Sanctions and Anti-Money Laundering Bill [HL]

Lord Norton of Louth Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 21st November 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I shall be brief. I endorse what the noble and learned Lord, Lord Judge, said. Like me, he is a member of the Constitution Committee, which has reported on this Bill and raised the concerns that he has just outlined. There are particular problems with Clause 16(3) and (4). This amendment would remove them, but by itself it would not be sufficient to address the concerns he has indicated.

The Constitution Committee has made the point before that it is unacceptable for offences to be created by regulation, as we conclude. On that point and the point the noble and learned Lord made about evidence, we consider that such regulation-making powers are constitutionally unacceptable and should not remain part of the Bill. It is important that we do not mess about with the particular provisions of the clause, rather that it is taken away and the Government come back with something that is constitutionally acceptable. As the noble and learned Lord mentioned, this is going on the statute book. It will be there for as long as Parliament allows it to remain and it would therefore be in the gift of future Ministers. That, as he indicated, is not acceptable.

Brexit: Case for a Second Referendum

Lord Norton of Louth Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I follow the noble Baroness, Lady Bowles, in essentially making a distinction between an argument for a later referendum based on whatever is negotiated under Article 50 and an argument for a rerun of what happened on 23 June. The noble Baroness, Lady King of Bow, said that she was making the case for a later referendum based on the negotiations that took place, but all the arguments that she advanced were for a rerun of the referendum on 23 June. They were based on why the electors got it wrong. That is an extremely dangerous path to pursue. It would convey the impression that the political class was not prepared to accept what the electors had decided. That would undermine trust in the political process when that trust is already fragile.

We cannot second-guess the electors. They voted. We might not like how they voted but there was a result. We asked the electors to make a decision on whether we should remain in or leave the European Union. They made the decision—perhaps by a small majority but it was a decision. In the past two days we have heard various people arguing, “But it was only advisory and there was a small majority. We should have had some sort of threshold or there should have been a much larger majority”.

To say that the referendum was advisory is misleading. We did not say to the electors, “Please tell us what you think and then we’ll decide whether to accept what you’ve said”. It was non-binding but that is a very different matter. There is no statutory obligation on Ministers to trigger Article 50 but there most certainly is a compelling political argument for doing so. The Government are bound by that political dimension. Yesterday I quoted Dicey, who distinguished between parliamentary and political sovereignty. The latter matters.

As for whether we should have applied some rules, we did not. At Second Reading of the European Union Referendum Bill, I raised the question of a threshold but there was clearly no desire to pursue it, so we put it to the people. It was a simple choice based on a majority. We cannot rerun it; we cannot apply rules that were not in place at the time. Therefore, I think that for the moment we have to accept the decision of the people and proceed on that basis. There may be a case for a later referendum based on negotiations—

[Baroness King of Bow]

I agree with the noble Lord. We accept the rule of the people, we see where it takes us and then we give them the democratic right to decide whether they want that or not.

[Lord Norton of Louth]

That is the line I am pursuing. My point is that we go forward on the basis of what has been decided. There may be a later case for putting the negotiations to the people, but we do so on the basis of that case, not on the basis that they got the decision wrong on 23 June—on which the noble Baroness’s argument was essentially based. We have to accept the decision and move on. There may be a later argument about referendums but it is not one to have now.

Outcome of the European Union Referendum

Lord Norton of Louth Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, in the time available I will comment on the referendum campaign, on the use of referendums, and on whether legislation is required to trigger an Article 50 notification.

I agree strongly with my noble friend Lord Dobbs and others who have argued that the referendum campaign was an exercise in how not to campaign. Each side played to its core audience and there was little debate. Rather, we had claims met by dismissals based on the past predictive record or the perceived bias of the source. We appeared at times to be mired in slogans rather than sustained arguments. In terms of our politics, the most corrosive element of the campaign was the extent to which the two sides engaged in inflated claims. We saw Anthony Downs’ thesis in An Economic Theory of Democracy apply in a binary contest, each side encouraging voters to be irrational by making its platform vague and ambitious.

The result was that expectations were raised that were not going to be met whichever side won, with the consequence that not only were those on the losing side going to be disappointed—so, too, were many on the winning side. This creates a problem of trust in our political system, and indeed in our institutions. The Government have responsibility for negotiating withdrawal, but Parliament has a crucial role of scrutiny and of linkage between government and people. We have to inform, but it is a two-way process. We have to try to ensure that the gap between expectations and what can be delivered is narrowed.

Some who have spoken in this debate have reminded us that the referendum was “advisory” and that Parliament is not bound to accept it. The terminology is misleading. The outcome is not legally binding, but it has a political weight that is greater than is acknowledged in referring to it as “advisory”. It is important to remind ourselves that Dicey distinguished between parliamentary sovereignty—that is, the outputs of Parliament, enforceable at law—and political sovereignty, which is the wishes of the people, not enforceable by the courts. Dicey said:

“The plain truth is that as a matter of law Parliament is the sovereign power in the state ... It is however equally true that in a political sense the electors are the most important part of, we may even say are actually, the sovereign power, since their will is under the present constitution sure to obtain ultimate obedience”.

He went on to say:

“Parliament can hardly in the long run differ from the wishes of the English people, or at any rate the electors; that which the majority of the House of Commons command the majority of the English people usually desire”.

To ignore the outcome, or put it to a second referendum, is legally possible but politically toxic. People may have voted in a way that they now regret; they may have voted on the basis of partial or misleading information; but they have voted, and there is nothing to say they would not vote on partial or misleading information the second time around. We cannot hold a second referendum on the basis of the retrospective application of rules. If we wanted a threshold or super-majority to apply, we needed to stipulate that at the time. I raised the issue of a threshold during the Second Reading of the EU Referendum Bill, but no one appeared keen to pursue the proposal. We were therefore in a position where a simple majority determined the outcome.

We need to take action, not to trigger another referendum but to address what rules should apply on future occasions, not only in terms of when to hold a referendum but in terms of the means by which information is provided to electors. As to Article 50 notification, I agree with Professor Mark Elliott and others, who argue that primary legislation is not required to trigger it. For reasons of time, I will not develop the arguments advanced by Professor Elliott on his blog, “Public Law for Everyone”, but rather follow the outstanding speech of the noble Lord, Lord Lisvane, and remind the House of the status of the 1972 European Communities Act.

After the introduction of the European Communities Bill, there was a ruling by the Chairman of Ways and Means, on 29 February 1972, that the Bill provided the “legal nuts and bolts” necessary for membership. He went on to say:

“It is not a Bill to approve the Treaty of Accession nor any of the other treaties which are basic to membership of the Communities”.—[Official Report, Commons, 29/2/1972; col. 269.]

That ruling was challenged, but it was upheld the following day by a vote of the House of Commons.

As the noble and learned Lord, Lord Millett, pointed out in a letter to the Times on Monday, the exercise of our treaty rights under Article 50 will have no effect in itself on domestic law. That exercise is a matter for the prerogative, since it affects our position in international law and not in domestic law. We will need later to undo the legal nuts and bolts, but that is not required for an Article 50 notification. We will need later legislation, and possibly even a referendum under the terms of the European Union Act 2011, but that is consequent to and not prior to any negotiation. As the noble Lord, Lord Lisvane, argued, there is a case for seeking parliamentary support for an Article 50 notification, but that would be analogous to the October 1971 vote on principle.

The role of this House, in my view, is not to refight battles but to draw on the experience and expertise of Members in assisting in the negotiations that lie ahead and in informing people about what is happening and what it is realistic to expect. We should be looking to where we want the United Kingdom to be in five or 10 years and think through how we get from here to there. The contribution we can make to the nation is to be forward looking. Let us play to our strengths.

European Union Referendum Bill

Lord Norton of Louth Excerpts

Tuesday 13th October 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I wish to speak briefly on changes made to the Bill and what is omitted. I do not propose to follow some noble Lords who have begun to fight the referendum campaign.

My starting point is one of scepticism in regard to the principle of referendums, but an acceptance that successive Governments have utilised them and that they are therefore part of our constitutional arrangements. What we are faced with is not the ideal, but it is the real.

We have rarely discussed the principle of referendums. A dislike of referendums is set aside when someone prioritises a particular issue of policy and sees a referendum as a way of achieving an outcome that otherwise may not be achieved. Governments have employed them on a disparate and discrete basis, with no set framework for determining their use. The Bill before us can be justified on the grounds that it addresses a fundamental part of our constitutional arrangements and derives from precedent. As with the 1975 referendum, it is grounded in a manifesto commitment. However, it is not set within a clear, intellectually coherent approach to constitutional change. The danger is that we are developing a new constitutional framework without thinking through the consequences.

I turn to the specifics of the Bill. As introduced, it reproduced a problem of the 1975 referendum and, indeed, later referendums, but one that has now been corrected, but introduces a problem not present in 1975. As my noble friend Lady Anelay pointed out in introducing the Bill, the Bill as initially introduced stipulated a yes or no response. When the then Political Parties, Elections and Referendums Bill was going through this House, I drew attention to the bias involved in inviting a yes or no response. There is a natural tendency to want to appear positive, so there is a bias in favour of a yes response regardless of the question. Some referendums have, as we know, resulted in a no victory, sometimes a substantial victory, but that outcome might have been even greater had the burden of the question been reversed or electors offered a choice between two mutually exclusive statements.

The Electoral Commission previously favoured a yes/no question because of the ease of campaigning—one could have a vote yes and a vote no campaign. It has now changed its position, having undertaken consultation and research, and favours two statements. I welcome the change and the Government’s acceptance of the Electoral Commission’s recommendation. Subsequent surveys have shown that having a choice of statements, as opposed to a statement inviting a yes/no response, does affect how people vote. My concern is not with what their response is, but that the process itself is as neutral as possible. I therefore commend Clause 1(5), in the form it which it reaches us.

I turn to the problem not present in 1975. On that occasion, electors were invited to vote on the basis of the terms of membership renegotiated by the Government. The ballot question was preceded by the statement stipulated in the Referendum Act:

“The Government have announced the results of the renegotiation of the United Kingdom’s terms of membership of the European Community”.

The terms were known. There was a gap of almost three months between negotiations being completed and the referendum taking place. For the referendum provided for in this Bill, it is expected that electors will be invited to make a decision based on the Government’s negotiations. Nothing about the negotiations appears on the face of the Bill and it is not clear as to the relationship between the date of the referendum and the stage at which negotiations are completed and, indeed, what form completion takes. In the event of a vote to remain in the EU with negotiations incomplete, what obligations remain with the Government?

Other issues to be addressed, in my view, are whether there should be a threshold requirement, similar to that imposed in the 1979 referendums, and whether it should be a binding referendum, as with the 2011 referendum on the electoral system, or whether it should be advisory, as has been the norm. There is clearly a case for considering a threshold, given the significance of the issue, and especially so should we decide that the outcome should be binding. An advisory referendum gives Parliament the opportunity to take into account turnout in considering whether to legislate in line with how electors have voted. I assume that there will be a reasonably high turnout, but that is not certain. Perhaps my noble friend Lady Anelay can share with us the Government’s expectation as to turnout, and whether they are minded to accept that a threshold is desirable, and if not, why not.

The House of Commons has passed this Bill. It is not our task to challenge the principle. The Commons has also approved, after discussion, particular provisions, or refused to include particular provisions. We can usefully address those matters that the other place has not considered. It is important to get the Bill right before we begin a referendum campaign. We need to ensure that we focus on the merits on the Bill. There is still work to be done, and it is important that this House plays to its strengths.