European Union Bill

Lord Hannay of Chiswick Excerpts

Wednesday 13th July 2011 Lords Chamber

[Lord Howell of Guildford]

My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.

I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.

[Lord Hannay of Chiswick]

I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.

[Lord Howell of Guildford]

Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.

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[Lord Blackwell]

My Lords, the noble Lord, Lord Liddle, called his amendment sensible. We should be clear that it is a wrecking amendment. It requires the Government to assert that a proposal is of major constitutional and economic significance. The noble Lord himself said that no Government voluntarily submit to a referendum. No proposal would come into the scope of this Bill unless the Government had supported it and had voted in favour of it in the European Union, so we can take it that the Minister and the Government would be behind whatever proposal was being put forward. We are then asking the Minister to volunteer to put a referendum through the terms of his amendment. As he said, no Government will voluntarily do that. We have the example of the Government’s record on the Lisbon treaty, which by every measure should have been put to a referendum but which the Government solemnly told the House did not require one. It is partly because of that that we have the mistrust to which the noble Lord, Lord Wallace, referred.

Because of the Lisbon treaty we now have a treaty that allows many changes to the fundamentals of our treaty relationship with Europe, including the removal of vetoes on a whole range of policies covered by Clause 6, and amendments to the scope of the institutions and the powers of the European Union itself through the passerelle clauses. All are to be done through the agreement of Governments without the need for a treaty change, and therefore without the need for a referendum on a treaty change. That is why we need Clause 6: because the Lisbon treaty enabled those changes to be made without a treaty change, and Clause 6 ensures that that is picked up. The noble Lord’s amendment would completely destroy that provision and overturn the view of the other place.

[Lord Hannay of Chiswick]

My Lords, as the person who tabled most of the amendments that are the subject of this debate, I should say a few words. One is meant to rejoice when a Minister eats a large quantity of humble pie. I have to say, I am not rejoicing at listening to the noble Lord, Lord Wallace, eating humble pie for having helped to lead his party to the various majorities that confirmed the Lisbon treaty. Frankly, it is a sad day when the Liberal party recants from the policy that it has pursued for so many years, saying that it is out of touch with the people and has not taken sufficient account of their views.

Leaving that to one side, I took the trouble to listen to the debate in the other place. I think I was the only Member of your Lordships’ House who did so. It was rather a sad occasion, much less well attended than this one. I am glad to see a wonderful cross-section of the views held in this House, which will no doubt be vigorously debated in the minutes or hours that follow. There was practically nobody there. When the noble Lord says that the decision was adopted by consensus, it was the consensus of around 15 or 20 people. They were mainly the people who went into the Lobby against the Government on Clause 18 and managed to muster 22 votes. They are therefore people who, by their own admission, would much rather than Britain was not in the European Union. That is a perfectly respectable position to take; it is the position that the noble Lord, Lord Pearson, takes.

On the matter that we are discussing now, I support the amendment. No one, including me, is persisting with the amendments that we tabled to the Bill and were voted on in this House. They would have reduced the number of referendums substantially, though not to only three. The amendment did not affect the provisions that would have required a referendum if any general constitutional treaty, such as Lisbon, Nice, Maastricht or the Single European Act, had come forward. That was not covered by the amendment that was rejected by the House of Commons. Only the numerous provisions that provide for 56 other referendums were covered.

I should like briefly to make three points in favour of this amendment. First, on marginalisation, given the problems with holding a referendum at particular moments in our parliamentary cycle, there is a risk that people may be minded to vote for reasons that have nothing to do with the question on the ballot paper. Therefore, a British Government would be compelled to reject a change in Europe that they believed to be in the British interest and wished to support because they did not feel able to go to the country in a referendum. This is exceedingly serious. That is why we should all listen rather carefully to someone I respect enormously, Sir John Major, who said at Ditchley in the annual lecture that he gave last Saturday that Britain was at risk of being a semi-detached member of the European Union. I know that is not the object of the Government. I have heard many government spokesmen flatly deny that and say how active we are. However, they should take this risk seriously.

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[Lord Lester of Herne Hill]

My Lords, in respect of the amendment that the noble and learned Lord, Lord Mackay of Clashfern, successfully passed in this House, I agree with him that the clause now before your Lordships is entirely satisfactory. I just want to say a few things about it. First, I do not think that Clause 18 was ever necessary, except in a political sense. Secondly, I do not think that the law was ever unclear. Thirdly, it is one of the comical aspects of our unwritten constitution that if you ask a group of lawyers or law students the origin of the doctrine of parliamentary sovereignty, they never know the answer. The answer of course is that it comes from the common law. That answer is most unwelcome to a certain kind of thinker, who thinks, “Oh dear, if it comes from the common law, the courts might take it away again”. We do not have to go into that today.

This amendment states the position as has always been made clear in the case law and therefore does no harm. I only wish that it had not been necessary in the first place. I also wish that the original Explanatory Notes that the Government introduced had not been maintained instead of being withdrawn for political reasons for another set of Explanatory Notes, all of which shows the unfortunate aspects of a Bill which is a politically cosmetic exercise in this respect.

[Lord Hannay of Chiswick]

My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:

“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.

The second reference is:

“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.

It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.

[Lord Wallace of Tankerness]

My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.

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[Lord Empey]

I was referring to the remarks of the noble Lord, Lord Hannay, and commenting that of course very few people participated in the debate, so that point is valid. The noble and learned Lord is right to say that this particular amendment was not before the other place, but at the end of the day the purpose is the same. The noble Lord, Lord Radice, described it as a “soft sunset”. Well, whether you have a hard sunset or a soft sunset, it is still a sunset, and at the end of the day I just wonder, in view of our discussions in this House about our own future, whether it is wise for Members of this House to send anything back to the other place that contains the word “sunset”. It is probably not the best thing for us to do. There is no constitutional imperative to send this back to the other place. If we believed that there was, it would be the duty of this House to do so. I just do not see that in front of us.

On the continuous use of the word “flexibility”, we all like flexibility in government, but it is a euphemism for something else. It means that Ministers can go on to take decisions, and it is precisely that flexibility that has existed for the past 35 years that leads to the Bill being in front of your Lordships’ House tonight. It is unfortunate that we have to go through these procedures, but I see no alternative but to go ahead with the Bill, and I believe that the amendment as currently drafted, or in its original form, casts a dagger at the very heart of what the Bill stands for. I hope that noble Lords will reject this proposal.

[Lord Hannay of Chiswick]

My Lords, I support the Motion of the noble and learned Lord, Lord Goodhart. I preface my remarks by referring to my noble friend Lord Empey’s statement about not angering the House of Commons. It would be unwise, frankly, if we went into a pre-emptive cringe at this stage. I am not sure that that would help us very much in the difficult debates ahead.

No noble Lord in the House today has addressed Amendment 15. We accept that it was voted against by the House of Commons, and in any case it is not permissible for us to return to the identical amendment again. That is not being suggested. The amendment of the noble and learned Lord, Lord Goodhart, is meant to produce what has been called by the noble Lord, Lord Radice, a “soft sunset”.

I listened to the debate in the other place and one of the things I heard there quite surprised me, although on reflection I think it was entirely valid. The Minister for Europe was questioned by one of the not terribly friendly members of his own party who would rather see us outside the European Union. He was asked whether it would be possible for this Parliament or a future Parliament to insert a referendum requirement in the primary legislation that approved the matters in this Bill that are not subject to a referendum but are subject merely to primary legislation. He replied, “Yes, absolutely. No problem. If that is what Parliament decides, you can add another referendum—just like that—in the primary legislation”. That startled me and led me to think that the noble Lord, Lord Lamont, when he talked about it having both ways, might not have heard of that development in constitutional practice.

When the Minister replies to the debate, can he say whether the converse is also true? In the primary legislation that would have to be introduced in the House of Commons on the back of a decision by the government in Brussels to go ahead with one of these matters, could Parliament simply waive in that legislation the requirement that is in this legislation? It will be interesting to hear what he has to say about that. I do not see that the proposition that the Minister for Europe agreed to—that a referendum requirement could be added where one was not required under this legislation—could be valid if the contrary proposition, which I have also put, was not valid. Perhaps the Minister will reply to that.

Frankly, with some of the arguments that have been introduced about how flexibility is a dirty word, my heart fails me when I think of people strapping themselves to masts, waiting for the ship to go down and saying, “Thank God I am tied to the mast and I cannot swim”. It is not a very good argument. The circumstances in which flexibility could be exercised are extremely limited and will be difficult to invoke; this amendment simply suggests a way of doing it. We would be very wise if we were to once again ask the Commons to think again about this matter. This is not a wrecking amendment and, for the reasons I have given, I do not think it takes the matter much further than it is already, with the possibility of the House of Commons varying the provisions at the moment that it enacts the primary legislation. I hope that some further thought will be given to this and that we will not all turn ourselves to the belief that this is a wrecking amendment, which it is not intended to be.