European Union (Referendum) Bill
Lord Armstrong of Ilminster Excerpts(10 years, 11 months ago)
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“(1) A referendum is to be held with the question—
“Should the United Kingdom remain a member of the European Union or leave the European Union?”appearing on the ballot papers.”
Lord Armstrong of Ilminster (CB)
My Lords, I hope that I can be reasonably brief in moving the amendment. We have a long day ahead of us.
The amendment does not bear on the issue of whether a referendum on United Kingdom membership of the European Union should be held. Nor does it bear on the date at which or by which such a referendum should be held. Thus it does not call into question the principal purposes of the Bill. It is intended to ensure that when a referendum is held, the right question is put to the electorate.
I and other noble Lords who have put their names to the amendment consider that the question proposed in Clause 1(4) of the Bill is inappropriate, confusing and potentially misleading. The wording might be appropriate if the United Kingdom was not a member of the Union but was now proposing to apply for membership, or if we had applied for membership and the Government and Parliament wanted to ascertain whether the electorate would support a proposal to join the Union on terms that would have been negotiated with the existing membership. Then the question for the electorate would be whether they thought that we should forgo whatever might be the advantages and disadvantages of not being members of the Union in order to enjoy whatever might be the benefits and privileges of membership, and incur whatever might be the liabilities and obligations of becoming members.
However, that is not the situation. We are, and have been for more than 40 years, members of the European Union. Therefore, when a referendum is called, the question we should be asking the electorate to consider is whether we should forgo the benefits and privileges we now enjoy, and be relieved of the liabilities and obligations we now incur as members of the European Union, in order to enjoy whatever might be the benefits and advantages and incur whatever might be the costs and liabilities of ceasing to be members. The question put to the electorate should be clear beyond a peradventure that that is the choice on which they are being asked to vote. The question proposed in Clause 1(4) of the Bill as drafted fails to make clear the nature of the choice. It could thus be confusing, and potentially misleading, to some voters.
The question proposed in the amendment is not designed by me or by other noble Lords who have put their names to it. It has been designed by the Electoral Commission, the business of which is to advise the Government and Parliament on such matters. I cannot see why it should be thought to be necessary or right to second-guess the Electoral Commission on this matter. Only that it might sound disrespectful of the commission, which I do not wish to be, I remind your Lordships of the old adage that a man who keeps a dog does not need to bark himself.
The form of words which the Electoral Commission has recommended, and which is proposed in the amendment, provides a question which defines correctly, clearly and unambiguously the nature of the choice which the voters will be asked to make in the referendum proposed in the Bill. I beg to move.
The Lord Speaker (Baroness D'Souza)
I remind your Lordships that, if the amendment is agreed to, I cannot call Amendments 2 to 7 by reason of pre-emption.
Lord Dobbs
It is precisely that point which I am about to address. If noble Lords would do me the courtesy of listening, they might actually learn a little about what I feel about this, rather than what the noble Lord, Lord Kinnock, feels about it. That is more time wasted. I will get on to the time-wasting in just a minute, if noble Lords will allow me.
As I was about to say, the Electoral Commission had its reservations, of course, and we have already heard much of that from noble Lords. However, I believe that the commission’s concern that some voters might be confused, because they are unaware that we are already members of the European Union, is a little oversensitive. Yet the role of the commission is to be cautious, and I do not criticise it for that. I understand that in the past we have made a habit of accepting the commission’s recommendations about any referendum question, but it is worth remembering that its role in this matter is entirely advisory. It is not an umpire or a judge but, as the noble Lord, Lord Triesman, has just pointed out, a source of advice. At the end of the day, it is up to us. The other place debated almost this exact same amendment as we are dealing with here and, after a lengthy debate, rejected it by a majority of 241.
It is also worth remembering that the commission was not able to offer a clear single alternative question. It is hugely significant that this amendment, which mirrors the second alternative suggested by the commission’s report, has not been properly tested by the commission; it clearly states in its report that it did not have time. So it is entirely possible that if I accepted this amendment, the commission might come back at a later stage and tell us that this wording was not good enough either. That would put us in a most awkward position and embarrass so much of what has already been said here today.
At Second Reading I mentioned other potential weaknesses in the commission’s report. I do not want to go back over too much of that ground but many noble Lords have expressed their concerns today. It is perhaps a pity—I put it as no more than that—that not a single Member of this House expressed any concern while the Electoral Commission was undertaking consultation at a stage that might have avoided the need for this amendment in the first place. Indeed, only 19 individuals and organisations offered any comment whatever. If this is a serious issue, it has been a long time coming.
It is also a fact of life that currently 81 amendments have been tabled to this short Bill. We know that some of the Bill’s opponents are determined to use any means to kill it. While I want to make progress, I hope that the House will allow me a moment to deal with that central issue because it gives a context to all else that we do here. Right from the start, the moment that the Bill came to this House, it has been true that, as the noble Lord, Lord Tyler, who sadly I do not see in his seat, told the BBC—and I am grateful for his frankness about this—the opponents will use every trick in the book to derail it. It was put to him in an interview by Mr Mark D’Arcy that the aim would be to keep this Bill running in one form or another pretty much right up to the election. The noble Lord replied: “What they do not want to do, I do not think anyone wants to do, is to have their fingerprints on the dagger that kills it”. There we have it—death by a thousand cuts, or at least by 81 amendments, and that is what undermines the rights of this House.
I hasten to add that I am not accusing the sponsors of this amendment of any hint of deviousness. Many of them have made their points with charm and eloquence, as we would expect them to. However, we all know what is going on. We cannot deny the presence of an elephant in the room, a very large and unreasonable elephant—those who have no intention whatever of working to improve the Bill but who are solely intent on trying to kill it. They claim to be trying to improve the question but in fact are trying to ensure that no question is ever put.
We all know that if the Bill is to survive—if we are to give people the referendum they want—we have to get the Bill through this House in reasonable shape and in very short time. That timetable is not mine; it is simply another fact of life. It is a further fact that after six days of detailed consideration, the Bill went through the other place at every stage with a huge majority or no opposition whatever. We could all speculate why Labour and Liberal Democrat MPs ran for cover, but the fact is that they did. So, in the belief that what was good enough for Labour and Liberal Democrat geese down the other end of the Palace must surely be more than enough to satisfy their noble ganders, I ask the noble Lord, who is not party to any of these games, to withdraw his amendment.
Lord Armstrong of Ilminster
My Lords, my modest, innocent little amendment has given rise to a long, interesting and wide-ranging debate, and after more than two hours I do not propose to try to deal with every point. We are being told that the Bill must pass unamended to go back to the House of Commons in order to be concluded in time to be passed into legislation in this Session. As to that, although I am not an expert in procedure, it seems that if the House of Commons is sufficiently keen to see the Bill passed, it can change its procedure as a matter of exception in order to deal with it. I therefore hope that your Lordships will not be put off by that threat.
We are told that the Bill is a necessity as a guarantee or, as the noble and learned Lord, Lord Mackay, said, an assurance that there will an “in or out” referendum about our membership of the European Union in 2017. With the greatest respect to those who are saying so, I cannot see it. It is impossible for this Parliament to give a cast-iron guarantee or assurance about something that is going to happen after the next election. Suppose that in May 2015, after the next election, there were to be a change of Government and the new Government decided that there should not be a referendum on this matter. The new Government would be free to introduce legislation in the House of Commons to give effect to that decision; the House of Commons would pass it; and then it would come back to this House, and no doubt we should be told that an unelected House ought not to challenge the view of the House of Commons.
I am with those who feel that we should not shirk our duty to scrutinise the Bill and, if we can, improve it, and that, with the greatest respect to the House of Commons, if that House feels that the Bill is so important, it should then adjust its procedures in order to deal with it. I do not think that the Bill provides the kind of guarantee or assurance that we shall have a referendum, because no one can know what will happen in 2015. If it is a guarantee at all, it is so only until May of that year. In fact, the best assurance that the people of Britain can have that there should be a referendum will be the commitment by the present Prime Minister to hold a referendum in 2017. As I said at Second Reading, that is a commitment that he can enshrine in a manifesto. No doubt the manifesto does not have the force of a statute, but at least its shadow stretches beyond the next election and would govern what the new Parliament did. I might almost argue, if I allowed myself to be political, that if the British people thought it so vital to have a referendum, as I am sure they do, their best means of assuring themselves of getting it would be to return Mr Cameron, who has given them this commitment.
The time has come for us to take a decision on this matter. I am afraid that I am not persuaded by the procedural arguments that have been deployed from the Benches here, and I think there is a strong measure of support for the amendment that I have proposed. Without any further ado, I should like to test the opinion of the House.
Lord Armstrong of Ilminster
This amendment is moved as a consequence of the passage of Amendment 1. If this amendment is accepted, Amendment 31 falls and I should not move it.
Lord Anderson of Swansea
My Lords, my name also appears on the amendments. I have one little concern regarding my noble friend Lord Foulkes’s comments: he said that the Gaelic version should appear only in the parts of Scotland that speak Gaelic. If one were to transpose that to Wales, some might argue that in Monmouthshire, for example, where very little Welsh is spoken, at least on the eastern side in the border area, there should be a different ballot paper. In my judgment, if there is to be a Gaelic version it should be throughout Scotland, otherwise there will be enormous problems regarding where to draw the line. To follow up what the noble Lord, Lord Crickhowell, said, there is, happily, a consensus in Wales in respect of the language. We have managed to avoid the language divisions that have rent Belgium over the years, and that in large part is because of the work by the noble Lord but particularly of Lord Roberts of Conwy. The Welsh Language Act and the equal validity principle are a memoriam to the work that he did.
Lord Armstrong of Ilminster
My Lords, my knowledge of the Welsh language is even more spectacularly uncertain than that of the noble Lord, Lord Trefgarne. Is the language in Amendment 45 a precise translation of the amended version of the question?
European Union (Referendum) Bill
Lord Armstrong of Ilminster Excerpts(10 years, 11 months ago)
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Lord Armstrong of Ilminster (CB)
My Lords, I do not intend to spend time today on the intra-party or inter-party shenanigans of this Bill. I propose to underline only two points, which have already, of course, been made in this debate. There are only about three points to be made throughout the debate.
On the first point, the Prime Minister has made a clear commitment that if he returns to office after the election next year he will enter into negotiations for changes in this country’s relationship with the European Union with a view to concluding them by 2017 and in time for the outcome to be the basis for a referendum. He needs no legislative reinforcement for that commitment, although of course he will be able, if he wishes, to reiterate it in his party’s manifesto in due course. If he is returned, he will be able to use his best endeavours to fulfil his commitment whether or not the Bill is passed. He does not need to have his feet held to the fire by a law.
If he is not returned in the election, his successor will not be bound by his commitment. It is the established convention that no Parliament can bind its successor. If another Prime Minister after the 2015 election decides that a referendum is not necessary or called for, he will be entitled to invite the new Parliament to pass a new Bill—one of those mythical one-clause Bills—and guillotine it, repealing this legislation if it has been passed by this Parliament. The Prime Minister’s commitment is quite as binding as it need or can be without legislative underpinning. This Bill is unnecessary and, I might almost say, pointless.
The second point I should like to underline—it was made a few moments ago by the noble Lord, Lord Jay of Ewelme—is that the Bill is, in some respects, bad policy. Negotiations within the European Union for major changes in the constitution of the Union can take a very long time. This is particularly the case at a time when many other member countries will also be looking for changes and wide-ranging reform seems likely. It is impossible to predict either the form in which or the date by which the Union will emerge from the process of renegotiation.
It is admirable for the Prime Minister to say that he intends to achieve changes by 2017, but he cannot be sure of being able to do so in complex negotiations which will involve 27 other member countries as well as the United Kingdom. It is not likely to be conducive to constructive negotiations and he is not likely to be assisted in his negotiations if he goes into them with a time bomb in his briefcase which he says that he must detonate if he does not get the result he wants by a fixed date in 2017.
He would do better to take a leaf out of the book of Mrs Thatcher. When she wanted to get a satisfactory outcome on the British rebate, she did not threaten her partners with an “in or out” referendum if she did not get her way by a certain date. It took her five years to get an outcome which she was prepared to accept, but she stayed in there until she got what she wanted or, at least, what she was prepared to accept. There are some of us who still bear the scars received in the course of that bruising process; but it worked.
If the Prime Minister is returned to office in May 2015, he should be allowed to take whatever time it requires, even if that is more than two and a half years, to stay in there and get the result he wants or at least a result that he is prepared to commend to the Parliament and people of this country. He would no doubt try to achieve that outcome within two years—and I should wish him the best of British luck in doing so—but the issues at stake for this country, and for the European Union, are too great, too important, to be confined by this kind of deadline. It is not in the best interests of the United Kingdom for Parliament to send the Prime Minister into these negotiations with a fixed two-year deadline.
I conclude by saying that this is a funny old Bill. I am not sure whether it is a government Bill masquerading as a Private Member’s Bill, or how you should define it, but in a sense it is a one-off and a unique thing that defies the conventions. All your Lordships will accept the rule—it is not just a convention—that the will of the House of Commons should in the end prevail, but that should not, in this case, be allowed to override the duty of this House to exercise its own responsibility to revise and improve the Bill if it sees fit to do so. If the Government really feel very strongly that this Bill has to be completed in this Session and cannot wait, as the noble Lord, Lord Tomlinson, suggested, until the next one, I suggest that the Government make room in business for the proceedings that would be required to enable the Bill to complete its passage in this Session.
European Union Bill
Lord Armstrong of Ilminster Excerpts(13 years, 5 months ago)
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Baroness Falkner of Margravine
When the noble Lord’s party returns to government, we look forward to it engaging with the country in debating whether the provisions of this Bill should be repealed. We look forward to engaging with it in that debate.
Lord Armstrong of Ilminster
My Lords, I fear that some of the speakers in this debate are guilty of a terminological inexactitude. If we wait here for another hour or two, as seems quite likely, we shall find that the sun sets and there is nothing we can do about it. That was the effect of Amendment 15—the sun was going to set when there was a general election and there was nothing we could do about it. Amendment 15B is quite different. It is not a sunset at all: if it is, it is a voluntary sunset—something I have never heard of before.
The Act, as it will be, remains in force after an election and unless and until a Minister wants to amend Section 6 or Schedule 1, partially, not at all or wholly. That seems to be eminently sensible. It leaves the discretion after the election entirely in the hands of the new Minister, the new Government if there is one, and a new Parliament. It does not force anybody to do anything—it gives them the opportunity to do it. It is a much easier way of doing it than having to go through the process of repeal or partial repeal. It seems to me to be eminently sensible and flexible and I hope the House will give effect to Amendment 15B this evening.
European Union Bill
Lord Armstrong of Ilminster Excerpts(13 years, 7 months ago)
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Lord Armstrong of Ilminster
My Lords, I intervene as one who is not learned in the law, unlike most previous speakers. I put down an amendment that Clause 18 should not stand part of the Bill. The noble and learned Lord, Lord Howe, referred to that and also put his name to the amendment.
I listened to those who are learned in the law dancing on the point of a legal pin. I shall take the matter away and look at what they said, because it seems to me—as it seemed when I tabled the amendment—that the clause is, as has been said, not just unnecessarily vague but unnecessary. As has also been said, it is declaratory in effect. However, the legal position is perfectly clear from Section 2 of the European Communities Act 1972. Like the noble and learned Lord, Lord Howe, I remember vividly the discussions that led up to that section. It has been buttressed by opinions in the Court of Appeal, if not in the Supreme Court—or House of Lords as it was—and I have not been convinced that we need Clause 18 in the Bill. I share the views of the noble Lord, Lord Kerr of Kinlochard, about the undesirability of declaratory provisions that do not change anything. Therefore, I have not yet been convinced that the law is uncertain or not absolutely clear already in this matter and needs to be reinforced or redeclared by the clause.
Lord Howe of Aberavon
Perhaps the noble Lord will allow me to intervene. I ought to have been more courteous in my portrayal of our partnership in a form that he would prefer to support. The reason that I was impelled in the Scottish direction was in order to underline the importance of the 1972 Act. The noble Lord, Lord Armstrong, is right to argue that we do not need the clause. However, it can do no harm to have the overriding importance of the 1972 Act being manifest, and to remove the ambiguity of the original Clause 18 and move beyond the removal of the offending clause to underline the proposition and lay it further beyond doubt. That is why I am inclined to prefer to move in that direction. However, I do so with apologies to my erstwhile partner.
Lord Armstrong of Ilminster
My Lords, I am grateful to the noble and learned Lord, Lord Howe, for saying that. I do not feel any differently about underlining something from how I do about declaring something that is already in existence, is supported by the judiciary and is not in question. Of course, I shall read the interventions of noble Lords who have spoken previously on these matters, but I remain to be convinced that we need this clause in the Bill.
Baroness Falkner of Margravine
My Lords, I will briefly address three issues. The first is whether we need this clause in the Bill. I completely agree with the noble Lords, Lord Armstrong and Lord Kerr, and with my noble and learned friend Lord Howe that the clause is probably redundant, not only because it is declaratory but because it does do what it sets out to do. I say to the noble Lord, Lord Willoughby de Broke, that if one reads carefully the House of Commons European Scrutiny Committee report, one sees very clearly that the committee does not think much of the clause. Paragraphs 82 to 86 of the report state:
“Clause 18 does not address the competing primacies of EU and national law … evidence suggests that clause 18 is not needed … if the legislative supremacy of Parliament is under threat, it is from judicial opinions in other areas of law … Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it is included in the Bill is, in our view, exaggerated”.
That is the view of the European Scrutiny Committee.
In case the Minister convinces the House that the clause has merits that are not instantly evident to most of us, I will say a word or two about Amendment 59. We have spent hours and days in Committee trying to gain clarity where there was ambiguity in the Bill, and a level of certainty where there was obfuscation. Therefore, it is odd to see that Clause 18 is as ambiguous as it is. I have a great deal of sympathy with my noble and learned friend, Lord Mackay of Clashfern, and my noble friend Lord Lester of Herne Hill, whose amendment seeks to replace an Act of Parliament with the European Communities Act 1972. This would be a welcome move.
As regards Amendment 57, I suggest that the noble Lord, Lord Hannay of Chiswick, looks at paragraph 61 of the House of Commons European Scrutiny Committee's report, in which Professor Tomkins says that it does not deal with the primacy issue, but only with the source issue, which is not really a question of sovereignty. On careful reading, the report leaves one almost as confused as when one started, because it seems to say everything to everybody, and seems to want to placate several constituencies in one go. It is also clear when one reads the evidence in the Notes that different legal experts offered different ideological interpretations of the Bill. Therefore, I would not die in the last ditch to defend the report. However, it is interesting that it is fairly clear that the sovereignty issue is not addressed by the Bill.
In conclusion, I find it rather peculiar that paragraph 115 of the Explanatory Notes states:
“This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts”.
This is slightly curious. Perhaps the Minister will give us clarification.