European Union Referendum Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 13th October 2015 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, we have had a very interesting and constructive debate.

I will just comment on the “ever closer union” issue, having first studied how the European Union treaties were negotiated as a graduate student. Originally in the treaty it was,

“ever closer union among the peoples of Europe”,

because those who had come through the war, often spending the war in London while their states were occupied, wanted to go beyond the nation state. They left the nation states out because Belgium had failed under occupation, as had France, Germany and Italy. The reinsertion of “states” into “ever closer union” was a later recognition that actually you needed to retain the nation state. It was a shift back, away from the original emotional, enthusiastic, idealistic federalism of those who came through the resistance and the war to a recognition that legitimacy depends on states as well and that there are limits as to how far one can go beyond the state. So while we are looking at the history of the evolution of all of this, that is part of this very wonderful phrase “ever closer union”, which means so many different things to so many different people. That is why it is an ideal phrase; we can interpret it in so many different ways and perhaps we should not get quite so hung up on it.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to the noble Lord. It is a very interesting theory about this development of the “ever closer union”. Why did the original draft of the Maastricht treaty, before it was amended at the request of John Major, talk about “towards a federal union”?

[Lord Wallace of Saltaire]

It is not a theory; I am actually giving the noble Lord some history. I have great admiration for him and his wonderful interventions —he is the best Commons debater in the Lords, I have to say. There were those of the original generation who really did want to build a United States of Europe and they followed the American lead in this. After the war, the Americans had wanted to press on Europe the idea that the Europeans should follow the American lead and build our own United States on their model, as the noble Lord, Lord Dobbs, has hinted. All of us resisted American pressure because we did not want to go anywhere near that degree of integration.

--- Later in debate ---

[Lord Wallace of Saltaire]

I should remind the noble Lord that, when I have given talks in Washington and elsewhere on European integration, I have often said—sometimes years ago—that, if we ever achieved a United States of Europe, I had no doubt that the policy process would work almost as well as the policy process in Washington. I hope that the noble Lord understands the point.

We have teased out of this debate what issues we have to deal with in Committee and on Report. We are now agreed that there is to be a referendum; the question is now settled; and the date is beyond Parliament’s control, except when the negotiations have been agreed and the Government come back to us. Therefore, we are left with a number of manageable issues.

On the question of purdah, clearly, if we have a long campaign, the Government have to go on negotiating with their partners in the European Union, and Ministers will have to say some things. In that area we will need to explore what the correct outcome is.

On the franchise, on which a great deal has been said, it is quite clear that the current British franchise is a mess. It is a historical, imperial legacy which means that someone who was born in Rwanda or Mozambique and moved to London last year can vote on whether we stay in the European Union. When we are in London, we stay in Wandsworth, where you hear French spoken extensively in the streets, which has been the case for 20 to 30 years. However, French people who have been working and living in London for 20 or 30 years, paying taxes here, contributing in every sense to our economy, cannot vote. There are a whole set of issues there which we need to explore in detail. This is not an ordinary vote. As has been said during this debate and elsewhere, this is a vote about the future of this country, and therefore we need to look at the franchise for this exceptional vote in exceptional ways.

The noble Lord, Lord Norton, and other noble Lords raised the question of threshold, which clearly we will have to explore a little, although it is a very difficult issue. Whatever happens at the end of it, if we have a narrow majority, either with a low or a high turnout, it will not settle the issue. However, we all know that referendums do not settle the issue. Six months after the 1975 referendum, the Labour Party was still arguing against staying in the European Union, and look at what happened in Scotland, where the referendum did not settle the future of that country.

The issue of the provision of information is extremely important and very difficult, and again we need to spend some time on it. We have to ask for a White Paper; certainly we need to look at the implications of leaving and, if possible, the prospect of staying. However, I bear hard scars from the problems of having to try to create dispassionate evidence on Britain’s relations with Europe. I spent two years in government negotiating 32 reports on the balance of competences between Britain and the European Union. Some 2,500 pieces of evidence came in; the Conservatives put that in the coalition agreement because they were convinced that this would provide the evidential basis for knowing what sort of powers we would want to repatriate from Brussels back to Britain. The overwhelming evidence submitted to the balance of competences review—from business, universities, financial and legal services—was that they think the current balance of competences is pretty good, thank you. The evidence submitted by easyJet began: easyJet would not exist if it were not for the single market in the European Union.

How did the press and No. 10 react to this? They did their best to bury the balance of competences reports in full. They were usually published at the beginning of the Christmas or the July Recess, just to make sure that the press were looking somewhere else instead. That is part of the problem in trying to get dispassionate evidence into our debate: myths float by us, undisturbed by reality.

I saw in a Church of England blog, which the right reverend Prelate the Bishop of London referred to yesterday, that a lay member of the synod of Canterbury said that one of the reasons why the BBC is so biased in favour of Europe is because it receives so much significant funding from the European Union. I look at that with amazement. That is clearly going round in some circles as part of this wonderful phantasmagoria of the EU as a monster, reaching across the Channel to seduce honest Englishmen, strangle our free institutions and reduce us to serfdom under German—and perhaps also French—domination. Therefore, we will struggle between evidence and myth as we go on through this debate.

I will remark on one of the myths, which I have heard several times in this debate: “We thought we were joining a Common Market, and no one ever told us that this was a political project”. Indeed, the Prime Minister himself, in his speech to the Conservative Party conference last week, said:

“When we joined the European Union we were told that it was about going into a common market, rather than the goal that some had for ‘ever closer union’”.

Last night, therefore, again I dug out Sir Alec Douglas -Home’s speech on 21 October 1971, on the first day of the Commons debate on the issue of principle of joining the European Economic Community. He said that,

“when Germany, France, Italy and the rest sit down to talk about their problems of security, and their attitude to world problems … it is vital that we should be in their councils. During the last year I have … been in the councils of the Ten, because they have anticipated the larger Community. Matters are talked about there which concern the defence of Europe and the defence of Britain. Matters are talked about—for example, the Middle East—which have the greatest implications for our country. It is essential that we should be in the councils when these questions are discussed, and that a decision should not be taken without us”.—[Official Report, Commons, 21/10/71; col. 922.]

I say that for all those who think that we would be better off as a sort of Switzerland with nuclear weapons, which I think is what—

[Lord Forsyth of Drumlean]

NATO.

[Lord Wallace of Saltaire]

The noble Lord intervenes on NATO. If you go to Washington now, you will discover that they think that NATO is a European organisation, and they argue very strongly that NATO and the European Union should work more closely together, because they see them as parts of the same outfit. There is not a sharp difference between the EU and NATO, and the overwhelming majority of members of NATO are also members of the EU. It is not a contradiction. The two go together; they complement each other.

The argument has also been made throughout this debate that the EU has changed beyond all recognition since 1975. That is partly because of British initiatives and efforts: Margaret Thatcher’s initiative on the single market; national deregulation and European reregulation, which of course meant different regulations as we negotiated some of them, but not an overall increase in regulation; and eastern enlargement, which Margaret Thatcher pushed for, with the unintended effect that of course when Poland came in, as she wanted it to, a large number of Poles decided that they wanted to move here, which was one of the interesting unintended consequences.

The world has also changed enormously since 1975. We are in a different global economy; the national companies that used to exist have become multinational; we have integrated production models in which every Airbus sold by the French has over 30% of British parts in it, and every car built in Britain and Germany has parts from other countries throughout Europe; and similarly, we have cross-border financial services, legal services and the like.

Britain has also changed. The noble Viscount, Lord Ridley, said, powerfully, “We want our independence back”. I would like to have back our regional economies. I spent much of my life in the north of England; in Yorkshire you used to have textile mills and building societies. He is from the north-east; we had ICI and Northern Rock. He will remember Northern Rock—it was quite a good building society in his time and did quite a lot for the regional economy. However, these things have all changed. Now Nissan keeps the north-eastern economy going, and I much regret that we no longer have regional banks. The bank that my father used to work for, Barclays, which used to do a lot of useful regional investment, has just chosen an American investment banker as its chief executive. That is rather different from the sort of national economy in which I grew up.

Therefore, we all have to adjust to a global world in which independence and sovereignty have gone. After all, sovereignty goes most easily with protection. Free trade requires international co-operation. Globalisation means global regulation, or regulation by the world’s leading economy, which so far, of course, has been the United States. If we wish to co-operate with others in managing a global economy, we should surely start by co-operating most closely with our neighbours, and if we cannot do that, we should not hold to the illusion that we would find the Chinese, the Russians, the Saudis and the Indians easier partners than the French or the Germans.

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[Baroness Anelay of St Johns]

My Lords, I always respect the views of the noble Lord, Lord Hannay. Indeed, this is the first time that a country is facing the opportunity to vote to leave the European Union, but it is my understanding, from colleagues across Europe, that they certainly viewed the referendums held there as being of great seriousness for the future of their countries.

I have been asked specific questions. The noble Baroness, Lady Miller of Chilthorne Domer, asked how many British citizens live abroad. There are a number of different estimates, but in 2013 the United Nations estimated that there were 5.2 million British-born migrants abroad, of whom 1.3 million were in other EU member states. There are, however, no figures distinguishing how many have been away for longer than 15 years. I know from visiting our embassies overseas that when British citizens travel or settle, they do not usually let the embassy know—so we do not have the opportunity to gather that information.

Noble Lords asked about removing the 15-year rule for overseas voters. We are committed to doing so; it was in our manifesto; and we are keeping the promises in our manifesto. A Bill will be brought forward, but it will be a Bill to consider the matter of franchise and not something to be rushed through in time for any particular piece of legislation in this Session.

I was also asked about an anomaly by the noble Baroness, Lady Smith of Newnham, who commented that Peers overseas can vote if they have been there for more than 15 years and others cannot. What I can say to her is that Peers are in the same position as anybody else. If they are resident overseas and have been for more than 15 years, they are subject to the same 15-year rule, just like any other British citizens resident overseas.

There was very strong debate on public information, with the noble Baroness, Lady Morgan of Ely, the noble Lords, Lord Hannay, Lord Jay, Lord Tugendhat, Lord Kerr of Kinlochard and Lord Cavendish of Furness, and many others very properly saying that it was important that the public should be able to make their decision based on reliable information. It is difficult to know how individuals determine what they believe to be reliable information, but that is something we will have to consider. I listened very carefully indeed to every noble Lord who made points about the publication of material, whether it was by government, whether it was government to commission work from the OBR, whether it was government to provide some statistics that would be in some way scientific and independent, or whether it was a White Paper. I would like to consider further exactly what that material might look like and what kind of information could be produced that is proper and helpful, and noble Lords have a strong role to play in those discussions.

Clearly, there is a role for the Government in all that. The noble Lord, Lord Forsyth, proposed that there should be a White Paper on the matter of leaving the European Union. Whatever information is produced by the Government should also say very strongly what the implications are of staying in the European Union, because it is a matter of inviting people to make a decision between remaining and leaving. Therefore, the Government’s duty is to look at both those matters.

The Bill is all about putting the question to the British people. It does not make provision about what happens next. I was asked whether the result would be legally binding. Clearly, at the moment, it is not sensible for us to guess about the best way to implement the result, but, as the noble Lord, Lord Hannay, said, this would be the first time that a member state had had the opportunity to vote to leave. If we got to the position where the country decided that it wished to leave, we would then get into the newer territory of working through those procedures.

Perhaps I may deal first with whether the result would be legally binding. I was asked by the right reverend Prelate the Bishop of London whether the Government would respect the result of the referendum. The Prime Minister has made it clear that we will respect the result of the referendum even though it is not legally binding. In March 2010, the Constitution Committee of this House considered referendums in the UK and concluded that, because of the sovereignty of Parliament, they could not be truly legally binding—my noble friend Lord Norton of Louth was on the Constitution Committee, so I know that he will appreciate the details of that.

With regard to the process of leaving, I was asked about the Article 50 process by the noble Baroness, Lady Smith of Newnham, I believe. She nods her assent. The Prime Minister, of course, is focused on success, as I mentioned earlier, so we are not going to speculate on might what might happen if there is a vote to leave the European Union. In general terms, and I have certainly had advice on this before from my noble friend Lord Bowness, Article 50 provides a mechanism for states to withdraw from the EU. Once a member state has notified the European Council of its intention to withdraw, it would have to negotiate its future relationship with the EU. This is agreed by a qualified majority of the member states, with the consent of the European Parliament. Article 50 gives a limit of two years for these negotiations, which can be extended with unanimous agreement before the treaties cease to apply.

While I am dealing with individual questions, I will refer to one from the noble Baroness, Lady Royall, who asked about the implications of the lobbying Act. The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act does not prevent companies setting out their views on EU membership. That Act amended the rules for third parties campaigning in elections; it did not amend the rules for campaigning in referendums. The Bill applies Part 7 of the Political Parties, Elections and Referendums Act, which sets out the rules for campaigning at referendums. These rules do not prevent companies making their views known to workforces and customers.

On campaigning itself, the campaign rules were considered in another place. It has been such a long time since PPERA was passed in 2000 that the House of Commons agreed to uprate the spending figures in line with inflation. Fact sheets are available with information on that. Noble Lords rightly concentrated their fire on the whole issue of Section 125 of the Political Parties, Elections and Referendums Act. This concerns restrictions placed on publicly funded bodies and individuals on publishing certain material in relation to the referendum in the final 28 days of the campaign. The restrictions of this section will apply in full following an amendment made on Report in the other place. The power to which noble Lords referred to set out in regulations any exemptions to those rules was also added to the Bill at the same stage. Clause 6, which stands in the Bill before us, was passed without vote in the other place. There was no dissent. It is only proper that any regulations made using this clause will be subject to the affirmative procedure in both Houses.

To my noble friend Lord Lamont and the noble Lord, Lord Kerr of Kinlochard, I can say that Section 125 places a restriction on publishing material that deals with,

“any of the issues raised by”,

the referendum question. Publication means to make something available to,

“any section of the public, in whatever form”.

We are now taking stock, as I mentioned earlier, reviewing the implications of living with Section 125 in full and determining whether that is possible or whether we will need to use the power to make regulations.

[Lord Forsyth of Drumlean]

My Lords—

[Baroness Anelay of St Johns]

I was about to come to my noble friend’s questions.

I now come to the questions posed by my noble friends Lord Forsyth and Lord Ridley. I was asked about the Government’s commitment to four months’ notice of a campaign that would last for 10 weeks. It was suggested that this should be in the Bill. The four months’ notice applies only when regulations are made under Clause 6. There must then be at least four months between the making of these regulations and the referendum date. We believe it would be wrong to set the referendum period now, while the date of the referendum is itself undecided. Paragraph 1 of Schedule 1 to the Bill provides a power for Ministers to set the referendum period in regulations subject to the affirmative procedure. However, the Government have indicated that we do not intend to set a referendum period any shorter than the 10 weeks provided for in the PPERA.

My noble friend Lord Forsyth said that he believed Section 125 does not apply to Scottish Ministers and the Scottish Government. Section 125 applies to,

“any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority”.

So, yes, it does indeed apply to the Scottish Government. The activities of the Scottish Government are funded entirely from the Scottish Consolidated Fund.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend for that helpful piece of information. Can she just tell me how long it will take her to take stock? I am trying to be helpful but there is a degree of suspicion that perhaps the Government might be tempted to water down the position on purdah. I really do not understand why the Government cannot take stock and produce regulations while we are considering the Bill, so that the House has an opportunity to discuss it. What exactly is the problem? Is it the shortage of manpower in the Foreign Office? What is the difficulty that prevents the Government saying what these regulations should be?

[Baroness Anelay of St Johns]

My Lords, if it were an easy matter we would have resolved it by now. It is a matter whereby, to ensure that we properly bring forward regulations—if we do at all—before this House, we take full legal advice and take into account all the ramifications of government business. On the position of Members of another place and ourselves, if we are speaking outside parliamentary privilege and all related matters, this is not a matter to be resolved in a way that this House would find unsatisfactory. We are taking care. The debate today and further debates will feed into those decisions. That is the important matter. Noble Lords have that voice, and I know I will listen to it.

My noble friend Lord Ridley referred to John Penrose giving a commitment to a 16-week referendum period which should be on the face of the Bill. All I would say is that my honourable friend John Penrose made it clear that we do not intend to set a referendum period any shorter than the 10 weeks provided for by PPERA and the 16-week—or four-month—period is already in the Bill. If my noble friend has a moment later to look at Clause 6(6), he will see that the provision is there. I have been rescued—I have been giving away too many copies of my Bill; clearly it is too popular a document. Subsection (6) states:

“Any regulations under subsection (2) must be made not less than four months before the date of the referendum”.

I am very grateful for the care, attention and energy displayed by noble Lords today. It is a privilege to stand here and bring forward this Bill for your Lordships’ attention. What we are doing is so important, as many noble Lords have said. It is a chance in a lifetime to give the British people their say on whether the United Kingdom remains a member of the European Union or leaves it. I look forward to the vigorous debates to come. I believe that today we have set this Bill on the road to giving the British people the chance to make their decision. I commend the Bill to the House.