EU: Police and Criminal Justice Measures

Debate between Lord Anderson of Swansea and Lord Blackwell

Tuesday 23rd July 2013 Lords Chamber

[Lord Blackwell]

The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.

There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?

[Lord Anderson of Swansea]

Would the noble Lord not agree that a measure such as the European arrest warrant is not a transfer of sovereignty but a measure of co-operation?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Anderson of Swansea and Lord Blackwell

Monday 7th February 2011 Lords Chamber

[Lord Blackwell]

My Lords, I have been a loyal supporter of the Government on this Bill but I confess that this is one amendment where I have sympathy with the proposer given the role that referendums may have in other constitutional issues and the precedent that may be set. I ask myself how comfortable I would be with a referendum on joining the euro if less than one in five of the population—that is, 20 per cent—voted for it; or, indeed, with a referendum on leaving the European Union if a similar result emerged. Therefore, the Minister needs to address how the precedent set by a referendum on this issue might affect precedents set on other grave constitutional issues that might also be the subject of referendums in the future.

[Lord Anderson of Swansea]

My Lords, my starting point is clear and I think has widespread acceptance throughout the House—namely, that what is proposed is a major constitutional change. I hope that the House is with me in saying that a constitutional change of this magnitude should have legitimacy, particularly as the hallowed rules of the game, which have stood the test of time over a long period, are being changed. Therefore, a means has to be devised to show that such a change has at least reasonable support among the electorate. The object is to make any such change as long-lasting as possible so that any future Government are not tempted to alter the rules of the game as they would recognise that there was a sufficiently broad consensus. Otherwise, there is a danger that the change will be deemed to be no more than the view of one Government which can be properly reversed by a successor Government. I warn the Government that if they steamroller ahead—already there have been great affronts to our normal conventions on this—a future Labour Government—such a Government will arise, although we do not know when—will be tempted to say that they are not persuaded that the change has sufficient support, and therefore that they are minded to change it.

Therefore, the key question for the Government is: do they seriously think that it is important that such a change has wide popular support? Putting it another, simpler way: do not most reasonable people in the House agree that it would be absurd if only 25 per cent of our electorate were to turn out and there were to be—if I have done my arithmetic correctly—13 per cent for and 12 per cent against? Would that be considered a sufficiently strong basis for a change of this nature to be agreed? I hope that most reasonable people agree that it would be absurd if such a change were to be agreed on such a flimsy basis. It would be contrary to the spirit of our constitution, the way that we work and, indeed, the way in which this House tries to ensure a reasonable response to proposals.

I fear that there could be quite a small turnout. Between now and the proposed date of the referendum we have but two months. However strong the efforts that are made by the umbrella organisations for and against the referendum and however strongly the Government try to whip up enthusiasm, I fear that there will be substantial apathy. There is widespread disillusion at government generally; and the Deputy Prime Minister, who has been most personally linked with this proposal, is not the most popular member of the Government. Whatever the merits of the case, people may find that a convenient way of showing their disapproval of the Deputy Prime Minister is by voting with their feet. This is perhaps part of the problem of a referendum; it very much depends on who is putting the proposal and the time at which it is put. We saw that, for example, in our own referendums. In 1979, an unpopular Labour Government put forward proposals for devolution in Scotland and Wales, which, certainly in Wales, were mightily rejected. Equally, in 1997, when the bliss was in that dawn, a new reforming Labour Government managed to get not a 4:1 rejection of the proposals, as in 1979, but a majority for them—just.

On a further point of sadness, it appears that the Government are probably not in a mood to make concessions. This rather wooden response of theirs may be part of the problems of coalition politics. I cite in evidence the debate on the Isle of Wight proposal. We understood, from the excellent speech of the noble Lord, Lord Fowler, that all parties on the isle were in favour of an exception being made. The noble Lord made an extraordinarily strong case for that. It was quite clear to all of us that whatever arguments we might seek to raise it was easy to see that the Isle of Wight would not provide a precedent for other areas of the country and was unique. That surely should have been an opportunity for the Government to say, “We are a listening Government; we have heard the arguments and we are minded to change our position”. But no—the Government insisted on putting the proposal to a vote and were then roundly defeated. Worse, they then tried to claim some benefit, saying, “This is one of the great concessions that we have made”, when clearly any listening or reasonable Government not bound by a coalition agreement would have made some concession on that point.

I turn speedily to the amendment on what happens if fewer than 40 per cent vote. This provides an escape route for the Government, and I return again to the Cunningham amendment in 1979, with which I had some experience, all those years ago. I make but two short propositions. First, in many countries, there is special provision when there are proposals for constitutional change. It is not enough to have a bare majority in one or both Houses of the legislature. Secondly, there is special provision in many countries where a referendum is held to ensure that more than a bare majority is required—hence the proposal for a threshold.

I could detain the House for a long time with the results of my research on this issue. My objective is not to detain, and to accept that practice varies from country to country. I shall give a few examples, if I may, of the two propositions. First, I cite Article 5 of the US constitution, which demands that before an amendment to the constitution can be made:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention”,

and so on. There is also a precedent in Germany, which I shall not quote, under Article 79 on amendment of the basic law. There is also Section 128 of the Australian constitution.

Again, because of pressure of time, I shall neither cite these amendments to constitutional provisions nor detain the House by going through a litany of other countries. I concede that all the examples that I have given relate to federal constitutions, but it can plausibly be argued that in this country we are sleepwalking toward a quasi-federal system. Already, Scotland has primary legislative powers. With the Welsh referendum in March, we have the prospect of substantially increased powers. As a slightly humorous aside, after the unfortunate rugby match on Friday one companion said to me: “Well, we may have lost the game, but we shall win the referendum”. That may be a small consolation for the result on Friday.

The object of thresholds for referendums has always been to show that there is an appropriate majority in the country for the proposal: otherwise, as I have said, it could be short lived. It would be a temptation for a future Labour Government to return to the issue if there was not a basis of sufficient consent. Clearly, there are different forms of special majority. I concede that a number of countries have a different view. For reasons of time, I will refer to, rather than quote from, the 1975 Nairn committee proposals. In this country we had a referendum in 1975 on the EU without a threshold clause, but which produced a 2:1 majority on a very significant turnout. We had the threshold commitment in 1979: I believe that Hansard will show that the Leader of the House conceded to me that this was an opportunistic response on behalf of the then Conservative Government, which fully supported the Cunningham amendment of 1979 on a 40 per cent turnout. Perhaps consistency is not something that one should hang around the neck of any politician. However, there was a threshold for the proposal for a regional assembly in the north-east and for other matters such as tenants’ choice and the education Bill.

Overseas examples are legion. Again, I will not go through the various constitutional proposals of Denmark, Ireland, Italy and Switzerland. The Government claim to be particularly close to Sweden at the moment. Sweden has strong constitutional provisions, which I will not quote, which related to proposed changes. So does Australia. The Government loudly say that they are very committed to the Commonwealth. Not only Australia but many other Commonwealth countries have appropriate provisions for constitutional change.

I end by saying that the principle is very clear. We want to avoid the absurdity of a low turnout and a lack of public interest determining a key change to our constitution. We must recognise the special nature of such a vote if we wish the result to last. If the rules of the game are to be changed, we must ensure that there is an adequate majority and an adequate consensus in our country as a whole.