European Union Bill

Lord Kerr of Kinlochard Excerpts

Tuesday 5th April 2011 Lords Chamber

The amendment would discourage foolish referenda. It would stop special interests trying to exploit the referendum as a way to impose their views on the general public. It would be in favour of the unity of the United Kingdom and not inclined to divide it. Finally, and not least important, it would say decisively that to put representative democracy at risk should be done only on the basis of a very substantial part of the United Kingdom’s thoughtful and intelligent electorate.

[Lord Kerr of Kinlochard]

My Lords, in my heart of hearts, I take a harder position than the noble Lords, Lord Williamson and Lord Hurd. I will support their amendment because no amendment on the Order Paper delivers exactly what I want. Referendums should only and always be advisory. The idea of a mandatory referendum is fundamentally destructive to the principles of parliamentary democracy. The noble Lord, Lord Hannay, said that what we have here is a palliative; I would rather have a cure.

First, I would cite the noble Baroness, Lady Thatcher, in support of what I have just said. It was a great pleasure to hear the noble Lord, Lord Hurd, tonight. He and I both experienced how rash it was to disagree with the noble Baroness, Lady Thatcher, so I wish to agree with the view that she expressed in the debate in 1975 on the Referendum Bill that the referendum should only be advisory and that if it were mandatory it would be destructive of parliamentary sovereignty.

An additional argument concerns timing. An advisory referendum, and possibly even a mandatory referendum, would not be quite so objectionable if it preceded the negotiation of the change in the EU texts to which the Government had agreed.

I was very much against the idea of a referendum on the euro in 1994—I do not remember that my opinion was sounded; quite rightly, it was not—but that was not quite as bad as what is foreseen in the Bill. If we were now to decide that we wished to join the euro, that would be followed by a negotiation with our partners that are now in the euro and might or might not result in our joining the euro. The Bill states that at the end of the process in Brussels—when the Government have extracted concessions from others around the table and a consensus has been found, the decision has been brought back and is acceptable to the Government and to Parliament—a referendum should decide whether we renege on what we have done.

The concept of interlocuteurs valables is quite important. When an ambassador is received by the state to which he is accredited, he presents his credentials. When the Foreign Secretary or his side-kick start a negotiation in Brussels, it is accepted that they speak for their Government. It then follows that if they do a deal, their Government will not renege on it. So when in the end a deal a struck—if one is struck—all participants are pledged to deliver it.

I was shocked when the French referendum on the constitutional treaty did not lead to resignations in the French Government. The people who negotiated the text which the French decided to reject should immediately have resigned. However, there may be a difference between a presidential and a parliamentary system of government; a president can stand away from an issue and blame the Government. You cannot do that here. If in a referendum on some arcane issue—which, on the basis of the Bill, might be decided on a very low turnout and a very low majority—we decided that we were going to renege on the deal that had been done and the text that had been initialled in Brussels, I would hope that the Ministers who had initialled the text and those who had negotiated for them would resign. They would have to.

Whether a referendum is mandatory or advisory depends in part on when it is. Here we have the worst case; under this Bill, all referendums will be after the negotiations. They are all linked to treaty changes and to a process that has taken place in Brussels; the outcome is brought back and the decision is taken on whether it should go to a referendum. If the referendum finds against the Government, it should lead to the resignation of the responsible Ministers. In honour, they would have to do that.

The noble Lord, Lord Hannay, earlier quoted tellingly from Jean-Claude Piris’s memorandum to the Commons European Scrutiny Committee about good faith. He spoke about the implications of adding new hurdles to the simplified treaty revision procedure. There is a bigger issue of good faith here. We are going to send our negotiators to negotiate and, when they have completed the job, they will carry on and there will be no change unless the country votes for it. I would much prefer an amendment that makes it purely advisory—a Thatcher amendment. There is no Thatcher amendment on the Order Paper now. I therefore support the amendment proposed by the noble Lords, Lord Hurd and Lord Williamson.

It is a huge delight to find myself in agreement with what the noble Lord, Lord Stoddart, said about Amendment 6; he is completely correct. As to what he said about Amendment 5, the two go together. It is a technical point and I do not think that there is a difference. Amendment 5 is a necessary consequence of Amendment 6, but the noble Lord, Lord Williamson, will correct me if I am wrong.

[Lord Williamson of Horton]

Amendment 5 would establish an advisory referendum in all cases and not only in the case where there was the 40 per cent threshold. The distinction made by the noble Lord, Lord Stoddart, was quite intelligible and clear. Amendment 6 would establish the advisory nature of the referendum when the turnout was below 40 per cent. The noble Lord, Lord Kerr, will be glad to hear, because he supported Amendment 5 without quite understanding it, that it would establish an advisory referendum in all cases.

[Lord Kerr of Kinlochard]

I have no more to say except to share the hope of the noble Lord, Lord Hurd, that the Minister, if he grumbles at all, will do so in the most mild and polite form.

[Lord Foulkes of Cumnock]

I am sure that, if the noble Lord, Lord Kerr, put down what he described as a “Thatcher amendment” on Report, he would find a lot of support for it. We will have another opportunity for looking at that. Returning to the intriguing speech of the noble Lord, Lord Hurd, and the almost exciting start when he described what John Major had asked him to do, I thought that we were going to get revelations about when John Major questioned the parental legitimacy of some of his Cabinet over Maastricht. I am sure that that would have been equally interesting.

We should go back to the eloquent speech made by the noble Lord, Lord Deben, in the debate on Amendment 1. He questioned, as have a number of noble Lords in this debate, the whole purpose and legitimacy of referenda in our parliamentary democracy. I thought that he put that well and I share a lot of his concerns, particularly in the context of the two Scottish referenda, which the noble Lord, Lord Stoddart, mentioned. He said that, in 1979, we did not get the required 40 per cent. We had to get 40 per cent of the electorate in favour as well as a majority of those who voted, on the basis of an amendment by George Cunningham that had been agreed by the House of Commons. Then, in the referendum in 1997, we got a substantial vote in favour of Scottish devolution.

We may have had a better campaign in 1997 and people in Scotland had perhaps moved on in their thinking, but one of the main reasons for that change is that people do not always vote in referenda on the question on the paper before them. They vote for a whole range of extraneous reasons. As I am sure everyone remembers, in 1979 the Labour Government were not at their most popular whereas, when we put the question forward in 1997, that immediately followed the great revolutionary result that saw Mr Blair become Prime Minister. It was a very popular Labour Government. People were perhaps influenced by all these other extraneous things. That is the case in referenda in general, which is one of the reasons why I share the suspicions about them. They should be use rarely and sparingly in our constitution, if at all. I have gone along with that.

I was much in favour of our membership of the European Union in the 1975 referendum. That was the first referendum and it was on a major issue. The noble Baroness, Lady Williams, and I campaigned strongly on the same side and, back then, for the same party. We had a huge campaign and it was a major issue—the crucial issue of our continued membership of the European Union—not just some trivial little matter included in this Bill.

--- Later in debate ---

[Baroness Falkner of Margravine]

My Lords, again, I have to say that I think that when we say that we are giving up representative democracy in favour of plebiscitary democracy, we are on ground which is difficult to explain out there in the media. In the debate on Amendment 1, the noble Lord, Lord Kerr of Kinlochard, said that it was undoubtedly true that the public did not trust Parliament on EU matters to the extent that they had done in the past, and that there was a disconnect—

[Lord Kerr of Kinlochard]

I did not say that. I said that I shared the view expressed by the noble Lord, Lord Howell, that the public at large have become less convinced of the merits of the European Union. I said nothing about Parliament and its role in relation to the process.

[Baroness Falkner of Margravine]

I thank the noble Lord for reminding us of his exact words. It will be useful to read Hansard when it comes out. I completely accept that his version is probably the appropriate version of what was said. However, I will pursue the point I am making for another second or two. I say this particularly in response to the noble Lord, Lord Hannay. It is pretty difficult to justify the idea that an unelected House of Lords, which is absolutely part of the constitutional framework, should deliberate at length about whether the public are capable of making a judgment on matters of considerable significance—that is how they see them according to opinion polls—but that we should then disregard that, as this amendment would do, by saying, “We will have a referendum, we will come back and we will disregard it”. That is my opinion, which I am sharing with the Committee as other noble Lords have done.

I come back to the other element in this group of amendments, which is the 40 per cent threshold. I think that noble Lords will agree that you could get a very low turnout—perhaps it was the noble Lord, Lord Clinton-Davis, who mentioned something like 20 per cent. However, given that the public are being asked to express a view on the matter, it would be odd subsequently to overturn the Act of Parliament which had determined that the change should go ahead simply because the turnout was low. The need to gain a particular threshold would set another hurdle for the Minister to jump over. I am not completely opposed to the figure, but it is rather curious that it is 40 per cent.

I also think it rather curious that we would be saying, “If it is 39 per cent we will not accept it, but if it is 41 per cent we will”. It is an arbitrary figure. We could select any arbitrary figure, and I do not understand where the 40 per cent figure comes from. If a Minister had signed up to a change and we had an Act of Parliament, it would be incumbent on the Government to sell their viewpoint. That would be set out in the statement and in the reasoning given in the statement. As for the suggestion that the failure to convince 40 per cent of the public to vote in favour might result in the resignation of Ministers, I think that, in that case, that would be the honourable thing for Ministers to do. As the Bill stands, however, there is no threshold. It simply states that if,

“the majority of those voting in the referendum are in favour of the ratification of the treaty”,

that is the way to go.

--- Later in debate ---

[Lord Wallace of Saltaire]

I wish to resist getting too far into hypothetical issues about what might happen in a great emergency in a future Parliament. I simply wish to state that Parliament is sovereign. There is nothing in the Bill that would bind this or any future Parliament from legislating, notwithstanding the provisions of the Bill, or from disapplying the provisions of this legislation, or indeed acting contrary to the will of the electorate expressed by them in a referendum. In this sense of fundamental parliamentary sovereignty, any referendum is advisory. All that the Bill says is that a referendum will be mandatory on the Government who receive the result of that referendum. I am conscious, from the unusual quiet, that the heating has just been switched off and that we should not delay the House too much longer.

[Lord Kerr of Kinlochard]

Would the Minister accept that he made a slightly selective quotation from Professor Bogdanor’s memorandum? The bits of the memorandum that he read out were those governed by phrases such as “it could be argued”, and “it may be suggested”. It is clear that those were not the views of Professor Bogdanor. Towards the end, having listed various contrary arguments, his memorandum concluded:

“The solution to these difficulties is to provide that the referendums be explicitly advisory”.

The last lines of his memorandum were,

“The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliaments through a referendum lock. Was it not the Queen, in Lewis Carroll's Through the Looking Glass, who declared that she had been able to believe in six impossible things before breakfast?”.

The Minister should beware of selective quotations.

[Lord Wallace of Saltaire]

It is hard enough that one of the first experts on the European Union whom I ever met when I was a junior academic was the noble Lord, Lord Williamson. I am doing my utmost to resist bowing to the great wisdom of some of the experts from whom I have learnt in the past.

We have covered the issues in this large number of amendments very thoroughly and it is time for us all to reflect on them. I will ensure that the Government’s response to the Constitution Committee is published within the next two or three days. I am told that it is already on the website and I trust that there will be a hard copy very soon. In view of all the comments and responses that I have made, I hope that noble Lords will feel able not to press their amendments.