Article 50

Debate between Lord Faulks and Lord Collins of Highbury

Monday 11th July 2016 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating that Answer to an Urgent Question. Last week, we had two days of debate and a QSD on the referendum outcome in which we sought to better understand what will happen next. The result of the referendum is of course clear and must be respected, but as we heard in the other place, it is about not if but how the will of the people is delivered. Whatever version of Brexit we eventually end up with, surely Parliament must be totally engaged in the determination.

Last week, the Minister said that it is for the next Prime Minister to decide when to trigger Article 50 and start the formal and legal process of leaving the EU. We now know who, but when will we know how? The question for all noble Lords in this House is about the process of parliamentary engagement before the triggering of Article 50. What is the Minister’s estimate for meeting the commitment to consult the devolved powers? It will be a lengthy consultation process, bearing in mind the risks, but will it also involve the wider community, including employers and trade unions? If the principle is that Parliament will be engaged, will the Minister please give us more details about what that precisely means?

[Lord Faulks]

The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.

As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.

As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.

European Union Referendum Bill

Debate between Lord Faulks and Lord Collins of Highbury

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.

European Union Referendum Bill

Debate between Lord Faulks and Lord Collins of Highbury

Wednesday 28th October 2015 Lords Chamber

[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.

--- Later in debate ---

[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.