European Union (Referendum) Bill

Lord Cormack Excerpts

Friday 24th January 2014 Lords Chamber

[Lord Foulkes of Cumnock]

Presumably they thought that there was a greater intellect here to be able to examine it in more detail, with such people as the noble Lords, Lord Armstrong and Lord Kerr, and a whole range of people like that. I am sure that they will welcome all the suggestions from this House, as well as the wisdom that we are about to receive.

[Lord Cormack (Con)]

I am grateful, but the noble Lord knows only too well that the other place had neither the stamina to talk the Bill out nor the courage to go into the Lobbies in any numbers from either his party or the Liberal Democrats. All the Divisions had huge majorities, where the negative vote was derisory. He knows full well that the question asked by my noble friend Lord Forsyth comes to the heart of the matter. We are being used.

[Lord Foulkes of Cumnock]

Maybe the noble Lord does not realise that those Divisions in the House of Commons were artificially constructed. The Conservatives put in the Tellers on both sides; they manufactured those Divisions deliberately.

[Lord Cormack]

In other words, it was unanimous in the other House.

[Lord Foulkes of Cumnock]

Everyone knows that this is a Tory party Bill masquerading as a Private Member’s Bill. Today it is also a disgrace that we are discussing it because the coalition government Chief Whip, the noble Baroness, Lady Anelay, has used her position, I think improperly, to put it ahead of all other Private Members’ Bills. There are 23 Private Members’ Bills waiting to be discussed—

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[Lord Grenfell (Lab)]

My Lords, I support these amendments very strongly indeed. I find it curious that, so far, not one word has been spoken from the Benches opposite in defence of their wording. That is rather curious, until you look at why the Bill is before us. Let me remind noble Lords of what the commission concluded. It said that the question,

“should be amended to make it more direct and to the point, and to improve clarity and understanding”.

Nothing could be clearer and more easily understood than that. However, it appears to all of us on these Benches that we are being asked to forget what it said and to go along, without question, with the wording proposed by Conservative Central Office, if that is where it emanated from.

Why do we have to do that? The noble Lord, Lord Cormack, for whom I have great respect and affection, who knows this House well and, in fact, is a very sane voice on all matters to do with House of Lords reform, astonished me with the attitude he has taken towards the Bill. He said at Second Reading:

“Let us say that this Bill is imperfect and has got here by a most peculiar route”—

that is somewhat at odds with what the Government Chief Whip has said—

“but let us speed it on its way so that those outside this House cannot say that the House of Lords stood between them and having their say on perhaps the most important international issue of modern times”.—[Official Report, 10/1/14; col. 1808.]

We are not saying that they will not have a say. You will not find anywhere in our amendments a clause saying that there will be no referendum on the EU. It is a complete canard to go on suggesting that this is what we on these Benches are saying. I want to make it perfectly clear that the reason why one can support these—

[Lord Cormack]

I never said such a thing. I said what I said in the context of the other place having not opposed this Bill. The noble Lord, Lord Foulkes, this morning said that the Divisions were contrived. That confirms my case rather than confounding it. The other place has sent this Bill here when it would have been quite within the capacities of the noble Lord’s party and the Liberal Democrats either to have talked it out or to have amended it in the other place. They chose not to do so and therefore we face a Bill that was almost unanimously supported in the House of Commons and we have to look at it in that context.

[Lord Grenfell]

I am sorry to disagree with the noble Lord but I was quoting directly from Hansard. That is exactly what he said:

“Let us say that this Bill is imperfect and has got here by a most peculiar route”.—[Official Report, 10/1/14; col. 1808.]

It could not be clearer. In whatever context you wish to put that, it is pretty plain language. It is the sort of language one is used to hearing from the noble Lord, Lord Cormack. In this case, I do not quite understand his response.

Finally, in support of these amendments, please let us scrutinise this Bill properly. We have a right and a duty to do so. We must not just wave it through, as some would have us do, because that is not what our function is here. This first group of amendments is a very good test for this House. What we are proposing is not party political—it could not be further from party politics. These amendments seek to bring clarity to the people when they have a referendum. I repeat, let us not hear more, please, from the opposite Benches saying that, on our side, this is all a conspiracy to prevent the British people having a referendum. It is not.

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[Lord Kerr of Kinlochard]

I am sorry; I spoke loosely. I was talking about the Government of the day in the United Kingdom seeking treaty renegotiation.

There are four stages to treaty amendment, and the Conservative Party has argued that renegotiation will end in treaty amendment. It has defined success as treaty amendment. Stage one is that one has to find 14 other member state Governments who agree that one’s proposals for change make sense, or at least that they are worth considering in a convention. You have to have a simple majority.

The second stage would be a convention in which the national Parliaments, the European Parliament, the Commission—

[Lord Cormack]

I just want to say that many of us cannot hear the noble Lord. There must be something wrong with the loudspeakers.

[Lord Kerr of Kinlochard]

I hate to deprive the noble Lord, Lord Cormack, of my wisdom, and he has been far too polite in the past.

The second stage of the process of amending the treaty is the calling of a convention. The last and only convention so far lasted for just over 18 months. The convention has to end up with consensus. The next stage is an intergovernmental conference in which one needs the unanimous agreement of every other member state to one’s propositions. Nothing is agreed until everything is agreed. The final stage would be ratification of the outcome. If it involved treaty amendment, the changed treaties would require new national ratification in every member state’s capital. I assume that before we have the referendum, we would want to know, and be able to tell the country, whether the renegotiation deal had stuck and had been accepted in other member states. A very awkward and complex situation would arise if you had a referendum on the assumption that the renegotiation deal would be ratified everywhere, and that turned out not to be the case.

We do not begin those four stages until after an election in 2015. It does not add up. The first stage, the bilateral diplomacy, we do not appear to be doing. We do not appear to be collecting the 14 friends to get past the first hurdle. As to the second stage, the convention, I do not know how long it would take. It might take much less than the 18 months taken last time, but it is a finite hurdle to get over and it will take time. As to the third stage, the intergovernmental conference, Maastricht took a year. This one might take less but, on the other hand, it sounds as if the propositions that the Conservative Party envisages bringing forward are rather fundamental. Finally, as to ratification in 2017, one would be asking the French and the Germans in their election years to agree with the British on, say, restraining free movement of persons, taking human rights out of the treaty, exempting the British from social law or giving them a veto on financial law. You would be seeking agreement on that in the year in which a French Socialist President was seeking re-election, and a German Government who strongly believe in human rights would be facing the polls.

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[Lord Davies of Stamford]

My Lords, each of the last three speakers has put very significant questions to the noble Lord, Lord Dobbs, and we all look forward to his response. The House will have listened with particular attention to the comments of the noble Lord, Lord Higgins, as he has long experience of public life and the logic of his intervention seems to me very compelling.

I very much enjoyed the speech of the noble Lord, Lord Maclennan. I agreed with every word of it. He and I have had pretty much the same views on this subject during the 25 years we have known each other. I am as confident as I ever was that the judgment that we have taken on these matters over the years will be vindicated by history.

The noble Lord, Lord Kinnock, said some very wise things that I hope have been taken good note of. It will have struck the House—and I trust that it will strike the public—that we have heard in the course of the past two or three hours from the four Members of the House who have the greatest experience of dealing with the European Union and European Union affairs— that is, the noble Lords, Lord Kinnock, Lord Tugendhat, Lord Hannay and Lord Kerr, coming from the two major parties and from no party. All that they said and the advice they gave to the Government, which I think was very sound, was strikingly in harmony. That is probably a very significant point.

I put my name to several amendments in this group, a number of which—Amendments 13, 14 and 15—I saw, and continue to see, essentially as probing amendments designed to illuminate the issue and clarify the options. In that respect, as I shall explain in a moment, my expectations have been more than fulfilled. However, if we want to make the Bill a little more viable and a little less absurd, the right agenda for the House now is to agree Amendment 10 of the noble Lord, Lord Kerr, and Amendment 16 of the noble Lord, Lord Foulkes, to which I put my name. That would produce a coherent solution to the problem the House now faces.

There has been a lot of comment in the course of these debates to the effect that what we are faced with in the Bill is a series of absurdities. It is absurd to have a referendum that is supposed to take place up to four years after the decision to hold it is taken. I do not think that in the whole history of referenda, which as far as I can recall started with Napoleon I’s plebiscites, anybody has ever had such a ridiculous notion before. How could the Government possibly have come up with such an extraordinary notion? The whole thing looks suspect from the start.

What also looks very suspect from the start is the fact that the Prime Minister, the Chancellor, the Foreign Secretary and the other Conservative members of the Government have all apparently had this damascene conversion over the past year and a half in favour of having a referendum Bill when a short time ago they opposed it, using very much the arguments that we continue to use quite genuinely against the whole idea.

It is also very suspect that intelligent men—they are intelligent men; they are not fools—cannot have worked out for themselves the compelling logic set out by the noble Lord, Lord Kerr, which makes this date an absurdity if there is to be a renegotiation or some sort of change in our relationship with the European Union as a result of the initiatives launched by this Government. I think that the noble Lord, Lord Kerr, has persuaded everybody, including—this is the point that I am coming to—those who have brought forward the Bill, have pushed for it and have forced the Prime Minister to go along with this initiative: that is, the people who have been described in this House several times already today as the Tea Party.

The most eloquent spokesman I know of the so-called Tea Party—the noble Lord, Lord Forsyth—appears to have accepted the logic of the noble Lord, Lord Kerr. I noted that in his intervention, which was a dramatically important one, he said that the referendum might take place before the renegotiation. He had obviously abandoned the idea of making anybody believe that there was a reasonable chance of concluding the negotiation before the referendum, so he decided to switch it round and say that the referendum might take place first. I think what has happened this afternoon is that one more cat has been let out of the Tea Party’s bag, because a referendum which took place before the negotiation would make our leaving the European Union almost inevitable. Why? Because, in having a referendum, the Government would have to get a mandate for a particular negotiating agenda. They would have to say, “We are going to change this, change that, demand this and demand that”, and that would be the agenda that the public would then endorse.

Unless the Tea Party believes, rather like Napoleon I, that we could proceed in our European policy on the basis of diktat and simply lay down to 27 other nations exactly, in the finest detail, what they will and will not do, and what they will and will not subscribe to, there is no way in hell, if I may say so, that we would ever end up with a final agreement that corresponded exactly with the negotiating mandate that the Government had obtained the consent of the British people to pursue. In other words, such a referendum would be doomed to certain disaster. It could not possibly lead to a successful conclusion or any position other than there being a gap between what had been promised at the time of the referendum—and the deal that the British people had presumably endorsed if they had accepted the referendum and supported the Government’s negotiating agenda—and what emerged from that negotiation.

This is another example of the cat being let out of the bag. These are people who are devising methods, fair or foul, to ensure that, whatever happens, we come out of the European Union. Another cat was let out of the bag last week. A letter from 95 or, as some people said, 100 members of the Tory Party told the Prime Minister that the Government should introduce a Bill that would give the British Parliament the right, whenever it wished, not to fulfil but to derogate from any rule, directive or resolution of the European Union.

Again, these are not stupid people. They knew what they were doing. What would happen if we were to pass such a Bill in this Parliament? De facto, we would have left the European Union, because immediately we would be in breach of the treaty of accession. De facto, we would be out, but without a referendum. We would be out without the British people having realised what the process was that was leading to our inevitably having to get out. Unfortunately, they still have not woken up to that.

So much for democracy and for the idea that you cannot make such a move without the consent of the British people. We must be quite clear what the agenda of members of the Tea Party is in taking over the Conservative Party in this way, which they have done so successfully—to get us out of the European Union by hook or by crook. It is therefore important that in our debates we throw light on that and open up the truth, because it is a terrible truth, about which the British public should be in no doubt.

[Lord Cormack]

My Lords, I do not think that the noble Lord, Lord Davies of Stamford, could accuse me of being a member of any Tea Party. I well remember when he was a Conservative and enthusiastically cheered on the party, sitting by my side in another place. He has had a dramatic conversion, but I do not want to talk about that.

[Lord Davies of Stamford]

I have to ask the noble Lord to let me intervene because he said something about me that I cannot accept. Of course I have never suggested that the noble Lord is a member of the Tea Party, and I do not know why he supposed that I was saying that or could draw any such imputation. He has indeed known me for a long time in two parties; he reminds me of an embarrassing part of my past. However, I hope he will acknowledge that I have never changed my views on this subject, and I am glad to say that many other Members of this House here, including on this side of the House, will vouch for that. I have not moved on that question, and any imputation to the contrary—the idea that I was cheering a contrary view at some point—is utterly wrong, and I hope that he withdraws it.

[Lord Cormack]

I did not suggest any such thing. The noble Lord should keep his cool. He may always have supported Britain’s membership of the European Union, and so have I. I made it plain at Second Reading that I had advocated an “in or out” referendum since the Maastricht negotiations. I felt that the boil needed lancing. I also made it plain that in any such referendum I would campaign enthusiastically for our continued membership. If I had to give a single reason for that, it is that I was in the House of Commons long before he was. I remember when Romania, Bulgaria, Poland and all those Eastern bloc countries were in the Soviet bloc and under the grip of the Soviet Union. I rejoice that they are members of the European Union today. That alone is a reason for keeping the European Union in being.

I have been somewhat chided today by the noble Lords, Lord Grenfell and Lord Richard, for what I said at Second Reading. I take it in good part, as they meant it in good part. However, in my speech I sought to put a case for giving the Bill a fair wind. I think it was a reasonable case and anyone reading the whole of the speech, and not merely quoting selectively from it, could come to only that conclusion.

I wanted to intervene at this point today because we are now in a rather different place. The advice that I gave was certainly not heeded. It was comprehensively unheeded in the first vote. I say to my noble friend Lord Dobbs—whom I have been very glad to support and will continue to support and who has been doing a valiant and very difficult job—that the Bill has not been ruined by the two amendments that have been passed, and it is now up to the House of Commons to grasp that fact. When the Bill goes before another place on 28 February, all it has to do is to accept our amendments and the Bill will pass into law. I hope that that counsel of pragmatism will prevail and that is what will happen.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Cormack]

Perhaps I may just finish and then I will give way. I hope that we will complete Committee stage here today. I hope that we will not have a contentious Report stage. I hope the Bill will go to another place on 28 February, suitably amended and improved, and then it will indeed pass into law.

[Lord Forsyth of Drumlean]

I am most grateful to my noble friend, who was a Member of the House of Commons for rather longer than I was—I was a Member for only 14 years. As he said, the Bill has been amended, and my noble friend Lord Higgins argued that we can just add more amendments, but that will require time. I do not understand his point when he says that this can be dealt with by the House of Commons. The reason that we are dealing with a Private Member’s Bill and not a government Bill is because the other half of the coalition—the Liberals—refused to give the Bill time. In the absence of a commitment from the Liberals to do so, and indeed from the Front Bench of the Labour Party, how is it conceivable that this Bill can get through? Is my noble friend not kidding himself?

[Lord Cormack]

No, I do not think so, and I will point out that today I have voted, with a certain lack of enthusiasm I have to admit, in the government Lobby and will continue to do so.

[Noble Lords]

Conservative Lobby.

[Lord Cormack]

I would say to my noble friend, in answer to his perfectly reasonable question, that just as we are sitting beyond our normal hours today, it is entirely up to the House of Commons to sit beyond its normal hours on 28 February—and if there is a strong and passionate feeling that the Bill should become an Act and go on to the statute book, then it can have a very long Friday and do that. Of course, constraints are called for, and the more amendments that are passed, the more difficult it will become. I absolutely accept that. My reference was in particular to the amendments that have already been passed, which could be incorporated without any great difficulty.

[Lord Deben]

I hope my noble friend will agree that those who say that the House of Lords should not have debated this Bill and tried to improve it because somehow or other it was trying to destroy it, have got entirely the wrong end of the stick. We are trying to make this Bill passable: therefore, it is up to the House of Commons to accept a better Bill from us, which is what our job is, and then pass it. To say that we cannot deal with it because somehow or other we are being disloyal seems to me to be entirely wrong, and a media invention.

[Lord Cormack]

We are not going to redebate the Second Reading. I agree with much of what my noble friend Lord Deben has just said. At Second Reading I believed there was a case for giving this Bill, imperfect as it—I made it plain that I would not have started from here and that I did not like the Bill very much—a fair wind. I tried to make that case as effectively as I could but it was not accepted. I was merely pointing out that we are now in a different position. Amendments have been passed. It is indeed, as he and I have just said, up to the other place. The principle of the referendum remains. In spite of what my noble friend Lord Spicer said, these are not wrecking amendments. If the other place will give itself sufficient time on the last day of February, it will be perfectly possible for this Bill to become an Act of Parliament, suitably improved.

[Lord Giddens]

My Lords, I have the aim of supporting the amendment with the briefest speech ever given in the House of Lords. There has to be flexibility in the date because, for the Prime Minister’s position to be feasible, there almost certainly has to be treaty change. Treaty change cannot be achieved within two years, and therefore there must be flexibility.

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[Lord Foulkes of Cumnock]

Amendment 42A puts in the word “consultative”. This is the point I made earlier. The noble Lord, Lord Dobbs, said that it is implicit in the Bill; this would make it explicit. Why do I want to do that? All referenda that we have had in Britain have been, by nature, consultative, and Parliament has chosen to comply with the will of the people as expressed through referenda. In other countries, such as Italy, France and Turkey, legislative assemblies have no choice but to accept them as binding referenda. Because it happens in other countries, some people have come round to the view that referenda can be binding. There is a fairly widespread—although incorrect—feeling that they are binding. If referenda are consultative by constitutional design, Parliament will surely, as always, go along with the choice of the majority in any future referendum. However, I want to guard against the possibility of a disputed result, numerous varieties of which may call for a second referendum.

For example, there might be a low turnout or perhaps, as with the AV referendum, there might some allegations of dirty tactics. Equally there might be an incredibly close result. As my noble friend Lord Anderson said, it was not close in 1975, it was a very clear result, but a referendum might be incredibly close, by one or two percentage points. In all those scenarios, a rerun may be the only way to definitely resolve the question. However, a rerun may also frustrate and alienate many voters who have assumed that referenda are binding. In order to avoid any feelings of betrayal or anger, we must make clear that it is a consultative referendum and that Parliament is sovereign at the end of the day and could, if it wished, ignore or repeal a referendum, should circumstances demand it.

The 1979 referendum was mentioned earlier. It would have been open to the Government, if they had been a Labour Government after 1979, to accept the result of the referendum, notwithstanding the 40% rule. However, because they were a Conservative Government, they decided to abandon devolution.

[Lord Cormack]

My Lords, the noble Lord will acknowledge that it was an amendment tabled by a Labour Member of Parliament, George Cunningham, that led to the threshold.

[Lord Foulkes of Cumnock]

Indeed. Perhaps the noble Lord was out having his tea earlier when I said precisely that in a previous speech.

The noble Lord, Lord Dobbs, has said that trust in politics and politicians is very low. Therefore, we must not allow the fact that it is a consultative referendum to remain unclear; otherwise, what he said earlier will apply a fortiori—we will be deceiving the people. The people deserve not only a say, which is their democratic right—I hope that the people’s choice organisation is listening to me—but full disclosure. I hope that we will therefore clarify the situation and put in the word “consultative”.

We have already had two amendments agreed. This would clarify things. It is a very simple thing, putting in just one word. I say to the noble Lord, Lord Dobbs, that he should not feel inhibited by the procession of Tory Whips I have seen whispering in his ear. He should have the courage to say, for once, “That is a good amendment even though it is proposed by the noble Lord, Lord Foulkes, so I will accept it”. I hope he will.

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[Lord Cormack]

My Lords, briefly, I support what my noble friend said. I very much adhere to the Burkean view that the Member of Parliament owes his constituents his initiative, industry and judgment. However, there is something that we need to take very carefully into account. My noble friend Lord Dobbs has several times in speaking on this Bill referred to the sense of disappointment people felt when successive Governments appeared to promise a referendum and then did not deliver on that promise. That disappointment would pale into insignificance by comparison with the ignoring of the verdict on a national referendum. That is why we will have to look very carefully at the threshold problem, because this addresses that in an indirect way. I was one of those who supported George Cunningham and Tam Dalyell when they campaigned in 1978 as that Bill went through another place. We will have to come back to this at some stage. The noble Lord, Lord Foulkes, has done the House a service in moving this amendment. Surely it can be accepted. If my noble friend Lord Dobbs says that it is implicit anyhow, let us put it beyond any shadow of doubt and make it explicit.

[Lord Wigley]

My Lords, I do not want to introduce a slightly discordant note on this but we must be very careful if we go down the road of saying that the vote of the people might be overturned. Considerable cynicism could arise from that. I accept entirely that if it is a consultative referendum that should be in the Bill and beyond any misunderstanding. I agree wholeheartedly with the noble Lord, Lord Higgins, on the fact that we have a representative democracy and do not send every issue back for a referendum or plebiscite, or weigh how many letters we have had in or all the rest. We must make a judgment on things. In the House of Commons they make a judgment and here in this House we must, too. If we say that the matter is one that we, as representatives of Parliament, cannot come to a conclusion on and give it back to the people, we would seem to cause enormous potential for discord if we then said, once the people had taken that decision, “We don’t like it and will ignore it altogether”.

In the context of Scotland, the noble Lord, Lord Foulkes, referred to what might have happened had there been a Labour Government in 1979. In 1997 in Wales, there was a very tight result but there was no question of the incoming new Labour Government not accepting it. It had been on a relatively small turnout of about half the people and there was about a 1% majority within that, but accepting that result defused the issue and when the subsequent referendum came on having greater powers there was a 2:1 majority. Even if people did not accept the principle of devolution in the first place they came to accept it because that was the will of the people. All I counsel is that we should be very careful indeed if we set up a mechanism that ignores the will of the people, whatever that will is.