European Union (Referendum) Bill

Baroness Falkner of Margravine Excerpts

Friday 31st January 2014 Lords Chamber

[Lord Richard (Lab)]

My Lords, the last thing I am prepared to do, with great respect, is to have a lecture from the noble Lord, Lord Cormack, as to the functions of this House or the way in which we ought to behave. This whole Bill is a prominent and clear example of how this House should not behave. This is clearly a major constitutional issue; for it to be brought forward by a private Member in a rush, and to be told by Members on the other side of this House that we are not entitled to consider it properly, is not only arrogant, but positively impudent. I hope that the noble Lord, Lord Cormack, will reflect on this at some stage.

The noble Lord, Lord Cormack, said that the Bill was improved by the two amendments that we passed last week. That is true: it might be further improved by two amendments that we pass today, without destroying—as he put it—the purpose of the Bill. The amendments that have gone down were tabled with thought. They were not tabled in order to filibuster; they were tabled to deal with a situation into which this House—and indeed the country—should never have been put by this Government. If the Government had shown an ounce of steel in their relationship with their own right wing, we would not be in this position today. They have not and we are in this mess, which is what it is, and we must now try to deal with it, but to be lectured by a sermon from the noble Lord, Lord Cormack, is, frankly, almost too much.

I will try, perhaps, to calm down slightly. I have an amendment in this group—Amendment 73—which I hope the noble Lord, Lord Cormack, will think is helpful and constructive. It is a serious attempt to deal with the difficulties raised by this Bill in terms of legislating now for what might happen in the next Parliament. The next Parliament after the next election will be a different Parliament from the one that is now sitting. In those circumstances, that Parliament should have a say—and a direct say—given by this Bill, and not by some general constitutional doctrine that no Parliament can bind its successors. It should be given by this Bill in the sense that, before the Bill actually comes into force—it can be passed in this Parliament if that is what Parliament wishes to do—a resolution is passed by both Houses in the next Parliament saying that the Bill should now come into force. That is an attempt to deal with the dilemma in which we are placed, that we have a Bill in this Parliament designed to take effect in the next Parliament. Let me wrap it up: that is the effect of the Bill. It is not designed to take effect in this Parliament; it is designed to take effect in the next Parliament.

Therefore, it seems to me that in those circumstances, it is only just, reasonable and fair—and, indeed, constitutional—that that successor Parliament will have some say in whether and how the Bill comes into force. My amendment is not, I hope, a foolish one or a filibustering one. I said in my speech that it was not a filibustering one: it is not going to go on for very long, anyway. It is an attempt to square this very difficult circle in which we have been placed by the shenanigans of the party opposite, and particularly by the Government. The amendment aims to square that circle, by providing that, although the Bill is legislating for something designed to take effect in the next Parliament, the next Parliament will nevertheless have a direct say as to whether or not that should take place.

[Baroness Falkner of Margravine (LD)]

The noble Lord, Lord Richard, in addressing his comments to the noble Lord, Lord Cormack, several times suggested that this was the Government’s Bill. I just wanted to put on the record that it is a Conservative Party Private Member’s Bill, not a government Bill.

[Lord Hannay of Chiswick (CB)]

My Lords, I will speak to the same amendment in this group to which the noble Lord, Lord Richard, referred: Amendment 73. I would like to do so in a spirit of positive response to what the noble Lord, Lord Cormack, said—that is to say, to attempt to improve this Bill. I will also, therefore, speak briefly.

The point of Amendment 73, as the noble Lord, Lord Richard, said, is to deal with one of the most glaring defects in this Bill as currently drafted, which is that its sole purpose is to bind the hands of a future Parliament. I am sure that the noble Lord, Lord Dobbs, will be able to produce chapter and verse for occasions on which legislation has had a binding effect on future Parliaments, unless they chose to repeal the measure, but I would be delighted if he could produce a single example of a piece of legislation that had no purpose other than to bind the hands of a future Parliament, which is the case with the Bill as drafted.

Amendment 73 would remedy that defect. It would ensure that a future Parliament would have to pass a resolution to bring the Bill into effect. That seems to me to restore the balance in our constitutional practice. I am occasionally astonished by the nonchalance—or, some would say, the recklessness—with which the sponsors of the Bill are lopping great chunks off our constitutional practice. It is really pretty odd. Yesterday in this House, we had a superb debate about the future of the union of the United Kingdom and there was unanimity around the House, but today Members opposite, the sponsors of the Bill, are supporting a Bill that will increase the number of yes votes in Scotland in September 2014 and decrease the number of no votes. I know that logic is not normally a strong suit of our countrymen, and probably me, but I think that we are carrying this a little far now. I hope that, when he comes to reply to this debate, the noble Lord, Lord Dobbs, will take on board the importance of Amendment 73, as well as the others in this group.

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[Baroness Falkner of Margravine]

My Lords, I rise briefly to point out to the House that the House of Lords Constitution Committee published a comprehensive report on referendums in its session of 2009-10. Its conclusion on thresholds—the noble Lord, Lord Hannay, has commented on 40%—was that:

“We recommend that there should be a general presumption against the use of voter turnout thresholds and supermajorities. We recognise however that there may be exceptional circumstances in which they may be deemed appropriate”.

One of those exceptional circumstances that the committee, of which I was not a member at the time although I am now, had in mind was major constitutional change. I think that there is a general view around the House that the issue we are debating today is one of major constitutional change, and the House may therefore wish to reflect on the advice given by the Constitution Committee at that time.

[Lord Dobbs]

My Lords, another hour, another group of amendments. We have 15 groups of amendments to get through today if we are to reach the end of Committee stage. That is my ambition, so noble Lords will understand if I attempt to be reasonably brief in responding to them.

These amendments go to the very heart of the differences between us. I believe in the Bill because I believe that we politicians have failed the people—it is as simple as that. We have flipped and flopped like a hooked fish dragged out on to the riverbank. I am also in favour of the Bill because I believe that ultimately it is the right of the people to decide their own future. Noble Lords pressing this amendment have an opposite view from me: they believe that Parliament should decide, not the people. In a representative democracy that is an entirely reasonable point of view, except—

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[Baroness Falkner of Margravine]

My name and that of my party have been invoked, so it is important for me to clarify where we are. I say to the noble Baroness, Lady Symons, that we are not necessarily in opposition to this Bill. We are doing our proper function of scrutiny, amendment, improvement and revision on this Bill. I say to the noble Lord the Leader of the House that his comments have been very helpful and illuminating, but it would have been helpful to the House if we had had that explained to us from the outset. When the noble Baroness, Lady Warsi, whose reputation improves every day on all sides of the House and who is held in very high regard, spoke on the Bill last Friday, she did not make the distinction that she was speaking only on matters to do with the implications for government that might arise out of the Bill. Will the Leader of the House tell the House whether when the noble Baroness speaks on matters to do with her position in the Conservative Party she will move back to the Back Benches in order to create clarity between the Dispatch Box and a Back-Bench position? Finally, we have been told of the precedent set when the noble Lords, Lord Strathclyde and Lord McNally, both spoke on Leveson. They did so in a self-regulating House with the consent of the House. It seems to me that the House is quite clearly expressing the opinion that it is not entirely happy with this position.

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[Lord Triesman]

My Lords, this is a fair enough amendment. Were we to have been conducting this debate 25 or 30 years ago, I suspect that everybody would have thought it wholly appropriate to take the temperature of the nation as a whole, because we would not have seen the degree of change within the United Kingdom and the extent of devolution. Of course, it will still be useful to have a United Kingdom-wide picture at the end of a referendum, and it is essential that there should be—but on its own, that will not do now.

Twenty-five years on, the home nations of the United Kingdom are sufficiently and significantly distinct. People see themselves as having very distinct interests. Some of them are to do with the individual nations and some are to do with the character of the relationship that those nations have with Europe. There are distinct issues about the development of social policy, economic interests and the trajectories of economic interests. It is not just that those factors have emerged in the overall politics of the United Kingdom, but that the experience has some depth. There is real depth of experience. It is not just a constitutional formality that these things have taken place; it represents very real experience, which people generally treasure.

As with all the issues in front of your Lordships in these debates, it is very helpful to look at this from all angles. Were there to be a vote to leave—and I have said in the House before that I profoundly hope, as many others do, that there will not be—especially if it were a narrow vote, and a strong belief persisted in Scotland and/or Wales that their electorates did not want to leave, that would create stresses within the United Kingdom that unquestionably would push those home nations towards still greater devolution or full independence. If we did it as a single country, it is likely to promote the belief that the results in effect hide the way in which people in Scotland and Wales would prefer to conduct their relationship with Europe, and the fact that they wish to do so in a way that is significantly different from the approach of England. Knowing all that, there is a very good case for believing that it would put energy into further separation.

If there is an overall vote, and if people know what the votes are in each of the home nations, that does not necessarily mean that people will say, “Actually, on our own, we might very well have chosen to leave”—but there would never be an allegation that they were caught by the fact that the vote was hidden or that there was something unreasonable, unfair or deceptive about it. That argument about process is potentially the one that is most damaging, because it can never be properly addressed. It is much better to have the votes clearly and in the open.

Noble Lords will have noted that I have not mentioned Northern Ireland in this debate, not because I do not think that there would be an interest in Northern Ireland but because I do not detect, broadly speaking, among the majority of the population of Northern Ireland, a desire to move to a still greater distance from the rest of the United Kingdom. There are always nuances in the United Kingdom and in Northern Ireland as a whole.

I express my support for the points that my noble friend Lord Anderson made about Gibraltar. It was certainly my experience when in the Foreign Office that the European Union mitigates—though not always successfully, it has to be said—the character and intensity of some of the disagreements that occur with Spain. Even when other members of the EU are supportive of Spain, it none the less damps down the intensity of the discussion. Of course, Gibraltar sometimes criticises the EU, but it is without question that Gibraltar would prefer to have the armoury of the United Kingdom around it in the discussions of those issues than to have to face them on its own. For those reasons, it is particularly helpful that my noble friend made those points.

[Baroness Falkner of Margravine]

My Lords, one of the other things that we want to seek in a referendum would be transparency, as the Electoral Commission recommends. Of course, in general elections, the public know precisely how people have voted in different parts of the country because of the constituency system. So you can tell how many people are returned from which party from the respective countries of the United Kingdom, and it is very clear. In that sense, I am rather tempted by the amendment, which would allow that level of transparency to come in, not as finely defined as that but broadly, for us to be able to tell where opinions lie in one direction or the other. It would help us to reflect on what to do next and how we might best reflect the opinions of those constituent parts of the United Kingdom, depending on the outcome of the referendum, along the lines of the amendment that we have just agreed.

[Lord Kerr of Kinlochard]

My Lords, before the noble Lord, Lord Dobbs, replies to the debate, I should like to speak briefly on the Gibraltar point raised by the noble Lord, Lord Anderson. I should also like to raise a bigger point for the noble Lord, Lord Dobbs, to think about.

On Gibraltar, I point out first that no one has an amendment tabled to Clause 4; nobody in this House objects in principle to the idea of Gibraltar voting in the referendum. Although it was not in the original Bill and was added in the House of Commons, nobody here is objecting to it, and I certainly do not do so. It is a little anomalous that a British overseas territory should vote, of course, but that the Gibraltarians should be able to vote is not nearly as anomalous as the expatriates across the frontier in Spain being unable to vote. Gibraltar is a country member of the European Union; large numbers of European Union rules do not apply there—it does not have VAT, and it is not in the customs union, the common commercial policy, the CAP or the CFP. On the other hand, expatriates would see a very serious change to what they might legitimately have expected, if the referendum produced a no—but we will come to that under a later amendment, and I shall not pursue it now.

The very small point that I would like to make is on the Channel Islands, which are much more closely integrated into the European Union than is Gibraltar. They apply the common agricultural policy, and their main export is to France—agricultural goods and products derived from them. I do not know why the drafters of the Bill included Gibraltar and not the Channel Islands. That is a legitimate question to ask the noble Lord, Lord Dobbs, to think about and come back to. I am speaking in support of what was, I think, a probing amendment about Gibraltar and asking that the probe should go a little wider and include the anomaly of the Channel Islands.

I come to my bigger point about the nature of probing amendments. We worked quite hard for quite a long time a week ago. A number of noble Lords withdrew amendments, for which there was quite a lot of support around the House, on the understanding that there would be reflection. I have heard nothing from the sponsors of the Bill on the major amendment I withdrew. I have heard from one distinguished Member of this House—he is now in his place—but I am not going to embarrass him by saying who he is or what he said. Probing amendments are well worth it if they are designed to see whether the sponsors will accept them or will come back with a different version of them. However, on none of the amendments that were withdrawn in our eight-hour debate last week with a view to coming back on Report, have the sponsors subsequently been in touch with the proposers. What is the point of a probing amendment? It seems to me the only way one can get the defects in this Bill corrected is in the Division Lobbies. The House has voted three times, and three times by substantial majorities has amended the Bill.

It has been suggested more than once that, once one amendment was carried and therefore the argument that the Bill must stay intact had collapsed, there was no cost to the noble Lord, Lord Dobbs, in buying an amendment. Indeed, there might be considerable advantage. I had hoped that today’s debate would take place in a less confrontational way than last week’s one started and that we would be more consensual and try to find areas of agreement. However, on the previous amendment on which we have just voted, the noble Lord, Lord Dobbs, must have known from the debate that the Division Lobbies would not give the result he wanted. Why did he not feel that he could accept the amendment? Why do we have to force it on him? If anything is wasting time, it is this.

We had an hour and a half’s debate and then a Division on something that plainly was correct and was going to be written into the Bill one way or another. The only argument that the noble Lord, Lord Dobbs, produced against it was that it was unnecessary. He did not say it would be damaging. I do not think he was right. The House did not think he was right and clearly thought the amendment was necessary. If the noble Lord thinks that it is unnecessary but does not do any harm why does he not buy it? What does the House expect to happen when it puts forward probing amendments and takes them away again? It expects something to occur, perhaps in the gap between Committee and Report. The gap is there for approaches. I had hoped that there would be an approach to me about Amendment 10 by now and I am very sorry that has not happened. It is pity to force us into the Division Lobbies. It wastes a lot of time. It would be much better, and we would make progress with this Bill, if the noble Lord, Lord Dobbs, was prepared to accept amendments.

I am not saying that the Gibraltar issue, let alone the Channel Islands issue that I have raised, is one that deserves an immediate answer or anything like that. Mine was a genuine probing amendment. I do not know why the Channel Islands are not in and Gibraltar is. The biggest question is that I do not know how we make progress with this Bill if no amendments can be accepted other than through the Division Lobbies.

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I hope that, having reflected on the legitimacy of the franchise and on the electorate, the noble Lord, Lord Dobbs, will be willing to give further consideration to the idea of making what in terminology is quite a small change to the Bill but one that, in terms of legitimacy, would be significant.

[Baroness Falkner of Margravine]

My Lords, I, too, support this amendment. The alternative vote referendum, the legislation for which was passed during this Parliament, had the franchise as proposed by my noble friend Lord Shipley that we ought to include local authority areas. The forthcoming Scottish referendum has exactly the same provisions.

I want to illuminate my request that European Union citizens be included in this vital matter affecting them from a personal perspective. I therefore declare an interest. I am married to a German citizen. There are many reasons why large numbers of EU citizens live in our country, which has the largest number of expatriate EU citizens of all the EU countries. However, one fact is indisputable, as other noble Lords have mentioned: that they pay taxes in this country. We incurred the wrath of the Polish Foreign Minister, Mr Sikorski, only five or six weeks ago when, in the hostile debate against eastern European workers on the whole, he reminded our country that those people live here and that they contribute, work and pay taxes here. I do not think that we won a friend in Poland by having gone out of our way intentionally to annoy member countries whose citizens have made such a positive contribution. No one who has had to have construction work done, or who needed babysitting or anything else, in the south-east in the past 15 years can doubt that.

Noble Lords on the Conservative Benches might wonder why, if some of these citizens make such a positive contribution—in the case of the one I know, it has been a contribution of 20 years—they do not become nationals of this country. In that case, they would be entitled to vote. I want to address that specifically. There are certain countries which have, as Germany had in place, a statute against the holding of dual nationality. That can be one reason why people do not take the nationality of the country in which they have worked and lived. It does not diminish for a second their loyalty here. If you look at their voting records, in terms of their entitlements, they take up their entitlements when they can.

There is another possible reason, and in my case this is a very personal one. I travel to lots of countries where a white person or—I am afraid to say, after the Iraq and Afghanistan wars—a person associated with the foreign policy of our country may not necessarily consider themselves safe. My origins lie in Pakistan. My daughter was young and we went back to Pakistan frequently to see my aged parents. I requested my husband not to adopt British nationality in the light of the Daniel Pearl murder because I could see, palpably around me in Pakistan, that no white person ventured into the country. You could see that even in the queue for immigration. There was a period when business investment and everything collapsed because the Pakistani state was incapable of guaranteeing people’s safety. There were particular attitudes in these countries towards the West in general and the United Kingdom specifically.

On that basis, there may be numerous other reasons why all sorts of people come and live in this country but decide not to take nationality. I know of Americans who have lived here. They tend not to take British nationality for taxation reasons. That does not mean that they should be denied a franchise on a matter of such vital interest not only to them but to us as British nationals.

[Lord Kerr of Kinlochard]

My Lords, my name is on the amendment so ably moved by the noble Lord, Lord Shipley. I have very little to add to the arguments that he advanced. I pay tribute to the arguments advanced just now by the noble Baroness, Lady Falkner.

I want to pick up something that the noble Lord, Lord Bowness, said. The noble Lord is a very nice man. His suggestion about the motive for not following the precedent of the Scottish referendum and for past precedents being broken with was that this was just the quickest and simplest thing and that there was no policy intention. I am not a very nice man. I am not as nice as the noble Lord. I ask the “Cui bono?” question. Why should the sponsors of the Bill want to exclude the citizens of the European Union who have come here under the conditions set out in the treaty and who are living here, paying their taxes here, working here and possibly being officers on local councils here? Why should we want to deny them the vote? The only reason I can think of is that the sponsors of the Bill are not just seeking a referendum. In this case, as on the question and the timing, they are looking for a referendum that is likely to produce the answer, “Let’s get out”. I strongly support the amendment of the noble Lord, Lord Shipley.