European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Wallace of Saltaire]

I deeply regret that I have not read the noble Lord’s debate from 2002 and I shall, of course, try to dig it out before I go to bed.

[Lord Kerr of Kinlochard (CB)]

I am fascinated by these two amendments and by the name of the noble Lord, Lord Pearson, being on both of them. They seem to call for completely different courses of action. I am reminded of the story of a crash between two Concordes in mid-Atlantic, with Henry Kissinger being found in both. The noble Lord should make up his mind. Is he in favour of an impartiality authority and a criminal offence, as proposed by the noble Lord, Lord Blencathra? I am particularly against that one: the creation of a new criminal offence requires a fair amount of thought. Or does he prefer, as I do, his own amendment? Actually, I am not really in favour of either of them. This is all a bit over the top.

[Lord Collins of Highbury (Lab)]

My Lords, these amendments are not so much probing as having a go. Their purpose is clear: this is a warning shot. I was stunned by the telling possibility that, instead of the campaigns themselves determining the issues, we should leave it to the BBC to decide which campaigns were admitted. In moving the amendment, the noble Lord once again rated the Electoral Commission highly. However, the commission has looked at the amendments and said they are unnecessary. Ofcom believes they are overkill and the BBC has also set out how it will develop its own specific guidelines. I have no doubt that the issue of bias will draw attention from both sides during the campaign. Listening to the “Today” programme may annoy me on some occasions and make the noble Lord just as annoyed on others, but we may have heard completely different arguments. It is in the nature of things that we do not approach these issues without bias ourselves. Clearly, we are all committed. The important thing is that provisions to ensure fair reporting of the campaign do exist. The BBC will also set up specific guidelines for the referendum and will constantly run impartiality reviews during the campaign so that it can ensure delivery against its editorial standards. That all happened during the Scottish referendum. These amendments are having a go rather than probing. I hope the Minister will support that view.

--- Later in debate ---

I just wonder what the reaction would have been if, prior to the referendum in Scotland, I had argued that because we are a family, the English ought to have their referendum and they ought to say what they think about Scotland leaving the United Kingdom, and that as a family we all have to agree upon this. The Scots would have been absolutely outraged. What is sauce for the goose is sauce for the gander. In this case it is absolutely a United Kingdom decision and it will be the votes in the United Kingdom as a whole that will decide whether or not we remain in the European Union. Anything less than that is striking at the heart of the United Kingdom and breaking up this family, which the people of Scotland voted—not narrowly but overwhelmingly—to reject. So I suggest, if I may, that the nationalists should get on with the job of persuading people in Scotland that they can deal with health, education, housing and all the other issues on which both Wales and Scotland are now falling way behind England in terms of performance, and stop trying to create division within our country, especially on an issue as important as this.

[Lord Kerr of Kinlochard]

As so often, I wish that we had a Scottish nationalist in this Chamber to respond to the noble Lord’s points, with most of which I agree. I bow to no one in my respect for the noble Lord, Lord Wigley. His was a very moving speech and I agree with his description of the difficulties that could arise were different results to occur in the different parts of the kingdom. I think he is correct about that. I think his solution is absolutely wrong. I cannot support his amendment.

The amendment in the names of the noble Lords, Lord Wigley and Lord Liddle, is probably unnecessary because I suspect that the votes will be counted separately in any case; I would hope so because there will certainly be rumours about what the result has been if it is close and it would be far better that there should be something on the record. With respect to the noble Lord, Lord Forsyth, it is a little harsh to accuse the noble Lord, Lord Liddle, of being a violent Scottish nationalist because he has put his name to that amendment.

There is a fundamental issue with Amendment 61C. The noble Lord, Lord Wigley, proposes a quadruple lock in the situation in which, say, England has voted to leave the European Union and Northern Ireland has, by a very narrow majority, voted to stay in. If the noble Lord’s amendment was carried and became the law, we would stay in. That seems an unacceptable situation. I agree with the noble Lord, Lord Forsyth: it is a United Kingdom decision.

It is important to note that we have no threshold requirements in this referendum and we have had no amendment in Committee proposing that there should be a threshold. That is constitutionally quite surprising for a decision as big as this. The precedent would lead one to think about a threshold. I would not have wanted a threshold. I would not have wanted a supermajority, as in the precedent in Scotland in the 1970s. I do not like referenda but the essence of a referendum is that you win or lose. It is clean; it is 51% to 49%, for example. If 51% are in favour of our leaving the European Union, we will leave, and we should not create any fudge round that. This is a yes/no decision, and if you decide to go, you go. The double referenda theory attributed to Boris Johnson, which he appears to have come off—that if the decision was to go, there would be another negotiation in which the foreigners, astonished and timorous, would come creeping, offering us far better terms to stay in—is nonsense. If the country votes to leave the Government will be required to invoke Article 50 and start the process of coming out. It has to be clean. I say to the noble Lord, Lord Wigley, that I think he is correct in his description of the difficulties that would arise, but the difficulties which would arise if his amendment were the law of the land would be much greater.

[Lord Forsyth of Drumlean]

The noble Lord said that if the country voted to leave the Government would invoke Article 50, but surely that does not follow. It would be possible for us to remain in negotiations having voted to leave and then subsequently invoke Article 50, would it not? He is the expert.

[Lord Kerr of Kinlochard]

I do not know what form these negotiations would take. I think that the position of a Government who said, “Okay, we have heard the nation speak, but now we are going to go and negotiate something else with Brussels. We are not acting on the decision the country has taken”—

[Lord Forsyth of Drumlean]

My point is that if you invoke Article 50 you are then no longer a member and it does not necessarily follow that that would be the most appropriate way of dealing with it. You could remain as a member and negotiate our withdrawal and then use Article 50.

[Lord Kerr of Kinlochard]

Actually, you are a member while the Article 50 negotiations are proceeding. You are a member of every council. Your MEPs do not leave the European Parliament, your judges do not leave the court and your Commissioners do not go home. The only difference is that in the Article 50 negotiations you do not have a vote on the position of the EU—the position that it has in its negotiation with you. That is all. You remain a member throughout the period of the Article 50 negotiations unless you decide unilaterally to go home. You do not have to do Article 50 at all. If you want you can just stop paying the bills, stop turning up at meeting and in due course it will be recognised that you have gone. It is not the case that once you invoke Article 50 you are no longer a member of the European Union.

[Lord Hamilton of Epsom (Con)]

Surely the key to the decision taken in the referendum is that it is advisory and not mandatory, so therefore it would not be necessary at once for the United Kingdom to apply for Article 50. We could merely carry on with the negotiations with absolutely nothing changing whatever.

[Lord Kerr of Kinlochard]

Technically, that is correct. It is advisory. But it seems to me that anybody who thinks that the Government could do other than act fairly quickly on the advice they had received from the entire country is in cloud-cuckoo-land. The noble Lords, Lord Forsyth and Lord Hamilton, are right in a sense in that our influence in the councils of the European Union would go into very rapid decline. We would still be there but we would not be listened to a great deal if we were heading for the exit door. That is certainly true. However, we would be members, and the idea—with all respect to the noble Lord, Lord Hamilton—that the Government might consider whether they were going to act on the advice of the country or going to try some form of new negotiation is nonsense. If the country votes to come out, we come out.

[Lord Tebbit (Con)]

My Lords, it seems to me that this is a piece of nonsense. Wales is not a member of the European Union, nor is England, Scotland or Northern Ireland. The United Kingdom is the member of the European Union. Therefore, it does not matter a damn whether some region or another—whether it is Wales, London, Ponders End or wherever—votes one way or another. The only thing that matters is which way the United Kingdom votes.

I do not intend to be provocative at this time of night—good lord, I never intend to be provocative—but it is worth remembering that there is considerable doubt over whether, if Scotland had voted to leave the United Kingdom, either it or the remainder of the United Kingdom would have continued to be a member of the European Union. The state which entered the European Union was the United Kingdom; if the United Kingdom had ceased to exist, then probably neither Scotland nor the remainder of the United Kingdom would have been a member of the European Union. It would have been up to the Scottish— and possibly the Welsh at some time or another—to negotiate entry into the European Union. We could all have a bit of a chuckle about how that would have gone, but essentially this is just a piece of nonsense which is not even worth discussing at this time of the evening.