they should take this risk seriously.
The second problem is the one that has been alluded to already by the noble Lord, Lord Liddle, which is that this is a major extension of plebiscitary democracy in a country that has hitherto prided itself in putting its faith in representative parliamentary democracy. This is not a small subject. Frankly, what is odd about this is the huge extension of the plebiscitary approach in one sector of our national and international life, which is not applied to any of the rest of it at all. When it was suggested in our earlier debates in Committee and Report that perhaps the Government were in favour of referendums on reform of the National Health Service or the education system, strings of garlic were hung around the government spokesman’s neck. They swore mightily that they had no such thought. But this is a very odd way to go about constitutional change. It really is pretty peculiar to introduce this huge raft of potential referendums into this area.
Finally, on my third point, I support this amendment because the lack of flexibility given by the Bill, if it were to pass and become an Act, is a major danger. It imports rigidity into the whole British approach to Europe and, by transposition, it risks importing rigidity into the whole evolution of the European Union. Institutions that do not have the means to reform and adapt themselves become fragile and risk falling out of contact with what they are meant to be doing. This is a really serious problem being caused here, and these rigidities are liable to damage both the European Union and our own national interests. The purpose of the amendment is to provide a little bit of flexibility where none exists in the present Bill, which is why I support it.
I was attempting to persuade the noble Lord, Lord Liddle, to give way during his very impassioned defence of this particular Motion. I merely wish to tease him a bit for one moment by saying that it is clear that he does not understand the readership of the Daily Mail—and I am sure that that is the case, as it does not appear to be his favourite reading, from what he said on an earlier intervention. But I do not think that he absolutely understands the Liberal Democrats either. Indeed, I am not actually sure that he listens to the Liberal Democrats. The noble Lord, Lord Wallace, made it absolutely plain in his statement that he was a Liberal Democrat, and I too, as the noble Lord, Lord Liddle, knows, belong to that party.
None the less, the noble Lord, Lord Liddle, made a very serious and profound point, which was reflected in his signature to the important letter to the Times today, which the noble Lord, Lord Hannay, and other immensely eminent noble Lords have signed also. The point, of course, is that the issues reflected in the EU Bill for referendums are of “fundamental constitutional importance”, to quote the letter. The statement made in the letter, which he reflected again today in his speech, is that:
“The Parliamentary Constitution Scrutiny Committee recommends that referendums should be confined to changes of fundamental constitutional importance”.
Of course, economy of the truth is something that others, maybe even Secretaries to the Cabinet, have used to great effect. While I personally disagree profoundly with him on losing a national veto over key areas outlined in the Bill being regarded as of “fundamental constitutional importance”—I think they should be—none the less, I take issue with the noble Lord for the way in which he has clipped the important statements made by the Constitution Committee in its report on referendums in the UK. The report goes on to say:
“There are difficulties in defining what constitutes a ‘fundamental constitutional issue’. Although some constitutional issues clearly are of fundamental importance, and others not, there is a grey area where the importance of issues is a matter of political judgment”.
The committee did,
“not believe that it is possible to provide a precise definition of what constitutes a ‘fundamental constitutional issue’”.
While it is,
“possible to set out in legislation specific issues which should be subject to a referendum”—
I am grateful to the noble Baroness for giving way. I was a member of the Constitution Committee and was very active in promoting the report on referendums. The noble Baroness should recognise that the committee as a whole was very sceptical about the use of referendums, which it wanted to be used only in very limited circumstances.
I thank the noble Baroness. Of course she is absolutely correct. She was a member, so how can I argue with her? None the less, on the record the committee pointed out that Parliament should judge what issues will be the subject of a referendum.
I feel profoundly that that is why the other place has clearly supported all these issues that other noble Lords are seeking to remove. The other place has the touchstone of having the pulse of the electorate—after all, the other place is elected. In recent months, four out of five members of the public have said that they believe that transfers of sovereignty should be put to referendum, so I really think that noble Lords would do best to withdraw their opposition to the other place’s position and not press Motion B to a vote. I think it would be an error of judgment on their Lordships’ part.
My Lords, I warmly support the amendment in the name of my noble friend Lord Triesman and which has been spoken to so eloquently by my noble friend Lord Liddle.
Occasionally, the peoples of small countries can give those of larger countries some salutary advice. Yesterday I had the pleasure of a meeting and a long discussion with the president of the Slovenian upper Chamber. We were discussing very openly the current political malaise in Slovenia—it is doing very well economically but there is political malaise there—and the fact that the people of Slovenia were completely turned off by the political class, both the Government and the Parliament. We were told that one of the major reasons for this was that they are fed up with having referendums. They are saying to the Parliament, “We elected you to take decisions and to govern, and a Government are there to govern, so why can you do nothing without first asking the people in referendums? We elected you to take those decisions”. I think that they have a point. This is a country that, not so long ago, had no democratic institutions at all. It had no means by which people could express their opinions; they have them now. What is their reaction to the massive referendums to which they are subjected? They say, “That is not the way we want to be governed. We did not give up the yoke of communism to be governed in this way”. Perhaps occasionally it is a good idea to listen to small countries.
My Lords, of all the people have spoken in this debate, the noble Lord, Lord Hannay, has the greatest practical experience, since he has had the responsibility of seeking to negotiate on the international plane in Europe and elsewhere. If he cannot persuade the House, nobody can. In supporting this amendment and therefore, I am afraid, not acting in accordance with the wishes of the Government, I agree with everything that the noble Lord, Lord Hannay, has said.
As somebody who, as I have said on previous occasions, takes his holidays in Ireland and has seen what has happened in the Irish referendum, I think that the good thing about this amendment is that it places us in roughly the same position as the Irish. They have referenda only according to constitutional criteria such as those in this amendment, so the Irish Government are not fettered with the inflexible overreach of the Bill as it otherwise stands. Therefore it seems to me that this amendment has the merit of Parliament authorising the Minister to exercise her or his discretion in the particular case using a criterion that is well understood and doing so under the authority of Parliament.
‘Otherwise, what we will really be seeking to do is to fetter decision-making by future Governments and Parliaments, even though that would be most unwise. I was once induced by the whipping arrangements to stand on my head and to vote against my own amendment. I then made it clear that I would not make an idiot of myself again in that way, and I do not propose to do so today either.
My Lords, this is a very revealing debate. The Government have behaved rather dismissively towards this House. The noble Lord, Lord Howell, has said, rather pro forma, that the Government have carefully considered our arguments. In actual fact, there has been no attempt whatever to come even 5 per cent of the way to meet us. I hope that, as a result, your Lordships will have the courage of their convictions and continue to stand by the principles we voted on previously. I particularly support this new amendment, brought forward by my noble friend Lord Triesman and so ably and vigorously argued by my noble friend Lord Liddle.
I said that it has been a revealing debate. I thought that the noble Lord, Lord Blackwell—the only Conservative to have taken part in this debate, so far at least—really gave the game away. He entirely supported the point I have been making all along: that no Government have a referendum voluntarily at all. If they can possibly avoid it, no Government ever have a referendum; that is exactly what the noble Lord said and exactly what I have been saying. That means that the apparent intention to have referenda on any or all of the 56 subjects in the Bill is entirely hypocritical. There is no such intention whatever. We all know that it would be quite absurd to have a referendum on almost all of them—on 50, at least, out of the 56. The British public would think it a ludicrous waste of time and money, and they would be completely right.
The intention is really entirely obstructionist, which is what I am so worried about. It sends the worst possible signal to our partners in the European Union. Indeed, it presages a period of great difficulty for us in our relations with our EU partners and our ability to positively influence the EU. It is so important that we influence the EU in the right way because it is such a vital element in the modern world, where in so many contexts we cannot possibly achieve our national purposes acting on a purely national basis. We need to form an effective, cohesive bloc with our European partners and argue with them in the relevant international fora.
What does one make of this argument that the Government keep on coming up with—the noble Lord, Lord Wallace, repeated it this afternoon—that this extremely obstructionist concept of having referenda on all those subjects is somehow indispensable in better communicating to the British public the virtues and merits of our membership of the European Union? The noble Lord’s argument really does not have any conviction at all; it does not ring genuine or true. Anybody who knows the first thing about marketing knows that if you want to sell something, the one thing you can never do is be negative about it. If you want to sell it at all, you have to sell it with enthusiasm and genuine conviction. Once you start saying, “Well, this is a problem so we need to apply brakes and think of new blockages”, and so forth, you have lost it completely. The noble Lord was a very distinguished professor of international relations but if he had chosen a marketing career, he would have been an absolute disaster. He would never have sold a single car or tube of toothpaste on the basis of the approach which he outlined this afternoon.
Our enacting this Bill will have two effects. One is that there will be substantive damage done to the interests of this country in specific areas. In an amendment on Report, I raised the issue of a single market in the defence industry. That is quite clearly in our national interests, but we would not now be able to agree to it unless we had a referendum. I went through that and explained that we really would shoot ourselves in the foot—that was the expression I used—if we went ahead with that. The Government did not seriously argue against that case at all. They simply said, “Sorry, we are embarked upon this course and there may be a few things to be thought of”. The noble Lord, Lord Howell, was nice enough to say that I may have some arguments there but that they would carry on regardless—that was more or less the response I had.
Let me give another case, because it is important to look at specific, concrete cases where it may be in the national interest to transfer powers or competences to the institutions of the European Union, particularly the Commission. A few years ago the Commission made a proposal that it should have the right to audit and monitor the accounts of member states. That was opposed by a number of member states, including ourselves and the Germans, and it did not go through. Had it been able to go through on a qualified majority voting basis then we would have had the Commission monitoring the national accounts of Greece. The scandals and mistakes that have occurred with devastating consequences—going into tens of billions of euros, as we all know, and the threat of a banking crisis which undoubtedly will affect us if it arises, and so forth—would have been avoided, because somebody else would have been able to go through those accounts. The European Commission would have been able to do so. Of course all the Eurosceptics in this Chamber and in the other place would have said, “Oh, this is a terrible thing because it is somehow another integrationist step forward”, but it would have been enormously in our national interest.
Such occasions can easily occur in the future. We all know that we cannot predict the crises and challenges of next year or even six months hence, let alone five or 10 years hence, but we are now denying ourselves definitively an effective possible weapon to deal with such challenges and crises. That is the effect of the Bill. I totally agree with the noble Lord, Lord Blackwell: there ain’t going to be no referenda on this Bill. We all know that was complete rubbish. What this Bill is actually doing is enacting a complete blockage so far as we are concerned.
The second consequence of this, of course, is that it will give a great boost to the enhanced co-operation agenda in the EU. Our partners will know in advance that there is no point in bringing the Brits into the discussion—because they are paralysed; because they have got to say no; because no Minister could possibly even say yes subject to a referendum, because no Government are ever going to want the referendum. Therefore they will not want the Brits in the room from the beginning: that is quite clear. So, they will say we have got to make progress on this, we have got to take a decision on this, we have to do it ourselves, under the enhanced co-operation procedure—which is now of course available under the treaty. We are going to give a tremendous boost to that. This means, of course, that we will not be present at that discussion. We all know that the European Union is a horse-trading organisation, and agreements are often in terms of packages—a perfectly natural thing in human affairs. If we are not part of the discussion in one particular area, it may make it much more difficult for us to do an advantageous bargain or deal in another context which is very important for us. We are going to be steadily and progressively left out of the mechanism of decision-taking in the European Union. That is a very serious prospect and we are bringing it not only closer but so close that it is a damned racing certainty if we enact this Bill in its present form.
My Lords, at this stage in our proceedings we have to do two things. First, we have to decide whether we are persuaded by the arguments put forward in the other place that what we have decided here should not stand up. Secondly, we have to decide, if we are not persuaded, whether we stand by what we have done or whether we acquiesce in what the other House has decided.
My fundamental objection to this Bill and my support for the amendments that we passed is based on a view which has not much to do with European affairs at all, but a great deal to do with the British constitution. Up to now, we have had a constitution in which the referendum, until modern times, had no role whatever. We had sufficient confidence in parliamentary government to believe that the representatives of the people should be responsive to the people but not slaves to the momentary wishes of the people, and that that was the right way in which decisions should be taken. A breach was made, 25 years ago, 35 years ago or more, but one breach and one breach only. This legislation changes the balance dramatically by making referenda, instead of extremely rare, things which could be extremely common.
The amendments that were passed by this House mitigate what I consider the damage to the British constitution a small degree. The question is, are we persuaded by the arguments put forward in the other place that the mitigation that we introduced is something which we should no longer support? I am not so persuaded, because the amendments that we put forward were quite modest, still leaving a Bill which breached—in my view unnecessarily and undesirably—the principle of parliamentary government, but they were mitigatory amendments and therefore we supported them in this House, and we passed them in this House. Nothing that was said in the other House persuades me that we were wrong to do so, because the balance of the constitution in which a referendum is a rare instrument, applied only in exceptional circumstances, is one which I continue to support. I am not persuaded by the arguments put forward in the other House that the modest amendments that we put forward, which would reduce the plethora of amendments and other referenda from a flood to a trickle, were undesirable. I was persuaded last time we discussed this that they were desirable, and I remain of that view now.
My Lords, I too support this amendment, because I see it as a considered response to the views of the other place. It supplies a criterion which identifies when it is appropriate for a referendum to be held. Since mention has been made of the views of the Constitution Committee of your Lordships’ House, of which I am a member, I will remind your Lordships of the three points that the committee made in its report on this Bill.
First, we noted that, in our earlier report on the use of referendums, we concluded that if referendums are to be used they should be confined to fundamental constitutional issues. Secondly, we noted that this Government had expressed agreement with that criterion in the context of the Parliamentary Voting System and Constituencies Act. Thirdly, we concluded that it could not be said that every treaty change which would, under this Bill, require a referendum, would involve a fundamental constitutional issue.
My answer to the point made by the noble Lord, Lord Blackwell, is that I understand this amendment to impose a duty on the Minister in good faith to consider whether the issue is one of economic or constitutional significance, and if so to lay a Statement before Parliament. I do not accept that this leaves matters entirely to political judgment: it imposes a criterion, it is a considered response to the Commons view, and I hope we will support the amendment today.
My Lords, I support the amendment. The main consideration is that if the Government do not relent on this question they will be in denial on issues to do with the workability of the scheme. I will give some examples.
First, it is proposed that these referenda be mandatory on the Government. Secondly, it was said by the noble Lord in a previous session that it might be rather inconvenient if there were a whole string of different referendums and so they could be grouped together in some way for the purpose of having them on a certain date. The issue of EU energy taxation being extended or some other legal question on an industrial matter might be put together for the purpose of the referendum day. This taxes the imagination. I have tried to imagine that I am sitting listening to a conversation in a pub in Burton-on-Trent. After all, this is the demotic that we are all being asked to say is so much more important than parliamentary democracy. So, I am sitting in a pub in Burton-on-Trent, and after a discussion on what is running in the 2.30 at Newmarket, Fred says to his mate Alec, “What are you doing on this thing that they want us to vote on tomorrow?”. “No idea, Fred, it’s all Greek to me”, replies Alec.
How do we know that the people want all these referendums? How much time would elapse in Brussels if we simply, as the awkward squad, sat for several months on a whole string of items until the famous day when they could be brought together? That looks so totally unreasonable that people in Europe—they are friends of ours, presumably; we are in a Community—might say, “If you are a member of a club, you ought to be more co-operative than that. If you carry on as you are, you might as well get out”. If we held a referendum on staying in or getting out, I am pretty confident that the staying in vote would win. There might be consensus on that, but it is not the subject of this amendment. This is a vicious circle. If you want to be a member of a club, you have to co-operate. If I carried on like this in my tennis club, it might be suggested that I joined another club more suited to my temperament. The Government do not have the candour to say what they want to do because I do not think that some of their members would agree with that position. However, they want to go as near as they can to implying what they want to do.
In practice, this amendment meets the test set by the Constitution Committee. I think that there is consensus in the House on it.
My Lords, I will be very brief. I do not think that it can be disputed that the Bill in its present form makes it infinitely more difficult to stick to the constitutional principle announced by the Scrutiny Committee that referenda should be restricted to matters of fundamental constitutional significance. Why would a spread of more plebiscites be so dangerous? It is because the system of parliamentary government has been far superior in preserving certain rights, particularly minority rights, than would be the case with referenda and plebiscites. For example, one can imagine the populist propaganda that would pour out further to restrict asylum seekers and make this a less civilised country. That would apply also to those suspected of committing terrorist offences. We have heard some examples of that. However, this goes beyond minority rights and individual rights. What about protectionism? “British jobs for British people” was Mr Brown’s ill advised slogan. If protectionism had spread throughout Europe or throughout the world after the crash, we would be in an infinitely worse position. As regards tax, is not the example of California, which is now a bankrupt state, a very good reason for not allowing the spread of referenda?
My Lords, my problem with this amendment is that it seems to me to meet precisely what the Government want. The Government have been arguing that this clause would apply only to matters of constitutional value and that those who have worried about various aspects of it are worrying unnecessarily. We now have an amendment which specifically says that the Minister must say publicly that the referendum concerns a matter of constitutional or economic importance. That seems to me not an unreasonable thing to do when it is precisely what the Government say this clause is meant to do. Although I do not believe in referenda in any circumstances, I am not approaching this from that point of view. Frankly, I am trying to help the Government because it seems to me that they have not convinced all of us that their explanation of this clause is precisely right.
My noble friend Lord Blackwell is entirely wrong: this is not a wrecking amendment—unless the Government’s proposal is a wrecking amendment—in fact, it enhances what the Government have asked for. Your Lordships should say to yourselves, “Whether we are Eurosceptics or enthusiasts for Europe”—as I am—“whatever our view may be, it is not unreasonable to say that referenda should be held on matters of considerable importance, not ones which are not of considerable importance”. It is not unreasonable to put that in the Bill.
As regards the way in which we have approached this, I believe that there are real issues for our stance in the European Union. Those who are Eurosceptic ought to be just as concerned as those of us who are of a different opinion, because unless we are able to argue about minor matters with the freedom which a representative Government have, we will do ourselves down on many of the issues that have been raised. If this amendment merely allows for that freedom, it is important and valuable and certainly does not in any way wreck the proposal.
There is truth in the argument that says that we should watch any constitutional change of this magnitude with great care. I say to the noble Baroness behind me who spoke on the Liberal Democrat position that the more she read what the Constitution Committee of this House said, the more she made the case for the amendment, because the Constitution Committee said that if you are going to have referenda, you should make sure that they are on serious matters. Sometimes it is difficult to decide what are serious matters. We have produced an amendment which says to the Minister, “You have to make up your mind, you have to agree to it and you have to say that publicly”. After all, most of our Bills have a statement on the front that the relevant Minister knows that it accords with human rights. It is not unreasonable to ask Ministers to make that choice. I think that is what the Government want. Why, therefore, have they not accepted this amendment, or something like it?
I end with a plea to my noble friend. He knows that many of us are not entirely happy with the logic of saying that we have to have all this in order to reconnect with the public. Could he not move towards us just a little and be prepared to put in the Bill what he has told us is actually there? That would make us feel that the Government had listened to us and that there was a two-way discussion on this. If he does not do that, I am afraid that I cannot even begin to reach out to the concept that this Bill enhances our relationships and I shall begin to recede into a position of wondering whether it is not intended to make people like my noble friend happier. I am not sure that that is what we should be debating.
My Lords, does the Minister agree that certain noble Lords are perhaps a bit out of touch with British public opinion? It is clear that the British public are against Governments surrendering any further sovereignty to the EU without the consent of the people. That was very much reflected in the attitude taken to the previous Government’s signing up to Lisbon, having promised a referendum and then having ratted on it. The whole point of the Bill, clumsy though it may be, is to provide a deterrent to stop Governments of any political hue giving away yet more sovereignty, and the British people not having a say in that. The noble Lord, Lord Hannay, gave the game away. He was arguing that he wanted a situation where Governments could fudge it and give away a bit more sovereignty and was very unhappy that they might be deterred from doing that through fear of losing a referendum. The whole point of the Bill is to provide an effective deterrent to Governments giving away sovereignty. This amendment would weaken that principle.
I took part in virtually all the debates that we have had so far on this Bill, and it seems to me that the amendment would be a wrecking amendment. I understand that the Government and the coalition brought forward the Bill after long consideration and to provide assurance to the British people before they surrendered any powers—powers of the people and powers of this Parliament, if we are talking about parliamentary democracy—to the institutions of the European Union. Indeed, we had long discussions about these provisions, and after hearing all the debates I believe that the Government were right to try to get it through this House. Unfortunately, they did not do so.
The Bill went to the House of Commons and I have read the debates. The Labour Party did not oppose these clauses in any reasonable way and did not support Amendments 6 to 13. There was very little discussion on them, as a matter of fact. If it was Labour Party policy, as the noble Lord, Lord Liddle, assured us and as is contained in his amendment, why was it not moved in the House of Commons? That is where it should have been done, but it was not done. What is the gain? If the Labour Party believes in restricting the effect of Clause 6, why did it not try to do that in the elected House? In the circumstances, this House ought to take note of what the other place has done.
The noble Lord spent many years in the House of Commons. Is it not the position that the Labour Party was looking at the Bill, as amended by the House of Lords, and that it was not incumbent on the Labour Party to do anything along the lines he suggests?
It was not incumbent on the Labour Party to do so, but it had the opportunity to do so and did not. If it believed, as the noble Lord, Lord Liddle, said when he moved his amendment, that this should be its policy, why did Members not do it when they had the opportunity in the House of Commons? That is the question that has to be answered. I assure the noble Lord that I know the procedures in the House of Commons. I was a Whip in the House of Commons and I have sat on a number of committees dealing with amendments that have come from the House of Lords. The House of Commons was perfectly entitled to move an amendment but it did not do so.
The House of Commons is entitled to amend amendments that we have made in this House, but did not do so. The Labour Party did not do so because it did not want people outside to get the impression that it was against consulting them about losing further powers to the European Union. That is the real reason behind it.
I know that the House wants to get on, but I just want to say that the noble Lord, Lord Davies, referred to Greece. Of course, it is very clever to do that because we know the appalling state that the eurozone is in at present. He made the reasonable point that if it were a unitary state the Commission would have examined the accounts of the Greek Government. It had the opportunity to do so before Greece was admitted to the eurozone, but it did not do it because it was a politically driven decision. It wanted as many countries in the eurozone as possible, whether they were broke or, like Germany, prosperous. We should be very careful when using the present crisis to undermine the Bill. I would like it to go further but it is the best we are going to have, and I hope that the House will not insist on the amendments on this occasion.
My Lords, I had not intended to speak in this debate and I will be extremely brief. I rose to speak only because so many of my noble friends have made rather powerful speeches, but ones with which I disagree. I take very seriously the point made about moving too far in favour of plebiscitary democracy. One has to agree that that is a real danger. Balanced against that has to be the fact that the seeping away of the power of Parliament to the European Union is also an extremely serious issue. I agree in general that referendums should be held largely on constitutional issues because they are a good way of settling how we live with each other and how we are governed.
We had quotations from the side opposite and from Cross-Benchers in earlier debates from Edmund Burke and the judgment of members of the legislature. One might quote back at them Tom Paine, who argued that constitutions belong to the people: that it is not for politicians to decide the rules by which government is conducted—sovereignty comes from the people. While I think that referendums should be on constitutional issues—important constitutional issues, as has been said—the totality of our relationship with Europe is a huge constitutional issue. It is therefore right that referendums should play a part in that.
That poses the question: is it right that we should have in this Bill so many different powers and so many different issues all rolled into one that might, as has been said, give rise to a flood of referendums on trivial issues? I do not believe that that will be the consequence of this Bill. That has been said before in our proceedings on the Bill, so I shall not go on about it at any great length. I will say, however, that that will not happen because: first, these measures are likely to come in packages; and, secondly, there are reserve powers—reserved to the nation state and left out of the previous treaties of Lisbon, Nice and Maastricht—because individual countries in the past have wanted to preserve them, and not necessarily Britain. There are other countries in the European Union, and one can look through the minutes of the constitutional convention leading up to the Lisbon treaty to see how some other countries in the past have argued for the veto to be preserved in certain areas. This is not just at the insistence of British politicians.
That question was raised by the noble Lord, Lord Taverne, earlier in the debate. The answer is: just as they vote in elections. They have to decide on five or six issues in an election. In the past, there were referendums in other countries on treaties in which they had to decide on a series of questions raised by those treaties. I repeat my point that where a veto exists, it is not necessarily just at Britain's insistence but because other countries, too, wanted it.
Thirdly, I think we will have referendums only where a British Minister agrees with the proposition that will be put to the people of this country, and where the Government believe that they can win the referendum. For that reason, and with great respect, I do not agree with the point made by the noble Lord, Lord Hannay, that our flexibility in negotiations will be impeded because a certain area is covered by the possibility of a referendum being held on it. If a Minister wishes to argue in favour of something, presumably he is confident that he can sell it to the public. If he cannot sell it to the public, and they are going to disagree with it, perhaps he should think carefully about whether it should be advanced at all. Therefore, although I agree with the general proposition that we do not want to go down the road of having a massive extension of plebiscitary democracy, I do not think that that will be the consequence of the Bill. That assertion has been repeated many times, but the argument is not convincing and I urge my noble friend to support the Government on this.
My Lords, I hope that I will be forgiven if I say that I have a faint feeling of having been here before—and forgiven also for not responding to every strongly held view and argument put forward in this debate that was put forward again and again in the past. The Government and I regard some of these arguments as deeply flawed and consider that they do not understand or come to grips with the realities of political life today, either here or in the rest of the European Union. I will also deal briefly, as is the custom, with the Motion—it is not the custom to make long second speeches on a Motion—and with the amendment moved by the noble Lord, Lord Liddle, which goes very much further than anything standing against the Government’s Motion that the amendments be resisted.
On the decisions involved in Clause 6, none is in the grey or insignificant category. They are all there for very strongly established reasons that are largely supported by many other countries. Many vetoes are maintained because the signatories to the Lisbon treaty did not want them to go into the QMV category. They are there because their use could only ever provide for a transfer of competence and power from the UK to the European Union—for reasons that we have explained from this Dispatch Box and that many of my noble friends have explained again and again—and so should be subject to the referendum requirement.
It is difficult to accept that any of the decisions in Clause 6 would not be significant in constitutional or economic terms. Those who say that it stretches their imagination to understand the significance of the measures listed in Clause 6, or Schedule 1, which springs from it, surprise me. Surely a decision on whether to give up our vetoes on, for instance, the multiannual financial framework, border controls or joining the single currency—I refer now to the amendment of the noble Lords, Lord Liddle and Lord Triesman, not to the main one that accepts them—would all fall, under Amendment 13B, into the bracket of something that had to be judged according to whether or not it was significant. This is a completely unnecessary process. Clearly they are of the most profound significance.
I know that the shadow Minister for Europe said on Monday that he considered other items in Clause 6 to be not so important. He exempted the important three—border controls, the European currency and one other—but dismissed the others as paperclips and minutiae. We do not accept that analysis. We firmly believe that the other issues are also of great significance and, when understood in terms of their impact on jobs, work and the processes by which our law system operates, certainly could be subjects of conversation in the pub in Burton-on-Trent, where the noble Lord, Lord Lea, has been listening to conversations.
On the European public prosecutor, I know that it is regarded by some of my noble friends, and by some noble Lords opposite, as not being of constitutional or economic significance. However, it is because it involves affording a supranational body the ability to prosecute citizens of this country within the scope of its own criminal justice system in respect of alleged crimes affecting the EU's financial interests. Someone must decide what that financial interest is and whether the crime has been committed. Is that a paperclip or minutiae issue?
What about the vetoes listed in Schedule 1? Why are they not significant when they all relate—that is why they are there—to the red lines adopted by successive Governments, fought for very hard by the previous Government and sustained by this Government, covering foreign affairs, security and defence policy, economic and tax policy, including issues of the EU's budget, which all of us admit is a red-hot issue, social security, employment policy, justice and home affairs policy, and citizenship and elections? Are these all minutiae, paperclip decisions and things that are never discussed in any pub? I have to ask where some of my noble friends, and some noble Lords, have been if they think that these matters are of no significance, because they include not only domestic issues, where after all Parliament can make and unmake laws, but transfers of power, sovereignty and competence that would almost certainly be irrevocable—in fact, they would be irrevocable.
The amendment before us would, for instance, allow the British Government to relinquish their veto over decisions relating to the multiannual financial framework without first getting the consent of the British people. That is a hugely important decision that Members in the other place were particularly concerned with, and rightly so. The Minister for Europe rightly pointed out that the forthcoming decision on that framework will in effect set budgetary decisions and ceilings for the next five to seven years of the EU's life and development. Are these minutiae, paperclip decisions or matters that people will not understand? I ask my noble friends and noble Lords who think that these matters are insignificant to think again. Their significance is obvious.
It is vital that these matters remain subject to unanimity and that whichever British Government are in office—this matter should be above party—continue to have the right of veto. Similar views are taken in almost every other country in the European Union. We all know what happens when one gets casual about the veto and lets it go. This was the case in the surrender of the veto on Article 122 of the TFEU, which opened the way to fearsome, huge and titanic new financial commitments to the funding of Europe in its present financial difficulties.
The amendment before us would reduce precisely the clarity that we all seek. It would also risk the possibility of judicial review on a decision by the Minister not to consider one of these clear-cut decisions to be significant. The so-called pragmatic flexibility that the noble Lord, Lord Liddle, keeps reminding us about and seeks could well be impeded by his own amendment. He would end up in a quagmire of pragmatic flexibility of his own making. It was too much of this pragmatic flexibility approach in the past that caused antagonism—the turn-off, if you like, of popular support for the European Union and for Ministers’ actions. The ministerial discretion that some of my noble friends and noble Lords call for has become the ministerial indiscretion and undermining of trust and support for the European Union that we are trying to correct.
Would my noble friend accept that it is impossible for a court to make decisions on what is done in the Houses of Parliament? If the Minister declares, therefore, that he believes something to be—or not to be—a matter of importance, it is not a matter that could then go to the courts. It would be settled by the House itself.
Ministerial decisions are open to judicial review. That is not a matter that we discussed much in Committee or one that we would necessarily want to see operate very fully in this or any other area of ministerial decisions on any aspect of policy. However, judicial review is there and ministerial decisions can be challenged.
The House of Commons has twice approved the scope and operation of Clause 6 following a clear exposition from the shadow Europe minister and his views on party policy on Amendments 6 to 13.
I do not want to take further time meeting the marginalisation argument. Frankly, it is a chestnut, as there is absolutely no impact on Ministers’ discretion and flexibility merely because they have sanctions behind them. Most European member states’ Ministers have sanctions of various sorts lying behind them on the decisions that they reach.
The plebiscitary democracy issue, frankly, belongs to the pre-internet age, before the web and the internet system. We see all around the world the wider public’s insistence on having a say where major issues about the transfers of power and competence away from their sovereign control are involved. That is exactly what would happen here. The idea that there would be 56 different referenda coming along is pure fantasy and does not relate to the actual way in which these issues would arise. There would be no great frequency of referenda; this is not the pattern for the future. It will not be the result of this Bill and it certainly would not be the outcome of the way in which the European Union has operated, is operating, or is likely to operate in the future. It is not in the interests of the 27—maybe soon 28—members to proceed in that way.
I think that the noble Lord would be wise to accept the Motion and the view taken in the other place. He would be wise to reject the amendment and therefore I ask him to withdraw it and accept the Motion so ably moved by my noble friend.
My Lords, we have had a full debate, and I do not want to take up the time of the House. I just want to make one comment on what the Minister has said. As you know, I believe in the noble Lord’s integrity in putting this Bill forward. I do not believe he is putting it forward for anti-European reasons. I do not think that that is what he thinks, but the truth is that the list of referendum locks contained in this Bill far exceed any reasonable person’s definition of issues of fundamental constitutional significance. On that basis, I would like to test the opinion of the House.
Motion B agreed.
14A: Line 3, leave out from beginning to “directly”.
14B: Line 7, at end insert “only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.
My Lords, we have had a number of interesting debates on Clause 18 at every stage in your Lordships' House and in the other place. We have heard from those who sought to ensure that the clause was more than declaratory and from those who expressed concern that Clause 18 might somehow affect our obligations as a member state. As my noble friends Lord Howell and Lord Wallace of Saltaire have said, and I have made clear, that is not the case. I hope we have assured your Lordships' House very effectively that this clause is declaratory and is intended to be declaratory. It underlines the existing legal position and confirms how directly effective and directly applicable European Union law takes effect in the United Kingdom, no more and no less. It will certainly not change in any way the constructive activist/pragmatist approach that this Government have and will continue to pursue in our engagement with our European Union partners on the priorities that matter to the people of this country.
Although the clause is declaratory, we believe it serves an important and valuable purpose. I echo the words of my noble and learned friend Lord Mackay of Clashfern who said on Report:
“It is important that this declaratory measure should be made because of the theory sometimes propounded that Community law in the United Kingdom derives from the treaty alone by virtue of the European Union legal order. I believe that it is right that we should make it plain at this juncture that that is not so”.—[Official Report, 15/6/11; col. 790.]
I welcome the acceptance by your Lordships’ House and the other place of the principle underlying Clause 18. What we have before us, as we did on Report, is the question as to how we apply that clause and whether the 1972 Act should be the only Act which is to be covered by Clause 18. In this, I fully recognise the reasoning behind the approval which your Lordships gave to the amendment on Report.
The aim in doing so was quite rightly to make the clause as specific and clear as possible, an aim which is wholeheartedly one which one could support. But, as I have already said, I recognise the concerns expressed by noble Lords that Clause 18 should make more specific reference to the European Communities Act 1972. When we debated this on Report, I made it clear that the reason we could not accept the amendment was because we were of the firm belief that a number of other Acts of Parliament also give effect to directly effective and directly applicable European Union law independently of the 1972 Act. Therefore, to accept a provision that referenced the 1972 Act alone would be to accept a change in the existing legal position, which could go beyond what we had always intended.
Although the European Communities Act 1972 is the principal means by which directly effective and directly applicable EU law takes effect in the United Kingdom, the amendment agreed by your Lordships’ House could have created a significant risk that the courts might interpret the clause as restricting the ability of the other Acts of Parliament to incorporate directly applicable or directly effective EU law into our United Kingdom law.
The amendment accepted by your Lordships’ House also removed the phrase, “It is only” from the clause. This wording is intended to make it explicit that it is only by virtue of Acts of Parliament that directly effective and directly applicable EU law takes effect in the United Kingdom. Removing this reference leaves open the possibility of arguments to be made that directly effective and directly applicable EU law could enter into United Kingdom law by other means, which undermines the very rationale behind the clause.
Nevertheless, we have reflected on the amendment and the Government have demonstrated already that we wish to listen to arguments put forward by noble Lords. When there are grounds for a change to be made, we are prepared to make the change. In doing so, I wish to put on record our gratitude to my noble and learned friend Lord Mackay of Clashfern, with whom we have discussed in depth possible alternatives to his amendment to ensure that any amendment in lieu addresses his concerns sufficiently.
The Government subsequently proposed amendments to your Lordships’ amendment in the other place, which we believe achieve these two objectives. These amendments are before us today. It may help your Lordships if I set out how the clause will read if these two amendments are added:
“Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act”.
As I have indicated, we are particularly grateful for the engagement of my noble and learned friend and for his advice. My understanding is that he is content with the amendments to his original change.
I am also pleased to note that the other place voted overwhelmingly in favour of the government amendments by 485 votes to 22. These amendments were supported by the Opposition, with the shadow Minister for Europe calling them,
“a modest improvement to what was suggested by the Lords”.—[Official Report, Commons, 11/7/11; col. 98.]
I therefore beg to move that this House acknowledges the considerable support of the other House for these two amendments to the amendment that was proposed by this House. I ask your Lordships to support these amendments today. I beg to move.
My Lords, as the one who took the main argument on Clause 18 on Report with an amendment which was carried by quite a reasonable majority in your Lordships’ House, I am happy to assure your Lordships that this debate need not be anything like as long as the previous one because I am entirely happy with the proposed amendments and the resulting Clause 18.
The amendments restrict the matter to directly applicable and directly effective EU law. We are not concerned with other Acts which introduce EU law directly—for example, where it uses a particular provision of EU law to make law in this country. We do not need to concern ourselves with that. Originally, in an attempt to meet with the Government, I drafted an amendment which covered that as well as this. But I understand that it is now agreed that we just need to deal with directly effective and directly applicable EU law.
I am not 110 per cent convinced that there are other Acts which do this but, using the suggestion of my noble friend Lord Flight of the belt and braces, there is no harm in adding this because the 1972 Act is now specifically referred to. There is no doubt in my mind that it is the key to this aspect of EU law in this country. I hope that your Lordships will accept these amendments and my gratitude to the Government for their acceptance of the principle of the amendment which was accepted here, and for defending me from various allegations that were made in the other place about my motivation.
My Lords, in respect of the amendment that the noble and learned Lord, Lord Mackay of Clashfern, successfully passed in this House, I agree with him that the clause now before your Lordships is entirely satisfactory. I just want to say a few things about it. First, I do not think that Clause 18 was ever necessary, except in a political sense. Secondly, I do not think that the law was ever unclear. Thirdly, it is one of the comical aspects of our unwritten constitution that if you ask a group of lawyers or law students the origin of the doctrine of parliamentary sovereignty, they never know the answer. The answer of course is that it comes from the common law. That answer is most unwelcome to a certain kind of thinker, who thinks, “Oh dear, if it comes from the common law, the courts might take it away again”. We do not have to go into that today.
This amendment states the position as has always been made clear in the case law and therefore does no harm. I only wish that it had not been necessary in the first place. I also wish that the original Explanatory Notes that the Government introduced had not been maintained instead of being withdrawn for political reasons for another set of Explanatory Notes, all of which shows the unfortunate aspects of a Bill which is a politically cosmetic exercise in this respect.
My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:
“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.
The second reference is:
“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.
It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.
My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.
15A: Because Part 1 and Schedule 1 are not provisions to which it is appropriate to apply a sunset provision.
This is the issue of the sunset clause. I believe there is another amendment to be moved which is related but with a slightly different emphasis. We debated this proposition at considerable length throughout your Lordships’ consideration of the legislation. We know there are a number of sunset clauses in a number of pieces of legislation, for the most part for specific operational reasons. The Lords has expressed concern over the granting of new extraordinary powers for the Executive, such as in response to the firefighters’ dispute eight years ago. In all these sorts of cases, Parliament has sought to ensure that these powers were retained for only as long as was necessary.
With the Bill there has been a rather different line of argument. There are those who have a general dislike of the Bill, which they are perfectly entitled to have, and there have been arguments put forward in favour of a sunset clause because, it is claimed, this legislation seeks to bind future Parliaments. I repeat what was observed in another place—I perhaps have not comprehended the value of any counterarguments to it—that all legislation by a Government can bind future Governments, and maybe the Government of the day wish it would. All legislation is reversible. The need for additional provisions in the Bill seems weak.
Instead of repeating my arguments, I will simply quote from the European Scrutiny Committee, which put the matter very clearly:
“All Parliaments legislate for the future. Laws passed by one Parliament do not contain a sunset clause at the Dissolution. The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed; in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed”.
Again and again there has been the proposition that somehow this type of legislation weakens Parliament, but Parliament remains central to the whole pattern of agreeing by Act of Parliament whether there should be referenda. The argument for the sunset clause is that each Parliament should be given the chance to decide whether its sovereignty has been curtailed by the Bill. We do not accept that case. As the Minister for Europe said in another place:
“The Bill does not substitute the British people for Parliament, for Parliament will continue to have a central and strengthened role”. —[Official Report, Commons, 11/7/11; col. 74.]
Parliament would have the opportunity on each occasion to approve a transfer of competence or power and to approve the holding of a referendum. In contrast this provision would actually reduce the control that Parliament would have on treaty changes and passerelles until the Government of the day decided whether to revive Part 1 of and Schedule 1 to the Bill. It would actually have the counter-effect of that, which I believe is the intention of those who put it forward. In any case, we have a system that is designed precisely to review how all Acts of Parliament are used once they are enacted. The previous Government introduced a system of post-legislative scrutiny. Well done them, because under that the Government of the day are required to publish a memorandum to Parliament on the operation of each Act of Parliament up to five years after the commencement of the Act. This is considered by relevant parliamentary committees, which can decide whether to conduct a detailed examination of that legislation. I ask again: what is the point of this additional proposed provision?
I am happy to repeat the commitment of my friend the Minister for Europe and say that this Government agree that this system is a useful tool that should be exploited and that a future Government must publish a full report on how the Bill has been used within five years of this legislation becoming law. This will result in the clarity and the reflection that colleagues in the other place rightly seek, but without arbitrarily depriving the British people of their say at the end of this Parliament.
This has now been considered by the other place, which has disagreed with your Lordships’ amendment by a very substantial majority of 89 votes. Therefore, it falls to your Lordships’ House to consider whether to insist on the amendment or accept the clear and considered view of the other place; and whether to accept, in the light of what I have said, that this is a necessary amendment or challenge to the Government’s Motion that needs go forward. I personally doubt that it need go forward and I urge your Lordships to let the Motion stand.
15B: After Clause 21, insert the following new Clause—
“Suspension of section 6 and Schedule 1In Parliaments subsequent to the Parliament in which this Act is passed the Secretary of State may by order approved by a resolution of each House of Parliament provide that any provision of section 6 or Schedule 1 shall be suspended for the duration of that Parliament or for any lesser period.”
My Lords, Amendment 15, which the other place rejected, provided a kind of sunset clause for the whole of Part 1 but gave power for future Parliaments to restore the Bill. Amendment 15B replaces Amendment 15 with more limited powers. In the first place Amendment 15B applies only to Clause 6 and Schedule 1 and not to the rest of Part 1. Secondly, the original Amendment 15 cancels the operation of Part 1 and Schedule 1 at the end of the duration of the present Parliament and leaves incoming Governments to revive those provisions of the Bill. Amendment 15B leaves Clause 6 and Schedule 1 in force unless and until a new Government wish to suspend them, and suspension cannot go beyond the duration of the Parliament which suspended them.
Thirdly, the original Amendment 15 is all or nothing. Part 1 and Schedule 1 either are entirely out of action or are entirely in force. Amendment 15B provides for the suspension of any one or more of provisions contained in Clause 6 or Schedule 1. Amendment 15B is therefore much more flexible than Amendment 15, and that is a very important difference. It is surely plain that some of the decisions that may lead to a referendum under the Bill will not be appropriate for such a referendum because of the limited importance for ordinary citizens of that particular decision or because of the uncontroversial nature of that decision. In such cases Amendment 15B allows the Government to proceed by order, which requires the support of both Houses but without a referendum.
We need flexibility. Without it we may waste money because a decision which is not controversial has nevertheless to go through the process of the referendum. Without flexibility we may lose the benefit of useful decisions because a referendum is of little concern to the majority of citizens who have no objection to it and therefore a small minority are able to defeat the Government. Without flexibility the Government may decide not to go ahead with a decision which is useful and non-controversial but not important enough to justify the cost and effort of a referendum.
Nothing in Amendment 15B would affect the referendum lock in the present Parliament, but future Parliaments should have some control over it. I recognise that the amendment would give the Government and Parliament power in theory to avoid referendums on matters where a referendum would have wide support—especially, for example, in the case of adopting the euro—but there is no likelihood whatever that any Government would refuse a referendum in cases of that kind. In any event, if your Lordships' House accepts the principle of Amendment 15B, I can see no objection to amending it so that it does not apply to those categories where there is likely to be a strong demand for a referendum.
This Government propose to rely on favourable referendums in specified circumstances. So be it, but we should not enforce the same restriction on future Parliaments—that is for each Parliament to decide. Does the Minister recognise that it is impossible for the Government to prevent a future Government exercising their power without a referendum to bring in legislation? If that is so, it makes the situation somewhat different, but it seems nevertheless desirable for Amendment 15B to be included, because it makes simpler provision for varying the Bill now being enacted.
It is desirable to take Amendment 15B on board. I hope that the Government will consider doing just that.
My Lords, this is again a wrecking amendment, which is how the noble Lord, Lord Blackwell, described the previous amendment. It goes to the very heart of the Bill and would neuter it completely if it produced a sort of son of a sunset clause. People outside this Chamber and outside Parliament will simply not understand what the House of Lords is doing if it votes for it. The Bill is intended to give British people a voice and protect them from further laws and further integration produced by Europe. They will not understand if the House of Lords supports this amendment, which goes against the whole tenor of the Bill.
On the earlier amendment, the noble Lord, Lord Liddle, made some great play about the lack of trust in politicians and Parliament in general. Although he would not interpret his remarks that way, I take them to support the use of referendums, precisely because of the lack of trust in Parliament and government in general in this country. The noble Lord, Lord Grenfell, prayed in aid the people of Slovenia, who apparently trust their Parliament and say that they do not want referendums. But that simply is not the case in this country. The voters in this country do not have the same faith in their Government and Parliament as the people of Slovenia apparently do. If the amendment is carried, it will drag Parliament even further into the contempt that British people already have for it. It is extremely dangerous, and I hope that it will be voted down by this House.
The House of Lords is a very effective revising Chamber and has proved that on this Bill by making it better and more manageable than it was at first. However, the House of Commons has not accepted our amendments, except in the case of the definition of parliamentary sovereignty—I congratulate the noble Lord who so ably pioneered the provision that we have now just passed. We have just rejected the idea of confining referendums to major issues. Therefore, there is a case for a sunset clause.
This Bill is an attempt, as the people who introduced it in the House of Commons have made quite clear, to bind successor Governments, and it involves a major extension of referendums. In a sense, it is a major constitutional innovation. Noble Lords who have so ably supported Governments of the past in Europe have said to us that we should take seriously the danger of marginalisation that might arise from the Bill. Therefore, there should be a reassessment mechanism in it. I consider that we have a new, mild and flexible version of that in this amendment, which it would be very useful to Parliament to have. We should go beyond what the Labour Government introduced, which has been mentioned already; that is, a committee report on whether a Bill has been effective. Perhaps that should be part of the process, but we should then go on, as the noble Lord, Lord Goodhart, said, to have a mild version of a sunset clause.
My Lords, sunset clauses are appropriate in some legislation: for example, when one has emergency legislation and Governments take exceptional powers. Those powers may have an effect on civil liberties for instance. Counterterrorism Bills sometimes have such an effect. However, this is not emergency legislation; it is legislation that seeks a long-term and permanent change in our relationship with Europe.
There is another reason why a sunset clause would be inappropriate. It is in effect, as proposed, a reversal of primary legislation via a resolution. It is a fast-track procedure for removing legislation. In a way, it is a bit like the Article 48(6) provision in the European Union treaty which this Bill is designed to act as a safeguard against.
One is either for or against this legislation, and many noble Lords have given reasons, powerfully and eloquently, why they are deeply opposed to it. However, they cannot have it both ways. To suspend the legislation, either in whole or in part, is to fudge the decision. If noble Lords do not agree with the legislation, they cannot hide behind amendments that would allow the referendum requirement to be taken out while maintaining the appearance and the structure of the legislation giving effect to consultation and decision by the people.
As the noble Lord who speaks for UKIP said, this will arouse suspicions among some members of the public that Parliament is taking away the right to be consulted while giving the appearance that that right still remains. I can think of nothing that would be more likely to undermine trust than to maintain the legislation on the statute book but incorporate into it a provision that would take the guts out of it.
Two versions of the sunset clause have been put forward: Amendments 15 and 15B. Amendment 15, of course, goes very wide, because in effect it allows the disapplication of the whole of Part 1 and of Schedule 1. I do not agree with the clause for the general reasons I have given, but in addition to the general reasons, Amendment 15 has some unintended consequences. It removes not just the referendum lock but the Act of Parliament lock as well, in some instances. Passerelles and parliamentary control under Clauses 7 and 10 are to be removed.
Many noble Lords who have been against the Bill have said, “Oh, but we approve of the parliamentary control; we approve of the need to have an Act of Parliament if there is a transfer of power”, but under this wider version of the sunset clause, that, in many instances, will go. Not only the referendum lock will go, but the parliamentary lock as well. That might be why the noble and learned Lord, Lord Goodhart, has put forward a narrower version of it that concentrates on Clause 6 and Schedule 1. Of course, that is even more pick and choose, because it says that any provision—not the whole of Clause 6 or the whole of Schedule 1, but any provision within Clause 6 or Schedule 1—could be suspended. Again, I put it to the House that this will give the appearance that the referendum lock remains, but it will in effect be removed when the Government decide that it would be convenient to remove it. It also, in some instances, does away with the parliamentary lock where that falls under Clause 6. For example, there would be no requirement for parliamentary approval if there was a decision to join the European public prosecutor, or no parliamentary lock as regards the passerelles under Clause 6.
The noble Lord pointed out that this was just for the duration of the Parliament; it would have to be renewed in future Parliaments and would be suspended only temporarily, but if you suspend a particular provision temporarily and give away the power under the temporary suspension of that provision, you have given it away permanently. There is not much use in having the power back after you have given away the power that you originally wanted to protect. This is very dangerous. It is far-reaching and would give rise to a very cynical reaction among the public if carried.
My Lords, the noble Lord, Lord Lamont, always argues very effectively and has done so yet again. He invariably falls back on logic and argument rather than on attempts to raise emotional feelings of one kind or another that are inappropriate, but I want to put to him a rather different point. He said, which was fair enough, that this kind of sunset clause often applies to emergency legislation, in particular to emergency legislation that leads, for example, to exceptional powers being taken by a Government that need to be looked at later in a rather less heightened atmosphere in order to decide whether they should remain on the statute book. Many of us will know that emergency legislation passed back in the 1940s still sits on the constitutional pattern of far too many countries that use it to suppress human rights, so one has to be very cautious about that kind of thing.
There is another very different factor about this legislation. It is highly speculative legislation. It makes assumptions about the kinds of issues that are likely to come up over the next few years. We know enough from what we are reading even today that major issues are likely to come up. These go all the way, as John Major said at the Ditchley Foundation only a few days ago, to the question of how one changes eurozone practices—whether one will look again, for example, at the tendency towards an increased or enhanced stability pact. These issues will have the greatest impact on the UK, even though we are not, of course, a member of the eurozone. In this respect the noble Lord, Lord Radice, was absolutely right to say that we cannot know what might arise. The whole point of the sunset clause as we are presenting it is that it gives the British public, in the broadest sense of the word, an opportunity to see what the impact has been of this speculative legislation, which some say will make it very difficult for our representatives in Brussels to represent our own national interests. That is an untested statement. The other untested statement is how far they will feel heavily dissuaded from expressing British national interests for fear that it might set off a referendum.
The great beauty of the sunset clause is that it will unquestionably turn the Bill into a general election phenomenon—an issue that will have to be considered at the next general election—which is, in the mind of many of us, exactly what it ought to be. The British public will be able to consider in the round whether it is wise or unhelpful legislation and to do so in what will undoubtedly be a very substantial turnout, and because this will be an issue about whether this legislation will continue, it will come at the right moment and in the right way before the British people so that they can decide.
My Lords, I said on Third Reading that the proposal for a sunset clause was ill conceived. I believed that to be true then, and I believe it to be true now. While I was not present for the debate in the other place, I did read it today and unfortunately a lot of unkind things were said about this House, which is unusual. A consistent theme throughout the discussion on the amendments was that a number of them were wrecking amendments. That is how this amendment was seen by a number of Members in the other place. The noble Lord, Lord Hannay, said that only a small number were there, and that was undoubtedly true, but to some extent that makes the point, because if Members in the other place were actively supportive of the decisions of your Lordships’ House some weeks ago, why did they vote with their feet and not turn up to debate some of these amendments? They obviously did not see merit in them. That is the only reason I can think of why they would abstain in such a way.
I was referring to the remarks of the noble Lord, Lord Hannay, and commenting that of course very few people participated in the debate, so that point is valid. The noble and learned Lord is right to say that this particular amendment was not before the other place, but at the end of the day the purpose is the same. The noble Lord, Lord Radice, described it as a “soft sunset”. Well, whether you have a hard sunset or a soft sunset, it is still a sunset, and at the end of the day I just wonder, in view of our discussions in this House about our own future, whether it is wise for Members of this House to send anything back to the other place that contains the word “sunset”. It is probably not the best thing for us to do. There is no constitutional imperative to send this back to the other place. If we believed that there was, it would be the duty of this House to do so. I just do not see that in front of us.
On the continuous use of the word “flexibility”, we all like flexibility in government, but it is a euphemism for something else. It means that Ministers can go on to take decisions, and it is precisely that flexibility that has existed for the past 35 years that leads to the Bill being in front of your Lordships’ House tonight. It is unfortunate that we have to go through these procedures, but I see no alternative but to go ahead with the Bill, and I believe that the amendment as currently drafted, or in its original form, casts a dagger at the very heart of what the Bill stands for. I hope that noble Lords will reject this proposal.
My Lords, I support the Motion of the noble and learned Lord, Lord Goodhart. I preface my remarks by referring to my noble friend Lord Empey’s statement about not angering the House of Commons. It would be unwise, frankly, if we went into a pre-emptive cringe at this stage. I am not sure that that would help us very much in the difficult debates ahead.
No noble Lord in the House today has addressed Amendment 15. We accept that it was voted against by the House of Commons, and in any case it is not permissible for us to return to the identical amendment again. That is not being suggested. The amendment of the noble and learned Lord, Lord Goodhart, is meant to produce what has been called by the noble Lord, Lord Radice, a “soft sunset”.
I listened to the debate in the other place and one of the things I heard there quite surprised me, although on reflection I think it was entirely valid. The Minister for Europe was questioned by one of the not terribly friendly members of his own party who would rather see us outside the European Union. He was asked whether it would be possible for this Parliament or a future Parliament to insert a referendum requirement in the primary legislation that approved the matters in this Bill that are not subject to a referendum but are subject merely to primary legislation. He replied, “Yes, absolutely. No problem. If that is what Parliament decides, you can add another referendum—just like that—in the primary legislation”. That startled me and led me to think that the noble Lord, Lord Lamont, when he talked about it having both ways, might not have heard of that development in constitutional practice.
When the Minister replies to the debate, can he say whether the converse is also true? In the primary legislation that would have to be introduced in the House of Commons on the back of a decision by the government in Brussels to go ahead with one of these matters, could Parliament simply waive in that legislation the requirement that is in this legislation? It will be interesting to hear what he has to say about that. I do not see that the proposition that the Minister for Europe agreed to—that a referendum requirement could be added where one was not required under this legislation—could be valid if the contrary proposition, which I have also put, was not valid. Perhaps the Minister will reply to that.
Frankly, with some of the arguments that have been introduced about how flexibility is a dirty word, my heart fails me when I think of people strapping themselves to masts, waiting for the ship to go down and saying, “Thank God I am tied to the mast and I cannot swim”. It is not a very good argument. The circumstances in which flexibility could be exercised are extremely limited and will be difficult to invoke; this amendment simply suggests a way of doing it. We would be very wise if we were to once again ask the Commons to think again about this matter. This is not a wrecking amendment and, for the reasons I have given, I do not think it takes the matter much further than it is already, with the possibility of the House of Commons varying the provisions at the moment that it enacts the primary legislation. I hope that some further thought will be given to this and that we will not all turn ourselves to the belief that this is a wrecking amendment, which it is not intended to be.
My Lords, I shall speak against Motion D1. The reasons for doing so are quite straightforward. The noble Lord, Lord Hannay, commented on flexibility and how important it is that in going forward in unpredictable circumstances we should have flexibility. While I agree with him there, I am not clear that Amendment 15B provides that flexibility because, in order to have a suspension of Section 6 or Schedule 1, it would require us to have the approval of both Houses. Does the noble Lord believe that the approval of both Houses could be arrived at in a manner which did not revisit all of the contentious issues in Section 6 or Schedule 1? If they could have been debated without extensive deliberation or scrutiny—call it what you will—we would not have spent as much time as we have on the Bill. On the other hand, flexibility nevertheless exists in the ability of a future Government to repeal either the entire Act, as it will be by then, or sections of the Act.
My noble friend Lady Williams spoke of the importance of the people of this country having their say on a sunset clause—I prefer to call it a suspension clause—in a general election. If the Act went forward unamended, the people could still have their say because there could equally easily be a debate on whether or not this Bill should be repealed by a new Government were they to win the election. I did not intervene in the debates on the earlier amendments but this debate has been about trust in the people and the constitution, and much has been made about the move to plebiscitary democracy.
The theme of the noble Lord, Lord Liddle, throughout the course of the Bill has been his anxiety for the Liberal Democrats and whether they feel awkward and embarrassed by it. The presumption underlying those comments—and the noble Lord, Lord Liddle, has been a member of my party, the Liberal Democrats —is that we are reluctantly going along with these measures and that there is no philosophical underpinning whatever. During the passage of the Bill we have had commentary about Burke and parliamentary democracy, and about an hour ago the noble Lord, Lord Lamont, referred to Tom Paine. The philosophical underpinning for why the people should be trusted comes from no less a person than John Stuart Mill. He said:
“A state which dwarfs its men, in order that they may be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished”.
That is why we have supported the Bill and why we trust the people; they are ultimately sovereign.
My concern throughout the Bill has been for the position of Britain in Europe and that it should remain an active partner in the European Union. I fear that the provisions of the Bill will ultimately prevent us from being so. I am sorry that some Liberal Democrats appear to think that this was not a matter of high principle: it is a matter of high principle to which I have committed my political life.
My Lords, I fear that some of the speakers in this debate are guilty of a terminological inexactitude. If we wait here for another hour or two, as seems quite likely, we shall find that the sun sets and there is nothing we can do about it. That was the effect of Amendment 15—the sun was going to set when there was a general election and there was nothing we could do about it. Amendment 15B is quite different. It is not a sunset at all: if it is, it is a voluntary sunset—something I have never heard of before.
The Act, as it will be, remains in force after an election and unless and until a Minister wants to amend Section 6 or Schedule 1, partially, not at all or wholly. That seems to be eminently sensible. It leaves the discretion after the election entirely in the hands of the new Minister, the new Government if there is one, and a new Parliament. It does not force anybody to do anything—it gives them the opportunity to do it. It is a much easier way of doing it than having to go through the process of repeal or partial repeal. It seems to me to be eminently sensible and flexible and I hope the House will give effect to Amendment 15B this evening.
My Lords, if the purpose of this Bill were gesture politics, with no outside effects, then perhaps it would be possible to go along with it. However, the provisions proposed in this amendment are reviewable by a Government and are by no means gestures alone. They are bound to have a significant effect on the ability of our Ministers negotiating in the Council to decide issues of massive importance to the people. We have been told that none of those issues will be considered by the people in the lifetime of this Parliament so the Government appear to be putting on ice any questions about improving the efficacy of the working of the European Union until the end of this Parliament.
My noble friend who opened this debate said that a subsequent Parliament could amend this Bill or throw it out. He is right, but he also said in an earlier debate that the Government have no intention of using this Bill in this Parliament. If that is the case, why are we having to legislate at all? It seems to me that the appropriate time to do that would be in the next Parliament if that is when these measures are supposed to bite. The notion that we are legislating for the future in this way is bound to have almost no effect on public opinion beyond putting up scaremongering notices about the possibility that after the next election we will all collapse in a heap and be walked over by our fellow members of the European Union. That is guaranteed to make the issue of Europe a very divisive one at the next election.
The amendment of my noble friend Lord Goodhart seems to be eminently sensible. It has not been rejected by another place. It is new and it is not merely differently phrased but differently conceived. I supported the sunset amendment as it was drafted but I am happy to support my noble friend’s revision. It would allow Ministers to decide, in the light of the circumstances at the time, whether the issue before Europe and before this country was of such massive importance that it would be inappropriate to prepare a referendum. My experience of dealing with European matters in Parliament suggests that debates are long and thorough about European issues. The public are made completely aware, by debate and deliberation, what the issues are. Surely some of those who are supporting this Bill must remember the debates on the Maastricht treaty—the hours after hours in which Members of Parliament considered these matters. To suggest that the public were not aware of it is simply to deny the facts of history.
The noble Lord, Lord Willoughby de Broke, suggested that this was a wrecking amendment. It is not—it is an amendment that enables the Government of the day to decide whether the national interest is better served by legislative process—by debate, as we had over Maastricht—than by having a prolonged debate in public leading to a referendum.
My Lords, I took part in the debates on the Maastricht treaty. I remember them very well. The central point about those debates and about the way the treaty was pushed through is that we were not given a referendum. There was a big debate here on whether we should have a referendum on the Maastricht treaty. Unfortunately, that Motion was lost and we did not have a referendum, and that is part of the problem with the EU in this country. The people have never been given a vote since the referendum on the Common Market in 1975. This sort of amendment will stop them having a say, which they should be given.
We live in a representative democracy and elected Members of Parliament are put into that position of authority to act in the best interests of the citizens of this country. The notion that by not having referenda we are somehow denying the fundament of our parliamentary democracy seems to be a complete and utter nonsense. It is not only the Maastricht treaty that was carried through by Parliament in that way. Mrs Thatcher, when she was Prime Minister, also introduced the Single European Act which introduced majority voting and there was no question of a referendum about that. If you look at the opinion polls of those years, and indeed of the years around Maastricht, the public were far more supportive of our membership of the European Union than they are now.
I heard the remark of the Minister for Europe, Mr Lidington, that it is only people of my generation who are supportive of the European Union. When we were active young Members, supporting the European Union, the public listened and believed what we were saying—that it was in the interests of the people of Britain. Now we have a new generation, a whole generation younger than me, who claim that it is our fault that the public are not with them. The nonsense of that is that they have never seriously tried to explain what the purposes of the European Union are; what its achievements are and what its goals are. That is why we are wasting our time with this ridiculous piece of legislation, which is a waste of parliamentary time in scrutiny and is deceiving the public. We have been told it will not be voted on. There will be no referendum this side of the next election and after that the picture will all change.
My Lords, the noble Lord knows by now that I have unlimited respect for his consistent contribution on European matters. This peroration of his is very powerful. Would he not agree that the trouble with this wretched piece of legislation is that it could not be better designed to undermine our influence on the mainland of Europe?
My Lords, we are taking part in this debate this evening because the House of Commons did not accept Amendment 15. The noble Lord, Lord Empey, made the point that the other place may have been indifferent because relatively few Members were there. I ask him not to make that judgment in general about things that happen at the other end. When most debates are conducted, you see the camera sweep around without many people being there. It is entirely possible that you could regard this as indifference to almost everything, or you could say that it is the nature of the life of this place. I certainly do not think that the House could accept what he commended to us—that we should send no messages that are in any sense disagreeable to people in the other place. Such a supine response from this House to matters on which we feel amendments are needed would surely be exactly the opposite of the role that this House should play, and ample argument for its having no role at all.
What is fundamental at this stage is that this legislation takes us, in several constitutional areas, into waters that are—I candidly submit to the House—unknown. We are being invited to change from a system that is fundamentally parliamentary in the main thrust of its work to a system that is plebiscitary. It will on one reading lead to a significant number of plebiscites—that is entirely possible—or on another to very few, as the noble Lord, Lord Lamont, suggested. That is also entirely possible; I do not know which it will be. What I do know is that it will be fundamentally different from the way in which we have conducted parliamentary debate on key issues over many generations.
There is a fundamental constitutional change in that Parliament will offer the public votes—either frequently or infrequently, depending on which reading one takes—on whether to overturn the decisions that it has taken as a result of major debates and major opportunities to review changes in Europe in both Houses. Inevitably, there will be a fundamental change in how we conduct our relationship with Europe as a whole. That is what is intended. Some people advocate that, while others of us believe that this is a disproportionate way of trying to do that. None the less, these are all fundamental changes.
I suggest to the House that, in sailing into these waters, the reality is that we do not know how it will play out. Least of all do we know in what circumstances it will play out. We do not know which things will provide the most significant changes, although we have reason to believe that the present difficulties in European nation state economies give us ample evidence that they will be the tapestry against which all of this will play out. We do not know how the constitutional matters will play out. I doubt anybody here has the temerity to suggest that they know in which circumstances all these matters will play out either.
I entirely understand the argument that there are some things, even against the background that I have described, that are so important to the people of the United Kingdom that they will insist on having a say on them. It is also true that the Government of the day will be bound, in those circumstances, to try to make judgments of their own about what the interests of the country are at any time. There is no point to a parliamentary democracy where the Government of the day say, on some quite critical issues, “We will not be finally responsible for taking judgments about what the interests of our country are”. That would be a peculiar country to live in and one in which the notion of fundamental democracy had been considerably eroded. Variations by subsequent Governments in subsequent Parliaments, of the kind that are suggested in this amendment, seem just to be prudent as a means of allowing the possibility of dealing with circumstances as they arise in a way that is more flexible—I am not afraid of that word—in all of those circumstances.
I am wholly in agreement with the noble Baroness, Lady Williams, when she says that a significant number of these issues will be judged in general elections. When people look at the questions that must be resolved, they will look at them in general elections. For those who say “Trust in the people”, my trust is at its highest point when they decide which Government they want in a general election. That is a fundamental form of trust. I accept that there will be circumstances in which a referendum would be absolutely right. I hope I have been clear from this side of the House that these include such matters as defence policy, Schengen and the euro. There is a raft of policies where I can see that that would be entirely true. However, I do not believe that, in comparison with a general election and the decisions that are taken, the people of the country—in whom, inevitably, trust must be placed in all such circumstances—believe it is somehow better to replicate “The X Factor” than to deal with real politics in real circumstances. “The X Factor” may be fine as a form of entertainment, but it is hardly a way of dealing with the national interest when it must be dealt with under stress or duress.
I also agreed with the noble Baroness, Lady Williams, when she responded to the noble Lord, Lord Lamont. This is an important point; I hope the House will not mind my repeating it. The noble Lord, Lord Lamont, is right when he says that the case for clauses that limit the life of legislation is far clearer in dealing with emergency legislation. You do not know whether you will need it in the future, and you are not 100 per cent sure that it will meet the intentions for which it was introduced. However, there is also a completely reasonable case for saying that, when we are taking such significant steps into the dark in constitutional terms, there needs to be a way to say, “How do we make sure that we’ve got the balance right in the interests of the country? How can we make sure that we are taking the right decisions in the right way against the right environmental circumstances?”. That is, after all, the function of government.
I cannot stand at this Dispatch Box and claim that I know with certainty where those new balances will lie. It is precisely my point that none of us knows where they will lie. However, this generation of politicians or the next will have to make those judgments. They will come around and they will have to be made. Politicians should be in a position to make them with the greatest confidence and authority that they can. It is critical to our country that they are successful in doing so.
I hope we will accept Amendment 15B. It is a much more limited suggestion than Amendment 15. It seems, in every respect, to grant flexibility without overriding the key provisions of the Bill in any significant way. It commends itself strongly to me on that basis. Most of all, it commends itself on the basis that, if it is true that the cause for dissatisfaction is the belief that Parliament has let too many of its roles and responsibilities go toward Europe and for those reasons fundamental constitutional change is needed—because that is the argument for this kind of fundamental constitutional change—let us be certain as time goes by that we have got it right, that the balances are right and that whatever the causes were we have not backed ourselves into a cul-de-sac or something worse.
If anyone wishes to challenge me and move that I no longer be heard, let them do so, but I wish to ask a question. If I had been allowed to do so without the very rude interruption of the Whip on the Bench, noble Lords would have saved themselves a lot of time. What I wanted to ask—and I am going to ask it now—is whether, when the amendment states that a future Government “may”, it means “shall”. We often have debates about what “may” and “shall” should mean, and I think it is important that before noble Lords vote, if there is going to be a vote, they know whether they are voting for something that commits the next Government to something or is permissive for the next Government. Now I will sit down and be quiet.
Could I just add that the Whip on the Bench did not intervene on the noble Lord, Lord Maclennan, who widened the debate on this very narrow amendment to the extent of whether we should be in or out? I think I have been extremely badly treated, and I hope that the Whip will apologise.
My Lords, I would not want to upset the noble Lord. I was taking the view of the House. In this business of a self-regulating House, occasionally we have to use judgment, and it was my judgment that we were ready to conclude this debate, and I believe that is the case.
My Lords, I start by thanking the noble Lord, Lord Goodhart, for the careful and conciliatory way in which he moved the amendment, now some time ago. I do not regard this as a wrecking amendment, but I do see it as an amendment that will confuse and complicate the principles behind this Bill, weaken their role and not help to reassure our sceptical citizens.
In answer to the insistent question of the noble Lord, Lord Stoddart, my reading of this amendment, which I am sure is that of the noble Lord, Lord Goodhart, is that it is intended to be a permissive power and not an obligatory power for the Secretary of State, which is why it says “may” and not “shall”.
In its favour, the amendment rejects the passive approach proposed by Amendment 15; that is to say, the amendment in lieu requires the Government to take a positive decision to seek to suspend some of the provisions of the Bill. It is permissive in that respect. A Government taking such a decision would undoubtedly be mindful of the possible reaction of the British people to such a move. It would therefore be open to a greater degree of transparency in terms of the motivation of the Government of the day that the original sunset clause would not, to the same degree. As the noble Lord, Lord Lamont, noted, it allows for the suspension of the requirement for an Act of Parliament before any of the decisions in Clause 6 are taken, depending on the terms in the order. So it risks diluting the increased engagement for Parliament, which is an important part of this Bill. The level to which Parliament and the people would be involved in these important decisions would then be in the hands of Ministers, a principle that runs against the spirit of the Bill.
A number of noble Lords suggested that the Bill was intended only to apply to future Governments. I remind noble Lords that in the next Session of this House, we will consider legislation under the terms of this Bill on Croatian accession and the European stability mechanism, and that the conditions of the Bill will apply to those.
Let me offer some reassurance to the noble Lord, Lord Goodhart, and his supporters on the context in which the Bill will operate once translated into law under future Governments and Parliaments. I remind your Lordships of the principles of parliamentary sovereignty—that no Parliament can bind its successors. If for any reason a future Parliament wished to suspend, disapply or repeal any of the provisions of this Bill, it could do so, unconstrained by the wishes of this Parliament. Most likely, it would decide to do so at a time when it was considering an Act of Parliament required under the terms of this Bill. At such a time, the particulars of that draft decision would be clear and so might the question of whether to disapply this Bill, or not. If I may say so, that is a Clause 18 statement, which is declaratory and in no sense changes the basis of how we operate. No future Government would venture to do so unless they had made real progress in regaining the trust of the British public in the processes of European co-operation that have been so seriously weakened in the past 15 to 20 years.
I set out earlier the Government’s support for the previous Government’s new system of post-legislative scrutiny, which would allow a detailed, proper and timely examination of this legislation after five years. I repeat again the commitment of my friend, the Minister for Europe in the other place, that this Government are committed under the now accepted procedures of post-legislative scrutiny to the principle that a future Government must publish a full report on how this Bill has been used within five years of this legislation becoming law. I hope that that offers reassurances to the noble Lord, Lord Goodhart, and his supporters. We believe that this is the most effective approach, rather than installing an instrument that would not re-engage the people of this country and would remove the transparency and certainty that this Government have adopted from the start as watchwords for the Bill.
Having given those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, let me start by making a small and not very serious comment. From time to time my noble friend Lord Lamont and others have referred to me as being learned. Unfortunately, I am not. If I was in the House of Commons, I would be, but in your Lordships' House I am not.
On more serious matters, I start by thanking my noble friends Lord Howell and Lord Wallace of Saltaire for their balanced and serious response to the debates that have taken place on this matter. So far as an incoming Government are concerned after the next general election, they will, whether or not Amendment 15B is present, have the power to repeal all or part of the EU Act, as it will then be, without a referendum. If Amendment 15B is adopted, the incoming Government can use that amendment as an alternative to repeal and replacement of the complete Act. Members of Parliament will be involved either way, either in supporting a new Bill or in approving the making of the order that will need to be passed under this Bill. This is not a big step.
The noble Lord, Lord Armstrong of Ilminster, made a very good point on this and explained very clearly the distinction. Amendment 15B just gives a simple way of dealing with an action that could be done without it. I see no reason why Amendment 15B should not be included in the Bill. While I seriously considered the question of whether we would pass this amendment without going to a vote, I think this falls short of that. It is therefore my intention to ask for the decision of your Lordships’ House.
Motion D agreed.