European Union (Referendum) Bill

Lord Higgins Excerpts

Friday 24th January 2014 Lords Chamber

[Lord Lea of Crondall]

My Lords, I hope that the noble Lord replies to that because the noble Lord, Lord Inglewood, has given the game away. As the noble Lord, Lord Armstrong of Ilminster, said earlier, there is no point to having this date if noble Lords want to have this flexibility. I therefore add a question to the noble Lord, Lord Dobbs. In one minute it is seen as a bilateral negotiation by Britain and in the next minute it is clear, as has been said by many speakers, that it is a multilateral negotiation. It cannot be both at the same time. The first would be narrow, and I do not think it would get very far. If it is the latter, a multilateral poker game, it certainly cannot be time constrained in advance. When he replies, I ask the noble Lord, Lord Dobbs: which is it?

[Lord Higgins (Con)]

My Lords, I make a rather simple point. When we began our proceedings today, there was a widespread view that if any amendment were carried, it might endanger the future of the Bill. There was therefore a great inhibition against voting for any amendment. I do not believe that was wholly true because, as was pointed out in earlier debates, it would be possible for the other place to allow enough time for the Bill to proceed and for the amendments to be considered.

At all events, we are now in a situation where an amendment has been carried; it makes little difference whether one amendment has been carried or a number. It is therefore extremely important, if the Bill is to have a future, as I believe it should, that we make it as good as we can by carrying out our duty of amending it in a sensible way. I find it quite difficult to think of any amendment which has been proposed more sensibly that that of the noble Lord, Lord Kerr, this afternoon.

It seems to me that if we are really in favour of a genuine referendum on the substance of the issue, following a serious negotiation—which I believe is what the Prime Minister intends—then there really is a very strong case for the amendment. Therefore, whatever my noble friend on the Front Bench’s brief may originally have said, I hope that she will consider the point which I have just made and, more particularly, that my noble friend Lord Dobbs would also consider it. It seems quite clear that the Bill would be better it we accepted the amendment.

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[Lord Wigley]

My Lords, I am under the impression that, following Amendment 31, the group of amendments starting with Amendment 33 will be the next group to be dealt with, before we deal with Amendment 40. Am I mistaken in that and is it not down to the noble Lord, Lord Anderson, to move Amendment 33 at this point?

[Lord Higgins]

My Lords, I think that is correct. I think that the noble Lord, Lord Anderson, should now move Amendment 33.

[Lord Foulkes of Cumnock]

My Lords, there is a problem here. I am ready to move Amendment 40, but no explanation has been given to my noble friends Lord Anderson and Lord Wigley on why their amendments have been pre-empted. With respect, either the Chairman, the Clerk, the Government or the mover of the Motion—there is an option; all four of them—should let the noble Lords, Lord Anderson and Lord Wigley, know why their amendments have been pre-empted. If they have, I am ready to move Amendment 40. If they have not, the noble Lord, Lord Anderson, is ready to move Amendment 33.

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[Lord Wigley]

My Lords, I support the noble Lord, Lord Anderson, in what he was saying. When he spoke to the earlier bank of amendments, Amendment 28 had not been passed. He therefore had every expectation to be coming to the bank of amendments standing in his name and mine. He said specifically that he would be speaking to them in more detail. It is totally unreasonable that they should be taken out. Can we have an assurance that we can return to all these matters on Report?

[Lord Higgins]

My Lords, the point, in answer to the noble Lord, Lord Anderson, is this: he is seeking to amend a part of the Bill which no longer exists. With great respect, I do not think he can do that.

[Lord Foulkes of Cumnock]

All I said earlier, with respect, was that I was ready to move Amendment 40, but if the Whip wants to move the adjournment, I shall give way to him. I see that he is indicating dissent, so we have 35 minutes left.

Amendments 40, 41 and 47, and Amendment 49, which is in the name of my noble friend Lady Quin, are all grouped. Again to be as helpful as possible to the House, I shall deal with all of them together. Amendment 40 states:

“If the turnout for the referendum is less than 25 per cent”—

all these amendments deal with the legitimacy of the referendum—

“the referendum shall be considered invalid”.

Where one sets the percentage is open for discussion, but I should have thought that there is no doubt whatever that if the turnout is less than 25% the referendum should be invalid.

Amendment 41 is somewhat different, in that it sets a higher threshold in two ways. It states that the Secretary of State shall,

“lay before Parliament the draft of an order for the repeal of this Act”,

if two conditions are not met—if less than half the votes have been yes, or if the turnout is less than 40% of those registered to vote. A similar provision was included in the first Scottish referendum through an amendment proposed by the then Member of Parliament, George Cunningham, known as the Cunningham amendment. So there are two thresholds in order for the referendum to be successful. First, it has to get half plus one of those who vote—that is obvious—and the other is that 40% of those eligible to vote, those people on the register, would have to have voted. If the referendum does not pass both thresholds, it should not pass.

The third amendment in my name and those of the noble Lords, Lord Anderson and Lord Wigley, deals with each part of the United Kingdom, and states:

“The referendum may not result”—

in other words, it will not be legitimate or take effect—

“unless there is … a simple majority and”,

again,

“40 per cent of those registered to vote in every component part of the United Kingdom in which the count is taken separately”.

I have a later amendment that states that the count should be held separately in each of England, Wales, Scotland and Northern Ireland.

Let me put the reasoning behind those requirements in turn. The result of any referendum on Britain’s membership of the EU must, in order to maintain legitimacy, have the backing of all four nations of the United Kingdom, not just the United Kingdom as a whole. Given the momentous nature of such a referendum, I fear that national discrepancies in outlook may cast doubt on the final outcome. I therefore believe that an issue of such importance deserves the legitimacy bestowed upon it by the requirement of national electoral consensus.

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[Lord Dobbs]

My Lords, you wait for one amendment tabled by the noble Lord, Lord Foulkes, to come along and then three or four arrive at the same time. I am grateful to him. This is clearly a serious issue and the points that have been made are well taken. Personally, I cannot conceive of circumstances in which, for instance, Amendment 40, which requires a 25% turnout, would ever arise. This is far too important a decision, which I am sure the British people would acknowledge and do justice to. The noble Lord, Lord Wigley, correctly pointed out the difficulties around setting a threshold. We would all like a very clear decision in a referendum, and there are dangers in being too prescriptive about the form that that decision should take: turnouts, majorities and so forth.

There is what I think is an important safety valve in the Bill. We are not talking about a binding referendum. It is not like, for instance, the AV referendum we had recently; it is a consultative referendum. Parliament would have to deal with the consequences of an out vote. How they would deal with the difficulties and uncertainties that might then arise would depend entirely upon the circumstances of the time.

[Lord Higgins]

I am very heartened by what my noble friend has just said about this being a consultative referendum, but I am having difficulty in finding where it states that in the Bill.

[Lord Dobbs]

My Lords, I believe that the convention is that if it is not a consultative referendum, it is an obligatory referendum, as was the AV referendum. It is not necessary to put in the fact that it is consultative because it is consultative unless we say otherwise. That, I believe, is the convention.

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[Lord Foulkes of Cumnock]

Indeed. Perhaps the noble Lord was out having his tea earlier when I said precisely that in a previous speech.

The noble Lord, Lord Dobbs, has said that trust in politics and politicians is very low. Therefore, we must not allow the fact that it is a consultative referendum to remain unclear; otherwise, what he said earlier will apply a fortiori—we will be deceiving the people. The people deserve not only a say, which is their democratic right—I hope that the people’s choice organisation is listening to me—but full disclosure. I hope that we will therefore clarify the situation and put in the word “consultative”.

We have already had two amendments agreed. This would clarify things. It is a very simple thing, putting in just one word. I say to the noble Lord, Lord Dobbs, that he should not feel inhibited by the procession of Tory Whips I have seen whispering in his ear. He should have the courage to say, for once, “That is a good amendment even though it is proposed by the noble Lord, Lord Foulkes, so I will accept it”. I hope he will.

[Lord Higgins]

My Lords, I am rather heartened by the exchanges we have had in the past few minutes. I sat through the whole of the Second Reading debate. I did not take part because it seemed that everyone would say everything that needed to be said—a great many times over. Strangely enough, as far as I can recall, and I was here for almost the entire proceedings, no one raised this issue, which is the most important amendment on the Marshalled List.

Throughout my 33 years in the other place, I always told my constituents very strongly that I supported the view of Edmund Burke that Members of Parliament were representatives not delegates. I explained that, often at great length. Whether this explains why my majority over the period fell from 32,500 to less than 18,000, I am not sure. But I believe they accepted that even if I had had a machine that would tell me exactly the opinion in my constituency, I would not feel it right or necessary to take that as decisive. I strongly believed that one would take the views of one’s constituents into account every Friday evening and by correspondence and so on, but at the end of the day a Member of Parliament has to take into account all the other representations he has received, all the research he has done and so on, and make up his mind on the basis of that.

I have always been totally opposed to the idea of a referendum that was mandatory. I used to be totally opposed to referendums in all shapes or forms. I have come round slightly from that view, but I certainly maintain the view that I have just expressed. It would be appalling for us to agree with a referendum which would then impose on the House of Commons a particular decision where it had not been able to take the action that I believe is a fundamental feature of our democratic system in this country.

I very much welcome the noble Lord’s amendment. It is important that it is made clear. I equally welcome my noble friend the proposer of the Bill’s view that it is anyway covered by convention. But I entirely agree with those who have said that it needs to be in the Bill. Therefore, I hope very much that my noble friend whose Bill it is, in responding to this debate, will make it absolutely clear that he accepts this amendment, and then we will know where we stand; otherwise, there is a grave danger that there will be uncertainty about this, which will cause great confusion in the future.

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[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord, but I am sure that what my noble friend meant when he said that it was consultative was that we were consulting the people to get their opinion. When I read the Bill, it seemed quite clear to me that if there was a referendum and people decided to leave or to remain in the European Union, that would be that. If the Bill is amended to say that the referendum is consultative, that is another matter. I am sure that my noble friend Lord Dobbs would also point to the fact that at the end of the day, this will require legislation in Parliament and Parliament will have the last say—of course it will—but I find it difficult to imagine that any Parliament faced with a referendum—

[Lord Higgins]

Will the noble Lord give way?

[Lord Forsyth of Drumlean]

In a second, although actually, the noble Lord did not give way to me. I find it difficult to imagine that any Parliament faced with a referendum made on the basis that it was not consultative would not respect the will of the people. I give way to my noble friend.

[Lord Higgins]

I will give way to my noble friend at Question Time next time.

The fact is that we cannot have the matter left in the dark. My noble friend the proposer of the Bill is clear that it is intended to be a consultative referendum. That being so, I think it is right that we should state that in the Bill. It is not a good idea to leave anyone in any doubt of that. As for subsequent legislation, of course, whichever way the referendum goes, it is likely that the House of Commons and this House will have to legislate, but it is important that they do not find themselves in a position where they have no option but to go along with the decision of the referendum.

[Lord Forsyth of Drumlean]

I hesitate to disagree with my noble friend; I will sit down having done so. If I may say so, his position is ridiculous. We have spent the whole day arguing that it is necessary to have the Bill so that the people have the assurance that the promise will be carried forward. If you amend the Bill to say that it is consultative, and we will decide what to do then, you have blown up the whole thing—which may be my noble friend’s intention, I do not know. I certainly think that the Bill ought to be, as it states, an opportunity before 2017 for the British people to have a say, for their say to be implemented and for us to be freed of this wretched debate.