European Union Referendum Bill

Baroness Morgan of Ely Excerpts

Monday 23rd November 2015 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, I support the view outlined by the noble Lord, Lord Kerr, in suggesting that the amendment proposed by the Government in the last debate, when we addressed this question very briefly, does not go far enough in addressing the issues set out in Committee and again on Report.

The noble Lord, Lord Kerr, eloquently addressed the need for the public to know what “leave” looks like. We actually know what the alternative existing models are. In fact, the shadow Minister for Europe, Pat McFadden, has produced a comprehensive report on this which could simply be copied in order to conclude one’s own amendment. We are not asking for the same things as we did on the last amendment, which was more of an objective statement of facts. We are going further here and asking the Government, who we assume will still be holding the reins of power in this country—albeit maybe with a new leader, who knows?—what they would want as an alternative to membership. It is a question that they would be asked the day after any vote to leave the EU.

We understand that it would be ridiculous for us to ask for this to be set out prior to the end of the Prime Minister’s task in trying to renegotiate the position with his EU colleagues, so we would not expect this to be done until the end of that negotiation. I heard the Minister state when she introduced the last amendment that the Government “in due course” will set out what the process of withdrawal will involve. Will the Minister clarify what “in due course” means? When will that happen? Will it happen before the referendum vote? How much before? That would be very useful, because one thing has become clear this afternoon. There is a need for some sort of procedural clarity. It has provoked a debate. I understood the Minister to have suggested earlier that the Government would not want to repeal the 1972 Act, so even if we had absolute clarification on that, we have gone a step further. It would be very useful to the public in this country. At the very least, we need those procedural steps to be set out very clearly for the public.

We still do not know which way the Government will recommend the British public to vote. If the Government were to suggest a “leave” vote, are we seriously expecting the country simply to follow them to some unknown destination with no idea what that would look like? I suggest that the public have a right to know the answer to that question. If the Government were to recommend us to stay, they still have the responsibility to set out what the position would be if the public went against their recommendation. They will still be the people sitting in that seat when those alternative arrangements will have to be made.

If the Government will not set this out, then who will? The leave campaign may have a mandate from the public to ensure that we leave the EU, but it would have no legitimacy in securing or putting in place alternative arrangements. They would not be in the driving seat for subsequent negotiations. So far, I do not believe that the Government have gone far enough in addressing this issue and I hope that the Minister can give us some clarification, at the very least on the procedural steps, but ideally on what the Government would like to see as an alternative to EU membership if we were to vote to leave the EU.

[Lord Forsyth of Drumlean]

Before the noble Baroness sits down, can I ask her whether—either on the previous occasion when we had the Scottish referendum or in the event that there is another Scottish referendum—it is the Labour Party’s policy that the Government should in advance set out what the procedures would be and how they would set about breaking up the United Kingdom? The parallel is clear: this is an important policy view that she is taking. Is that the view of the Official Opposition?

[Baroness Morgan of Ely]

It is far more complicated. We are talking about 28 member states which will all have a say on our destiny in terms of our relationship with them in future. That is a completely different situation from the situation in Scotland. So no, I do not think there is a parallel here but the Government should come forward with some clarity, in particular on the procedural process.

[The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)]

My Lords, the noble Lord, Lord Kerr, made important points in his speech earlier this evening about the nature of this referendum and the fact that what the leave scenario will look like will be less clear to the public. That is certainly true by the very nature of this referendum. He has called for the Government to set out the relationship that they envisage for the European Union in the event of a vote to leave the EU, and he rightly highlights that it would be for the Government to negotiate on any future relationship in the event of a vote to leave.

The noble Lord, Lord Kerr, and just now the noble Baroness, Lady Morgan, have made it clear that it is the matter of the process which is important for the Government to clarify, and I shall certainly seek to do that among giving other answers to questions that have been posed.

The second part of the government amendment earlier today—Amendment 24B, which the House agreed to—seeks to address the earlier call of the noble Lord, Lord Kerr, for the Government to set out what some of the alternatives to membership might be. In response to the noble Lord’s amendment, we have proposed a duty that would require the Government to describe some of the existing arrangements that other countries have with the EU, where they are not members. I believe that this is as proportionate and reasonable a response as we can provide.

Noble Lords have called for any government amendment to set out evidence-based and authoritative information in a way that is as useful to the public as possible. However, I do not believe that it would be helpful, or indeed appropriate, for the Government to have a commitment in legislation to confirm at this early point exactly what the UK’s envisaged relationship would be with the EU, should the UK electorate vote to leave. I think that I can be more helpful to the noble Lord, Lord Kerr, as a result of the conversations that we have been able to have today, and look more deeply at the intention behind the amendment. I hope to come to that fairly shortly.

My noble friend Lord Hamilton correctly referred to the fact that this referendum is advisory not mandatory, but I can assure him that my right honourable friend the Prime Minister has said that we will abide by the decision of this referendum, whatever it is. The Prime Minister has said that the Government, of course, are now focused on delivering a successful renegotiation. Therefore, we feel that we cannot speculate on the types of possible arrangement that could be negotiable—not negotiated, but actually achieved—with the EU. In my right honourable friend’s speech at Chatham House, the Prime Minister gave his view on some of the existing alternatives. He made clear that Switzerland has had to negotiate access to the single market sector by sector. He pointed out that Norway is part of the single market but has no say in setting its rules.

What we sought to do, through my earlier Amendment 24B, is to provide the public with useful information about those existing models and others that other countries may have. We sought to meet the aims of the amendment of the noble Lord, Lord Kerr, as far as possible at that point. We made it clear then, and we have throughout our discussions at Second Reading and in Committee, that it is the campaigners on both sides of the debate who will have strong views about the arrangements. Any information published by the Government will be heavily scrutinised and interpreted in different ways by the campaign groups to make the strongest arguments for the case for remaining or leaving. One side is likely to argue that the Government have not been ambitious enough and that far more should have been possible, and the other side, I suspect, will argue the opposite.

The result for the public may be confusion—I appreciate that—rather than providing useful information. This would have the exact opposite effect from that which noble Lords have said they wish to support over the course of our debates. Indeed, if we were to set out early and in statute an envisaged relationship in the event of a vote to leave, it would simply invite media headlines because it would be interpreted that the Government were sending a strong signal that we had already prepared to exit the EU. I confess that I do read the Daily Mail and I can see the headline hitting me already. If I were to accept the amendment tonight I would be stepping into that bear trap. I know that that is not the bear trap that the noble Lord intended—that was not his intention.

As I said earlier in the debate, should there be a vote to leave, the Government would then at the appropriate moment need to engage with processes provided under our international obligations, including those under Article 50 of the Treaty on European Union. Of course, processes such as Article 50 have never been used in the past. This would be a precedent if it were to happen and that would make it all the harder to speculate on how such a negotiation might play out. Indeed, there could be unpredictable consequences to entering into a process to leave under any scenario, including that which encompasses the Article 50 process. Much play has been made about Article 50—I said to the noble Lord, Lord Kerr, earlier today that I now carry it around with me in my handbag wherever I go. Therefore I know that I also referred to it in some detail at an earlier stage in Committee and set out the processes that it engages. I will not abuse Report stage by reading again from the full text of that.

As I mentioned briefly but will now say more fully to the noble Baroness, Lady Morgan, before the referendum we will of course lay out what this process would involve. In this scenario, as in any scenario, the Government would seek to protect the interests of the British people. That is exactly what noble Lords would expect us to do. There has been some question about the whole issue of the process being tangled in international law—yes indeed. The noble Lord, Lord Kerr, raised an important question about whether the UK would abide by its international obligations. I can reassure him concisely that, of course, the UK will abide by its international obligations. The Government are committed to upholding the rule of law, including under any of the different scenarios for withdrawing from the European Union. I was most grateful to my noble and learned friend Lord Mackay of Clashfern for crystallising so clearly the problem at hand, as he so often does in this Chamber, and making it clear that international law requires the Government to go through the proper procedures if they wish to resile from a treaty obligation. That is certainly the case.

Indeed, my right honourable friend has made it very clear throughout his time as Prime Minister that he holds dear the golden thread. The golden thread means not only that we have government that is not corrupt and is careful of people’s interests, but involves strengthening international law, not weakening it.

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Moved by

[Baroness Morgan of Ely]

30: After Clause 5, insert the following new Clause—
“Guidance for charities on engagement with the referendum
The Electoral Commission, in collaboration with the Charity Commission for England and Wales, the Charity Commission for Northern Ireland and the Office of the Scottish Regulator, must issue joint guidance confirming the principles that apply to the engagement of charities with the referendum.”

[Baroness Morgan of Ely]

My Lords, I apologise for submitting this amendment at such a late stage in our discussions, but I believe that essential clarification for charities about their ability to be involved in the EU referendum campaign needs to be set out. This is a probing amendment.

The EU referendum is essentially a single constituency vote, and charities from across the UK should be able to engage fully and equally with that referendum if they wish. The problem, however, is that existing guidance from charity regulatory bodies differs across the UK. Charity law that regulates political campaigning should be the same UK-wide, and I am sure the Minister will agree that there should not be any cross-border disparity. What we need, therefore, is a single set of rules which will create a level playing field across the UK and clarification for charities that are registered with more than one of the charity regulators.

We believe that it makes sense to base this guidance on the tried and tested model of the charity guidance for the Scottish referendum. Let us remember that this has been proven in a fierce campaign north of the border, facilitating engagement while ensuring that charities are still subject to strict rules to act prudently and independently. Let me be clear: we are not setting out what the joint guidance should look like in this amendment. We accept and suggest that it should be carried out by the regulators themselves.

I request that the Minister gives us an assurance that she will seek the full co-operation of the various national charity commissions, so that common guidance can be issued for the whole of the UK in adequate time, prior to the start of that referendum campaign. I beg to move.

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[Baroness Morgan of Ely]

I thank the noble Baroness for that clarification. I think we have to remember that charities are anxious to be careful in terms of how they get involved politically—obviously, party-politically would be impossible, but they have a duty to further their charitable purposes. That means, for example, that if they were in receipt of EU funds and if they found the EU regulatory burden too much, they would need to be able to express that in some way. So I think that clarification is necessary. I thank the Minister not for pursuing that not just with the Electoral Commission but with the regulators.

I finish by thanking the noble Baroness for the way she has conducted the whole of this European Union Referendum Bill. It has been very interesting. It has been difficult, sparky and fractious at times, but we have got through it, and I thank the noble Baroness for the way she has conducted the whole debate. I am glad that we have managed to collaborate in the way that we have.

Amendment 30 withdrawn.