European Union Bill

Lord Phillips of Sudbury Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, perhaps I might interject that I was discussing with one of my Conservative colleagues the other week the question of Britain’s position in the world. He said that we should stop talking about decline and talk about adjustment, to which I replied that, having just had my 70th birthday, I am entering a period of adjustment.

[Lord Phillips of Sudbury]

My Lords, I start from a position of being strongly in favour of this country of ours remaining part of Europe. I think that it would be a disaster were we to come out. However, from what I have heard on this amendment, I believe that the Committee may underestimate the widespread scepticism in the country. Secondly, although I do not like saying it, there is a widespread scepticism about the ability and willingness of Parliament to protect what it views as its interests vis-à-vis the European Union. I have heard several Peers refer to trust in us and the need therefore not to have referenda or, if we have them, for them not to be binding or for us to insist on at least 40 per cent of the electorate turning out.

I speak as one who founded a charity, of which I am still president, called the Citizenship Foundation. We work with over half the state schools in the country and have done for over 20 years. We have worked assiduously to try to staunch the lack of adhesion to the European ideal among young people. For example, we put out the only guide to Maastricht that was readable and accessible to ordinary folk. For my own part, I have to say that there is a severe lack of trust in Parliament in this country among a great number of our fellow citizens. They look at the House of Commons and see, night after night, week after week and month after month, votes determined not by the honest opinions of the MPs who sit there but by the party Whips, who drive the MPs through like sheep. You may say that in this House the party Whips have too much power, but at least there is a Cross-Bench element that is totally independent, while all of us sitting here tonight would say that we will not be driven beyond a certain point.

If we have referenda and then we—not Parliament as a whole but each House of Parliament—say to the people of this country, “It doesn't matter what you decide, old folks. We will have the right after you have voted to say whether the vote should stand”, what can the people of this country possibly think about that arrangement? How can that salve the mistrust? How can it shore up public support for the European Union, which I suspect most of us in this House want to see? It cannot, in my view. I concede that I have unease about the scale and number of referenda that there might be, although the good and noble Lord, Lord Howell, said that they would be very few and that they would be clustered. However, if we are to entrust the people of this country with referenda, the worst of all worlds seems to me to be that they should be held on a basis where we can dispense with the outcome in either House.

Despite the fact that any of the parties in this country can get behind a referendum on either side of the debate as they choose, we will in effect be having a second bite at the cherry. Should we then say to the people of this country, “If 40 per cent of you do not go to the polls, we again have the right to dispense with the whole business”? We vote constantly in this House without having a 40 per cent threshold. It counts. Countless numbers of local elections do not reach a 40 per cent turnout. They count. Yet we have the temerity to try to impose these two conditions. For my money, that would be the worst of all worlds.

[Lord Richard]

My Lords, I have listened to the noble Lord, Lord Phillips, with great interest. He is about the only speaker on the other side of the House who has had a good word to say about the Bill in any shape or form, and even he was fairly grudging when he did so. It reminds me a little of the story of the man who was going through the courts in a civil action and lost at first instance. He went to the Court of Appeal and lost there; he went to the then House of Lords and lost there too. When he came out he turned to his counsel and said, “Where do we go next?”. His counsel looked at him and said, “You know, we should breed from you”. The noble Lord’s is about the only support for the Bill that we have heard either at Second Reading or today.

I start by making it clear that I do not like referendums. I believe basically in parliamentary democracy—that is what this country has lived with now for many generations and I hope that it will go on doing so for a large number of generations to come—so I do not approve of a situation in which it is felt for one reason or another that it is necessary to consult the electorate in the way that, for example, the Swiss do. I have some knowledge and experience of Switzerland, and I am bound to say that I find the extent to which they hold referendums there extraordinary. The polls are not very high; people do not take a great deal of interest in them. Occasionally there is an issue that excites people, in which case there is a proper contest. As the noble Baroness, Lady Williams, said, it is the same in the United States: if you see all the issues that are put on the ballot papers, you realise that it is consultation gone mad, to the point where it is distorting public opinion. So I do not like referendums; I am in favour of parliamentary democracy.

Let us look at the Bill. If we pass it and it becomes law, what are we going to be faced with in terms of referendums? It is all very well for the noble Lord, Lord Howell, and I am sorry that he is unwell, to stand here and say, “It doesn’t matter; there aren’t going to be any referendums anyway because this deals only with trivial issues and no one is going to have referendums on that sort of thing”. I do not believe it. I know exactly who would want referendums on that sort of Bill; one usually sits on the Benches behind me and the other one sits down at the other end of the Bench below the Gangway. Of course they want referendums. The scope for judicial review proceedings is considerable. If I were a practising barrister, which I no longer am, I would say in terms of the future of my profession that on the whole this would be a Bill to be welcomed as there will be a lot of work in it for members of the Bar, but that is not a good thing.

If this is going to be only about trivia, why on earth are we legislating? Either it amounts to something or it does not. If it amounts to something, I am against it; if it does not amount to anything, we should not be doing it. What is the point? This is an edifice that has been erected for political purposes that will do serious damage to our constitution.

--- Later in debate ---

[Baroness Symons of Vernham Dean]

My Lords, as your Lordships will be aware, I tabled Amendments 7, 8, 15 and 16, which are in this group. I quite understand that the issues are different in the various amendments under consideration, but I believe that it was right to put them together and that their general thrust is in the same direction. I thank the noble Lord, Lord Williamson, for the way in which he introduced the amendments, and the noble Lord, Lord Hurd of Westwell, who made his points so clearly and fully. The Labour Front Bench—and, I believe, almost all those on the Labour Benches, although I have not interviewed them all personally—supports the principles behind the amendments.

I make one thing abundantly clear. We are not, in principle, against referendums. Some of your Lordships have expressed that view; that is not the view held as a matter of policy by the Labour Party. We believe that referendums have a place in most democratic countries—not necessarily in all. That was made clear from Second Reading, when we said that we would expect to have a referendum, for example, on adopting a new currency, on leaving the European Union, or abolishing the monarchy or either House of Parliament. We believe that referendums are appropriate for issues of real constitutional importance. I do not want anyone subsequently to misinterpret my remarks on that point.

In that respect, we are at one—at least, I thought we were—with the Government, who said that they, too, believed in issues of constitutional importance being the subject of referendums. The Constitution Committee stated something very similar. That is what makes the Government’s position so implausible.

The Constitution Committee said in paragraph 38 of its report published on 18 March:

“In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill’s provisions are inconsistent”—

inconsistent—

“with the Government’s statement that referendums are most appropriately used in relation to fundamental constitutional issues”.

That is a difficult charge, and I hope that the Minister will address it when he answers this debate. The Constitution Committee, on which, I remind him, his party, the Conservative Party, the Cross-Benchers and my party sit, came to the collective view that the Bill's provisions are inconsistent with the Government’s stated policy on the issue.

For our part, we think that the reason for it is to hold the coalition together. It is to keep the Eurosceptics happy, while keeping the Liberal Democrats more or less so. The noble Baroness, Lady Williams, said that far more elegantly a moment ago, but I hope that her party will look very closely at what she said, because it showed an admirable clarity of approach on her part.

The question therefore arises: why should the British public be called on to support a political aim by voting, for example, on the number and system of appointing EU Commissioners, or the appointment of judges and advocates-general to the European Court of Justice, or even some decisions about the EU's competence on foreign policy, as set out in Schedule 1? The truth is that the British public will not turn out for such referendums. We all know that. We shall have a hard enough time getting a respectable turnout on 5 May on changing the voting system in this country—something which is of real constitutional importance.

Much of what is covered in this Bill as subject to referendums is Parliament’s responsibility to deal with, and that is why we are here. A threshold turnout for a decision that is mandatory is just plain common sense. If the turnout threshold is not attained, it seems to me to be also just plain common sense that a referendum should be advisory only in its impact.

The Deputy Prime Minister, the leader of the Liberal Democrats, when speaking on the Barnsley by-election brushed off the result—in which his party gained 4 per cent of the vote—by saying that a turnout of 36.5 per cent was “abysmally low”, implying that it was a fundamentally flawed turnout because of the level that it attained. Does the Minister agree with the leader of his party that a 36.5 per cent turnout is abysmally low? If he does, at what point over 36.5 per cent does a turnout in a referendum become a true reflection of the electorate’s feelings?

[Lord Phillips of Sudbury]

I hesitate to interrupt the noble Baroness, but I cannot help observing that the point about the Barnsley by-election was that the abysmal turnout of 36 per cent did not nullify the election, which is what the proposal here would do.

[Baroness Symons of Vernham Dean]

In the election of an individual Member of Parliament, however low the turnout is, it does not nullify the election, but that is not what we are talking about. We are talking about constitutional change. It is a very different point. I would have thought that the noble Lord, Lord Phillips of Sudbury, given how connected he is on these issues, would be among the first to recognise that a long-term constitutional change is very different from electing an individual Member of Parliament.

We on this side would be prepared to consider a figure that the Minister puts forward but, more important perhaps, a figure that his colleagues in another place would find acceptable—something perhaps better than an abysmally low figure. However, in order to have future treaties or treaty changes decided on a turnout, however we define what is abysmally low, the turnout must be such that it does not undermine our parliamentary system of government. Low turnouts will simply not be credible. They will not be credible to most sensible people and the British public are sensible people.

Parliament has a duty to deal with these matters. We have to shoulder our responsibilities. We cannot just run for cover when something difficult is put to us. How can the Government suggest that asking the British public to decide on the appointment of Advocates-General will somehow reconnect the British public with Europe? Plainly, it will not. It is far more likely to turn off the British public and I suspect that the Minister knows that as well as the rest of us do. Either that or we will simply revert to the point where we do not have referendums at all.

This move towards dealing with any tricky issue by means of a referendum is simply not consistent with our parliamentary democracy. As my noble friend Lord Davies of Stamford said, the turnouts would not even be of the abysmally low level described by the Deputy Prime Minister. The turnout would more likely be not abysmal but quite catastrophic—perhaps 10 or 15 per cent. That is not democratic. That is undermining democracy, at least in its parliamentary form.

Let me turn to the points raised by the noble Lord, Lord Phillips of Sudbury, who has in the past spoken passionately about reconnecting the British public and has good credentials on this issue. He spoke of the widespread scepticism in the country about protecting the UK’s interest against the EU. I agree with him that there is that view. How widespread and how deep is the scepticism may be a matter of debate between us, but he has always aspired to the dissemination of information about Europe and he spoke about those points with great eloquence at Second Reading.

Four speakers spoke in support of the Government’s position on this—the noble Lord, Lord Phillips, and the noble Baronesses, Lady Nicholson, Lady Falkner of Margravine and Lady Brinton. It was perhaps noticeable that those were the only four and they may give some comfort to the Minister. However, he will also note, as we do, that the position of the Liberal Democrats is at odds with how they voted on the possibility of a referendum on the Lisbon treaty.

The noble Lord, Lord Hurd of Westwell, said that this was a wearisome business. At this time of night, I think that we all sympathise with his sentiments. He told us that there had been a time when only two members of the Major Cabinet had supported the use of a referendum and that he, as one of them, was “a bit wobbly”. I do not believe that dealing with the coalition document should be anything like “approaching an altar”, as he described it. The point about the coalition document is that it was never put to the British public. The noble Lord said that the significance clause was perhaps a way out of the problem but, as we discussed earlier today—although many of us may feel that it was quite a long time ago now—the significance clause will in itself probably be the subject of huge controversy and no doubt of judicial review, too.

Therefore, I hope that the Minister will agree with his experienced and wise friend, the noble Baroness, Lady Williams, that on any issue a turnout of a very low proportion of the population really cannot trump the views of Parliament. Let us suppose that the turnout is only 10 per cent or 15 per cent. Why should that view trump the views of a Parliament that was elected by perhaps 60 per cent or 65 per cent of the electorate? How is that by any measure conceivably democratic? How is it right? How is it rational?

The noble Lord, Lord Stoddart, says that people must be listened to. Of course they must be, but they must be listened to if a turnout is of significant numbers of the public to express a view. It has to be a number that can be interpreted as a national view on the issue that is under consideration. However, if the turnout is very low—abysmally low, for example—those views should be only of an advisory nature. The noble Baroness, Lady Williams, was right when she said that the Bill expresses no confidence in parliamentary democracy. If the Minister will listen to no one else, surely he will listen to the noble Baroness with all her experience. Surely he, who rightly voted against a referendum on Lisbon, can see the force of this argument.

The noble Baroness, Lady Falkner, says that the tone of the debate was one of “We know best” and of expecting deference. I have to say to the noble Baroness that I really did not recognise that in the debate today. I was sorry that she said what she did. I thought that she put words into the mouths of others in a way that was simply not sustainable by reference to what noble Lords had actually said.

I agree with the noble Lord, Lord Kerr, that referendums for the most part should be of an advisory nature. He said that they should be on every occasion. I think that on occasions there are points where they may be accepted on a mandatory basis, but only in exceptional circumstances.