European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Lamont of Lerwick Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Mandelson (Lab)]

My Lords, I support what the Prime Minister negotiated in Brussels, and I hope that others on both sides of this House will do so. However we got to this point, we have to realise that it is a national fight that we have on our hands now, not a party one, and for the country’s sake we have all of us got to make sure that the right side wins. We simply cannot allow British business and their employees to take such a hit for the sake of the political aims and whims of those who simply cannot understand the difference between taking back control of our country and the modern means of exercising influence in the 21st century—those who simply cannot understand how, yes, you can diminish your sovereignty when you enter a transnational treaty or institution, but then you get back in return a real increase in your power to affect public policy, big events and important challenges, which all of us face in our neighbourhood.

Noble Lords should be under no illusion that the coming referendum presents us with a profound moment in the life of our country—and once the die is cast, there will be no turning back. We cannot leave the European Union and for economic and trade purposes be treated as if we are still in it; that is the unescapable fact that we are facing. Let us be clear about what that means. Unless we want to become a bigger version of Norway, accepting all the laws and rules of the single market without having any say over them whatever—and, by the way, paying quite a healthy sum into the EU budget for the privilege of doing so—or if we want to become some variation of Switzerland, which by the way has no passporting rights for its financial services into the European Union, leaving would mean no more unhindered or unfettered access to Europe’s single market by Britain, our businesses or exporters. It would mean continuing to accept European norms and standards as a condition for the market access that we are granted, and it would mean that once the divorce is promulgated, after the two-year Article 50 process, we would face a return to paying EU tariffs while whatever deal was finally negotiated and struck between us. That means that we would pay EU tariffs on our exports and imports, which means higher prices in our shops.

[Lord Lamont of Lerwick (Con)]

My Lords—

[Lord Mandelson]

If the noble Lord does not mind, I shall continue. It would mean losing the EU’s preferential trading benefits in foreign markets until such time—and it would be a long time—before we were able to renegotiate them back. It would also potentially mean having to raise our own tariffs on imports for those markets, as they would no longer be covered by WTO-compliant agreements.

[Lord Lamont of Lerwick]

My Lords—

[Lord Mandelson]

Is this my time or the noble Lord’s time that he is eating in to?

[Lord Lamont of Lerwick]

I am most grateful to the noble Lord for giving way, somewhat reluctantly. He has talked about access to the internal market and the additional costs, as he sees it. If this is so catastrophic, will he explain how it is that in the invisible trade in goods since 2011, the United States, without being part of the single market, has managed to sell considerably more than we have to that market? Even in terms of services, the United States sells more than $200 billion worth a year.

[Lord Mandelson]

I am sorry—I am not just talking about invisible services. I am talking about British exports and British jobs and what we would pay in addition to get our goods, and all we contribute to supply chains and value chains, into the single market.

I am not going to dwell further on the trade implications of leaving, except to say that anyone who thinks that, freed from the so-called protectionist shackles of Brussels, we could somehow beetle around the world bagging major new free trade agreements like low-hanging fruit needs a reality check. This is not the 1970s, which is when Britain last attempted to negotiate an international free trade agreement. We have no people. We have no negotiating capacity left in Whitehall. We would have to rebuild it from scratch before we began that process. More to the point, there are not the countries queuing up to negotiate with countries like us. We are a mid-sized, mature, already open, advanced, western economy. Others are seeking trade agreements either with large blocks of countries or with larger, younger, faster-growing, relatively closed economies with a lot more to bargain into a negotiation than we have to offer. That is the reality of international trade, and we have to grasp it.

I shall finish by going back to my original point about what the Prime Minister negotiated in Brussels. This package is not everything, but nor is it nothing. In particular, the renegotiation in the package reassures those members of the public with doubts—people with genuinely sceptical minds—that they can support UK membership again by making it clear that the EU’s talk of ever-closer union is not a catch-all provision driving continuous political integration, by removing the right of EU nationals to unconditional and immediate welfare benefits and by giving appropriate protection to our economy from the operation of Europe’s single currency, which we should not join and from which our businesses should not suffer any discrimination as a result of our being outside it.

This is not the end of reform in Europe. It is a start. Reform is a process; it is not an event. This package is, in effect, a bridge. It is a bridge that people with genuine doubts can walk back across in order to support the European Union in good faith, and I hope they will do so on 23 June.

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[Lord Lamont of Lerwick]

My Lords, I am delighted to follow the noble Lord, Lord Kerr. We worked together extremely closely in Brussels. He was never my Private Secretary, and I think I am a bit relieved that he was not. We were on the same side—at least I think we were, most of the time. I always used to rely on the noble Lord, Lord Kerr, to tell me what the mind-set was of those against whom I was negotiating and he had very good judgment. However, I was rather surprised today when he whispered in my ear, “I am very pleased you haven’t made up your mind about whether we should remain in the European Union”.

He had a bit of a point in that I have found this quite a difficult decision. Some people may not believe that, but it is a very momentous decision. It is a great change in British policy over 40 years and, of course, it is an extremely difficult decision to be in argument with colleagues and close friends.

I have never before argued that we should leave the European Union. I have been accused of arguing that. I know that one should never refer to one’s own speeches, but in 1994 I made a speech in which I was accused of advocating withdrawal. What I actually said in 1994—and it caused a bit of a storm at the time—was that the EU was becoming such a political union that the time would come when we would have to choose between being part of that political union or going on our own way. I think that was, probably quite by chance, what happened subsequently. Europe integrated more and more and had a different vision of its future from what we had.

Taking a longer view of our relationship with Europe; it has never been a comfortable one. It has been awkward all along. We had to get out of Schengen; it was not comfortable for us. We had to get out of the single currency; it did not fit our ambitions for Europe. Our great contribution to Europe was supposed to be the single market and the acceptance of qualified majority voting. Well, yes, up to a point, although there has been an awful lot of argument over whether Lady Thatcher would have been in favour of remaining in the EU or coming out. The one thing I do know about Mrs Thatcher is that she bitterly regretted the introduction of qualified majority voting. She felt she was misled and that it was a great step in the wrong direction.

Some people think we have not been constructive enough in our attitude to Europe. I know Tony Blair would not object to my revealing a private conversation. I remember having a conversation with him on a train going to Darlington. We were discussing his approach to Europe. He said, “The answer to Europe is to be constructive. Get in there, be positive, agree with them and they will all come round to our way of thinking”. I am afraid I said to him, “I have seen that movie several times and it always had the same ending”. It did not work for Tony Blair either.

We have heard today arguments about the pooling of sovereignty—there is nothing at stake, it is just the pooling of sovereignty and this is very similar to NATO. NATO is a military alliance, which is quite different from transferring law-making powers to a body whose law is superior to your own domestic law. Not for nothing did Elmar Brok, a leading member of the European Parliament and a close ally of Mrs Merkel, describe the European Union as “a state under construction”.

I think many people have become disillusioned in Britain because of the sleight of hand with which that objective has been concealed; the way in which the constitutional treaty became the treaty of Lisbon; the way in which countries have been asked to vote several times when they voted the wrong way in referenda. It is for all those reasons that disillusionment has set in in Britain. Many people such as myself believe that it would be far better to have a relationship based on economics alone.

Many people have argued in this debate that for us to sell to the single market of Europe we have to be part of it. I put it to the noble Lord, Lord Mandelson—I agree I did not put it very well or clearly but I think it is an important point—that the United States has Europe as its main trading partner. Since 2011, the United States has sold more in goods than the UK has. It is not a member and it does not have any say in the rules, but it does not find that a huge obstacle. Services are also extremely important, because people say the future is services. They say that the British economy is strong in services and indeed it is, but the United States exported to the European Union over $200 billion worth of services whereas the United Kingdom only exported less than £100 million of services. That, I suggest, makes a very strong dent in the argument. The noble Baroness, Lady Smith of Basildon, can deal with that in her reply. She did not reply very well before, but we will listen to her when she replies to that argument.

My noble friends Lady Byford and Lord Tugendhat asked the question that is asked all the time. They say that we who are sympathetic to departure from the EU never spell out the exact terms on which we would have a trade relationship with Europe. I am not sure exactly what detail they want us to go into. Obviously nobody can say what the tariff on this or that, on shoes or clothes, will be. The question ought to be: is there a deal available or is there not? Is there a negotiated free trade deal available or not? My noble friend Lord Howard quoted what Jacques Delors said—that the British are probably interested only in an economic relationship with the European Union and, therefore, if they wish to leave, we should give them an economic relationship and a free trade area.

[Lord Kerr of Kinlochard]

I must counter the noble Lord. I think that the quotation by the noble Lord, Lord Howard, was completely accurate. What Delors said was that you can have an EEA, which is what the Norwegians have, or you can have a free trade agreement, which is what a lot of countries round the world have, but you cannot have access to the single market.

[Lord Lamont of Lerwick]

That was not what Delors said at all. I am sure that my noble friend Lord Howard will not mind me revealing that he took the quotation from material that I supplied to him. That was not remotely what Delors said. I further inform the noble Lord, Lord Kerr, if I may, that Jacques Delors said it several years ago, and, much more recently, Mr Schauble, the German Finance Minister, and, I believe, the Economic Minister of Germany, both stated that a free trade agreement with Britain would be not just desirable but, from a German point of view, necessary. That is a very important point. However, my noble friend Lord Garel-Jones poured cold water on the argument that it matters enormously to the people in Europe to have an agreement. It matters to them as much as it matters to us. It is not a question of surpluses or deficits; the German manufacturers want to know exactly on what terms they could sell into the UK market just as we would need to know on what terms we could sell into the German market. It is a question of mutual need.

[Lord Ashdown of Norton-sub-Hamdon]

My Lords—

[Lord Garel-Jones]

My Lords—

[Lord Lamont of Lerwick]

I am happy to give way, but I have already taken eight minutes. I will let the House judge who should intervene.

[Lord Ashdown of Norton-sub-Hamdon]

I am so grateful to the noble Lord, and I am sorry if I test the patience of the House. Of course it is the case that the deal will be available; the question is at what price and for how long. Of course it is the case that some countries in Europe would want that deal, and Germany is one of them, for the reasons that the noble Lord has very appropriately expressed. However, the point is that that deal has to be agreed by all 27, and that is where the difficulty is going to come. The difficulty will be not be with Germany, which has an interest, but with the many others that do not. I am sure that the noble Lord understands that.

[Lord Lamont of Lerwick]

I understand what the noble Lord is saying but I do not accept that other countries are necessarily going to object. If Germany, the most important country in Europe, finds it overwhelmingly in its interest to have a trade deal with Britain, and has declared well in advance of this happening or being a possibility that it thinks it would be necessary and desirable, then I think we can assume that many other countries in Europe would follow. What I did not understand was the point made by my noble friend Lord Garel-Jones that somehow people would be less willing to have a trade agreement because we had shown contempt for the European Union by deciding to withdraw. Surely if a country makes a democratic decision simply that it does not want to be part of a political agreement with another group of countries, that is not a cause for anger or resentment; that would be completely against the ideals that the European Union is meant to stand for.

I have spoken too long. I believe that there are important areas where we have lost control of our own affairs in the development of the political union in Europe. It is quite true that the Prime Minister has achieved some worthwhile and notable concessions.

I believe that he has achieved as much as any person could have achieved, but that will still leave us open to the need that always exists in the political bodies of Europe—the European Parliament and the European Court of Justice—to have another leap forward. Just look how they undermined our opt-out from the charter of fundamental rights that Tony Blair thought he had achieved.

It is wrong to say that there is a status quo option on the ballot paper in the referendum. There is no status quo. Europe will continue to develop and integrate. When people cast their votes they must think not just of the present but of what Europe and Britain will look like in 40 years. That is the question.

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Lamont of Lerwick Excerpts

Monday 17th November 2014 Lords Chamber

I repeat that I am genuinely grateful to the Minister for his attempt to deal with these issues and present them to the House, and for his genuine willingness in other contexts to engage with the European Committee and the House. However, I would say, with great respect, that the department to which he belongs needs to wake up to its responsibilities, to take parliamentary scrutiny and accountability seriously and, if I may say so, to start making the case for the United Kingdom’s continuing engagement with the European Union. I have said my piece and look forward to the debate. I beg to move.

[Lord Lamont of Lerwick (Con)]

My Lords, I am grateful to the noble Lord, Lord Bates, for introducing this Motion, albeit that he did so at a somewhat galloping pace, which is perhaps not surprising after the marathon that he has already performed today. I agree with the criticisms of the procedures made by the noble Lord, Lord Boswell, although, unlike him, I have some wider reservations about the whole 35 measures that the Government propose to opt into.

The noble Lord, Lord Boswell, talked about the procedure in this House and in the Commons. Of course, a very important point in the other place was that a specific vote was promised on the issue of the arrest warrant. That is an extremely important point. In November 2013 the House of Commons European Security Committee concluded that the vote on opting back in,

“should ensure there is a genuine opportunity for the House to determine the measures the Government intends to rejoin. To consider the 35 measures as a ‘block opt-in’, subject to one motion, would be seriously to misconceive the individual significance of some of the measures … We ask the Government to reflect this by … tabling separate motions for each of the measures in which it wishes to opt back in”.

That was in paragraphs 571 to 574 of the report.

It was a great pity that there was not a specific debate on the arrest warrant as it was impossible for Members of the House of Commons to talk about individual cases as they affected individuals. When one Member of Parliament, Mr Wiggin, attempted to do that, to give an illustration of what this meant for one of his constituents, he was told by the Speaker that he could not go on describing that and that it was out of order.

My second important point is that the European Scrutiny Committee in the House of Commons concluded that the opt-out, combined with the Government’s proposals for opting back into certain laws, represented no significant repatriation of powers from the EU. Indeed, the Home Affairs Committee thought that it could result in a net flow of powers to the EU, given the introduction of full European Court of Justice jurisdiction. This is because of the relative impact of the laws the Government wish to back into, measured against the lesser importance of many of the other measures under the opt-out.

Another important question is whether we have legally binding agreements, treaties or co-operation. In their command paper of July 2013, the Government said that, in some cases, there was no need for legally binding agreements for practical co-operation to take place with other EU countries to tackle cross-border crime. In the case of some of the 35 EU laws which the Government propose to opt back into, the need for binding law is highly questionable. For example, do we really need to have supranational measures to deal with the exchange of information between member states to police international football matches? The Government also said that, where a binding agreement is needed, an alternative to opting back into EU legislation—which is irreversible and entails full ECJ jurisdiction—is a bilateral treaty between the UK and the EU as a whole. This could apply to extradition.

A fundamental problem with opting back into these EU laws with full ECJ jurisdiction was expressed by the Government in 2012 in response to the European Committee of this House. They stated:

“The practical effect of the ECJ gaining full jurisdiction in this area after the transitional period from 1 December 2014 is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective”.

Those are not my words but the words of the Government, and we should take them extremely seriously.

Instead of opting back into the legislation, an alternative would be a new bilateral treaty on the matters in question. This would have the following advantages. The UK would negotiate as a sovereign state regarding the relevant matters. A UK-EU bilateral treaty would enable the UK to avoid coming under the jurisdiction of the ECJ; we could apply different rules and safeguards for British citizens. It would also allow us to withdraw from it if it began operating against the national interest; it would not be frozen in aspic for ever.

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way. He has quoted extensively from the committees in another place and from evidence given by Ministers but he has not seen fit to refer once to the two reports made to this House. Could he come on to those, because they answer every single point he has made?

[Lord Lamont of Lerwick]

The noble Lord can, I am sure, speak and answer my points. I have not yet finished my speech: I have quite a few more points to make. I know that the committee in this place went in a completely different direction from those in the House of Commons. I confess that I found those in the House of Commons more persuasive than the committee in this House. However, it is, as always, open to the noble Lord to speak and I am sure he will do so as persuasively and charmingly tonight as he always does.

Pursuing the point about a bilateral treaty between ourselves and the EU, there is a precedent for this. Denmark has its own opt-out on justice and home affairs and concluded three treaties with the EC prior to the Lisbon treaty. The point is often made that the three EU-Denmark treaties under the provision are subject to the ECJ. That is true, but it does not follow that a UK-EU agreement would have to be: it depends entirely on what we say. It depends what the Government negotiate. A UK-EU treaty could provide an alternative dispute mechanism as the EU has some treaties with various other countries. Of course, I accept that a treaty would take time, but the EU treaty—specifically Article 10(4) of the Protocol on Transitional Provisions—allows the Council on a proposal from the Commission to agree to transitional arrangements in the light of the opt-out. The UK could ask for the relevant pieces of the EU legislation, such as the arrest warrant, to continue to apply for a period of time that allowed for the conclusion of a replacement bilateral treaty. That would not entail opting back in—which is, as I say, irreversible.

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[Lord Faulks]

It is necessary, I would suggest to the House—and I am about to move on to the European arrest warrant—for those who may not have had the opportunity to read the debate to appreciate what went on. Those who have read it will form their own view as to how helpful it was.

Considerable anxieties have understandably been felt in the past about the European arrest warrant and about particular cases. There is insufficient time, as the House will understand, for me to go into the details of those, but what is important is the fact that the European arrest warrant now has additional safeguards. In one of the more useful contributions to the debate in the other place, the right honourable James Arbuthnot pointed out that there is considerable judicial oversight of the European arrest warrant. Following the changes in the law made by the Anti-social Behaviour, Crime and Policing Act, a British judge must now consider whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. A British judge must also consider whether measures less coercive than extradition are available to foreign authorities.

As to dual criminality, the European arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. Furthermore, a decision to charge and try an individual can be questioned by use of video link without the suspect having to leave the United Kingdom. These are all important safeguards which should mitigate some of the anxieties that have been expressed about the unsatisfactory nature of foreign jurisdictions. A large number of people who are not necessarily enthusiasts for the European project have been persuaded that it would be a great mistake to lose the European arrest warrant. I respectfully agree with the noble Baroness, Lady Smith, that this is a correct decision.

My noble friend Lord Lamont asked whether it was possible for us to come to a separate, bilateral treaty with other European Union countries—after all, we have extradition agreements with other countries. There is of course the considerable problem of timing, as the House will be aware. Denmark negotiated a separate deal. The deal struck through Protocol 36 means that the United Kingdom has to follow the rules set out. Denmark has its own protocol so could make its own arrangements, but they are not the arrangements that we would want to copy. Every agreement that Denmark has made separately with the EU has required it to submit to the jurisdiction of the European Court of Justice and, in effect, the Danish agreement simply binds Denmark to EU law by another means—which I suspect is not what most who are interested would have in mind. Of course it would be possible, but it would be cumbersome and it would probably be expensive to make such separate agreements. Far more sensible is to have the now tried and improved system of the European arrest warrant that we have.

[Lord Lamont of Lerwick]

My noble friend did not address the point that I raised in respect of the Government’s safeguard, so called, that extradition should not take place until a decision has been made by a foreign court to prosecute and to try—I drew a distinction between a decision to prosecute and a decision to try. I referred to the numerous delays that took place in the case of Mr Symeou. That was why I suggested that the safeguard was not really a safeguard. My noble friend has not addressed that point.

[Lord Faulks]

We consider that the safeguard should be capable of answering that particular problem. The important issue is whether there is an unnecessary delay. It will be appropriate to look at the particular facts of the case and for the judge responding to the warrant to decide whether he or she is satisfied about the arrangements. That, I suggest, is an answer, and unfortunate cases such as that of Andrew Symeou, which I accept was an egregious example of the European arrest warrant not working satisfactorily, should be avoided.

Parliamentary Voting System and Constituencies Bill

Lord Lamont of Lerwick Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord Lipsey]

My Lords, I rise briefly to ask a further question to which I hope the Minister will address himself. The clause provides protection against something in a newspaper, other than an advertisement of course, or in a periodical or in the broadcasting media specified, being regarded as election expenses, but it does not say anything about expenses incurred via the internet. Does the protection extend to that medium?

[Lord Lamont of Lerwick]

The question about the internet is very important. Following on from the noble Lord’s point, can the Minister comment on information about the referendum that may be made available by the Electoral Commission on the internet? The Electoral Commission is entitled to issue neutral educational material concerning the referendum question but, in practice, I think that it is extremely difficult to be absolutely sure of the neutrality of any such material in such a presentation. The materials put out by the authorities in the New Zealand referendum led to considerable controversy, as there was an argument that, in listing the pros and cons, they were not impartial. I do not want to go on about this but I should be grateful for the Minister’s comments because the point about the internet and the Electoral Commission is very important.

[Lord Maxton]

My Lords, this is the first time that I have spoken in these debates. On the day on which we celebrate the fifth anniversary of the launch of YouTube, I think it is right that we raise the whole question of the internet and particularly that “channel”, although that is not the right word. Anyone could place a video on YouTube expressing their views in the hope that many people would watch it, and that could change the nature of the way in which we voted if there were not some way of controlling it. To be honest, it is extremely difficult to control what goes on YouTube but there certainly has to be something in the legislation that at least tries to do so.

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[Lord Lamont of Lerwick]

Will the Minister comment, at least for my benefit, on one aspect of what the noble and learned Lord, Lord Falconer, said? How will the Electoral Commission distinguish between the designated lead organisation and other organisations and decide whether they are truly independent of it? My noble and learned friend Lord Mackay was quite right to remind us that the rules in the PPERA were set down for referenda. None the less, all sorts of problems come with these rules. That is the point that some people on the other side were genuinely making, and that I was making when I intervened earlier. In many ways, these rules are inappropriate.

I am particularly worried about how you identify the designated lead organisation. The very fact that there is a body in this country that actually decides that there is a permitted lead organisation in a campaign makes me quite nervous. It gets rather close to the situation recently when the United States Supreme Court overthrew many of the rules relating to campaign contributions because they were interfering with the freedom of individual citizens to spend their money and support causes they wanted. I can hardly remember what I said a decade ago, despite the noble and learned Lord, Lord Falconer, reminding me, but one of the points that I raised then was the interference, as I saw it, in certain basic freedoms: that a government organisation will decide who the lead organisation is, and that other organisations will be subject to this or that control.

These rules, frankly, made me very uneasy at the time, and I remain uneasy. Will my noble friend tell me how he envisages that the Electoral Commission will distinguish between expenditure of the lead organisation and whether another organisation is genuinely independent or not? Some of these organisations are very interconnected.

[Lord Rennard]

On a point of clarification, does the noble Lord accept that the Electoral Commission is absolutely not a government organisation, that it is independent from government and can therefore do something that perhaps a Government cannot do?

[Lord Lamont of Lerwick]

Of course it is independent. That is how it was set up. I intervened earlier with a comment about the Electoral Commission that I was rather nervous about making, and I hesitated to make the comments directly; in some of the evidence presented to the Constitution Committee by at least one academic, the independence of the Electoral Commission on this issue of electoral reform was brought up. I am not saying I agree with that, but it was brought up—it was mentioned in a submission to the Constitution Committee by a well respected academic. When bodies exist on a permanent basis, such as the Electoral Reform Society, what constitutes routine non-campaign expenditure for them and what has to count as an item of spending in the campaign? At what point does academic and educational activity become a form of campaigning covered by the PPERA? I am afraid that these rules are full of holes and really quite impractical.

[Lord McNally]

My Lords, on the question of how these rules are applied, I suspect that the noble Lord, Lord Lamont, and I have a philosophical difference. As I said earlier, I supported the 2000 legislation and the setting up of the Electoral Commission. I am not in favour of the untrammelled process of elections. You need rules and checks and balances if you are going to offer a level playing field in these matters. Much of what was done during the period of the previous Government was worthy of support in making our electoral systems fairer and more transparent in funding and process. What is clear about the process is that much of what is in the Bill, although it is a fairly thick Bill to look at, and certainly what is in this clause, rests on tried legislation that is already in place.

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[Lord Snape]

Whether the noble Lord, Lord Lamont, is tempted to do so or not, I come to the assistance of the noble Lord, Lord McNally, on this matter. All three major parties have had difficulties over the years with donations. I am not talking about the trade unions, on which there was a rather irrelevant intervention. I do not know where the noble Lord who mentioned them has been for the past 30 years. Various pieces of legislation—still in force—were passed by Conservative Governments to stop trade unions passing any money on to any political party without the permission of the party membership, which is not something that applies anywhere else.

To return to the amendment, all the parties have had these problems, including the Liberal party. After all, their biggest donor at the last election subsequently went to prison. I do not make that point in any political sense; I know the Liberal party had no idea that the donation came from someone who turned out to be fraudster. The noble and learned Lord, Lord Mackay of Clashfern, said that legislation already exists to take care of political donations and it will do so as far as the referendum is concerned. However, I have just illustrated the weakness of that legislation. The reason for legislation being toughened up over the years is that it is apparent that people evade it. If I might speak for the noble Lord, Lord Lamont, his point—and one made in interventions by my noble friends—is that the present legislation is palpably inadequate and we should all concede that. If we are to have this referendum, particularly on the same day as other elections, that legislation ought at least to be looked at. I hope that is helpful to the noble Lord, Lord McNally. I am not sure what is on that piece of paper, which he looked at carefully, other than perhaps, “Maybe we don’t agree with you either and you’re on your own”.

[Lord Lamont of Lerwick]

I apologise for intervening before my noble friend speaks; I do not want to encourage anything that would prolong this debate. However, he says that the laws governing referendums have worked very well and have been in existence for 10 years. Yes, they have been in existence for 10 years but, as the noble Lord, Lord Rennard, pointed out, there has been only one referendum—a very local referendum about whether there should be a north-east assembly. I do not know what the expenditure on that referendum was but I dare say that an upper cap of £5 million was not a great problem. When the Minister says that it is tried and tested, it absolutely is not. It was tried in the north-east and that is all.

There is the problem, which the noble and learned Lord, Lord Falconer, reminded me that I raised a decade ago and which I have alighted on again, of groups splitting up. How do you ensure that a so-called independent group is not related to the designated group? This is a real problem. As the Minister pointed out, my worry is not about rich people intervening. I always remember that it was the millionaire Engels who subsidised Karl Marx. I am surprised that the other side of the House is not more in favour of rich people. My fear is just that these limits will be completely meaningless because so many organisations will claim that they are independent. I do not wish to name the different organisations that favour changing the voting system but there are a lot of them.

I asked the Minister how you distinguish between the money that those organisations spend day by day now, before the campaign begins, and the money that they will spend during the campaign. What will be defined as a campaign contribution? The Minister can say that we have legislation to cover this but it has not been tried on any significant scale. If he cannot give some guidance today, perhaps he could answer these questions on another day of the Committee or at a different stage of the Bill. They are genuinely of concern, or they certainly are to me.

[Lord McNally]

I am sure they are of concern. How we govern referendums and finance political parties will rightly be of continuing interest to this Parliament, the political parties and the political process. We are confident that this legislation and the powers of the Electoral Commission are strong enough to ensure that this referendum is carried out fairly and transparently. Many of the concerns that have been raised will be tested. I have already said that, as with other referendums, we will learn from experience.

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[Lord McNally]

No, the Government do not intend to produce a leaflet. No, the Government do not intend to rig the referendum.

[Lord Lamont of Lerwick]

Does the Electoral Commission intend to produce a leaflet or anything on the internet?

[Lord McNally]

I think that the Electoral Commission will publish some guidance on the conduct of the referendum, but it certainly will not make any judgment on the question to be put before the people. The one thing that I do remember about the 1975 referendum is that it gave a resounding 2:1 yes vote.

[Lord Rooker]

According to the Bill, the Electoral Commission is going to produce a leaflet explaining the AV system; it will go through every front door in the country. We would like to see a draft of that leaflet, because that is where the value judgments come in. How will it explain this rigged, dishonest AV system, which is so open to abuse? As I have said, I will be forced to vote for first past the post if that is the alternative.

[Lord Lamont of Lerwick]

I referred earlier to New Zealand, where an official leaflet explaining the system was provided. Afterwards, there was a great argument about whether it had been impartial.

[Lord Deben]

If there is to be a leaflet from the Electoral Commission—I find that idea difficult, because the Electoral Commission will have an attitude that comes through—will it give a full and detailed explanation of why AV has not always worked and will there be an explanation of why the first past the post system is on occasion thought to be better? That is the only way in which there can be an unbiased leaflet. If it merely explains AV, it will lead people to believe that the system is sensible, when it manifestly is not, because the leaflet will have the Electoral Commission’s name on it and will therefore be taken more seriously than it would be if it did not. It seems wholly unacceptable that the Electoral Commission should interfere in something that is none of its own business.

[Lord McNally]

I think that the opponents of the yes vote are already getting their excuses in. The leaflet will help people to make a decision and factually explain both systems. I am not sure that the outcome of the 1975 referendum owed itself to a government leaflet in the way that the noble Lord, Lord Gilbert, suggested.

[Lord Lamont of Lerwick]

But does the Minister remember that the leaflet that was published had a map of the United Kingdom on the front that left Orkney and Shetland off, which were the only areas to vote against continuing our membership of the EEC?

[Lord Rennard]

My Lords, could I invite the Minister and other noble Lords to confine their arguments more to Amendment 39B, which deals with civil sanctions, and perhaps make other arguments when we are dealing with other relevant parts of the Bill?

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[Lord Soley]

I declare an interest as one of the parliamentarians who offer advice to the Electoral Commission when it asks for it. It recognises the problems involved in making a bald statement. It seems to me that it faces the alternative of making a very bald statement that the alternative vote is this and the first past the post system is the other, so that both sides are covered in a very limited way, or of getting into descriptions. That is where you hit the rocks, because as soon as you start describing systems you inevitably talk about advantages and disadvantages, even if it is by implication.

There is a real problem both for the Electoral Commission and ultimately for this House. How far does the commission offer advice on what should be done by a Government or by this House as opposed to simply stating what the current position is or what it would be if a certain amendment or change was made? There is a case for saying either that Parliament rather than the Electoral Commission should decide all the details or that the leaflet must be agreed by the various parties in advance. It is quite a minefield. There are other people in this Chamber who have been at meetings with the Electoral Commission. I do not doubt that it is trying to do its best, but there is a genuine difficulty as to what powers it leaves to Parliament to define and describe and how much authority it takes in trying to describe without falling into the trap of being biased, however unintentionally.

[Lord Lamont of Lerwick]

I support what the noble Lord has said. A leaflet describing the pros and cons of different electoral systems cannot be factual, as there are values and opinions. The assertion that one voting system means that people will have more than 50 per cent of the electorate’s support is open to argument. Of course you can go into a certain amount of detail about whether a fourth preference is as valuable as a first preference, but the argument is even more complicated than that. Surely the Government ought to consider the possibility that there should be no leaflet of any kind from the Electoral Commission. The Electoral Commission has chosen two designated organisations, both of which will receive public funds. Why not leave it at that? Why do you have to have somebody listing the pros and cons in a way that will inevitably be attacked from both sides?

[Lord Tyler]

My Lords, I am tempted to ask, as the Irishman did, “Is this a private fight or can anyone join in?”. I cannot at the moment see where Schedule 19C to the 2000 Act, on civil sanctions, gets anywhere near the issue of the leaflet. If we can all discuss anything anywhere in the Bill, I have several suggestions about what we might discuss. We can come back to this later. I think that it is an important issue but it is not covered by this group of amendments. Please can we have some time later to discuss the issue? I sympathise with the point that the noble Lord, Lord Soley, is making, but it ain’t here.

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[Lord Lamont of Lerwick]

Does the noble and learned Lord agree that the fact that we are debating sanctions in a sense validates the questions that were asked about how the rules were applied, because the sanctions and the fines follow those who break the rules? All the questions about what constitutes one organisation and what constitutes a separate organisation are deeply relevant to the points that he is discussing.

[Lord Falconer of Thoroton]

I completely agree. I find the idea that we should not be talking at some length about authorised participants and permitted participants entirely wrong. That is why the Minister’s response to the last series was so disappointing. The last series went right to the heart of the issues that relate to the funding of the referendum, because everybody around the House wants a situation in which the same rules are imposed on everybody. I am sorry that the noble Lord, Lord Lamont, got a slapping from the noble Lord, Lord Tyler, for raising the question of the government leaflets, although it was obviously a slapping that he was quite able to cope with. That seems to be the one area where it is authorised to spend money that does not come from an authorised participant or a permitted participant.

I do not dismiss as a joke what my noble friend Lord Gilbert said. Presumably one of the most significant sources of what will be regarded as reliable information in relation to this referendum will be what the Government themselves or the Electoral Commission—I cannot remember which—produce in relation to these leaflets. That will probably be where one of the most significant amounts of expenditure will be. However, I return to my question to the noble Lord—

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[Lord McNally]

As the noble Lord said, they have a vested interest. I want to make a national decision in the national interest.

[Lord Lamont of Lerwick]

I accept the argument that the noble Lord is putting forward, though there remains the mystery of Northern Ireland. However, there is also the mystery of London. Why is London on a borough basis when there are no elections in the boroughs?

[Lord McNally]

I suspect that, again, the decision is based on administrative convenience, which is not a dishonourable reason. What we are trying to do, as I have said so many times before, is to make the procedure as straightforward as possible. I believe there was an amendment in the other place. Perhaps, when this Bill goes back to the other place, Mr Chris Bryant will put down an amendment for a constituency base.

Parliamentary Voting System and Constituencies Bill

Lord Lamont of Lerwick Excerpts

Tuesday 16th November 2010 Lords Chamber

[Lord McNally]

For goodness’ sake, here we are, with everyone telling me that this is a constitutional Bill of the greatest importance, and the Labour Party gets obsessed with some conspiracy theory about the number 600. Perhaps we should have chosen 666; that would really have frightened them. Let us have the debate—we are certainly going to have a good debate and, I suspect, a lengthy one—and I am willing to go through all these points.

If you want to be mentioned in the debate, the key thing is to be either a Liberal Democrat or a Conservative against the Bill or a Labour Member who is speaking helpfully as far as the Government are concerned. On the question of thresholds, Mr Chris Bryant, spokesman in the other place, said that they are not a good idea:

“We should have a straightforward system where people fight to win their side of the argument. They win that side of the argument by getting people past the ballot box to vote either yes or no”.—[Official Report, Commons, 2/11/10; col. 850.]

The amendment to have a threshold was defeated by 549 votes to 31. Again, we can discuss this, and I am sure that amendments will be tabled.

On the number of Ministers in the Executive—

[Lord Lamont of Lerwick]

Will the Minister answer the specific point: would a threshold that related to turnout, as opposed to people voting yes, be consistent with the coalition agreement?

[Lord McNally]

I do not think so, and I do not think that we are going down that road.

On the boundaries, the Bill corrects the flaws in the current legislation that not only has seen the number of MPs creep up—by only a small number, I admit—but leads to the unfairness of constituencies with vastly unequal electoral sizes. As both my noble friends Lord Norton and Lord Oakeshott quoted a British Academy report, let me quote from it:

“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commission (they have a clear hierarchy and are not contradictory)”.

On the question of exceptions—

[Lord McNally]

We will certainly look forward to the amendments but we take guidance from the House of Commons, which seems to have pretty comprehensively rejected thresholds—not the coalition agreement, but thresholds.

[Lord Lamont of Lerwick]

The Minister was given 24 hours’ notice of the question.

[Lord McNally]

We are not going to have thresholds. Put the amendments down and, at the appropriate time, I will oppose them. Okay?