European Union (Referendum) Bill

Debate between Lord Anderson of Swansea and Lord Kerr of Kinlochard

Friday 24th January 2014 Lords Chamber

[Lord Kerr of Kinlochard]

Nothing in this amendment in any way affects the first line of this Bill that says that there shall be a referendum. This amendment concerns only whether it is wise to set in the Bill the end date by which time the referendum must have been held. That is my sole point. I have heard no rationale for the 2017 date. I look forward to the explanation of his rationale from the noble Lord, Lord Dobbs. It will not be sufficient for me to hear that the Prime Minister said in the Bloomberg speech that it would be by the end of 2017. He said the first half of the Parliament. That would not be a sufficient rationale for me because it was not put in advance through the political process and raised in Parliament and is not, as I understand it, government policy. It is the policy of the Conservative Party, just as the Bloomberg speech was the policy of the Conservative Party. If we have to have a date in the Bill and it has to be the end of 2017, please tell us why. I can think of only one reason and I am not of a suspicious mind. If you wanted a referendum to produce the result that the UK leaves the European Union, you could not pick a better time. You are saying that the Government must bring their renegotiation to a head in what must be, because of the French and German elections, absolutely the worst year to do it. You are saying that they have to try to cut corners and accelerate the timetable, which the European Union will want to follow. You are maximising the chances that they lose friends, fail to influence people and do not get the renegotiation objectives they have in mind—

[Lord Anderson of Swansea]

Clearly the date chosen—before 2017—appears to be the worst possible time, as the noble Lord properly points out. It is also during the UK presidency and it will prove extraordinarily difficult for the UK objectively to be chairing the European Union as president and at the same time be pursuing objectives the purpose of which we do not yet know.

[Lord Kerr of Kinlochard]

I agree. Again it is the cui bono question. Why would you want to set this timing unless your aim is to get us out? I look forward to hearing an alternative, more encouraging explanation of the rationale from the noble Lord, Lord Dobbs, and until I do, I think that we should take this date out of the Bill.

I am very uneasy about the whole renegotiation process. I am very uneasy that we are raising public expectations in this country by saying week after week, issue after issue, “Yes, we will sort that out in the renegotiation”. Everybody agrees that the EU needs reform but reform is an amorphous, amoeba-like creature, and it seems to go off in different directions depending on whatever the Daily Mail says this week. We are always told, “Don’t worry, it’ll be dealt with in the renegotiation”.

I think that there are issues that can be renegotiated, and I am absolutely not, in principle, against renegotiation. However, one has to be clear with the country, preferably before the election, about precisely what kind of European Union one is trying to create and whether it is going to work—how many friends you have and how negotiable are your aims—and one needs to be honest about it.

If your Lordships want a renegotiation and they want it to succeed, Amendment 10 deserves their support, because a successful renegotiation is incompatible with a 2017 deadline.

European Union Bill

Debate between Lord Anderson of Swansea and Lord Kerr of Kinlochard

Tuesday 26th April 2011 Lords Chamber

[Lord Kerr of Kinlochard]

I asked at the start of Committee why we needed Clause 3. Clause 3 refers to the simplified or accelerated method used in Brussels for producing a treaty amendment. Clause 2 refers to the product of the normal method used in Brussels. The product, by the time it reaches us, is exactly the same: it is a treaty amendment. How it began, who proposed it and which process was followed in Brussels are irrelevant to the ratification requirements here. We should decide the ratification requirements and any necessary referendum requirements on the basis of the weight of the amendment, not of the means by which the amendment was agreed in Brussels. I therefore asked why we needed Clause 3 as well as Clause 2. I have read very carefully the Minister’s answer at the end of the debate. He did not answer the question. He cleverly lured me into a semantic debate about competencies and powers, which we played into the sand, but we did not hear the answer as to why we needed Clause 3.

There is a difference between Clause 3 and Clause 2. If you eliminated Clause 3, you would eliminate something that is not in Clause 2. That is the final section of Clause 3, which contains the significance test. It is to that section that the noble Lord, Lord Liddle, is now proposing an amendment.

There is no significance test in Clause 2, which is the first of the two clauses setting out what we do when a treaty is amended. Does that mean that the Government believe that any treaty amendment made by the traditional method, however insignificant, must require a mandatory referendum? That seems to be the implication of having the test only in Clause 3 and not in Clause 2. I would be inclined to argue that we should eliminate Clause 3 now but transfer subsection (4) to Clause 2, so that the significance test, whatever its form—the form in the Bill, the form as revised by the noble Lord, Lord Liddle, or the form as revised by others—applies to any treaty amendment. That seems to be logical.

The noble Lord, Lord Howell of Guildford, used two arguments which perhaps play on the question. One was implicitly that Article 48(6), the accelerated method, would be used for the trivial, whereas the full-dress method, Article 48(2) to (5)—Clause 2 of this Bill—would be used for the heavy stuff. That may be so, but it does not seem very plausible to me. The noble Lord argued that we need not worry about having a series of referenda on the trivial because amendments would be bundled. He said that, from his long experience of Brussels, he knew that that was the way it worked. That is completely correct. In the past, treaty amendments have been brought together in a bumper-package intergovernmental conference, resulting in a new treaty or a massive treaty amendment.

In my view that will not be the case in future. A lesson has been learnt that it is not right to lump a whole series of questions together. The answer in the French referendum and the Dutch referendum came about partly because a whole lot of measures—not all of them necessarily very large—were put together and people were asked whether they would buy the package. If there is anything in such a package that you do not particularly like, the reasonable answer is to say no. The European Union has learnt from that and the Article 48(6) method—the Clause 3 material—will not be trivial relative to the Clause 2—or Article 48(2) to (5)—material.

[Lord Anderson of Swansea]

Is there not a logical problem in saying that because a number of insignificant matters are lumped together, they will by definition become significant? If they were to be lumped together as the noble Lord is saying, surely it would be very difficult for someone who accepts one matter but not others to vote in a particular way. But surely a bundle of insignificant matters does not by itself therefore become insignificant; it becomes significant.

[Lord Kerr of Kinlochard]

That seems likely to be the case. I agree with the noble Lord.

The second argument that the noble Lord, Lord Howell, used was about time. Here I have to say that I warmly welcome the amendment proposed by the noble Lord, Lord Liddle, which brings in the concept of urgency. It seems to me that the situation in which Article 48(6) is likely to be used will be the urgent situation. That is what was in the minds of those who invented the Article 48(6) procedure. The heavy procedure under Article 48(2) to (5)—Clause 2 of our Bill—contains provisions for a convention of representatives of national parliaments and the European Parliament meeting with representatives of the member states. It also contains provisions for doing away with that and concludes with a two-year period for national ratification. These timetable elements, and the reference to the convention, drop out in the accelerated method. The idea of a two-year delay has gone in Article 48(6), just as the convention has gone. People had in mind that there could be crisis situations in which the European Union would need to revise its texts quickly—hence Article 48(6). That makes it a little paradoxical that we are insisting on adding a referendum requirement.

More than that, we are—as the noble Lord, Lord Goodhart, pointed out at the start of our first day—doing something that we have never done in this country before: we are providing for an Act of Parliament to be overruled by a referendum. That is literally unprecedented, and we would be doing it in relation to matters, if they were under Article 48(6), where we had voted in the Council for an urgent change, since nothing can be done other than by unanimity in the Council. Everybody has voted for it; it is sufficiently urgent to justify the accelerated procedure; it goes through the House of Commons and through the House of Lords; but under this Bill it then requires a referendum which could overrule an Act of this Parliament. That is why I think that there is something really dangerous in the Bill, not just in terms of our position in the European Union but in terms of our basic constitutional position in this country. I really do worry about it.

I come back to the amendment tabled by the noble Lord, Lord Liddle. It must be right to introduce the concept of urgency and to make the tests not cumulative. It seems to me that Amendments 16A and 16B deserve our support. However, even if they were included in the Bill, I would still argue that Clause 3 should not stand part of the Bill, because in logic you do not need different procedures depending on how it started over there. The procedures you follow should be decided by the significance of the measure itself.