European Union Referendum Bill

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I, too, congratulate my noble and learned friend Lord Goldsmith on raising his excellent report. It will help us in future debates because not only did he touch on this subject, but he went through all the definitions of citizenship. The issue has arisen over a number of years because there was a separation between being a British passport holder and having the right to reside in Britain. That complication grew historically from our imperial past. The issue here is that we have a report that recommends something in principle that most of us would agree with but, as the noble Lord, Lord Hannay, said, that is not what this amendment is attempting to do. In his report, my noble and learned friend made it clear that there should be transitional arrangements. Simply put, people residing here should not have the vote taken away. This amendment will, in effect, say to people who reside here and have the right to vote here that they will no longer have the right to vote in a referendum because of the date of the referendum. We cannot accept this amendment, even though there may be principles in it that are worth consideration, because it would be wrong. Someone mentioned extending the franchise. This is about not extending the franchise but taking it away from people who already have it. That is why we cannot possibly support it.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this has been a short but informative debate. This is the first of a number of amendments concerned with the franchise, the majority of which are concerned with extending it. This amendment is concerned with restricting the franchise. It was considered in a different form, but it is in principle the same and is about whether Commonwealth citizens should be excluded from the franchise. I take the qualification of the noble Lord, Lord Green, that it would be if those Commonwealth citizens are not British citizens. In this amendment he has specified that should the referendum be held on or after 1 January 2017, Commonwealth citizens who are resident should not be eligible to vote, so if the referendum takes place before then, the existing Westminster franchise should pertain. The amendment would have the same effect for Commonwealth citizens in Gibraltar.

Noble Lords will be aware that the franchise for this referendum is based on that used for parliamentary elections, but I reiterate that it includes Commonwealth citizens who are citizens of a country mentioned in Schedule 3 to the British Nationality Act 1981—there is quite a number of countries—so long as they are resident in the United Kingdom. It is worth emphasising those words. As I have emphasised in previous debates, the Government think this is fair and consistent with the precedents taken from previous referendums. This franchise was used in the alternative vote referendum in 2011, and it is the franchise that was set out in the European Union Act of that year. Noble Lords will remember that a referendum would have been triggered in the event of the transfer of powers or competence to the European Union.

As I have said to the House before, “Commonwealth citizen” is a broad term. It is set out in Section 37 of the British Nationality Act. It includes British citizens as well as those who hold other types of British nationality, including British overseas territories citizens, British subjects and citizens of those countries listed in Schedule 3 to the Act. In order to be entitled to be registered in the register of parliamentary electors, Commonwealth citizens must have leave to enter the UK or to remain under the Immigration Act 1971 or must not require such leave. While in many democratic countries eligibility to vote is based on citizenship, I set out in Committee that it is our historical ties with Commonwealth countries that justify this approach.

The noble and learned Lord, Lord Goldsmith, addressed your Lordships’ House with reference to his report, which was indeed cited in Committee. He assisted the House by explaining that he was asked to review the difficult question of British citizenship, and that the quotation perfectly reasonably relied upon by the noble Lord, Lord Green, had to be seen in the context of a general review of what it meant to be a citizen and what, if anything, we should do to clarify the nature of citizenship or to record it. It is correct, as was elucidated during his remarks to the House, that he suggested that if the franchise were to be restricted to British citizens then those with an existing right to vote should have that phased out. I respectfully adopt the point made by the noble Lord, Lord Hannay, that what is contained in the amendment is really not a phasing out; it is effectively a guillotine, albeit a somewhat delayed one—a sword of Damocles, as it were.

[Lord Hamilton of Epsom]

Does the Minister intend to do anything about the report by the noble and learned Lord, Lord Goldsmith, or is it just going to gather dust?

[Lord Faulks]

I would like to be able to assist my noble friend and say that there are specific plans—I am sure that at this time the question of citizenship above all else will be a matter well in the mind of the Government—but I cannot pretend that there are any immediate plans that I am aware of to implement the suggestions made by the noble and learned Lord.

I should add that on occasions when Parliament has considered the issue of Commonwealth citizens’ voting rights, it has taken the view that the situation should remain as it is at present. We consider that this referendum is not the place to address the franchise issue again. While the amendment rightly acknowledges that it would take time to implement a change to the franchise by stating that this would apply only if the referendum were to be held on or after 1 January 2017, I am sure noble Lords will agree that Commonwealth voting rights ought to be considered as a matter of principle, not merely as a happenstance of date, to answer the point made by my noble and learned friend.

[Lord Forsyth of Drumlean]

On the point about the happenstance of date, does the Minister think it reasonable that someone could just have arrived in this country and after as long as it took them to get on the register, which would be a matter of days, they would then be entitled to vote in a referendum that is of such crucial importance to our country?

[Lord Faulks]

If they are resident in this country then they are entitled to vote. Of course in an extreme example, which I think is probably unlikely to happen, someone could arrive and then immediately attempt to register, however long that might take. However, I respectfully suggest that we cannot require those who are entitled to vote to remain in this country for a specific time before they become entitled to vote in the way that Parliament has hitherto always decided that they should be allowed to. I respectfully suggest that this is not the moment to change that franchise. Whatever may or may not be considered appropriate to do by changing the nature of citizenship or endorsing the importance of it, this amendment is not an appropriate vehicle to bring that about, nor to change the franchise. In those circumstances, I urge the noble Lord to withdraw his amendment.

[Lord Green of Deddington]

My Lords, this matter has now had an airing and a response. I am grateful to those noble Lords who have contributed to that, especially to the noble and learned Lords, Lord Goldsmith and Lord Mackay of Clashfern. The only point that I would challenge in what has been said is the question of the guillotine, or of taking away something that people have. That would be the eventual effect but let us be clear that they would have a year in which to become British citizens, so it would be their decision not to become British citizens that would mean they could not vote. However, I think we have had the debate. It is now clear that all three parties are opposed to these amendments, and there are other matters to be pursued. Accordingly, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Faulks]

My Lords, Amendment 3, in the name of the noble Baroness, Lady Morgan, would extend the referendum franchise to 16 and 17 year-olds in the United Kingdom. As I think a number of noble Lords will appreciate, the amendment is incomplete, because it would not enfranchise 16 and 17 year-olds in Gibraltar and does not make provision for the technical legislation and time-consuming operational work that would be required to register these young electors. The question of principle, however, has been roundly debated in Committee and here today. There has not been a great deal of agreement, but I hope that there may be some agreement about the House that it is essential that this referendum should be seen to be fair—and that it should be fair. We should avoid any action that could be seen as some attempt to push towards a particular outcome. That is a significant reason why, with the small changes to enfranchise Gibraltar electors and Peers, both of whom are already entitled to vote in certain elections, the Bill adopts the parliamentary franchise. We want to avoid any allegations of interference and we fear that changing the franchise, including this particular change, could be seen as doing exactly that and could seriously undermine the legitimacy of the referendum.

Much mention has been made of the Scottish independence referendum: how that came about, whether it was opportunism by the SNP, or whether the Conservative Government were somewhat asleep on the job. It took place, and noble Lords have pointed to it and suggested that we should learn a great deal from it. However, just as the franchise used in Scotland was a matter for the Scottish Parliament to determine, I suggest that the franchise for elections and referendums that affect the whole of Great Britain and Northern Ireland is a matter for this Parliament to decide. As I am sure noble Lords would accept, a decision of the Scottish Parliament does not and should not prevent this Parliament taking a different approach; the example of Scottish guardians is a particularly vivid illustration.

During the course of this debate there was an interesting use of the concept of a precedent. It is said that this referendum is exceptional, and in one sense it is. However, at the same time the argument seems to be that the decisions of the Scottish Parliament after a referendum involving 16 and 17 year-olds provide a clear precedent and indicate that the franchise should be lowered for this referendum. Yet apparently, as I understand it, the Labour Party will not argue that this will therefore lead to any proposed change in the franchise for a general election. This sits rather uneasily with the argument in Committee, which was, essentially, that the genie was out of the bottle and that once you had allowed 16 year-olds to vote in the Scottish Parliament, the argument was all over. I suggest that we need to look at the argument carefully to consider whether it is right for this country.

Noble Lords have pointed to the difference, but surely, devolution by its very nature gives rise to the possibility of difference. It does not mean that we should necessarily harmonise. The fact that people may do certain things in Scotland aged 16—get married without parental consent, formally change their name, access their birth records if adopted—does not mean that the same rules must or should apply across the United Kingdom.

It is said, correctly, that the poll is exceptional and will affect 16 and 17 year-olds for longer. Noble Lords have suggested that, because the vote will—or should, in view of what the Prime Minister has said—affect everybody in this country for the rest of their lives, that means that 16 and 17 year-olds ought to have a say. But of course, without being frivolous in any way, it follows that 14 and 15 year-olds will have to live with the outcome for longer, and no one is seriously suggesting, except in order to illustrate the argument, that they should be allowed to vote.

We heard about the response of most democracies to the voting age. It is 18 in all the countries in the European Union except Austria. I leave aside Cuba and other interesting examples of democracies. It is also the voting age that has been applied in other exceptional circumstances. In 2011, when the public voted in a referendum with similarly lasting constitutional significance—namely, the voting system used to elect Members of the other place—where was the cry for 16 year-olds then?

Does the decision that we will make with this referendum outweigh in importance all other decisions that Parliament comes to? I suggest that the answer is: not necessarily. For example, there is the decision that in England all those under 18 must be in education or training, yet we do not allow individuals under 18 years of age to participate in parliamentary elections. We have to draw a line somewhere where the voting age is concerned, and I accept that there is always an element of arbitrariness about it. However, arbitrary though it is, it is one that hitherto has generally received approval.

It is said that young people have shown signs of engagement and political activity—for example, in the Scottish referendum—and that this indicates their readiness to vote. However, recent YouGov polling suggested that only 56% of 16 year-olds said that they would like to be able to vote, and that figure decreased to 42% of 17 year-olds and 36% of 18 year-olds. Using democratic engagement and the burst of enthusiasm that there seems to have been, or the lack of it, as the basis for giving or denying the vote would set a very odd precedent. There are of course many 50 year-olds who are not politically engaged, but that does not mean that we are going to disfranchise them. Simply lowering the voting age will not necessarily increase levels of democratic engagement among all young people.

I turn now to the complexity associated with the age of majority and the need to draw a line. Scientific study of the adolescent brain has yet to identify an obvious point at which we can distinguish between adolescents and adults. There is a considerably held view that it is not until the age of 25 that the adult brain reaches its ultimate state of maturity, so we look at the broader framework. A number of noble Lords, including my noble friends Lord Ridley and Lord Blencathra, did not think that at 16 young people were ready to vote. The noble Earl, Lord Listowel—few have more concern about and knowledge of 16 and 17 year-olds—also took that view.

We should not underestimate the gravity of voting. One can say that it is all great fun, we can join in and it is good to enthuse, but it is a huge responsibility. It is a momentous occasion for every individual, and of course a 16 year-old, given the chance to vote, will and should take it very seriously. However, we have to ask ourselves whether, in our desire to enthuse 16 and 17 year-olds, we may be in danger of placing too great a responsibility on them.

[Lord Morgan (Lab)]

My Lords, is it not extraordinarily patronising to young people to suggest that they will somehow regard voting as being like a university rag and not a serious intellectual and civil responsibility?

[Lord Faulks]

That is precisely the point that I am not making. The point I am making is that they will not, and should not, regard it trivially. The question is whether it is appropriate for us to burden them with a responsibility which they will no doubt take seriously. It is not a question of simply saying, “This is a good thing for them to do. Therefore, we should grant them that right”.

[Baroness Thornton (Lab)]

A person’s mental ability has never been taken into account when considering their right to vote, so is the noble Lord getting on to dangerous ground here? People who lack mental ability still have the right to vote. Surely he is not saying that they should not have the right to vote because they may not have that maturity.

--- Later in debate ---

[Lord Faulks]

The noble Baroness is right in the sense that we do not assess mental capacity before deciding whether somebody might vote. That is correct. However, when we take the difficult decision on where to draw the line—on whether the voting age should be 18, 16 or 21—we are entitled to inform ourselves generally about individuals’ state of development to see generally what a typical adolescent might be like.

[Lord Tyler]

Will the noble Lord tell us whether he has seen the film “Suffragette”? The argument that he has just been advancing was the argument for not giving women the vote until after the First World War and then for not extending it to those under the age of 28. Those arguments were deployed by his contemporaries, as it were, of that period.

[Lord Faulks]

I am afraid that I have not had enough time to see the film, but any argument about where you draw a line could be simply dismissed as one that has been used hitherto in different circumstances. I am concerned about whether giving these particular young people the vote is appropriate.

[Lord Lester of Herne Hill (LD)]

I am sure that the noble Lord does not wish to be offensive but the last time I heard arguments about brains and capacity was in Jackson, Mississippi, with the Ku Klux Klan showing me charts of the average Negro brain compared with a white brain. Does he not realise that arguments of that kind are deeply offensive?

[Lord Faulks]

I resent the noble Lord’s suggestion. We are engaging in an argument about whether to lower the voting age. Seeking comparisons with the Ku Klux Klan is entirely inappropriate and I reject it.

[Lord Forsyth of Drumlean]

On the point about suffragettes, would it be worth reminding the Benches opposite that it was Asquith and Lloyd George who consistently denied women the vote, the reason being that they thought it would upset the men and lose votes. That was exactly the kind of opportunism that we are seeing here today from the Liberal Benches.

[Lord Faulks]

I said at the beginning of my remarks that I did not think it was appropriate to try to guess how 16 and 17 year-olds would vote. In fact, it would probably be a mistake even to begin to speculate—we would probably be wrong about it. Although I am grateful for the interruption, that is not the issue that I am trying to engage upon.

[Baroness Crawley (Lab)]

Does the noble Lord accept as fact that this cohort of 16 and 17 year-olds is extremely mature and culturally aware? More than 45% of young people in this cohort will go to university or on to further education, whereas 60 years ago 5% of them did so. We have an extremely developed and mature 16 and 17 year-old cohort.

[Lord Faulks]

I am afraid that I cannot accept facts baldly stated—engagingly stated though they are. The answer is that many more people than before are being educated, and it is a different debate as to whether this is appropriate—

[Baroness Crawley]

My Lords—

[Lord Faulks]

Perhaps I could have a chance to answer the question first.

[Baroness Crawley]

Would the noble Lord accept the facts from the House of Commons Library?

[Lord Faulks]

I am not sure that it is going to enlighten the House very much if we try to decide how well educated or not well educated these young people are. One of the arguments was that young people spend a great deal of time on the internet or go travelling. The answer is that some 16 and 17 year-olds are extremely intelligent and well informed; others are not. The bigger point is whether, looking at them as a cohort, they have changed radically since, for example, Parliament considered this matter in the round in debating the Representation of the People Bill.

[Lord Blunkett (Lab)]

This is my first ever intervention and I ought to explain to the House that I am a convert to the idea of 16 and 17 year-olds being able to vote. The great benefit regarding this particular cohort is that at least many of them, although not as many as I would wish, will have benefited from citizenship education in school, which is more than can be said for the vast majority of the population.

[Lord Faulks]

I am honoured to have been intervened on by the noble Lord, and I hear what he says.

I was endeavouring to address the House on the Representation of the People Act 1969, which was brought in by the party opposite when it was in power. At that stage, the question was whether to lower the voting age from 21 to 18. The debates in this House ranged over the issues that one would expect. Often, amendments were put forward suggesting that it be lowered only to the age of 20. There was no suggestion that it should be lowered to the age of 16. What has changed so fundamentally about adolescence between then and now?

[Baroness Young of Old Scone]

I can tell the Minister what the difference is between then and now. The difference is that, now, we have a well-fed, well-educated set of 16 and 17 year-olds who are vastly more mature than I was at that age, and that was 40 years ago. Let us get on with the present.

[Lord Faulks]

Let me turn to something that may excite the party opposite slightly less, which is the question of what may happen in practical terms if there is a change of franchise. The noble Baroness, Lady Morgan, said that with a fair wind these matters could easily be accommodated—I hope that she will forgive me if I summarise what she said. The noble Lord, Lord Tyler, was, I think, suggesting that I had in some way misquoted the Electoral Commission, but I do not think that that is a fair accusation. Let me make entirely clear what the Electoral Commission said in its publication yesterday. The commission states that it is not the case that there must be a 12-month period between a change to the franchise and the referendum, or indeed any fixed period. Reports in the media that refer to the 12-month period are incorrect.

I ask the House’s indulgence while I quote accurately one paragraph from that publication:

“It is important that Parliament is aware that if the annual canvass does not fall before the electoral event that a franchise change applies to, a key opportunity is missed to get the new group of voters registered. This does not mean, however, that other options are not available to help get as many voters as possible on the register in the available timeframe. Although the scale of the challenge presented by some of these options should not be underestimated—and it must be borne in mind that every voter is now required to register themselves individually—this does not mean that steps cannot be taken to reduce the risks presented by them with proper planning and funding”.

[Baroness Royall of Blaisdon (Lab)]

I just want to ask a factual question. Can the noble Lord say whether or not the annual canvass could be brought forward? I have no idea.

[Lord Faulks]

I have no idea of the answer to that question. The Electoral Commission will no doubt do its best, as I said in Committee, to follow what Parliament decides should be the franchise. It is also the case that, once the Bill receives Royal Assent, there are things that can be done, notwithstanding that there are various steps necessary to implement the legislation; for example, setting the referendum date and the start date. It is a very considerable undertaking involving a great many people.

I echo the point made my noble friend Lord Forsyth that being left off the register is considered a matter of considerable importance. Although there can be a campaign to increase awareness, there is a real risk that this matter would not be achieved in a satisfactory way, notwithstanding the willingness of the Electoral Commission to assist.

Legislation as momentous as this must command consensus in both Houses and the country as a whole. Reference was made to a recent amendment voted on in this House to the Cities and Local Government Devolution Bill to allow 16 year-olds to vote: that was reversed by the House of Commons yesterday by a substantial majority.

A change of this sort needs substantial legislation; it is a very important change. We have decided that the appropriate franchise is the one that has pertained satisfactorily in previous referenda and general elections, one that pertains in every country in the EU except Austria. There may come a time for change, when we lower the age to 16. There may be a debate to be had. This is not the moment for that debate.

[Baroness Morgan of Ely]

I thank noble Lords for participating in this debate. I have listened very carefully to the arguments put forward by the Minister and by others.

The one thing that we can all agree on is the need for us, at some point, to generally tidy up the inconsistencies around when young people are considered legally responsible for various aspects of their lives. But that is not the point of this amendment. Young people are the future of this nation. This is their one chance to have a say in this country’s relationship with the European Union. It is an exceptional case. They will have to live with the consequences of the result for longer than anyone. Let us show them that we have confidence in them, and that we respect them and their opinions. Let us give them a vote in the EU referendum.

I am not convinced by the arguments put forward by the Minister. Therefore, I would like to test the opinion of the House.