European Union Bill
Lord Williamson of Horton
“(c) following the holding of the referendum, in each House of Parliament a Minister of the Crown has moved a motion that the House approves Her Majesty’s Government’s intention to ratify the treaty, and each House has agreed to the motion without amendment.”
Lord Williamson of Horton
My Lords, I declared an interest at Second Reading and I now rise for the first time in Committee to speak also to Amendments 6, 13 and 14, which are in my name, and to similar amendments in the name of the noble Baroness, Lady Symons of Vernham Dean. So far today, I have been in the minority: that is to say, the minority that did not interrupt the Minister, the noble Lord, Lord Pearson of Rannoch, or the noble Lord, Lord Stoddart of Swindon. However, by the time we have dealt with this amendment, I hope that I will be in the majority. That is my plan, and I hope that we will begin to get a good deal of agreement on the amendments in this group.
I see the amendments as a normal part of scrutiny. We had a few discussions earlier today about whether some amendments were very broad and went beyond scrutiny. I consider that these amendments are a proper part of the scrutiny of a Bill that has been through the other House.
A prime purpose of the Bill before us is to establish a referendum lock in relation to the potential transfer of power or competence, as discussed, from the United Kingdom to the European Union. I think that this will not give rise to any referendums—or at least to very few—because the UK Government will simply not take the action that would trigger a referendum. However, we cannot be sure what the situation will be in future Parliaments or future Governments, and, although I do not expect it personally, it seems that we could face a blizzard of referendums. For that reason, I consider it important that we should decide the conditions for the application of these referendums so as to ensure the confidence of the British public in their results.
All the referendums that might arise under the Bill would be mandatory. To this extent, they would be a form of referendum government, as opposed to the parliamentary government to which we are accustomed. Amendments 5 and 13 would reintroduce Parliament from the cul-de-sac where it is at the moment under the Bill. The amendments would ensure that, following a referendum, it was necessary for a Minister to move a Motion in Parliament approving the intention to ratify the treaty and for Parliament to agree it. That is a change from the Bill and it goes further than Amendment 6, about which I shall now say a word.
With Amendment 6 go Amendment 14 and the amendments tabled by the noble Baroness, Lady Symons. It is possible that some of the referendums would be on important issues that would be likely to attract the attention and votes of a significant number of citizens. However—we have been over this ground to some degree—other issues set out in the Bill are certainly less important, and the British public might be relatively indifferent and not vote in significant numbers. Looking at the list of items, I must say that I would find it very difficult to enthuse the British public to vote in a referendum on them, and that is why I put forward Amendment 6. It would establish that, if the number of votes in a referendum fell below 40 per cent of the electorate, the referendum would still be valid but it would be advisory to Parliament, which would take the final decision.
Noble Lords will be familiar with the proposal in this amendment because this House discussed at length and passed a similar proposal on the Parliamentary Voting System and Constituencies Bill, which was moved on that occasion by the noble Lord, Lord Rooker. He has established himself in the pantheon of those dealing with the constitutional effects of referendums and, with this amendment, I have the modest hope of following his example. Of course, I have the confidence and hope that this House, having voted for this very approach only a few weeks ago, will not hesitate to do so again in relation to Amendment 6. There is nothing like having consistency in the House and I hope that we will be able to see it in force again when we deal with this matter in the EU Bill.
That is a very simple presentation of these amendments and, in my view, they are quite simple in their purpose and are not entirely a European Union matter. They also concern how we handle referendums, which I consider quite important and on which I have quite strong views. I voted the way most people did in this House on the previous occasion and I hope that these amendments will commend themselves to the Committee. I beg to move.
The Deputy Chairman (The Countess of Mar)
I have to tell noble Lords that if Amendment 5 or Amendment 6 is agreed to, I cannot call Amendment 7 because of pre-emption.
Lord Davies of Stamford
I support the noble Lord’s amendment. I am not someone who likes referenda at all, in any circumstance, and I have always made that quite clear, so I hope someone does not quote me from the past as being inconsistent in supporting this amendment. When one is scrutinising any Bill in Committee, I think we are in the business of trying to remove some of the worst disadvantages or most unattractive features of a Bill so that we end up with something a little better than what is originally presented to us.
I totally agree with the analysis of the noble Lord, Lord Williamson, that the way in which, and the purpose for which, the Bill has been set up would not lead to a large number of referenda. It is completely impractical and inconceivable to have endless referenda often on very petty subjects. I made that argument at Second Reading and I note that the noble Lord, Lord Williamson, agrees with that. The result is that we will not have many referenda. I will not read from Schedule 1 again, as I did that earlier in today’s proceedings. I read out a different list of examples at Second Reading to prove the same point and to show how very inconsequential for the great majority of the public a lot of these issues—on which the Bill provides that we should have referenda—would be if any decision were taken about them or about the decision-making process to be used in relation to decisions made under them. Those sorts of issues—this must be the greatest understatement of the evening—would not enthuse the public.
I know perfectly well that the good people of Lincolnshire are second to none in their civic sense and their support for the democratic process. All of us in this country are very proud of our parliamentary traditions and are worried that in recent elections, there has been a circular decline in the participation rate of the electorate. However, if we present to the electorate the sort of issues in Schedule 1 and ask them to try to master the subject—or to form any view on it at all—and then to take time out from their leisure-time or working-time activities to turn out at the polls to cast a considered vote on these subjects, we are being not only completely unrealistic but deeply insulting to them. They would say, “That is what we elect you to Parliament to decide.”.
The result would be that only the very small number of people—one might refer to them as anoraks, but perhaps that would be disobliging—who are enormously enthusiastic about some arcane or technical aspect of the European Union or some other subject thrown up by one of these referenda would vote. We could have incredibly low participation rates. We could easily have participation rates of less than 20 per cent. If noble Lords read Schedule 1 and ask themselves what proportion of the country would be prepared to spend their private time on those issues, we could easily come to the conclusion that we will be lucky to get 10 per cent of the electorate turning out.
It would be monstrous if we took a decision that would have important practical consequences in relation to the matter under review on that basis. It might have even more important knock-on consequences if we were unable to take part in a major initiative which our partners in the European Union thought was essential because of the way the world was moving in whatever field—the economy and the single market, the environment or law, justice and home affairs. It might have considerable consequences on our influence and position in the European Union or our ability to defend our interests in the world generally if we could not go along with what was obviously a sensible initiative.
To leave the matter in the hands of that tiny minority of the electorate would be to treat those issues frivolously and irresponsibly. If we have to have those referenda—I repeat that, personally, I think that the whole idea is fundamentally misconceived—the mitigation of the situation proposed by the noble Lord, Lord Williamson, is about as good as could be devised in the circumstances. I therefore hope that the amendment is given the most sympathetic treatment and support in this House.
Lord Hurd of Westwell
My Lords, I may not be alone in your Lordships’ House in feeling a little weary that, after all this time, two things which could be kept separate have been inextricably mingled together: the question of holding a referendum and the question of the British position in and policy towards Europe. This has been dragging on in one form or another for a long time now.
It is almost 17 years to the day since I had a message from the then Prime Minister, John Major: would I undertake a delicate mission for him, which was to sound out his Cabinet one by one on the proposition of committing the party to holding a referendum, should we decide to enter the euro? I knocked on various doors: I knocked on the doors of enthusiasts; I knocked on the doors of sceptics. I had to report to the Prime Minister that there was no support for the proposal. He and I were the only people who supported it, and I was getting a bit wobbly. Two years later, in 1996, he managed to rally a sufficiency of the party and colleagues to put that in our manifesto. That started the whole process. Tony Blair followed suit, and so it went on. That whole connection between the two things took shape and has been with us ever since. There is something to be said for trying to separate them, but we cannot.
I am as realistic a politician as anyone here. I understand the political urge; I understand the coalition document; I understand why my noble friend Lord Howell utters the words “coalition document” almost with the tone of one approaching an altar. I understand the realities of the situation, and they require a measure of this kind, but if we could find some way of mitigating it—to use a phrase which has already been used—then we should try to do that. Some way of reasserting at any rate the concept of a parliamentary democracy, in which it is Parliament that takes decisions on ratifying treaties, would be a step in the right direction.
Lord Stoddart of Swindon
As I understand it, Amendment 5 would restore parliamentary democracy. I think that that is about right. I understand all those who are completely in favour of parliamentary democracy untrammelled, and it is difficult to argue against it. However, if you have agreed to a referendum and the people say one thing and then Parliament says another, you are back where you started. Quite frankly, I think that that would cause outrage and undermine the authority of Parliament. If Parliament has agreed that there should be a referendum of the people, the people should decide. After all, in the last analysis, one way or another, the people are the ultimate sovereign. So I cannot support Amendment 5.
Amendment 6 is different. As I understand it, it says, “This is a great issue and you should expect people, citizens, to take an interest in it and come out and vote”. The figure of 40 per cent is pretty low. Of course there are precedents, and as the noble Lord, Lord Williamson, mentioned, only a week or two ago this House voted for such an amendment. On AV, it would be very difficult for the House to go back on something on which it decided a few weeks ago. It could apply in this Bill. I well remember the 1977 referendum in Scotland when—
Lord Stoddart of Swindon
Yes, it was in 1979. There, the 40 per cent threshold was introduced by a few people who were not very much in favour of Scottish devolution, and the proposal did not pass because of the 40 per cent. That was accepted by people. Of course, eventually, the campaign for Scottish devolution won on a reasonable and substantial majority. I am afraid that I would be against Amendment 5, but I would be very happy to support Amendment 6.
Lord Hannay of Chiswick
My Lords, I find myself in the unusual position of agreeing with half of what the noble Lord, Lord Stoddart, said and the very usual position of agreeing with absolutely everything that the noble Lord, Lord Hurd, said, which is not surprising because I have been doing that for a long time. I should like to make two or three points. First, the Government owe us a clearer reaction to the views of the Constitution Committee of this House on referendums in relation to this Bill. At Second Reading, we heard nothing about it whatever. We have not heard a single response from the Government to the report of 17 March. I really think that we must now ask that the Government state their position clearly. Of course, they stated their position on the Constitution Committee’s report of last October when we had a debate. It was rather a long time ago, so perhaps they could refresh our views on that.
This matter is important because the 17 March report stated that referendums should be used only for major constitutional issues. In the view of the Constitution Committee, a large number of the issues put into this Bill as having the potential for a referendum did not fulfil that criterion. I really think that the Government need to state why they are rejecting the advice of the Constitution Committee in that respect. I would be grateful if the noble Lord would say something about that.
Secondly, I am not sure how well it has sunk into everyone’s minds that this Bill in its approach to referendums is totally different from any legislation that has provided for a referendum in this country before now. Up to now, we have had referendums on the European Community in 1975, on Scotland, on Wales, on Northern Ireland and now on AV. Every one of those was a separate piece of primary legislation that laid down the precise conditions and circumstances in which the referendum was to be taken. However, this is a blank cheque for referendums—referendums a-go-go. Some of them are no doubt on matters of considerable importance and some of them on matters of lesser importance. The point is that if we pass this Bill in the form that the Government have proposed, we are taking a major step towards plebiscitary democracy and away from representative parliamentary democracy. We should have absolutely no illusions about that. It is completely different from the situation with the other referendums, and they cannot be quoted in any way to defend the Bill because this situation is quite different.
I would like to make a further point to the Minister and to his colleague, who is now unwell. I feel very bad about that because we gave him a rather hard time before the dinner break. Now that I know he was not well, I wish that we had not. However, he used this argument again and again, as did the noble Lord at Second Reading. I do not doubt the sincerity with which they say that the purpose of the legislation is to reconcile the British people with the European Union better than they are currently. Their analysis of the problem in this country is absolutely correct, but their prescription for a solution is completely incredible. It is just not believable that holding a series of referendums on the European Union is going to make the people feel more favourable about the European Union than they do now.
In fact, the exact contrary is likely to be the consequence. I know that it is not the consequence that the Government wish to see or which they are aiming for, but having lived through the saga of Britain’s relationship with the European Union for about the past 40 years, that is what is going to happen. We saw it in 1975 when the protagonists of the referendum, Tony Benn and others, assured us that once the referendum was over it would all be finished and we would be happy kittens in a basket. Two days after the referendum, they were campaigning for another one to reject any further integration into the European Union, or whatever it was. Frankly, this is not credible. The Government’s story does not hold water.
I accept that the solution put forward by my noble friend Lord Williamson is only a palliative, but it is an important one. It would meet the point that we were not slipping down the hill towards a plebiscitary democracy because we would leave Parliament in charge from the beginning of the process to the end. I am sure that, if there was a large majority from a large vote against something, there is no way in which the Government of the day would then ram the thing through. That is just not credible. But if the vote was small, it would be quite right for Parliament to take the final decision, and that is what the amendments tabled by my noble friend would achieve. I think that some combination of the thrust of his two amendments, to make the referendums advisory and to set a 40 per cent threshold, would be the best way of limiting what otherwise could be a serious attack on the way in which this country has been governed for several hundred years.
Baroness Williams of Crosby
My Lords, I add briefly to what the noble Lord, Lord Hannay, has said by making a couple of additional points. The first is that in many ways this Bill expresses a lack of confidence in representative democracy, which troubles me quite profoundly. Of course we know that we already have issues surrounding the faith and trust of the electorate in us. For Parliament itself to say that it cannot be fully trusted with issues of such importance when it has made a thoughtful and deliberate decision, when that decision has been subjected to discussion both in this House and in another place, and when constituents have been duly consulted so that all that can be set aside by a referendum that might have had a very small number of participants, is not only risible but is extremely dangerous politics. That is one of the reasons why the argument for 40 per cent is so strong.
The second reason is quite straightforward. The threshold of 40 per cent will simply discourage those who want to hold a referendum to suit their own special interests, and nothing wider than that. Rather than spend money on a referendum for which they cannot get a substantial turnout, they will decide not to press the issue.
Lord Kerr of Kinlochard
My Lords, in my heart of hearts, I take a harder position than the noble Lords, Lord Williamson and Lord Hurd. I will support their amendment because no amendment on the Order Paper delivers exactly what I want. Referendums should only and always be advisory. The idea of a mandatory referendum is fundamentally destructive to the principles of parliamentary democracy. The noble Lord, Lord Hannay, said that what we have here is a palliative; I would rather have a cure.
First, I would cite the noble Baroness, Lady Thatcher, in support of what I have just said. It was a great pleasure to hear the noble Lord, Lord Hurd, tonight. He and I both experienced how rash it was to disagree with the noble Baroness, Lady Thatcher, so I wish to agree with the view that she expressed in the debate in 1975 on the Referendum Bill that the referendum should only be advisory and that if it were mandatory it would be destructive of parliamentary sovereignty.
An additional argument concerns timing. An advisory referendum, and possibly even a mandatory referendum, would not be quite so objectionable if it preceded the negotiation of the change in the EU texts to which the Government had agreed.
I was very much against the idea of a referendum on the euro in 1994—I do not remember that my opinion was sounded; quite rightly, it was not—but that was not quite as bad as what is foreseen in the Bill. If we were now to decide that we wished to join the euro, that would be followed by a negotiation with our partners that are now in the euro and might or might not result in our joining the euro. The Bill states that at the end of the process in Brussels—when the Government have extracted concessions from others around the table and a consensus has been found, the decision has been brought back and is acceptable to the Government and to Parliament—a referendum should decide whether we renege on what we have done.
The concept of interlocuteurs valables is quite important. When an ambassador is received by the state to which he is accredited, he presents his credentials. When the Foreign Secretary or his side-kick start a negotiation in Brussels, it is accepted that they speak for their Government. It then follows that if they do a deal, their Government will not renege on it. So when in the end a deal a struck—if one is struck—all participants are pledged to deliver it.
I was shocked when the French referendum on the constitutional treaty did not lead to resignations in the French Government. The people who negotiated the text which the French decided to reject should immediately have resigned. However, there may be a difference between a presidential and a parliamentary system of government; a president can stand away from an issue and blame the Government. You cannot do that here. If in a referendum on some arcane issue—which, on the basis of the Bill, might be decided on a very low turnout and a very low majority—we decided that we were going to renege on the deal that had been done and the text that had been initialled in Brussels, I would hope that the Ministers who had initialled the text and those who had negotiated for them would resign. They would have to.
Whether a referendum is mandatory or advisory depends in part on when it is. Here we have the worst case; under this Bill, all referendums will be after the negotiations. They are all linked to treaty changes and to a process that has taken place in Brussels; the outcome is brought back and the decision is taken on whether it should go to a referendum. If the referendum finds against the Government, it should lead to the resignation of the responsible Ministers. In honour, they would have to do that.
The noble Lord, Lord Hannay, earlier quoted tellingly from Jean-Claude Piris’s memorandum to the Commons European Scrutiny Committee about good faith. He spoke about the implications of adding new hurdles to the simplified treaty revision procedure. There is a bigger issue of good faith here. We are going to send our negotiators to negotiate and, when they have completed the job, they will carry on and there will be no change unless the country votes for it. I would much prefer an amendment that makes it purely advisory—a Thatcher amendment. There is no Thatcher amendment on the Order Paper now. I therefore support the amendment proposed by the noble Lords, Lord Hurd and Lord Williamson.
It is a huge delight to find myself in agreement with what the noble Lord, Lord Stoddart, said about Amendment 6; he is completely correct. As to what he said about Amendment 5, the two go together. It is a technical point and I do not think that there is a difference. Amendment 5 is a necessary consequence of Amendment 6, but the noble Lord, Lord Williamson, will correct me if I am wrong.
Lord Williamson of Horton
Amendment 5 would establish an advisory referendum in all cases and not only in the case where there was the 40 per cent threshold. The distinction made by the noble Lord, Lord Stoddart, was quite intelligible and clear. Amendment 6 would establish the advisory nature of the referendum when the turnout was below 40 per cent. The noble Lord, Lord Kerr, will be glad to hear, because he supported Amendment 5 without quite understanding it, that it would establish an advisory referendum in all cases.
Lord Kerr of Kinlochard
I have no more to say except to share the hope of the noble Lord, Lord Hurd, that the Minister, if he grumbles at all, will do so in the most mild and polite form.
Lord Foulkes of Cumnock
I am sure that, if the noble Lord, Lord Kerr, put down what he described as a “Thatcher amendment” on Report, he would find a lot of support for it. We will have another opportunity for looking at that. Returning to the intriguing speech of the noble Lord, Lord Hurd, and the almost exciting start when he described what John Major had asked him to do, I thought that we were going to get revelations about when John Major questioned the parental legitimacy of some of his Cabinet over Maastricht. I am sure that that would have been equally interesting.
We should go back to the eloquent speech made by the noble Lord, Lord Deben, in the debate on Amendment 1. He questioned, as have a number of noble Lords in this debate, the whole purpose and legitimacy of referenda in our parliamentary democracy. I thought that he put that well and I share a lot of his concerns, particularly in the context of the two Scottish referenda, which the noble Lord, Lord Stoddart, mentioned. He said that, in 1979, we did not get the required 40 per cent. We had to get 40 per cent of the electorate in favour as well as a majority of those who voted, on the basis of an amendment by George Cunningham that had been agreed by the House of Commons. Then, in the referendum in 1997, we got a substantial vote in favour of Scottish devolution.
We may have had a better campaign in 1997 and people in Scotland had perhaps moved on in their thinking, but one of the main reasons for that change is that people do not always vote in referenda on the question on the paper before them. They vote for a whole range of extraneous reasons. As I am sure everyone remembers, in 1979 the Labour Government were not at their most popular whereas, when we put the question forward in 1997, that immediately followed the great revolutionary result that saw Mr Blair become Prime Minister. It was a very popular Labour Government. People were perhaps influenced by all these other extraneous things. That is the case in referenda in general, which is one of the reasons why I share the suspicions about them. They should be use rarely and sparingly in our constitution, if at all. I have gone along with that.
I was much in favour of our membership of the European Union in the 1975 referendum. That was the first referendum and it was on a major issue. The noble Baroness, Lady Williams, and I campaigned strongly on the same side and, back then, for the same party. We had a huge campaign and it was a major issue—the crucial issue of our continued membership of the European Union—not just some trivial little matter included in this Bill.
Lord Wallace of Saltaire
My Lords, perhaps I might interject that I was discussing with one of my Conservative colleagues the other week the question of Britain’s position in the world. He said that we should stop talking about decline and talk about adjustment, to which I replied that, having just had my 70th birthday, I am entering a period of adjustment.
Lord Phillips of Sudbury
My Lords, I start from a position of being strongly in favour of this country of ours remaining part of Europe. I think that it would be a disaster were we to come out. However, from what I have heard on this amendment, I believe that the Committee may underestimate the widespread scepticism in the country. Secondly, although I do not like saying it, there is a widespread scepticism about the ability and willingness of Parliament to protect what it views as its interests vis-à-vis the European Union. I have heard several Peers refer to trust in us and the need therefore not to have referenda or, if we have them, for them not to be binding or for us to insist on at least 40 per cent of the electorate turning out.
I speak as one who founded a charity, of which I am still president, called the Citizenship Foundation. We work with over half the state schools in the country and have done for over 20 years. We have worked assiduously to try to staunch the lack of adhesion to the European ideal among young people. For example, we put out the only guide to Maastricht that was readable and accessible to ordinary folk. For my own part, I have to say that there is a severe lack of trust in Parliament in this country among a great number of our fellow citizens. They look at the House of Commons and see, night after night, week after week and month after month, votes determined not by the honest opinions of the MPs who sit there but by the party Whips, who drive the MPs through like sheep. You may say that in this House the party Whips have too much power, but at least there is a Cross-Bench element that is totally independent, while all of us sitting here tonight would say that we will not be driven beyond a certain point.
If we have referenda and then we—not Parliament as a whole but each House of Parliament—say to the people of this country, “It doesn't matter what you decide, old folks. We will have the right after you have voted to say whether the vote should stand”, what can the people of this country possibly think about that arrangement? How can that salve the mistrust? How can it shore up public support for the European Union, which I suspect most of us in this House want to see? It cannot, in my view. I concede that I have unease about the scale and number of referenda that there might be, although the good and noble Lord, Lord Howell, said that they would be very few and that they would be clustered. However, if we are to entrust the people of this country with referenda, the worst of all worlds seems to me to be that they should be held on a basis where we can dispense with the outcome in either House.
Despite the fact that any of the parties in this country can get behind a referendum on either side of the debate as they choose, we will in effect be having a second bite at the cherry. Should we then say to the people of this country, “If 40 per cent of you do not go to the polls, we again have the right to dispense with the whole business”? We vote constantly in this House without having a 40 per cent threshold. It counts. Countless numbers of local elections do not reach a 40 per cent turnout. They count. Yet we have the temerity to try to impose these two conditions. For my money, that would be the worst of all worlds.
Lord Richard
My Lords, I have listened to the noble Lord, Lord Phillips, with great interest. He is about the only speaker on the other side of the House who has had a good word to say about the Bill in any shape or form, and even he was fairly grudging when he did so. It reminds me a little of the story of the man who was going through the courts in a civil action and lost at first instance. He went to the Court of Appeal and lost there; he went to the then House of Lords and lost there too. When he came out he turned to his counsel and said, “Where do we go next?”. His counsel looked at him and said, “You know, we should breed from you”. The noble Lord’s is about the only support for the Bill that we have heard either at Second Reading or today.
I start by making it clear that I do not like referendums. I believe basically in parliamentary democracy—that is what this country has lived with now for many generations and I hope that it will go on doing so for a large number of generations to come—so I do not approve of a situation in which it is felt for one reason or another that it is necessary to consult the electorate in the way that, for example, the Swiss do. I have some knowledge and experience of Switzerland, and I am bound to say that I find the extent to which they hold referendums there extraordinary. The polls are not very high; people do not take a great deal of interest in them. Occasionally there is an issue that excites people, in which case there is a proper contest. As the noble Baroness, Lady Williams, said, it is the same in the United States: if you see all the issues that are put on the ballot papers, you realise that it is consultation gone mad, to the point where it is distorting public opinion. So I do not like referendums; I am in favour of parliamentary democracy.
Let us look at the Bill. If we pass it and it becomes law, what are we going to be faced with in terms of referendums? It is all very well for the noble Lord, Lord Howell, and I am sorry that he is unwell, to stand here and say, “It doesn’t matter; there aren’t going to be any referendums anyway because this deals only with trivial issues and no one is going to have referendums on that sort of thing”. I do not believe it. I know exactly who would want referendums on that sort of Bill; one usually sits on the Benches behind me and the other one sits down at the other end of the Bench below the Gangway. Of course they want referendums. The scope for judicial review proceedings is considerable. If I were a practising barrister, which I no longer am, I would say in terms of the future of my profession that on the whole this would be a Bill to be welcomed as there will be a lot of work in it for members of the Bar, but that is not a good thing.
If this is going to be only about trivia, why on earth are we legislating? Either it amounts to something or it does not. If it amounts to something, I am against it; if it does not amount to anything, we should not be doing it. What is the point? This is an edifice that has been erected for political purposes that will do serious damage to our constitution.
Baroness Falkner of Margravine
My Lords, it is tempting in Committee to refer to the several speeches that have been made before your own. I will try to refrain from that and speak to the amendment. Before I do, though, I say to the noble Lord, Lord Richard, and several of the other speakers who said that they had not heard anything from these Benches on Amendment 1 that it was only courtesy that made me hold back. There were several names to that amendment on the Marshalled List, one of them from within Liberal Democrat ranks, and I was holding back to hear from noble Lords whose names were on the Marshalled List. As I was about to get up to impart my pearls of wisdom to the Committee, the noble Lord, Lord Richard, got up and said that he had had enough and he wanted to hear from the Front Benches. It was only out of respect for the noble Lord’s diktat that I sat quietly and said nothing on Amendment 1. It was not that we had nothing to say; the unpredictability of that invigorating debate was what held me back. I will speak for myself.
Lord Richard
The noble Baroness has used the word “deference” perhaps three times. Who on earth has talked about deference? I did not mention the word and I have not heard it mentioned in this Chamber this evening. What on earth is she talking about?
Baroness Falkner of Margravine
I think that the noble Lord, Lord Richard, knows exactly what I am talking about, and what I am talking about is trust. I am talking about an attitude. He can read Hansard as well as I will tomorrow, and he will see that I said that there was a tone—I did not suggest that the word “deference” had been used—in proceedings earlier this evening, and the tone is, “We know best”.
Lord Hannay of Chiswick
I am most grateful to the noble Baroness for giving way. I really think that she ought not to use this term “deference”. If I understand it rightly, this House is part of the legislature of this country and has a voice to express views on matters and to take decisions. We are not asking for the people of this country to express deference; we are expressing a view about the constitution of this country. That cannot be dismissed by accusing people who say that they are against referendums of camping on deference. I would like, frankly, to abandon that thought, which I do not think fits in our constitutional practice.
Baroness Falkner of Margravine
My Lords, again, I have to say that I think that when we say that we are giving up representative democracy in favour of plebiscitary democracy, we are on ground which is difficult to explain out there in the media. In the debate on Amendment 1, the noble Lord, Lord Kerr of Kinlochard, said that it was undoubtedly true that the public did not trust Parliament on EU matters to the extent that they had done in the past, and that there was a disconnect—
Lord Kerr of Kinlochard
I did not say that. I said that I shared the view expressed by the noble Lord, Lord Howell, that the public at large have become less convinced of the merits of the European Union. I said nothing about Parliament and its role in relation to the process.
Baroness Falkner of Margravine
I thank the noble Lord for reminding us of his exact words. It will be useful to read Hansard when it comes out. I completely accept that his version is probably the appropriate version of what was said. However, I will pursue the point I am making for another second or two. I say this particularly in response to the noble Lord, Lord Hannay. It is pretty difficult to justify the idea that an unelected House of Lords, which is absolutely part of the constitutional framework, should deliberate at length about whether the public are capable of making a judgment on matters of considerable significance—that is how they see them according to opinion polls—but that we should then disregard that, as this amendment would do, by saying, “We will have a referendum, we will come back and we will disregard it”. That is my opinion, which I am sharing with the Committee as other noble Lords have done.
I come back to the other element in this group of amendments, which is the 40 per cent threshold. I think that noble Lords will agree that you could get a very low turnout—perhaps it was the noble Lord, Lord Clinton-Davis, who mentioned something like 20 per cent. However, given that the public are being asked to express a view on the matter, it would be odd subsequently to overturn the Act of Parliament which had determined that the change should go ahead simply because the turnout was low. The need to gain a particular threshold would set another hurdle for the Minister to jump over. I am not completely opposed to the figure, but it is rather curious that it is 40 per cent.
I also think it rather curious that we would be saying, “If it is 39 per cent we will not accept it, but if it is 41 per cent we will”. It is an arbitrary figure. We could select any arbitrary figure, and I do not understand where the 40 per cent figure comes from. If a Minister had signed up to a change and we had an Act of Parliament, it would be incumbent on the Government to sell their viewpoint. That would be set out in the statement and in the reasoning given in the statement. As for the suggestion that the failure to convince 40 per cent of the public to vote in favour might result in the resignation of Ministers, I think that, in that case, that would be the honourable thing for Ministers to do. As the Bill stands, however, there is no threshold. It simply states that if,
“the majority of those voting in the referendum are in favour of the ratification of the treaty”,
that is the way to go.
Lord Grenfell
I apologise for not hearing all the introduction of the noble Lord, Lord Williamson. I was searching for Sir Patrick Nairne’s commission’s report on referendums issued 15 years ago. I found what I wanted; it is on the subject of thresholds. He said:
“The main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy e.g. 60%, 65% or 75%”.
Forty per cent is modest to the point of indulgence. I cannot understand why anyone who is considering Amendment 6 would think that a threshold of 40 per cent of those entitled to vote was more than they could bear. It seems a big concession. Sir Patrick said in a footnote:
“A turnout threshold may make extraneous factors, such as the weather on polling day, more important”.
I have always been very suspicious of people who start talking about the weather in relation to polling, because it can work both ways. If it is pouring with rain, people tend to stay at home; if it is a beautiful, sunny and warm day, they can find external activities more interesting than going to a polling station. That theory does not work well.
My second point is that the Government cannot have it both ways. If you want to resort to a simple plurality in a referendum, you should bear in mind that the general sentiment in Parliament, and perhaps outside, is that major constitutional change should be the result of something more than a simple plurality. The obverse of that is that matters subject to a simple plurality cannot be quite so important. The Government cannot have it both ways. If they resort to a simple plurality, it suggests that they would consider the subject of a mandatory referendum as being of high constitutional importance. If it is not deemed to be of high constitutional importance, why is there the need for a mandatory referendum?
I am against referendums in general, but the idea of having a simple plurality for something that the Government do not consider to be of high constitutional importance is, quite honestly, unacceptable.
Baroness Nicholson of Winterbourne
My Lords, I am one of those who the noble Lord, Lord Foulkes of Cumnock, has not recognised this evening. I support the Bill, and I made that plain in an earlier debate. I wish to stress that again, because it appears that somehow I am Miss Invisible to the noble Lord, despite our long friendship.
Lord Foulkes of Cumnock
The noble Baroness is absolutely the last person who would be Miss Invisible to me. I have the greatest respect and admiration for her. If I went further, I would embarrass both of us. I can only apologise for not recognising her. Unfortunately, on this occasion, I must disagree with her profoundly on her judgment. Otherwise, she is wonderful.
Baroness Nicholson of Winterbourne
The noble Lord is of course a gallant Scot and turns a beautiful compliment. However, I have to disagree with many noble Lords on this batch of amendments, despite the eminence of those who have spoken for them, including the noble Lord, Lord Hurd of Westwell, whose work and leadership in politics I have followed all my life. Indeed, I have to disagree with even the noble Lord, Lord Hannay, because I believe I am correct in saying that the Government have answered the Constitution Committee, but the committee has not yet made the Government’s response open to the rest of us.
I am standing because I oppose the amendments, which seem to display a lamentable lack of confidence in the British public and their capability to make up their own minds and display their views clearly if they so wish. It is absolutely true that there has been a progressive alienation of the British public from the European Union’s activities. Sadly, that is not unique to the United Kingdom. That is perhaps the tragedy of the European Union. I personally perceive it as a great success. It has brought all nations together in a most wonderful way, involving peace and reconciliation, and it grows ever larger in its mission. None the less, in every member state that I know, the turnout in European elections is dismal. Unless people are forced to, they do not come out to vote for Members of the European Parliament, which is the directly elected portion of the European Union over which the general public can have some control, and they can at least have their own choice on who they wish to elect.
However, there is a fundamental reason for that that will not go away, and it is partly why I strongly support the Bill and oppose these amendments. The fundamental reason is that the European Union is by its nature an intergovernmental body and electorates naturally do not relate well to those bodies. It is to the great credit of the European Parliament that consistently it has raised its game. It has gained more authority and more power. However, with an intergovernmental structure, the intergovernmental side also moves ahead as the Parliament goes on, and it can never quite catch up. None the less, the directly elected European Parliament has far greater powers now than it has ever had. Therefore, this is the right moment to try to reconnect the British public with the European Union mission.
Lord Tomlinson
My Lords, we have heard two speeches from the Liberal Democrat Benches— from the noble Lord, Lord Phillips, and the noble Baroness, Lady Nicholson—both seeming to blame the malaise in European politics on the absence of referenda. However, I suggest that if we want to know what created and exacerbated the disconnect between the electorate of this country and the European elections, which the noble Baroness, Lady Nicholson, talked about, the answer is that it was the rather misguided action of my own party, when in government, in changing the electoral system to the European Parliament.
Creating multi-Member regional constituencies, which guaranteed the first three or four people on the party list a place irrespective of their contact with the electorate, was a totally misguided act. It has taken European politics further and further away from the people. Under the old system, constituencies had European information systems available in their party offices. However, they have all disappeared and have become the prerogative of regional parties. You can see in the consistent decline in participation in regional elections that people have no interest in Members who gain their places almost automatically under this system. There is scepticism and cynicism in relation to European elections but it is not that people regard them as unimportant. In my former constituency of Birmingham West, the turnout at the last direct elections that we had with single Member constituencies was just short of 40 per cent. In the first election conducted on regional lists, where there was an attempt to link places such as Walsall and Ludlow, the poll dropped to 13 per cent in my former constituency. That was a sign of the scepticism and cynicism.
I was provoked into getting to my feet by the noble Baroness, Lady Williams, who took me on a walk down memory lane regarding the 1979 referendum. I remember that referendum well for two reasons. One was that I was so confident of getting a successful yes vote in that election that I went to the then parliamentary bookmaker in the House of Commons, Mr Ian Mikardo, and asked him what odds he would give me on a yes vote in every constituency in the United Kingdom. I gave him £10 of my hard-earned money in return for odds of 200:1. So uniform was the result of that referendum that it was only the outer fringes of the United Kingdom—Orkney and Shetland and the Western Isles—that led to Mr Mikardo keeping my £10 rather than me getting £2,000 back from him. There was an enormous spread.
The other thing that I remember most about the 1979 referendum which is pertinent to this issue was the number of people who told me that that referendum would produce the settled will of the United Kingdom for a generation. However, it did not produce it for a week after the election. As soon as one referendum was lost, there were all sorts of demands for other issues to be looked at. The referendum mechanism failed to settle anything, other than the position of the Government, which is what it was intended to settle in the first place.
The noble Lord, Lord Williamson, was at his persuasive best in moving his amendment. He was reflecting what, I hope, is the settled will of your Lordships' House concerning the 40 per cent threshold. The House of Lords Select Committee on the Constitution got it absolutely right in its report at paragraphs 37 and 38. As so many people have spoken since the noble Lord, Lord Hannay, mentioned those paragraphs, they bear repeating into the record. They state that,
“the European Union Bill is a radical step-change in the adoption of referendum provisions … In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill's provisions are inconsistent with the Government's statement that referendums are most appropriately used in relation to fundamental constitutional issues”.
The noble Baroness, Lady Nicholson, says that the Government have replied to that. They would, wouldn’t they? More important is the advice and guidance that we got from our highly respected Select Committee on the Constitution and I believe that we discard that at our peril. I hope that the House will support the amendment of the noble Lord, Lord Williamson.
Baroness Brinton
My Lords, I wish to speak against the amendments. I am grateful to other colleagues for having mentioned the 1975 and 1979 referendums. The EU referendum in 1975 was my first active campaign as a Liberal. I joined the party the year before, and I lived and worked in Scotland in the run-up to and immediately after 1979. I want to talk about the impact of that threshold in Scotland. I am very grateful to the noble Lord, Lord Foulkes of Cumnock, for the comments that he made earlier. He is right to some extent about there being an influence on where the Labour Government was in the run-up to 1979 and again in 1997, but that was not the only thing.
In 1979, my day job was as a very junior studio manager with BBC Scotland. On a couple of mornings after the election, I was the poor soul who was sent out to find vox populi on the streets of Edinburgh to talk about the election results and about the impact of the referendum. It was apparent that the people completely distrusted their politicians as a result of having spoken but not being listened to. There was certainly some shock among those people—I will not describe them as active politicians—who regularly voted. The fallout in Scottish politics in subsequent years was very evident. I have no doubt that that was why there was such a strength of feeling in 1997 when we saw real distaste in Scotland about what was happening in Westminster. The people felt disfranchised.
When a threshold is ignored there is a disconnection with the ballot box, a disenchantment with the political process and, more worryingly, a distrust of politicians. I respect the view of my noble friend Lord Hurd of Westwell, but we either have to let the people speak—however they may speak—or we can choose to have Parliament speak. There I pick up on the point made by my colleagues, that sometimes we may not have a referendum and then Parliament speaks, but once we choose—
Lord Foulkes of Cumnock
I shall not argue about the vox populi after the referendum—I might have been one of the voxes and I might have been quite populi. We keep hearing about the distrust of politicians and I wonder whether that distrust is greater when a referendum does not achieve 40 per cent compared with when Members of Parliament pledge not to put up student fees and then do the opposite.
Baroness Brinton
It is very interesting how many people think they voted Liberal Democrat in May 2010. Had they done so, we might have been the major partners in the coalition Government and not the junior partners. The key thing is not just about those who may have voted in a certain way, but the impact of the voice of the people being ignored. That is my concern and I am concerned about having a referendum overturned by Parliament. That is why I oppose the amendment.
Baroness Symons of Vernham Dean
My Lords, as your Lordships will be aware, I tabled Amendments 7, 8, 15 and 16, which are in this group. I quite understand that the issues are different in the various amendments under consideration, but I believe that it was right to put them together and that their general thrust is in the same direction. I thank the noble Lord, Lord Williamson, for the way in which he introduced the amendments, and the noble Lord, Lord Hurd of Westwell, who made his points so clearly and fully. The Labour Front Bench—and, I believe, almost all those on the Labour Benches, although I have not interviewed them all personally—supports the principles behind the amendments.
I make one thing abundantly clear. We are not, in principle, against referendums. Some of your Lordships have expressed that view; that is not the view held as a matter of policy by the Labour Party. We believe that referendums have a place in most democratic countries—not necessarily in all. That was made clear from Second Reading, when we said that we would expect to have a referendum, for example, on adopting a new currency, on leaving the European Union, or abolishing the monarchy or either House of Parliament. We believe that referendums are appropriate for issues of real constitutional importance. I do not want anyone subsequently to misinterpret my remarks on that point.
In that respect, we are at one—at least, I thought we were—with the Government, who said that they, too, believed in issues of constitutional importance being the subject of referendums. The Constitution Committee stated something very similar. That is what makes the Government’s position so implausible.
The Constitution Committee said in paragraph 38 of its report published on 18 March:
“In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill’s provisions are inconsistent”—
inconsistent—
“with the Government’s statement that referendums are most appropriately used in relation to fundamental constitutional issues”.
That is a difficult charge, and I hope that the Minister will address it when he answers this debate. The Constitution Committee, on which, I remind him, his party, the Conservative Party, the Cross-Benchers and my party sit, came to the collective view that the Bill's provisions are inconsistent with the Government’s stated policy on the issue.
For our part, we think that the reason for it is to hold the coalition together. It is to keep the Eurosceptics happy, while keeping the Liberal Democrats more or less so. The noble Baroness, Lady Williams, said that far more elegantly a moment ago, but I hope that her party will look very closely at what she said, because it showed an admirable clarity of approach on her part.
The question therefore arises: why should the British public be called on to support a political aim by voting, for example, on the number and system of appointing EU Commissioners, or the appointment of judges and advocates-general to the European Court of Justice, or even some decisions about the EU's competence on foreign policy, as set out in Schedule 1? The truth is that the British public will not turn out for such referendums. We all know that. We shall have a hard enough time getting a respectable turnout on 5 May on changing the voting system in this country—something which is of real constitutional importance.
Much of what is covered in this Bill as subject to referendums is Parliament’s responsibility to deal with, and that is why we are here. A threshold turnout for a decision that is mandatory is just plain common sense. If the turnout threshold is not attained, it seems to me to be also just plain common sense that a referendum should be advisory only in its impact.
The Deputy Prime Minister, the leader of the Liberal Democrats, when speaking on the Barnsley by-election brushed off the result—in which his party gained 4 per cent of the vote—by saying that a turnout of 36.5 per cent was “abysmally low”, implying that it was a fundamentally flawed turnout because of the level that it attained. Does the Minister agree with the leader of his party that a 36.5 per cent turnout is abysmally low? If he does, at what point over 36.5 per cent does a turnout in a referendum become a true reflection of the electorate’s feelings?
Lord Phillips of Sudbury
I hesitate to interrupt the noble Baroness, but I cannot help observing that the point about the Barnsley by-election was that the abysmal turnout of 36 per cent did not nullify the election, which is what the proposal here would do.
Baroness Symons of Vernham Dean
In the election of an individual Member of Parliament, however low the turnout is, it does not nullify the election, but that is not what we are talking about. We are talking about constitutional change. It is a very different point. I would have thought that the noble Lord, Lord Phillips of Sudbury, given how connected he is on these issues, would be among the first to recognise that a long-term constitutional change is very different from electing an individual Member of Parliament.
We on this side would be prepared to consider a figure that the Minister puts forward but, more important perhaps, a figure that his colleagues in another place would find acceptable—something perhaps better than an abysmally low figure. However, in order to have future treaties or treaty changes decided on a turnout, however we define what is abysmally low, the turnout must be such that it does not undermine our parliamentary system of government. Low turnouts will simply not be credible. They will not be credible to most sensible people and the British public are sensible people.
Parliament has a duty to deal with these matters. We have to shoulder our responsibilities. We cannot just run for cover when something difficult is put to us. How can the Government suggest that asking the British public to decide on the appointment of Advocates-General will somehow reconnect the British public with Europe? Plainly, it will not. It is far more likely to turn off the British public and I suspect that the Minister knows that as well as the rest of us do. Either that or we will simply revert to the point where we do not have referendums at all.
This move towards dealing with any tricky issue by means of a referendum is simply not consistent with our parliamentary democracy. As my noble friend Lord Davies of Stamford said, the turnouts would not even be of the abysmally low level described by the Deputy Prime Minister. The turnout would more likely be not abysmal but quite catastrophic—perhaps 10 or 15 per cent. That is not democratic. That is undermining democracy, at least in its parliamentary form.
Let me turn to the points raised by the noble Lord, Lord Phillips of Sudbury, who has in the past spoken passionately about reconnecting the British public and has good credentials on this issue. He spoke of the widespread scepticism in the country about protecting the UK’s interest against the EU. I agree with him that there is that view. How widespread and how deep is the scepticism may be a matter of debate between us, but he has always aspired to the dissemination of information about Europe and he spoke about those points with great eloquence at Second Reading.
Four speakers spoke in support of the Government’s position on this—the noble Lord, Lord Phillips, and the noble Baronesses, Lady Nicholson, Lady Falkner of Margravine and Lady Brinton. It was perhaps noticeable that those were the only four and they may give some comfort to the Minister. However, he will also note, as we do, that the position of the Liberal Democrats is at odds with how they voted on the possibility of a referendum on the Lisbon treaty.
The noble Lord, Lord Hurd of Westwell, said that this was a wearisome business. At this time of night, I think that we all sympathise with his sentiments. He told us that there had been a time when only two members of the Major Cabinet had supported the use of a referendum and that he, as one of them, was “a bit wobbly”. I do not believe that dealing with the coalition document should be anything like “approaching an altar”, as he described it. The point about the coalition document is that it was never put to the British public. The noble Lord said that the significance clause was perhaps a way out of the problem but, as we discussed earlier today—although many of us may feel that it was quite a long time ago now—the significance clause will in itself probably be the subject of huge controversy and no doubt of judicial review, too.
Therefore, I hope that the Minister will agree with his experienced and wise friend, the noble Baroness, Lady Williams, that on any issue a turnout of a very low proportion of the population really cannot trump the views of Parliament. Let us suppose that the turnout is only 10 per cent or 15 per cent. Why should that view trump the views of a Parliament that was elected by perhaps 60 per cent or 65 per cent of the electorate? How is that by any measure conceivably democratic? How is it right? How is it rational?
The noble Lord, Lord Stoddart, says that people must be listened to. Of course they must be, but they must be listened to if a turnout is of significant numbers of the public to express a view. It has to be a number that can be interpreted as a national view on the issue that is under consideration. However, if the turnout is very low—abysmally low, for example—those views should be only of an advisory nature. The noble Baroness, Lady Williams, was right when she said that the Bill expresses no confidence in parliamentary democracy. If the Minister will listen to no one else, surely he will listen to the noble Baroness with all her experience. Surely he, who rightly voted against a referendum on Lisbon, can see the force of this argument.
The noble Baroness, Lady Falkner, says that the tone of the debate was one of “We know best” and of expecting deference. I have to say to the noble Baroness that I really did not recognise that in the debate today. I was sorry that she said what she did. I thought that she put words into the mouths of others in a way that was simply not sustainable by reference to what noble Lords had actually said.
I agree with the noble Lord, Lord Kerr, that referendums for the most part should be of an advisory nature. He said that they should be on every occasion. I think that on occasions there are points where they may be accepted on a mandatory basis, but only in exceptional circumstances.
Lord Wallace of Saltaire
My Lords, I think the time has come for me to grumble quietly. We have had a range of interesting speeches in what has been a high quality debate, although there was a point, when the noble Lord, Lord Davies, was talking about anoraks, when I thought that a good definition to look for in a political anorak was that of someone who wishes to return after dinner to a two-hour discussion of arcane issues of constitutional procedures and international engagement. We recognise that we are all part of the political anorak class.
We have ranged over parliamentary sovereignty, parliamentary democracy, political trust, the problem of trust in Parliament, and whether we are putting representative democracy at risk, as at least one noble Lord said—I think it was the noble Lord, Lord Hurd. We have to recognise that the concept of parliamentary democracy, about which the noble Lord, Lord Hurd, spoke so passionately, is to some extent at risk. In Britain, as in other European countries—a point made by another noble Lord in the debate—we have more educated but at the same time much less trustful electorates. How the political elite responds to and works with our mistrustful electorates is part of the problem that we all face. I have to say that it was my own experience in the 1975 referendum that referendum campaigns provide an opportunity to focus the attention of a public who, for much of the time, are only really prepared to listen to politicians who can offer soundbites.
Lord Davies of Stamford
I am grateful to the Minister for giving way. He is a very intelligent man and he has had enormous experience of politics from the academic world and now from the Front Bench in the House of Lords. Is he seriously saying that the way to increase public respect for the political process or public involvement in the European issue is to ask the public to turn up to vote on a referendum on the appointment of judges in the European Union?
Lord Wallace of Saltaire
My Lords, I am merely pointing out that we all face some rather large structural problems in our democracy. I also note that we face some extremely complex issues in attempting to define what we mean by parliamentary sovereignty, to which we will return later.
We have seen a number of other interesting elements in this debate. I liked the emergence of the Stoddart/Hannay/Kerr consensus. I enjoyed hearing the noble Lord, Lord Foulkes, as I think I understood him, emerge as a staunch campaigner for electoral reform. I noted the noble Baroness, Lady Symons, resurrecting the doctrine of the mandate that has reappeared in Labour Party policy as a means, I think, of attempting to argue that the coalition agreement is illegitimate. I would just remind her that, many years ago, when I was giving evidence to a committee on which she sat—I think it was on the Salisbury convention—she asked me about clear mandates in manifestos. I had to point out that the clearest pledge in the 1997 Labour manifesto was to hold a referendum on the alternative vote.
Lord Wallace of Saltaire
In either sense, if it was a mandate, the Labour Government did not fulfil it.
The noble Lord, Lord Hannay, asked me why the Government had not yet replied to the Constitution Committee. I have seen the Government’s response, which was submitted to the committee last week—last Wednesday, I believe. I do not understand why it has not yet been published, and I very much hope that it will be published within the next few days.
Lord Hannay of Chiswick
I would be grateful if the Minister would not play hide and seek with this matter. Presumably, if it has been transmitted, he knows what is in it. Could he just say what it says?
Lord Wallace of Saltaire
That would take me a long time. I assure the noble Lord that I will make sure he gets a copy as soon as possible and that it is published as soon as possible.
Lord Wallace of Saltaire
All of it, indeed. I will investigate why it has not yet been published. I assume there is a delay, for which I apologise.
The noble Lord, Lord Kerr, asked to what extent publics are bound by what their plenipotentiaries have agreed. It is a delicate question in all democratic states. In the United States, congressional ratification is required; in other states, it is parliamentary or popular ratification. That is another large issue of sovereignty, democracy, consent and international negotiation. It applies not just to the European Union but to all international treaties, and it is a problem for all democratic states.
Part of the campaign that we need to undertake to rebuild confidence in the European Union is clearly to have a Government who are going to argue the case for more constructive European engagement. I was glad to hear a number of noble Lords say that the practical approach of this coalition Government to the European Union has been positive. We need now to argue the case for constructive engagement in the European Union, both in other countries and within the European Union. I am confident that the coalition Government will do that over the next few months. Had it not been for the Libyan engagement, we would already have started. I promise noble Lords that we shall move in that direction. However, part of regaining trust is also giving the public confidence that competence creep and all those things which they currently mistrust about the European Union will be stemmed for the foreseeable future at the very least.
There are two major issues: one is whether or not referendums should be advisory or mandatory; and the other is the question of a minimum turnout level. We argued the question of minimum turnouts to the point of exhaustion on the Parliamentary Voting System and Constituencies Bill, in the course of which I became much better educated than I had ever wished to be about the integrity of the electoral register. I remember exchanging views with the noble Lord, Lord Rooker, as to how many times he and I were registered in our respective different residences. The Government—and, I think, most of us—have severe doubts about having a minimum turnout level.
Taking my cue from the noble Lord, Lord Kerr, perhaps I may cite a leading constitutional authority on the question of referendums—Margaret Thatcher— and her contribution to the debate on the then European Community referendum. She said:
“I believe that if there is a high poll and a clear majority, the result will in fact be binding on Parliament whatever one may say in law about parliamentary sovereignty. I cannot envisage that a Parliament, whatever individual Members might have thought, if there were a clear vote against … It is not advisory or consultative in the event of a clear result. It would be binding on everyone … It would bind and fetter parliamentary sovereignty in practice. But if there were a low poll, and an indecisive result, the question would arise whether the British people had genuinely given their verdict by their vote. The Government might regard themselves as bound, but the result could not fetter the decision of Parliament”.—[Official Report, Commons, 11/3/1975; col. 315.]
The Government’s position on these referendums is that the result would be binding on the Government, but we also accept that no such decision could bind Parliament as it would not be consistent with parliamentary sovereignty. There would of course be major political costs to Members of Parliament who wished to disregard a clear popular vote, but one might envisage circumstances in which, in an emergency, Parliament wished to bear that cost.
Lord Foulkes of Cumnock
The Minister has made an interesting and important statement. He has obviously thought carefully about this so could he explain to the House the mechanism by which Parliament might disagree with the decision in a low turnout referendum? What would be the mechanism for Parliament to overturn it?
Lord Wallace of Saltaire
I am sure the noble Lord is as expert on parliamentary sovereignty as I am. No Parliament can bind its successors; any Parliament can overturn a decision of a previous Parliament or even a previous decision of that Parliament. That is part of what we understand by the doctrine of parliamentary sovereignty. There is nothing we can do to prevent a future Parliament from undoing what we are doing. That is my limited understanding of all of this.
Perhaps I may quote a greater constitutional expert than myself.
Lord Davies of Stamford
Before the Minister moves from this point, perhaps I may follow up on the question posed by my noble friend Lord Foulkes following his momentous statement about parliamentary sovereignty. It is important for the House to understand how in practice it would be possible for Parliament to exercise that sovereignty and to disagree with a referendum.
I refer the Minister to Clause 3(2)(a) of the Bill, which states:
“The referendum condition is that … the Act providing for the approval of the decision provides that the provision approving the decision is not to come into force until a referendum about whether the decision should be approved has been held”.
In other words, Parliament would have passed a Bill, turned it into an Act and the electorate would then have voted. For Parliament to be able to exercise its sovereignty in opposition to the decision of the electorate—which the Minister said is a possibility—it would presumably have to repeal the Bill which it passed before the referendum took place. Is that the procedure the Minister has in mind?
Lord Wallace of Saltaire
The noble Lord is extremely good at interrupting Ministers and others in full flow. I repeat: Parliament can reverse decisions that have already been taken, either by resolution or by parliamentary Act. That is part of our current, unwritten constitution.
I was in the middle of quoting Professor Bogdanor who, together with two noble Lords, is regarded as one of the major constitutional authorities in the country. On referendums, he said in written evidence to the Constitution Committee:
“Voters entrust their power to representatives, but they give them no authority to transfer those powers … Such authority can be obtained only through a specific mandate, that is a referendum”.
The logic of all those referendums is the same: they are decisions on whether to change who holds power and how that power may be used. No decision can be more eminently qualified than one that could move an area of policy from the responsibility of this House to the responsibility of the European Union. That is part of the area in which we now find ourselves—decisions about the transfer of power.
Lord Foulkes of Cumnock
I have an important point and apologise for taking up time, particularly at this hour. The Minister said that this applied to AV in exactly the same way as it would apply to these European referenda. Is he saying that, if the referendum has a pitifully low turnout and only a marginal vote in favour, it is then open to us in this Session of Parliament, so that we are free to repeal the legislation which provided the power to the people in that referendum? If that is the case, it is a very interesting and welcome announcement.
Lord Wallace of Saltaire
I wish to resist getting too far into hypothetical issues about what might happen in a great emergency in a future Parliament. I simply wish to state that Parliament is sovereign. There is nothing in the Bill that would bind this or any future Parliament from legislating, notwithstanding the provisions of the Bill, or from disapplying the provisions of this legislation, or indeed acting contrary to the will of the electorate expressed by them in a referendum. In this sense of fundamental parliamentary sovereignty, any referendum is advisory. All that the Bill says is that a referendum will be mandatory on the Government who receive the result of that referendum. I am conscious, from the unusual quiet, that the heating has just been switched off and that we should not delay the House too much longer.
Lord Kerr of Kinlochard
Would the Minister accept that he made a slightly selective quotation from Professor Bogdanor’s memorandum? The bits of the memorandum that he read out were those governed by phrases such as “it could be argued”, and “it may be suggested”. It is clear that those were not the views of Professor Bogdanor. Towards the end, having listed various contrary arguments, his memorandum concluded:
“The solution to these difficulties is to provide that the referendums be explicitly advisory”.
The last lines of his memorandum were,
“The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliaments through a referendum lock. Was it not the Queen, in Lewis Carroll's Through the Looking Glass, who declared that she had been able to believe in six impossible things before breakfast?”.
The Minister should beware of selective quotations.
Lord Wallace of Saltaire
It is hard enough that one of the first experts on the European Union whom I ever met when I was a junior academic was the noble Lord, Lord Williamson. I am doing my utmost to resist bowing to the great wisdom of some of the experts from whom I have learnt in the past.
We have covered the issues in this large number of amendments very thoroughly and it is time for us all to reflect on them. I will ensure that the Government’s response to the Constitution Committee is published within the next two or three days. I am told that it is already on the website and I trust that there will be a hard copy very soon. In view of all the comments and responses that I have made, I hope that noble Lords will feel able not to press their amendments.
Baroness Symons of Vernham Dean
My Lords, I am not sure whether the noble Lord is aware of the impact of what he said a few moments ago, because I think that he changed the terms of engagement. I hope that he will look at what he articulated in relation to turnout and results. He referred to the fact that Mrs Thatcher said that a low turnout and marginal results would not bind Parliament but that a high turnout with a clear result would, through common sense, bind Parliament. He spoke as though we had not already passed legislation on AV. The AV Bill has passed. Even if there is only a 15 per cent turnout and only 51 per cent of that 15 per cent vote in favour of AV, it is binding. That is what Parliament has decided.
I cannot understand how we place that position, which none of us wanted, alongside what the noble Lord has just said about Mrs Thatcher articulating a common-sense principle in the event of low turnout and a very marginal result. He needs to look at what he said just now. We think that it was great, but I am not sure that his colleagues will. I hope that he will look at that carefully and give us a clear view that will be supported by everyone on the government Benches—his own Benches and the Conservative Benches—before we get to Report, because I think that he has changed the terms of engagement. He could tell by the reaction from my noble colleagues on this side of the House that we all thought that. It is an important point, but let us leave it. The hour is late. The noble Lord has done very well over amendments that he did not expect to take. I thank him for his courtesy to the House in dealing with this in the way that he has.
Lord Williamson of Horton
My Lords, I want to make one or two brief comments on this long debate. When you have been here for two hours and seven minutes, it is quite difficult to remember what you proposed, but I think that I can still do it. There were two separate proposals. First, I put forward the general proposal in Amendment 5 that we should move to an advisory referendum. I think that the House should consider that and decide whether it is going for advisory or obligatory referendums. That is a general issue, which needs to be decided.
Secondly, I am grateful for all the support that I have had from around the House for my second proposal, which is in Amendment 6. Apart from the Liberal Democrats, everyone else has supported it, which is not surprising, as this was the position taken by the House of Lords as a whole a few weeks ago. I thank all those who have spoken on this, in particular the opposition Front Bench. The proposal is that, where there is a very low turnout, instead of being mandatory, the referendum would be advisory and Parliament would decide. I am an extremely friendly and happy person most of the time but I was rather depressed by the arguments advanced from the Liberal Democrat Benches, because everyone assumed that, if Parliament took the final decision, Parliament’s idea would always be to go against the public. I quote from one of them: “The public would not be listened to”. Another Member from the Liberal Democrat Benches said that the public would be “ignored”; or, again, that it would not be like the Barnsley by-election because this would “nullify” the referendum. That is not what I have proposed at all.
I have proposed that the final decision—because by definition there would be a miserable turnout of the British people—would be with Parliament and the Government, who would be able to decide on the basis of the result before them. In my view, the normal situation would be that they would endorse the view of the British public. Let us say that 36 per cent vote, which is quite possible. Normally they would endorse that and the press headlines would simply state, “Good: Parliament and people together”. That would be the reaction and it would be extremely positive, not negative. The Liberal Democrat Benches are quite wrong in their assessment of what the public reaction would be in those circumstances, and I find that rather depressing.
In cases where there was a poor turnout, either it would be endorsed by the Government or the public themselves would say, “This is such a miserable result, let’s not bother with it any more. We don't care about how the Advocates-General are appointed, so forget it”. That would be the British public's reaction.
With those comments, which I felt bound to make after two hours and seven minutes, and seeing that it is now two hours and 11 minutes and that we are rather late, I will withdraw Amendment 5. Yet these issues will absolutely inevitably come back at a later stage because, as I said in speaking to Amendment 6, the House’s view on this is so recently established that we can be fairly confident that it will be endorsed again. Let us wait until Report to endorse it. So, for the moment, I beg leave to withdraw the amendment.
Lord Tomlinson
My Lords, in view of the extensive exchanges that we have had on Amendments 3 and 4 and the group starting with Amendment 5, and the number of issues on which the noble Lord, Lord Wallace, clearly has to reflect before coming back to the Committee, I shall not press my opposition to Clause 2 standing part. However, I shall return to it if the Minister’s reflections do not prove satisfactory.