European Union Bill

Baroness Nicholson of Winterbourne Excerpts

Wednesday 8th June 2011 Lords Chamber

[Baroness Nicholson of Winterbourne]

I pay tribute to the Minister and to the Government for listening with such deep concern to what seemed to me to be perfectly acceptable phraseology, but which gave noble Lords opposite considerable difficulty. It seems to me odd that something that is comfortable, which we already passed in the UK 2008 Act, should somehow become a discomforting phrase here, but I am none the less absolutely delighted to see that the Minister is able to come forward with what is clearly to other noble Lords a major concession and clarify a phrase which to some of us seemed perfectly adequate. It is always good that we should have a consensus in this House—your Lordships are known for a consensual approach—and I congratulate and thank the Minister.

[Lord Howell of Guildford]

I am grateful for those remarks.

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[Lord Wallace of Saltaire]

If no one else wishes to intervene, I ought to answer the point raised by the noble Lord, Lord Davies of Stamford. I find it difficult to imagine circumstances in which there would be proposals that would represent a transfer of powers or competences from Gibraltar to the EU. However, I have not looked back at Protocol 3 of the 1972 Act which ratified the treaty of accession and the extremely complicated circumstances in which Gibraltar is treated as a member of the EU but does not take part in all aspects of EU policy. For example, it does not take part in the common agricultural policy, but it takes part in the freedom of movement.

[Baroness Nicholson of Winterbourne]

Would the Minister recommend to other European Union member states that have territories that are not specifically part of their geographical parameters—such as Spain and the Canary Islands, and France and her piece of territory in north Africa—that they follow the lead of the United Kingdom in drawing more fully into their embrace the territories that belong to them?

[Lord Wallace of Saltaire]

My Lords, I shall not detain the House very long. The question of the different relationships between the Crown dependencies and the EU, and Gibraltar and the EU, is a deeply arcane subject. I read an extremely long report from the Government of Jersey some 18 months ago about the relationship between Jersey and the EU. It is very good bedtime reading for anyone who does not wish to go to sleep. These are very complicated areas. However, I and our advisers cannot at the moment envisage the likelihood of a referendum. We nevertheless hope that this amendment clarifies the situation.

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[Lord Hannay of Chiswick]

It is not the time of night to go into a lengthy disquisition on British constitutional history, but we still live in a representative parliamentary democracy and we still accept that a Government who have a majority in the House of Commons can make laws. However, we are seeking to contradict that with this provision. The amendment that is being moved is a small, modest palliation of that.

[Baroness Nicholson of Winterbourne]

This amendment is not in fact about the absolute underpinnings of this Bill, although it is a very tempting set of red herrings that have been laid in front of your Lordships’ House. This set of amendments is about whether or not there should be a 40 per cent threshold and, with your Lordships’ permission, I would like to comment purely on that point.

The 40 per cent threshold seems to me, as a former Member of Parliament and of the European Parliament, to be a rather odd thing for noble Lords to be considering today. We do not have a 40 per cent threshold in the general election or in the European election, for example. We are perfectly comfortable with assuming that 50 per cent of those who come out to vote is the threshold on which the electorate are exercising their wisdom. I find it extremely difficult to see why, just for this Bill, some noble Lords are so adamantine in their perception that a 40 per cent threshold—and no less—is the absolute minimum they will accept if a referendum is to give a valid answer from the British people.

All noble Lords who have commented on the imperative of parliamentary democracy and Parliament’s primacy are, of course, absolutely right. I think that it is Clause 18 of the Bill that, for the first time ever in many generations in Parliament, absolutely clearly defines that it is only through the primacy of Parliament that EU legislation can be accepted at all. It is our responsibility. The noble Lord, Lord Waddington, made the point in his very thoughtful intervention—and I fully support this—that we have been far too fast in ceding power from this Parliament to the European Union. However, I would perhaps remind him that that is our responsibility, certainly in the House of Commons and Government but also, to a much lesser extent, here. The noble Lord, Lord Roper, is in his place, representing the several generations of outstanding work by EU sub-committees in your Lordships’ House. That has not been the case in the House of Commons, which has let slip piece after piece of legislation pouring in from Brussels. Indeed, it is the Ministers of the day, from every single Government—from the previous Government and the ones before that—that have fed the House of Commons so little material that somehow it has unwittingly, or in some other mode, let through all of this legislation and the growing burden of all these regulations which are, I believe, oppressing the peoples of the European Union and particularly the peoples of the United Kingdom.

This modest Bill, although it is relatively lightweight, does contain two or three very important points, the first of which I believe is the primacy of Parliament over EU legislation and therefore surely over the outcome of any referendum. It also gives the wonderful possibility of a downhill-driven knowledge base to the British people and some small modicum of authority over what will happen. I very much support the Bill because of those two points.

Coming back to Burke, to the point that was raised in the context of representative parliament, I cannot help but comment, because the flavour comes through so strongly, that some of the arguments that noble Lords are putting forward tend to resonate with those of us whose female forebears fought for the vote for women. In other words, somehow some elements of the population are not fit to bring their judgment to bear on important matters affecting the United Kingdom. It is difficult. Burke, of course, was wonderful, but before him and at his day women did not have the vote. Academics had more than their current bundle of votes per person, so did the landed gentry, so did the aristocracy; well, wonderful, but today is different.

One of the key differences is that today we have modern technology. Only the day before yesterday I had five e-mails, no less, from the great Steve Jobs himself urging me to discard my newly purchased iPhone and my iPad of the week before last in favour of iCloud, where all my data are going to be parked for ever and a day. Modern people, men, women and children of all backgrounds, all income brackets, all of us—I leave aside prisoners because I do not want to interfere with the debate between two prominent powerful members of the Conservative Party on that one—all those people have knowledge now, absolute knowledge, just as much as we do, and they have time, they have energy, they get involved.

My noble friend Lord Dykes commented that—despite the absence of cricket in his tremendous tour de force of commenting on what the British public are interested in—the British people trust their political representatives to make political judgments on their behalf. Noble Lords know full well that the British public have no trust in any politician at all at the moment, although I believe that they have greater trust in your Lordships’ House than in the other place. What they do have confidence in is the knowledge that they take, albeit false knowledge, from Wikipedia, from iCloud and from other data that are now so readily available 24 hours a day and which people take, commandeer and use. Therefore, they want to be involved; they are able to be involved; they are knowledgeable about being involved and that is why the heart of the Bill is a good idea.

The 40 per cent threshold is a very odd idea, unless we are going to carry it right forward into the European Parliament, into the general election, into local elections, presumably—we can have a dismal turnout, yet we respect the council that is elected none the less and the mayors that are elected, if they are. I expect that there will be a pretty low turnout if we have elected police, for example. So we do accept that low turnout and we take just over a 50 per cent threshold as a majority. That is the way in which our parliamentary system works, that is the way in which our electoral system works. I can see no rationale, no reasonable argument that has been laid in front of your Lordships’ House so far this afternoon, which tells me that I should support this set of amendments. These referenda will be few and far between—probably once every 10 years if the European Union actually proposes a further transfer of sovereign power, which at the moment is highly unlikely. It is busy with the euro, it is busy with the superabundance of enlargement; it is not going to propose anything very important for the moment on these grounds. Maybe once every 10 or 15 years there will be a referendum. Is this of such profound significance that it outweighs the normal way in which we vote in general elections? I think not. The logic is against it because the Bill says that the primacy of the British Parliament overrides everything coming from Brussels in any case. I oppose the amendments.

[Lord Triesman]

It has been a long debate and I suspect that there has been a very full review of most of the issues. I am very pleased to be associated with the noble Lords, Lord Williamson and Lord Dykes, and the noble and learned Lord, Lord Howe, in this amendment. I also find myself in very strong agreement with the noble Lords, Lord Deben and Lord Forsyth. I too have been thinking about Burke. It may completely destroy any prospect of my ever sitting successfully on these Benches again, but the reality is that those are the key arguments.

There was such strong support for my noble friend Lord Rooker’s original concept of thresholds and the feed-through to the parliamentary system—there are some differences here that I shall explore in a moment—because it was felt strongly that when there were to be significant changes to our constitution or the arrangements under which we are governed, there ought to be a demonstrable degree of legitimacy. Goodness knows, 40 per cent is a pretty modest figure when looking at a level of legitimacy for changes that profound. None the less, it was an attempt to say that there should be some authority for the decision, and that the figure gave at least that degree of authority. One of the arguments adduced at the time was that in the commentary on the turnout in local elections, in particular, dipping below 40 per cent, as it often did, people made very severe criticisms of the quality of our democratic life. When it was higher than that, people tended to think it was healthy. I do not want to say that that seems to be the key reason. I just make the point that on turnouts of less than 40 per cent, results were routinely disparaged. Anybody looking back over the press and other commentary at the time would come to same conclusion.

The constitutional debates in this House were interesting. Many of your Lordships said that once the decision is taken in a referendum we should not try to second-guess the electorate. They will have spoken, however small the turnout and however profound the issue. None the less, they will have spoken. That was never a convincing reason not to look at the prospect of some threshold. That is why I agree so strongly with the noble Lord, Lord Deben. Unfortunately, we look at it from where we are now, with this legislation in front of us.

The reason why I assert that we may be in a slightly different position now is that most of the arguments that my noble friend Lord Rooker produced are still very good. However, the argument today has a slightly different salience. It has been argued that, in relation to Europe, the people of this country have felt disenfranchised. That may well be true; I do not particularly choose to argue that it is not the case. They may well resent having had less say than they believed they should. What is needed in these circumstances may be the indelible mark of people’s approval for changes that might have a significant effect on their lives. I can see that. If it is true that we need that new kind of indelible mark, let us make sure that it is a credible mark, which has some authority and dignity and has not gone through on very small figures.

The reason why I believe that this is significantly different from the arguments about, for example, local elections, and different—with the greatest respect to former Members of the European Parliament—from European parliamentary elections, is this.

[Baroness Nicholson of Winterbourne]

I was merely making the general point that 50 per cent-plus is our normal modus operandi. It is impossible to see why it should be any different for this referendum.

[Lord Triesman]

My Lords, the argument for 50 per cent plus has been widely canvassed recently among the people of the United Kingdom, who formed a very clear view of it, which I agree with. I make this point because it goes to the heart of the difference that we are discussing. The difference seems to be that Parliament will have taken a decision to put the matter to the electorate. The question is: what size or degree of opposition should there be before Parliament is overridden and its decision—the decision that has been advocated by the Government of the day—set aside? The decision that forms the fundamental proposition being put to the people will have been argued for from government Benches, and may well have been argued for from opposition Benches as well, before it ever gets to the point where it is put to the people. The constitutional innovation is that people are being asked to set aside whatever Parliament, and indeed whatever the Government that they have elected, have said. This is a very profound difference from any arrangement that we have seen at any time in the United Kingdom.