European Union (Referendum) Bill

Lord Anderson of Swansea Excerpts

Friday 31st January 2014 Lords Chamber

[The Lord Speaker (Baroness D'Souza)]

I remind your Lordships that if Amendment 50 is agreed, I cannot call Amendment 50A by reason of pre-emption.

[Lord Anderson of Swansea (Lab)]

My Lords, as so often, I follow my noble friend Lord Foulkes. Our names appear on a number of the amendments. In the other place, we used to work together as part of a team, and I believe that we are part of a team now, and wholly in agreement. He talked about his visit to Washington and the trade deal. If the Scotch Whisky Association, for example, were to have a problem with Japan in respect of Japanese whisky, is it better that the UK Government make representations to Japan or that we rely on the full weight of the European Union? That is why business is so concerned about the unilateralism of this Government and, indeed, of this very strange Bill.

My noble friend has said that he is very tired after coming back overnight from Washington. Given the clarity and lucidity of his speech, I hope he can do that more often, as it clearly had a marked effect on him. I came back after only a week in Strasbourg fairly tired. This is clearly a very important debate. He mentioned the importance of turnout. We had a problem in Wales in the 1997 referendum, where there was a turnout of 50%—25% for and 25% against—although, as it happens, the devolved institutions are now wholly accepted.

The aim of these amendments is to prevent a constitutional outrage. Any sixth-former who studies politics knows it is a clear principle of the constitution that no Government can bind their successor. So why try? What is the purpose? I had a television debate with a leading member of the Conservative Party, and when it was put to him, “What, really, is the purpose of this Bill?”, his reply was very honest: he said, “It’s a signal”. If something is a signal, one of course has to ask the simple question of who it is a signal to. The signal was intended, presumably, either for potential UKIP supporters or Conservative Party Back-Benchers in the other place. If it is a signal, it is clearly a signal which has not been heard or heeded.

I referred last Friday, which seems an age ago, to an excellent article in the Financial Times which argued that Mr Cameron’s gamble had failed. He can try perhaps to buy off a portion of the electorate, be it a portion of his own party, with this gesture, but it will not work, because they will ask for more. Rather like the penguins in the penguin house they will swallow it down and demand more—the trouble is that this Government may be inclined to give it to them.

The Mirror this morning contains a piece apparently saying that the Prime Minister is in office but not in power—I think that I have heard that somewhere before. It means that the Prime Minister’s is less and less in authority. Clearly, he needs allies in the European Union. He has insulted Monsieur Hollande, who is here today, by saying that the French economy is substantially worse than our own. That is probably true, but it is not a way of influencing people and making friends.

I would remind the Prime Minister that the Czech coalition negotiations have just been announced. Previously, there was a highly Eurosceptic Government there under President Klaus; now, with the change having taken place, a potential ally has been lost in the Czech Republic. The Czech position on Europe has fundamentally changed in that the party there which is allied with my own party is Europhile; the Christian Democrats are Europhile; and the party of former President Klaus has been consigned to the sidelines— so, again, the Prime Minister has lost an ally. He lost an ally in Bulgaria and Romania with what is being said in respect of immigration. He has lost an ally in Poland. So where is he going to find that coalition which is necessary in any European politics, as the noble Lords, Lord Kerr and Lord Hannay, would say? Where would he find those allies?

The other problem which exercises me—I shall say it at this stage rather than later—is that the noble Baroness, Lady Warsi, agreed last Friday that she was speaking from the Front Bench but on behalf of the Conservative Party. That was an honest assessment of where she stands; she clearly does not speak on behalf of the coalition. She also sought to preserve the fiction that this is a Private Member’s Bill. If this be an initiative of the Conservative Party, on whose behalf she speaks, and if it be the case that this is purely a Private Member’s Bill, I ask with all delicacy what the officials are doing in the official Box. Who are they briefing? Are they briefing the Conservative Party—that surely would be wholly improper? Once upon a time, I was a member of the Diplomatic Service and I sat in the officials’ box; I would like to think that I wrote one of Mr Heath’s best speeches, but that is another story. I was then, as an official, briefing the Government. Who are the officials briefing on this occasion? This is a matter of considerable constitutional importance and is potentially quite improper.

If we proceed with the prospect of a referendum by 2017, and even if one has to trigger that as a result of Motions in both Houses on the basis that no Parliament can bind its successor, what is absolutely clear, as night follows day, is that there will be substantial uncertainty. Dare I say that business does not like uncertainty? Inward investors do not like uncertainty. There will therefore be considerable problems. We have enough inward investment at the moment; we are a relatively proud recipient of inward investment because of our stability; but what will be the consequences if we say that we do not know, perhaps for the next four years, what will happen in this country? The CBI has pointed it out very clearly: what indeed is going to happen?

I return to the purpose of the amendments. It is clear that no Parliament can bind its successor—it is an outrage to pretend otherwise—and that the whole purpose of this Bill is to give some signal to Conservative Back-Benchers. They have rejected it and we should reject it.

[Baroness Andrews (Lab)]

My Lords, I rise to speak briefly in support of Amendment 50 and to address the issue of delegation. I am delighted to see my noble friend in his place, undiminished in his powers of argument and bringing such positive messages.

The amendment anticipates in principle a wider argument about the nature of delegation as a whole in what we all agree is a very perverse Bill. I hope that it provides some context for later amendments, Amendments 66 and 70—to which I have put my name—which raise the question of inappropriate delegation. I do not want to pre-empt that debate but instead to raise a general point about the approach taken to parliamentary control in a Bill of such enormous constitutional importance.

This House is well versed in discussing issues of delegation and we are well used to challenging a Government when they bring forward legislation with inappropriate or inadequate delegation and parliamentary control. We are all too familiar with the problem that statutory instruments can be debated but not overturned apart from in exceptional, even notorious, circumstances. Time and time again, the Delegated Powers Committee, on which I have the privilege to sit and which is ably chaired by the noble Baroness, Lady Thomas of Winchester, has had to challenge attempts to delegate legislation which is sloppily drafted and based on arguments which are weak, confused, disingenuous and generally inadequate. We have often in our reports to government rejected those arguments in favour of stronger controls. We have been successful and this House has supported us in protecting Parliament.

Here we have a Bill which is in a class of its own, a Bill which should never have come before this House as a Private Member’s Bill let alone with the support of government. That is where the problem over the delegation of powers in this Bill starts. This is not a government Bill. There is no Explanatory Memorandum, which is what we would have expected in the Delegated Powers Committee had it been a government Bill. Such an Explanatory Memorandum would have set out the case for delegation; it would have defended it; it would have explained why it was the only recourse; and we would have been able to test those arguments. We would have brought those arguments to the House and made a judgment on them.

We are not able to do that. Reports from two very distinguished committees of this House have made severe judgments on this Bill, but we have not been able to test the arguments. I am sure that when the noble Lord, Lord Dobbs, replies to the amendment, he will try to help the House and offer an explanation as to why there is such a unique—apart from in the 1975 referendum Bill, which was very different—degree of delegation in this Bill.

However, I do not believe that an oral explanation is sufficient for this House, so I invite the noble Lord, Lord Dobbs—and I do not believe that it is too late for him to do it—to provide, even now, an Explanatory Memorandum for the House to consider, to explain why he thinks that a Bill of this magnitude should delegate the key functions to secondary legislation and thus place debate on those functions effectively beyond the reach of this House, rather than provide for them in the Bill, as would have been far more proper. I do not have to remind the noble Lord that, since it is a Private Member’s Bill, such a memorandum would have to be entirely his own work, but I do not think that, as a gifted novelist, he would have any difficulty with that, so I look forward to his reply

Any Bill of such major constitutional significance should be a government Bill, which sets out on its face the major characteristics and implications and which can be debated, explored, and above all, changed, if necessary, in this House. That is what we are for; that is what we do.

I am sure that our debates on Amendments 66 and 70 will reflect on how Parliament could exert stronger control over this process. In terms of this amendment, Clause 1(6) attempts to put both the date of the election and the Welsh version of the question into an affirmative order. In any other context, that would indeed be an appropriate level of control. However, I believe that this clause should simply be removed because, in the words of so many noble Lords, the Bill is unfit for purpose. It is of such a confused parentage that it is very difficult to know whether it is a single parentage. If it were a child, it would certainly be very much at risk; social services would be taking a serious interest in it. Under these circumstances, any attempt to legitimise the process by way of delegation is inappropriate itself and should be rejected. That is what my noble friend Lord Foulkes’s amendment does and that is what I hope the House will commend.

[Lord Cormack (Con)]

This Bill came to this House from another place. In that other place, it was not opposed properly either by the noble Baroness’s party or by the Liberal Democrats. It is a point that has been made before and a point that needs to be made again. This Bill is indeed defective, but it came to us in the state in which it came. Last week, your Lordships’ House inserted two constructive and sensible amendments which did not in any way destroy the intent and purpose of the Bill. It is up to your Lordships’ House to deal with this matter now as expeditiously as we can so that it can go back with those amendments—there may even be another one—and the other place will then have the duty to decide whether it is going to pass the Bill as amended by your Lordships’ House or not. It is at that end of the Corridor where that ultimate decision should be made. It is the duty of this House not to impede what the other House has passed, but to improve it. That has been done. It is now up to the other House—or it should be when we have completed our Committee and Report stages—to accept the amendments or not. Your Lordships’ House must not be cast in the role of a body that has stood in the way of a referendum by destroying the Bill. This House’s duty is to improve, not to destroy. It is the job of the other House to decide whether the legislation should go on the statute book and I hope that that will motivate our discussions today.

[Lord Anderson of Swansea]

My Lords, the noble Lord has properly said that a week ago, this House passed two constructive amendments. Why did he not support them?

[Lord Cormack]

I made my position very plain at Second Reading. I did not support those amendments because I believed it was sensible to give the Bill a fair passage. However, I accepted last week—and made a speech to this effect—that we had improved the Bill with those two amendments and the Bill had not in any way been destroyed in its intent or purpose. We must not now make ourselves a laughing stock by talking too long or by too many of us talking. We need to get this Bill through today so we can have Report next week or as soon as possible. The Commons must make the final decision as to whether this Bill goes on the statute book.

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[Lord Hannay of Chiswick]

I am sure the noble Lord is right, but the extent to which the Prime Minister carries his party with him seems to be in a little more doubt today than it was a few days ago. As I say, I am sure that the noble Lord is correct, but the amendment would require the Government of the day—that Government may well not be the present Prime Minister’s Government—to provide, at the time a referendum is held, and in advance of it, certain kinds of information that are not called for in the Bill as it stands. I happen to think that this falls fairly and squarely in what I would call in the argot the “Cormack category”—that is, a provision that will improve the Bill. I hope very much that the noble Lord, Lord Dobbs, will accept the amendment. I do not think that there is any ambiguity in it at all. Therefore, I hope very much that it will be endorsed.

[Lord Anderson of Swansea]

My Lords, if the noble Lord, Lord Dobbs, says that he will accept this amendment, I will very happily sit down and spare your Lordships’ House a few moments of my thoughts. I think I detect a negative response, in which case I ask the noble Lord, Lord Sherbourne, what is the purpose of giving information to the electorate after the event, and telling them plan B after they have voted yes or no, possibly partly in ignorance of what the implications of so doing are? I am reminded of the story of the eminent Scottish divine who, to his surprise, after a blameless life, found himself languishing in hell. He looked up, saw the good Lord and said, “Oh, Lord, I dinna ken, I dinna ken”. The good Lord, in his infinite mercy and goodness, replied, “Ye ken the noo”. That will be the position of the electorate. They will know the consequences of the referendum result for good or ill, but after the event—after the blameless life, in that case.

I am a signatory to both the amendments we are discussing. I put my name to them because I believe that on an issue of such importance the electorate should be informed about it. It is for those proposing the measure to say what their plan B is. Surely, we do not say to the electorate, “You will vote yes or no. If you vote no, you will step into the void. We will be coy about what the implications are”. That is why I have tabled a series of amendments—Amendments 74A to 74G—which I will summarise briefly. Amendment 74A is headed, “Report on alternatives to membership of the European Union: Switzerland”; Amendment 74B is headed, “Report on alternatives to membership of the European Union: Norway”; Amendment 74C is headed. “Report on alternatives to membership of the European Union: the Commonwealth”; Amendment 74D is headed, “Report on alternatives to membership of the European Union: North America”; Amendment 74E is headed, “Report on alternatives to membership of the European Union”, which is concerned with other alternatives to membership of the European Union; Amendment 74F is headed, “Report on alternatives to membership of the European Union: European Economic Area”, and Amendment 74G is headed, “Report on alternatives to membership of the European Union: European Free Trade Association”.

There is a whole series of potential alternatives. Probably the most likely would be a relationship akin to that of Norway or Switzerland, or akin to that of the Commonwealth. I will not give a dress rehearsal of what I will say if we reach those amendments, as that would surely bore your Lordships. However, if the amendment we are discussing is passed—I very much hope that it will be because of its potential for an informed electorate—my amendments may then be otiose. However, I say for the benefit of the House that, as regards the position in respect of Norway, the report published about two years ago for the Norwegian Government by a learned professor is very helpful. He said, in terms, that he had come to the conclusion that it made sense for Norway to be fully part of the European Union. He set out all the disadvantages of Norway’s position, including the financial cost to it and the extent to which it was not able to make any serious input into discussions. Indeed, that was underlined by a representative of the Norwegian employers’ federation, the NHO, who said:

“We feel we have access”—

to Brussels—

“and the doors are open to us, but no one listens. Interest in Norway, and the influence of Norway, is diminishing”.

That is as much as I can say about Norway. In respect of Switzerland, the bilateral deals that that country has with the European Union are of interest, but the EU is unhappy with those relationships and is unlikely to want to repeat them. Switzerland is of course outside the financial arrangements of the EU and, because of the importance of the City of London, those arrangements are of considerable importance to us. Frankfurt and other financial centres look eagerly to see if they can replace the City of London. As to the implications for Switzerland—I shall not dwell on this because it would bore your Lordships if I were to go through them all—there is a very useful document by David Buchan for the Centre for European Reform, Outsiders on the Inside: Swiss and Norwegian Lessons for the UK. It sets out clearly what the implications of withdrawal are likely to be.

The Conservative Party appears latterly to have discovered the Commonwealth. I recall when, once upon a time, I spoke for the Opposition in respect of South Africa. In 1986-87, the Conservative Party almost destroyed the Commonwealth over that country and wishes now to forget that. However, probably the best reply in respect of the European Union and the Commonwealth was given in a speech by the then Commonwealth Secretary-General, the New Zealander, Don McKinnon. He gave clear answers in response to a speech by the noble Lord, Lord Howell. I have copies if colleagues wish to see it. I shall not extensively go over what was said, but Don McKinnon was saying essentially that the Commonwealth needs the United Kingdom to be part of the European Union as an advocate on behalf of Commonwealth interests—whether in relation to bananas, or the interests of Gibraltar in relation to Spain. There is a whole series of areas in which the Commonwealth is needed. Don McKinnon, who was obviously totally a Commonwealth man, gave the lie to those who see the Commonwealth as some sort of alternative, not a partner.

To conclude, the real question is: do we want an informed electorate or do we not? We should, as democrats, seek to have an informed electorate and, therefore, I shall support these amendments.

[Viscount Eccles (Con)]

My Lords, at some time, preferably not today, I should like to hear about the implications of a yes vote. The amendment is defective because it does not balance the possibility of a no vote with the more likely outcome of a yes vote. I, like the Prime Minister, want to find myself in a position to vote yes, if I am still around. The problem is that the people know that we have been on a long journey of some 60 years to get to where we are. But the people are also apprehensive because they do not know where they are being taken. Does Brussels, with the eurozone problems, know where it wants to go? Perhaps I may give just one example. What does subsidiarity mean? What is it meant to mean? We should concentrate on the reasons why it is sensible for us to stay in the European Union. Many people have talked about reform but the problem is that we have no agreed sense of direction and neither does the European Union.

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Moved by

[Lord Anderson of Swansea]

53: After Clause 1, line 8, at end insert “; and
(e) Gibraltar”

[Lord Anderson of Swansea]

My Lords, my amendment relates to Gibraltar. Many of us in this House have a special concern for Gibraltar and therefore wish to ensure that it has a separate count. We all have a special responsibility for Gibraltar. That is seen, for example, in the fact that Gibraltar is represented by one of the constituencies of the UK in the European Parliament. It has a very proud history, not least in the Second World War.

Coming here today, I was musing how the people of Gibraltar, which is relatively small—perhaps not much larger than a ward in my own former constituency—none the less represent so much of the Mediterranean. The current Chief Minister, Fabian Picardo, has a good Mediterranean name; Sir Joshua Hassan showed that there was a Jewish community in Gibraltar; Peter Caruana, the former Chief Minister, has a good Maltese name; and even Albert Poggio, who is the excellent representative of Gibraltar in this country, has an Italian name. There is currently a total linkage of the people of Gibraltar with many Mediterranean countries.

The relevance to Gibraltar of the European Union is in part because of the dispute with Spain. Most if not all of us would agree that Spain has been extremely unwise in seeking not to build up relations with Gibraltar. There have been the disputes leading to endless delays at the border, which harm Spanish nationals who work in Gibraltar. Equally, there has been the dispute over the territorial waters. These matters are litigated in Brussels. The people of Gibraltar quite properly criticise some of what goes on in the European Union in respect of the Spanish judge who I think recently presided over a judgment to the detriment of Gibraltar. We criticise sometimes the fact that, although Britain should represent the interests of Gibraltar in Brussels, sometimes the UK representative has perhaps failed to notice matters that are relevant to those people.

On one thing, though, the people of Gibraltar are clear: it is in their interest to have the UK there in the EU, fighting the Gibraltar cause and putting up the objections to any particularly nationalist and populist sentiments put forward by the Spanish. It is therefore most important that the Gibraltese, the people of the Rock, are able to show their opinion and to do so clearly, and that Gibraltar is established as a separate electoral unit with a separate result. It could be an interesting point if the people of the Rock were to say yes, because they recognised the importance of their relationship with the European Union through the UK, and yet the UK were to turn its back on the European Union and therefore, in effect, on Gibraltar. However, that is for another day. Both in chairing the Foreign Affairs Committee and in other fora, I have long stood shoulder to shoulder with the people of Gibraltar. I am happy to do so again to ensure that there is a separate count, separately recorded. I beg to move.

[Lord Wigley]

My Lords, I am sorry that I missed the opening remarks of the noble Lord, Lord Foulkes. His brevity in speaking today is no doubt recognised by all across the Chamber. Any accusations that he could be filibustering would be absolute nonsense. However, the question raised about Gibraltar is slightly different. I understand the position that my noble friend Lord Anderson comes from, but the main thrust of my support for the amendment moved by my noble friend Lord Foulkes—and my amendment, Amendment 67 —is the need to ensure that the people of Wales, Scotland, Northern Ireland and England know exactly where they stand on this matter.

As I indicated before in a more general debate, if there is no publication of the results for each nation, there will be speculation—and speculation could be much more damaging than facing up to the reality of whatever the result may be. I believe that, because of the importance of the economic question, to which I referred earlier, there will be a yes vote in Wales—but whatever the outcome, the people of Wales and, indeed, the people of Scotland, Northern Ireland and England, have a right to know where they stand. The overall result will no doubt be taken on a United Kingdom basis and would be the aggregation of those votes, but at least people would know where they stood, and for that reason, I support the amendment.

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[Lord Dobbs]

The noble Lord is entirely right—they will come back to this House, which is the point I was making, although they may not come back in the form that he would like. However, nobody is trying to avoid ensuring that the arrangements for counting these votes are satisfactory. This should not be a divisive matter. Why do we need to specify at this stage how the votes should be counted? The point I make time and again—perhaps in response to the position of the noble Lord, Lord Kerr—is on the cost of accepting these amendments. If this debate were entirely among rational, reasonable men and women who simply wanted to come to an agreed conclusion, then of course there would be very little cost. However, let us be real. We know what is going on in this House, in the corners and dusty corridors of this place. Some noble Lords will not accept the Bill under any circumstances. We read about that in the press all the time, particularly in the Guardian, which appears to be particularly well informed of what goes on in those corners. Therefore, I cannot simply say that of course I can accept any reasonable amendment if the consequence of adding those amendments to the Bill—which has to go back to another place, which has already spoken so clearly about the Bill—will be not a new way of counting the votes but no votes being counted at all. That would be a tragedy, and I am trying to avoid it.

The noble Lord, Lord Foulkes, has always been a great tribune of the people, if I can put it that way—of the Scottish people. Most recent opinion polls in Scotland show very strong support for a referendum: 3:1. Those same people had the common sense, time after time, to send him back to Westminster as the representative of his constituency of Carrick, Cumnock and Doon Valley. They were persuaded by him then, and I see no reason why they should not continue to listen to his entreaties and be persuaded by them in a referendum. All I am trying to do, above all, is to make sure that the Bill does not founder because so many baubles are added to the Christmas tree that the entire tree collapses. The noble Lord, Lord Foulkes, is no timorous wee beastie who runs from the sound of gunfire. He is a man who has always shown confidence in his cause, and I want him to be able to put his cause out there in public on the matter of the EU. It is in that spirit that I say that this amendment is unnecessary and I beg him to withdraw it.

[Lord Anderson of Swansea]

My Lords, I moved the amendment in respect of Gibraltar—

[Lord Dobbs]

I beg pardon of the noble Lord, Lord Anderson, if I overlooked him. I think we have never gone into the same Division Lobby, but have always parted company with a smile and good grace, and I hope that that will continue. I apologise if I overlooked him in the tributes that I was so eager to pay to the noble Lord, Lord Foulkes.

[Lord Anderson of Swansea]

That is the story of my life and of Gibraltar. However, I hope that the noble Lord will recognise me and my noble friend Lord Wigley as tribunes of the people of Wales in the same way. As the noble Lord, Lord Foulkes, said at the beginning, this problem would not have arisen if there had been schedules to the Bill with that set out, but the problem the noble Lord, Lord Roper, mentioned, has arisen. Apparently the noble Lord, Lord Dobbs, fails to recognise that we are now in a new context because amendments have been passed—two last Friday and one so far today. The speed and the pressure have gone, so he should have a spirit of looking carefully at how the Bill might be improved.

As regards the people of Gibraltar, it is clear that there could be very serious problems for our good friends on the Rock if the UK was to withdraw, so they have a very proper interest in this. It is therefore a matter for reflection as to whether to ensure not only that their votes are counted but that the position of the Rock is seen to be clear. I hope that the noble Lord, Lord Dobbs, and his advisers, whether they are in the officials’ Box or wherever, will make time for reflection so that we can find common ground. This is in no way partisan; I am very ready to accept that there is strong support for Gibraltar throughout this House. Therefore although I will withdraw this amendment I hope that it will give an opportunity for reflection by all those of good will.

Amendment 53 (to Amendment 52) withdrawn.