European Union (Referendum) Bill

Lord Mackay of Clashfern Excerpts

Friday 24th January 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Armstrong of Ilminster. I am all the more willing to do so because, in its four proposers, it has support from all the main parties in the House and from the Cross Benches. In a debate which has already shown a tendency to become partisan, it is important to move ahead on that kind of cross-party basis.

I support the amendment because if and when there is a referendum, there will be a huge amount of partisan speaking, writing and so on—and quite right, too—on both sides and there will be much that is confusing. However, surely we all ought to be able to agree that the question on the paper we vote on should be a genuinely level playing field. That is critical. Everything else about the campaign will not be a level playing field—and that is right because we live in a democracy—but the question should be.

We have before us two questions. The one in the Bill of the noble Lord, Lord Dobbs, has been considered by the body set up under Parliament’s authority to give advice on these matters and found to be defective. We have heard why it is defective. I will be interested to hear from the noble Lord, Lord Dobbs, when he replies to this debate, why he thinks that, despite it being defective, it should be persevered with. I hope that he will not persevere with it; I hope he will accept the amendment.

The other question, which has been put forward by the Electoral Commission and which we are now considering, is, as has been said by everyone who has spoken today, a genuinely level playing field. It is important that if and when this referendum takes place it is perceived to be on a question that everyone can recognise as being a level playing field. How on earth are they going to think that if the Electoral Commission’s advice has been junked on a form of words whose origin appears to be obscure at the moment? Perhaps the noble Lord, Lord Dobbs, can tell us whom Mr Wharton consulted before he put this on the Order Paper. Whose opinion did he take? He is, after all, a freshman Member and I doubt that he has done a great deal of drafting of referendum questions in his life. Whom did he consult?

I hope that the noble Lord, Lord Dobbs, will surprise us all by accepting the amendment, because the issue of a level playing field in the question to be asked is absolutely fundamental.

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will not be surprised that I am extremely concerned about this Bill, its implications and the time at which it has reached your Lordships’ House.

As I understand the Bill, it does nothing more than confer on the electorate of this country the right to an “in or out” referendum on our membership of the European Union—nothing more and nothing less. Further action is required from the Government and both Houses of Parliament before a referendum can take place under the Bill. It is clear from the present situation that no referendum is likely to take place before the next general election, the date of which we know—or at least at the moment we know—because of the excellent system of fixed Parliaments that has now been put in place.

It is clear that action by the incoming Government will certainly be required. I have reached the conclusion that any incoming Government holding a referendum during their term of office will wish to be in charge of all the details of that referendum and will put them in place through a public general statute. This will be put in place by the Government and run by the Government, with both Houses of Parliament—I hope more or less in their present forms—having a full opportunity to consider the details.

I am not a prophet—I do not know how many of us are—and I do not know exactly what the conditions will be in 2016-17. For all I know, the eurozone may be a distinct body from the European Union and a change of name may occur—as, for example, happened in connection with Maastricht when the name changed from the European Economic Community to the European Union. So the question will have to be decided ultimately in the light of the circumstances prevailing at the time of the referendum. That is absolutely essential.

[Lord Giddens]

Would not that also apply to the date of the referendum? Should not that be decided in the light of what is happening in the European Union at a particular point because it is becoming so transformed?

[Lord Mackay of Clashfern]

Exactly. Every part of this Bill can be altered by general legislation after the general election, including the date. However, the need for the date now is to give an entitlement to a referendum. If you do not put in a date, it will be in never-never land so it has to have a date now, but that date, like every other detail in this Bill, is subject to alteration.

Therefore, the extent to which we need to trouble about the detail is a substantial question. We do not know the circumstances of the referendum—at least I do not know—and therefore it will need to be adjusted in the light of the circumstances at the time. That will have to happen through a Bill authorised, put forward and promoted by the Government of the day. This Bill is not promoted by the Government of the day but by, essentially, the Member of the House of Commons who put it forward. He is a member of the Conservative Party and I know that the Bill is substantially supported by a good number of its members, but not all.

I am a strong believer in the European Union and our membership of it and have been for many years. I survived in government during the Maastricht debate, which would have been an experience for anyone, and there were demands then for a referendum on the Maastricht treaty. I have always found referenda difficult, but it is particularly difficult to have a referendum on a treaty because the chance that those people who vote have even read it—indeed, this may sometimes even apply to the legislators—is rather small. A referendum on a treaty is therefore difficult. At one time it was proposed to hold a referendum on the constitution of the EU, but that was equally difficult.

However, the question of whether, either now or in the future, you should be in or out is relatively simple. Just as it is in the Scottish referendum, it is a suitable question for a referendum. What this Bill does is give the British electorate the entitlement to have a referendum. As I said in response to the noble Lord, Lord Giddens, the date has to be put in, as otherwise there is no enforceable entitlement, but the actual date for the referendum needs to be fixed by Government action along with action by both Houses of Parliament.

I am anxious about this because of what has been said by the Constitution Committee. I shall read out what the committee said because it is important:

“Three further private members’ Fridays are scheduled in the House of Commons this session: on Fridays 17 January, 24 January and 28 February 2014. So if the Lords were to pass any amendments to the bill, in order for it to become law in this session it would have to return to the Commons in time for the Lords amendments to be considered on Friday 28 February 2014. The requirement in the House of Lords for minimum intervals between stages of a bill may make it unlikely that the bill would finish the Lords in time for any amendments passed by the Lords to be considered by the Commons on Friday 28 February 2014”.

I would like to know what the proposers of this amendment have to say in relation to that.

The danger I see is that by exercising our undoubted responsibility for scrutiny, and given that scrutiny is supposed to improve a Bill, we will improve it in such a way as to kill it. This troubles me a great deal, not so much from the point of this House and its position in relation to the Commons, but I consider it to be important in terms of the position of the country in relation to the European Union.

[Lord Anderson of Swansea]

Surely the pressure on time that the noble and learned Lord has explained is wholly arbitrary. It is not something which has been decided by this House; it has been forced upon this House. It is no fault of this House that there is such pressure of time. The implication of what the noble and learned Lord is saying is that even if the Bill is thoroughly flawed and thoroughly bad, we should just wave it on.

[Lord Mackay of Clashfern]

I did not say it was our fault—certainly not. The Bill started off as early as possible in the other place. It took some time because there was a lot of discussion. Members of the House of Commons considered it without a guillotine and it arrived here, I think, in early December. I remember well the Clerk reading out the fact that it had appeared.

[Lord Radice]

Should such an important issue as a referendum be introduced in the form of a Private Member’s Bill? Is not the reason we are in such trouble because it has been introduced under the wrong heading and in the wrong way?

[Lord Mackay of Clashfern]

There is no option. If the Government do not want to give the people an entitlement to a referendum, then unless your Lordships can enlighten me, there is no other option that I know of by which that can be made a statutory entitlement. Of course, your Lordships may wonder why they should have bothered, and I hope to come to that briefly—usually when you say “briefly” it makes your speech longer, but I hope that it does not do that to mine.

The point I want to make is this. UKIP, which is a recognised political party in our country and is represented here by the noble Lord, Lord Pearson of Rannoch, and others, has two issues. The first is that the people of this country should have a referendum. The second is that the people of this country, if granted a referendum, should vote to come out of the European Union. On the first question, UKIP appears to have a very considerable amount of public support, and indeed that was recognised in the debate on Second Reading.

But what about the parties simply putting a promise in their manifestos? The difficulty is that in recent years, all the parties which have been in government have promised a referendum, and yet no referendum has taken place. The result is that all the parties are being accused of making false promises that cannot be trusted. The noble Lord, Lord Owen, made this point very forcefully at Second Reading, and it strikes me as an extremely important one. If the small print of those promises were to be examined, I think it would be seen that there were no real false promises. However, from what I have seen over the years, any discussion of the small print does not form an important part of political propaganda, so the business of the false promise allegation has therefore gained a good deal of strength.

I know of no better assurance that anyone could give to the British people that they will have a referendum other than an entitlement to one in a Bill. However, the Bill, although it provides for the entitlement, need not and does not of itself actually produce a referendum. Before a referendum can take place under this Bill, action by the Government and by both Houses of Parliament is necessary.

[Lord Anderson of Swansea]

The promise is not bankable on the principle that no Parliament can bind their successor.

[Lord Mackay of Clashfern]

Exactly, and this Bill does not bind anyone—except that if it remains on the statute book, it will entitle the British people to a referendum.

[Baroness Quin]

From what the noble and learned Lord is saying, it seems that the Bill has no purpose whatever. Moreover, on his earlier point about timing, is it not the case that if we pass amendments to this Bill, it will be up to the House of Commons, if it decides that it wants to allocate more time, to do so? That could be done via the usual channels.

[Lord Mackay of Clashfern]

I have not myself been a Member of the House of Commons, but as I understand it our Constitution Committee, which knows much more about these matters than I do, has said that it is likely that if we pass amendments, this Bill will fall. That is a fact as stated by the committee. The noble Baroness has said that I am saying that the Bill has no purpose at all. I do not say that for a moment. The purpose of the Bill is that it gives the best assurance to the British people that they will get an “in or out” referendum in due course. However, it is only an entitlement and the full—

[Lord Quirk]

If the importance of this Bill is to guarantee the great British people a referendum, can the noble and learned Lord explain why its devisers have gone out of their way to put down the question in such a tendentious form—a form that actually goes against the advice of the Electoral Commission?

[Lord Mackay of Clashfern]

First, as I said, the Electoral Commission’s advice so far is provisional. Like me, it realises that the actual question will depend to some extent on the circumstances that obtain at the date of the referendum. I do not regard the question as particularly tendentious. The idea that those who are going to vote will not know, at the end of a referendum campaign, whether we are in the Union or out, is perhaps not the most—

[Baroness Farrington of Ribbleton]

Did the noble and learned Lord support Alex Salmond on changing the question for the Scottish people? I have listened very carefully, and with respect, to the noble and learned Lord. He appears not to particularly like the question, not to accept the date and not to accept that this is binding on a future Government. I have two questions for him. If he wishes the British people to take on good faith what emerges from here and from Parliament as a whole, surely he would support a better question? Secondly, why is the date in the Bill not during the lifetime of the next Government, given all that has been said about the large amount of work that the Prime Minister says has to be done before the people know the circumstances in which any question would be put?

[Lord Mackay of Clashfern]

As I said, the only purpose of the Bill, as I see it, is to provide the British people with an assurance that they will have an “in or out” referendum. Indeed, I think my noble friend said that was the principle of the Bill at the beginning. I have very little difficulty with the question as formulated by the noble Lord, Lord Armstrong, and would be perfectly happy with it. However, I do not think it is a really definitive question for the referendum itself because that would be much better looked at when, finally, the referendum actually takes place.

[Lord Giddens]

Is not the inference from what the noble and learned Lord says that anything could be in the Bill and it would not matter as long as it goes through? That, surely, is an absurd position. It is up to us in the House of Lords to make sure that the Bill is sensible and well reasoned and, especially, that the question asked is fair and impartial. That is absolutely central to any referendum, as any country anywhere around the world with experience of this shows. The question has to be clear, fair and impartial and it has to be the core of what determines the future of the country. It does not make any sense to say that it does not matter and we will come back to it later.

[Lord Mackay of Clashfern]

I do not say that the question does not matter—not at all. I perfectly understand that the question at the time the referendum is taken has to be fair, excellent and take full account of the circumstances. In response to the second question asked by the noble Baroness, there is quite a lot of work to be done, but I know of no way other than this Bill that gives an assurance to the British people, going into the next election, that they will have an “in or out” referendum.

[Lord Hannay of Chiswick]

Would I be wrong in saying that the whole trend of the noble and learned Lord’s reasoning, which I have been following with great care, is that the wording for the referendum should not be in the Bill at all but should be determined by statute in the new Parliament? If that is the case, would it not be better to at least follow the amendment of the noble Lord, Lord Armstrong, and have a decent wording in the Bill? There is of course no Motion on the Order Paper to dispense totally with the wording.

[Lord Mackay of Clashfern]

My Lords, in order to have an enforceable entitlement, it is essential, as I see it, to have a question that is related to the issue that you want to raise. Essentially, the Bill is legislating to say, “There shall be a referendum”. However, in order to be enforceable and to create a real entitlement, it has to state the time within which the referendum must happen, the question that must be raised, the mechanisms by which a system can be set and who the electorate are. That is all necessary in order to create an entitlement, but the entitlement does not mean that the referendum is going to take place only in accordance with the Bill. There is no question that this Bill binds any other Parliament any more than any other Bill with a sunset clause in it. This Bill does nothing except give that entitlement to the British people. If the Bill passes, I shall be interested in the number of manifestos that contain an undertaking to repeal it.

[Baroness Falkner of Margravine]

The noble and learned Lord has set out his position repeatedly and carefully but there is one point where I am unclear on it. Is he not aware that there is an entitlement, called the European Union Act 2011, which creates a steadfast, watertight provision that there will be a referendum should there be any change and transfer of powers from the United Kingdom to the EU? It does not even limit us to having that referendum by 2017. Should that happen before 2017, we would be required to have a referendum before 2017.

--- Later in debate ---

[Lord Mackay of Clashfern]

The noble Baroness can be assured that I know of that Act. Indeed, I took part in proposing an amendment to the then Bill which ultimately was accepted, after negotiation and with modifications, in the House of Commons. I do know about that, but the trouble is that it applies only when there is a transfer of power to the European Union. This is why it is so important that this is an “in or out” referendum.

This is what UKIP wants. I am trying to get round to saying that a terrible shadow is cast on the second question that UKIP is posing by the attitude to the first question. An important point for noble Lords to consider in relation to the Bill is that UKIP, as I understand it, is saying that the reason there has been no referendum, in spite of so many promises, is that those who are in favour of the referendum do not think that they will get the right answer in it. I do not believe that for a minute. If the British people had a referendum on this subject at more or less any time, but particularly after the next election, I think there would be a resounding yes to staying in the European Union. I am a very firm believer in the European Union, for reasons which I have given, including the one that I was glad to hear the noble Lord, Lord Giddens, mention at Second Reading—the peace that the arrangement has brought to our continent since its inception. I used to hear that a lot from senior Members of the House when I was first here. It is vitally important and I was so glad to hear the noble Lord, Lord Giddens, put it first.

The trouble is that if the Bill does not pass, for whatever reason, it gives the best propaganda yet to the view that we do not want to give the people a referendum because those of us who are in favour of the European Union think we would lose that referendum. The failure to grant a referendum fuels the second aspect of UKIP’s claims. I am very much in favour of the European Union, as I have said. I fear that if we take any action which causes the Bill to fail—particularly those of us who are in favour of the European Union—it will give people the best propaganda yet to say that the reason for refusal in the first issue is the fear of those who support the Union that the referendum will go against them. This has never been a real issue in elections to date because all the main parties have been agreed in relation to the European Union.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Mackay of Clashfern]

I thought it was the courtesy of this House to give the signatories to an amendment the right to speak first after it has been moved. Sadly, earlier in the debate, that system seemed to have been departed from, but I did not come forward quite as early as I might have done on that ground. Anyway, I am here now.

The ordinary, straightforward way to kill this Bill would be to refuse it a Second Reading in this House. But, having granted it a Second Reading, if the Bill is instead killed by the use of a procedure that is intended to improve it, that is a very powerful point that will affect the political debate on this issue until the next general election.

[Lord Hurd of Westwell (Con)]

My Lords, I am following my noble and learned friend’s argument with care. I do not understand, however, quite how those of us who are in favour of Britain remaining in the European Union might be damaged by the acceptance of something on the lines of the amendment. I cannot see why that would be the result of accepting the amendments before us, which simply give guidance and lay down how this House, at this time—the end of January—should give our view on how such a referendum could be phrased. I cannot see how the consequence that my noble and learned friend fears could derive from accepting something like this amendment.

[Lord Mackay of Clashfern]

That fear arises because of what we have been told by the Constitution Committee of this House: that if the Bill is amended it will probably not reach the statute book. That is a very important issue for me. I am sorry about it and, as the noble Lord, Lord Anderson of Swansea, said, it is not our fault; we did not take all this time to consider the Bill but it came to us at the beginning of December and we are trying to get on with it as quickly as possible. I am sorry to have spoken for so long.

[Baroness Boothroyd (CB)]

My Lords, of course it is right for the Constitution Committee to advise this House on what it believes is correct in relation to Private Members’ Bills. But if we amend the Bill in this House and it goes back to the House of Commons, it is certainly for the Government—as the people who determine the business, along with the usual channels—to determine what time should be given to these amendments in the House of Commons. Therefore, we can amend the Bill. That is our job if we wish to do so.

[Lord Mackay of Clashfern]

My Lords, I do not know whether that is an intervention. The trouble with that is that this is not a government Bill. We are in a situation of coalition and the other party in the coalition does not want this, so there is no question of the Government being able to arrange matters in the House of Commons. I defer, of course, to the noble Baroness’s knowledge of the procedure.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, it is very important that we clear this up. Of course, the noble Baroness, Lady Boothroyd, is absolutely right. The problem here is that the Government cannot do that because the Liberals are refusing to allow government time. So it is the case that if the Bill is amended, it will be lost.