European Union Referendum Bill

Lord Collins of Highbury Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Stoddart of Swindon]

I assure noble Lords that I never had an ambition to be Prime Minister. The fact is that Prime Ministers sometimes make mistakes. Sometimes they are badly advised. I think that she was very badly advised to agree to the Single European Act. On behalf of the Labour Party, Donald Bruce—Lord Bruce of Donington—and I sat on that Front Bench opposing the Single European Act. Unfortunately in my view, the Labour Party has changed its view, but it might come back to reality in due course and get on the right trail with this.

I agree entirely with Amendment 1 and, as I said earlier, the noble Lord has raised an important point.

[Lord Collins of Highbury (Lab)]

My Lords, bearing in mind the contributions that we have had so far, for one moment I thought that I could be tempted to recount my 45 years’ membership of the Labour Party and my journey towards Europe. I will resist that for now, although I might come back to it.

It is important that we address some of the details of Amendment 1. It is fundamentally about a level playing field. I understand that noble Lords opposite are focusing on a level playing field over how the date will be set and the arrangements for purdah, but there is more to a level playing field than simply purdah. The Electoral Commission’s remarks or comments on this amendment are important. These show that in the commission’s experience since 2004, in referring to PPERA and its requirements, campaigners and electoral administrators need time to prepare themselves properly to follow the detailed rules that Parliament has specified. These rules relate to donations, campaign funds and, of course, how a campaign is properly designated.

I had hoped that noble Lords would refer to the ninth report of your Lordships’ Delegated Powers and Regulatory Reform Committee, which raises this point quite properly. It says that there is a bit of a problem here with the requirements in the schedules about establishing or designating an appropriate organisation that will come within the terms of PPERA, and with the campaign period of 10 weeks. The issue for me—the Electoral Commission makes this point—is that we will have a much longer campaign than 10 weeks. It has already started: organisations either have been or will be set up in the hope and expectation that they will be the designated organisation. At some point they have to get their act together and ensure that they meet fully the requirements of PPERA.

[Lord Anderson of Swansea]

A level playing field is devoutly to be sought. We can do as much as we can in Parliament and in this House to ensure that the rules are fair, that the donations question is settled properly and so on. Does my noble friend agree that there will never be an even playing field in this country as long as the press—often the foreign-owned press—is overwhelmingly against Europe?

[Lord Collins of Highbury]

I agree with my noble friend. One of the problems of PPERA and trying to establish a level playing field in elections generally is our free press, which is very important and which we must defend. We have to consider that the concentration of ownership in our press has distorted its ability to express a range of opinions.

[Lord Stoddart of Swindon]

I am most obliged to the noble Lord. I am sorry to interrupt, but he may not recall that during the 1975 referendum the press, other than the Daily Express, was virtually all in favour of remaining in.

[Lord Collins of Highbury]

I very much recall it, because, as I said in my Second Reading speech, I was secretary of the Spelthorne Get Britain Out campaign, so I was fully aware of what we were up against. I will come on to this on Amendment 2.

I want to focus on specific questions relating to this. Everyone is familiar with the 10-week campaign period and everyone is talking about purdah. However, there is a period before that relating to the operation of PPERA and designated organisations. Your Lordships’ Delegated Powers Committee said,

“if as suggested in the memorandum the start date for applications for designation is likely to be earlier than the start date for the referendum period, this will have the knock-on effect of reducing the minimum length for the referendum period”.

In considering the issue raised in these amendments, the committee said:

“We consider that, if the Government intend there to be a minimum of 10 weeks for the referendum period, they cannot rely on the operation of the 2000 Act”—

PPERA—

“to deliver that minimum period. In our view, the 10 week minimum for the referendum period should be specified on the face of the Bill”.

I would like to hear from the Minister whether the Delegated Powers Committee is correct. If it is not, how can she give the guarantees that we all accept have been made? I accept that there is a need to ensure that, when we enter the process of the referendum, there is a proper level playing field which everyone accepts and understands. To do otherwise would undermine the whole process because, as noble Lords have said, whatever we have at the end, we want a settlement. That brings me to my noble friend’s Amendment 2.

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[Lord Forsyth of Drumlean]

I was not implying in any way that health and safety is not important. Indeed, I was a Health and Safety Minister in the Department of Employment for at least a year. The point I was making was that employment rights, when we signed up to them, were subject to unanimity and we had a veto. They were then presented as health and safety in order to get round that and make it possible to change them by qualified majority.

[Lord Collins of Highbury]

I hear what the noble Lord says but I think these issues will be part of the general debate and I do not want to use these amendments for a broader discussion. The only point I will make, in relation to the debate we had on Amendment 2, is that there is a point in the process of negotiations where people put forward demands that they know full well cannot be achieved. In the Labour movement, we used to call people who made those sorts of propositions Trotskyists. I do not know whether the noble Lord, Lord Forsyth, would be offended, or would think that it was unparliamentary for me to use those terms, but sometimes, I have to confess, he does sound like a little bit of a Trot.

[Lord Forsyth of Drumlean]

In view of the person who now leads the Labour Party, I suppose I should take that as a compliment.

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[Lord Green of Deddington]

My Lords, there is not much between us. The noble Lord said 1.75 million; I said 1.9 million.

[Lord Collins of Highbury]

My Lords, I am tempted to stray on to the next group, which the noble Lord, Lord Green, has mentioned, because there are obviously a lot of issues here about what is citizenship and what is entitlement to vote. Of course, for historical reasons, entitlement to vote in this country is very complex and has developed over a long time. The link between the right to abode in this country and a British passport has been broken. We are changing that situation gradually, but it is very complex.

I have some sympathy with the comments of my noble friends Lord Liddle and Lord Foulkes because I must declare an interest: I am married to a Spanish citizen who came here to work and has been here for 20 years, and who does participate in civic life in this country. He regularly votes for his local councillor and considers himself an EU citizen. He considers himself part of a European Union and I think the problem we have in terms of this referendum is that it will undoubtedly cause him concern if Britain votes to leave the EU. No longer will he have that common bond; he will be told that he is simply a visitor here.

The noble Lord may raise a question here about residents having the opportunity to apply for citizenship and I will return to that, but I want noble Lords to address a number of questions which I would like the Minister to answer. Whatever conclusion we make, there are nearly 2 million people who have been living in this country and participated in civic society who deserve some clear answers.

When we came to a question about the future of the United Kingdom and a referendum was held in part of the United Kingdom, in Scotland, the decision was taken that the appropriate electorate for that decision was the franchise for the Scottish parliamentary elections—the local government franchise. No one disputed that at the time, as my noble friend Lord Foulkes said. Now I think citizens of the European Union—because that is what they are—who work here and have lived here for some time will ask if they vote for British representation—

[Lord Forsyth of Drumlean]

On the point that no one disputed the franchise, I certainly received many, many letters from people who were Scots living in England complaining that they did not have a vote in the Scottish referendum and that people who had come here from other European countries on a short-term basis—shorter than the noble Lord’s partner—perhaps to work for only one or two years did have a vote. It was by no means uncontroversial.

[Lord Collins of Highbury]

I know it was not uncontroversial because the previous Government conceded a referendum on the future of the United Kingdom where all parts of that United Kingdom would have said that they wanted a say in the future of this United Kingdom. That did not happen. I think that is a legitimate point to make. My husband is not my partner any longer—we have now been able to change that—but he and the 2 million people who came to this country and are here on a certain understanding are going to be faced with the prospect of radical changes in their circumstances without having any say.

I raised the point of Scotland, as did my noble friend Lord Foulkes, but when we come to British representation in the European Parliament, European citizens are entitled to vote for British representation in the European Parliament, not French or Spanish or whatever. My husband does not cast his vote in the European elections in Spain; he casts them here for British representation. They deserve an answer to that question and they deserve to know why you are choosing the Westminster franchise when maybe—as in Scotland or in Wales—the appropriate franchise would be the people who are most affected.

Of course as we come into the other debate on the next group, there is an issue about people who have resided here who can obtain the right to vote and get the Westminster franchise if they become British citizens. In the media last week, there were clear signs that people are concerned about their status changing and are therefore willing to fork out nearly £1,000 to obtain British citizenship. Maybe my husband will make that same decision—partly because he does not have to break his ties with Spain but can obtain dual nationality. That is not the case for everyone.

[Lord Green of Deddington]

I think it is true to say that, for all EU nationalities, dual citizenship is permitted.

[Lord Collins of Highbury]

Well then, good, but I still think that people need an answer to that question. People are moving to obtain British citizenship and we have to be clear on the consequences of this.

This debate has been really interesting in highlighting how people see what being a British citizen is about. We will come on to this in the next group, so I do not want to do so now, but if we are to use the Westminster franchise—and there are good reasons for doing so, not least that if people have resided here for longer than five years, they have the opportunity to apply for British citizenship and therefore obtain the vote—we may see a big rush in those circumstances. The Minister has the responsibility for giving a clear reason why those people who have worked and lived in this country for a substantial time will not be able to vote on something which will clearly affect their futures in this country.

[Lord Faulks]

My Lords, Amendment 10, in the names of the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith of Newnham, and Amendment 13, in their names and those of the noble Baroness, Lady Royall of Blaisdon, and the noble Lord, Lord Dykes, would extend the franchise to EU citizens who had resided in the United Kingdom for five years or more. Amendment 15, in the names of the noble Lords, Lord Liddle and Lord Davies of Stamford, would also extend the franchise to EU citizens but would not impose a minimum time period for residency in the United Kingdom.

As has been pointed out, many EU citizens have made the United Kingdom their home and made significant contributions to life in this country. No one would wish to deny that but this is of course a vote about the future of the United Kingdom in Europe, so we say that it is right to use the parliamentary franchise as the basis. As my noble friend Lady Anelay explained at Second Reading, we are following the standard practice across Europe. As far as we are aware, no other European member state extends the franchise for referendums to citizens of other states—and there have been many such votes over the last four decades.

The noble Lord, Lord Hannay, spoke about the exceptional circumstances of this poll. This is an exceptional poll in some respects but it is not the only one with significant constitutional ramifications. Referendums in Europe have dealt with the ratification of EU treaties or the currency that a nation should use. These are not trivial issues, albeit that the noble Lord described them as less consequential. Even so, it is said that this is different as it deals with membership. But there have in effect been other in/out referendums: 17 EU member states held referendums about whether to accede to the European Union. Most recently, the Croatian people were asked in 2012. Others have voted not to, including Norway, while in 2013 the people of San Marino voted not even to apply. So far as we can tell, not a single one of those extended the decision to citizens of other states.

Noble Lords in effect suggested that the franchise should extend to include those EU citizens because they are affected by the results of the vote. This argument has its attractions but I respectfully suggest that it does not withstand careful scrutiny. First, why should this test apply only to EU citizens? Yes, the large French community in Kensington or the Portuguese in Stockwell will be impacted to some extent by the decision, but why should it stop at the United Kingdom borders? Surely Spanish citizens in Madrid would feel the effects of Britain leaving, as would the Maltese in Valetta or the Poles in Warsaw. The United Kingdom is a major global power and the EU is the world’s largest market with a population of over 500 million. If the United Kingdom left, a great many people around Europe would be affected to a greater or lesser extent. That hardly means they should all get a vote. Let me respectfully suggest that it is not enough simply to look at who is affected by a vote in order to decide who should take part. Furthermore, the United Kingdom would feel quite deeply the impact of further enlargement of the European Union. That does not mean that in future United Kingdom citizens should be able to vote in an accession referendum in Turkey or Albania or anywhere else that might join the European Union. We need to start elsewhere. That is why the Government brought forward proposals building on the general election franchise and that is the appropriate starting point for a decision of this kind.

As for the five-year residency threshold, the noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, propose in Amendment 13 that it should be given to those who have resided in the United Kingdom for five years or more. This is a much more nuanced amendment than the other one. I wholly understand the noble Lord’s intention for this five-year threshold. No doubt many EU citizens who have settled here for many years feel a connection to the United Kingdom and the noble Lord is saying that we should give them a vote in the poll. Of course the longest resident requirement for EU citizens in order to qualify to apply for British citizenship is five years of lawful residence. After being free of immigration time restrictions for 12 months, an EU national can then apply for naturalisation to become a British citizen. So many EU nationals who meet the noble Lord’s threshold will be able, and have chosen, as the noble Lord, Lord Collins, pointed out, to take up British citizenship. I am sure many choose not to but that does not undermine the point that the option is open to them. Secondly, I draw attention to the practicality of identifying those who fall within the threshold. The franchise for local elections does not include any time limits on residency. Implementing such a limit would therefore be much more complex and time-consuming than simply using the local election franchise.

The noble Lord, Lord Davies, suggested it is unfair to exclude EU citizens when those from Malta, Cyprus or Ireland are included. I respectfully do not believe there is any actual inconsistency here. The inclusion of these three member states is not related to their position in the European Union. It is because Malta and Cyprus are part of the Commonwealth and there is a history of reciprocal voting rights, as between the United Kingdom and Ireland. The inclusion of Commonwealth and Irish citizens in the Westminster franchise is a long-standing part of the country’s constitution and it reflects the historical ties shared between the United Kingdom and the Commonwealth. This is a legacy of the Representation of the People Act 1918—the same legislation that extended the vote to women. We could hardly include some Commonwealth citizens and not others in the franchise. Of course there is a requirement of residency; I need hardly say. It would not be right to start unpicking the constitutional relationship between the United Kingdom and the Commonwealth.

Finally, noble Lords will want to reflect very carefully on how this change would look to the public. I entirely accept the point the noble Lord, Lord Hannay, made that this is not intended to affect the Westminster franchise but I return to the point that I made in relation to the first group of amendments, a point also made by my noble friend Lord Ridley. It is of fundamental importance that this vote is not just fair but seen to be fair. To appear, however innocently and whatever the reality behind the reasons, to be altering the franchise to change the result in some way risks undermining the effectiveness of the referendum. No doubt partly for these reasons, the proposals to include EU citizens in the franchise were rejected by large majorities in the House of Commons.

The noble Lord, Lord Wallace, asked whether I could help the House with how many EU citizens were actually on the electoral register. The statistic I have is that there are approximately 2.7 million EU-born citizens resident in the United Kingdom. The source for that is the World Bank’s estimate of migrant stocks in 2010, as updated by the UN Department of Social and Economic Affairs in 2013. I will endeavour to answer that question between now and Report; how successful I will be, I am not sure, but I will certainly endeavour to do so.

I was also asked what would be the consequences for EU nationals were the referendum to result in the United Kingdom leaving the European Union. As the House will know, the Government are confident that they will successfully negotiate a change in the relationship with the European Union and that the Prime Minister will then ask the country to confirm that we should remain a member of the European Union—albeit on somewhat changed terms. So what might happen to these EU citizens is entirely a hypothetical question, but noble Lords may well conclude that it is most unlikely that they would simply be cast loose, as it were, as is suggested.

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[Lord Collins of Highbury]

My Lords, if noble Lords are concerned that including Commonwealth and Irish citizens will bring the result of the referendum into question, they might then look back to last May and wonder what happened in the general election. Are we questioning the result of the general election because of their involvement in that franchise?

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[Lord Green of Deddington]

Did the noble Lord hear me say earlier that I have a letter from the noble and learned Lord, Lord Goldsmith, which supports my amendment?

[Lord Collins of Highbury]

I did. I spoke to my noble and learned friend over the weekend and made it clear that we would not support these amendments, for the reasons that I am now stating. I do not want to delay the Committee any longer. Noble Lords have made their points, and the Minister talked about the arrangements since 1918. We have also made the point about the Good Friday agreement and the impact on that. I would be very keen to hear the Minister’s view about the impact on that agreement, and what the amendments might do to it.

I come back to the basic point that we need a debate. I hope that the report by my noble and learned friend will be reopened and reconsidered so that we have a debate. However, my noble and learned friend was not saying that we should take away people’s current entitlement. That is why the amendments cannot be supported.

[Lord Faulks]

My Lords, the purpose of these two amendments is to restrict the franchise for the EU referendum so as to prevent Commonwealth citizens who are the citizens of a country mentioned in Schedule 3 to the British Nationality Act 1981, and Irish citizens who are resident in the UK, from voting. As the Committee will be aware, this referendum will use the franchise for parliamentary elections, which includes this category of Commonwealth citizens—for example, citizens of Australia, New Zealand, India and Kenya—and Irish citizens who are resident in the UK.

This is fair and consistent with the precedents Parliament has previously agreed. For example, this franchise was used for the UK alternative vote referendum in 2011. It is also the franchise set out in the European Union Act 2011, which some noble Lords may remember, which provided for a referendum in the event of transfer of powers and competencies in certain circumstances. It was initially opposed by the Labour Party, but then, I think, there was a change of heart and Labour decided to support the legislation after it had been passed.

The Representation of the People Act 1983 refers to those entitled to vote at United Kingdom parliamentary elections. They include resident Commonwealth citizens and citizens of the Republic of Ireland. “Commonwealth citizens” is a wide term. The categories of persons who fall within the definition of “Commonwealth citizens” are set out at Section 37 of the British Nationality Act 1981. Commonwealth citizens include British citizens as well as those with other types of British nationality, including, for example, British Overseas Territories citizens and British subjects, as well as citizens of those countries listed in Schedule 3 to the Act.

The Act also sets out that, in order to be entitled to register to vote, a Commonwealth citizen must either have leave to enter the United Kingdom or to remain under the Immigration Act 1971, or not require such leave. Citizenship of the country of residence is the normal prerequisite for the right to vote in the elections of that country in most democracies. However, the rights of Irish citizens, and this particular category of Commonwealth citizens, in the United Kingdom are slightly different.

The reason for granting Commonwealth citizens and Irish citizens the entitlement to vote and stand in United Kingdom parliamentary elections lies, as a number of noble Lords have said, in the historical ties we share—as the noble Lord, Lord Wallace, pointed out. In the past, citizens of Commonwealth countries and Ireland were British subjects. As countries have attained independence, the rules on franchise have been maintained and updated. In the case of Ireland, there is a long-standing agreement of reciprocity of voting rights between the UK and Ireland.

When the British Nationality Act 1981 came into force the then Government gave an undertaking to preserve certain rights of Commonwealth citizens resident here, and this included the right to vote. I should remind the House that at a conference held in 1947, the United Kingdom and the Dominions agreed that each should recognise the others’ freedom to devise their own nationality laws, but that all persons identified by such laws as citizens should continue to hold the common status of British subject. Ireland also took part in that conference and a special status was laid down for the benefit of its citizens.

It was agreed that citizens of one country of the Commonwealth who were resident in another country should, within the limits of the new citizenship system and as far as local conditions allow, be given all the rights possessed by citizens of the country in which they are resident. As I have already pointed out, Malta and Cyprus are EU member states but are also members of the Commonwealth and, if they meet the requirements that apply to Commonwealth citizens, they can vote.

On the occasions when it has considered the issue of Commonwealth and Irish citizens’ voting rights—I understand that the noble Lord, Lord Green, said that it was not considered when the matter went through the other place—Parliament has taken the view that this should not be changed. We say that the referendum is not the place to disturb this franchise. There has been reference to what the noble and learned Lord, Lord Goldsmith, said in 2008 in his citizenship review. I had understood that the passage quoted by the noble Lord, Lord Green, suggested that it was right in principle not to give the right to citizens of other countries until they became UK citizens. That ought to be seen in the context of a wider debate about what it means to be a United Kingdom citizen. I am not suggesting that any vote should be taken away from those who already have a vote for those long-historical reasons. However, it is a view that he has extended by saying that he supports the amendment, and perhaps we will hear his views on Report on that matter. He is entitled to have them. There are strong, historic reasons which we say mean that we should maintain a historic connection and a historic franchise.

Suggestions have been made, both inside and outside Parliament, that one franchise or another would influence the vote in this referendum. I entirely agree—at the risk of repetition—with all those who have said, whether fanciful or not, that any suggestion of changing the franchise might be to the effect of altering the result and needs to be avoided. The referendum should command support. I remain of the view that we should maintain our parliamentary franchise for the EU referendum and continue to include Commonwealth citizens of the countries listed in Schedule 3 to the British Nationality Act 1981 and Irish citizens as part of this.