Lord Wallace of Saltaire
Main Page: Lord Wallace of Saltaire (Liberal Democrat - Life peer)European Union Bill
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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 Wallace of Saltaire
My Lords, I think the time has come for me to grumble quietly. We have had a range of interesting speeches in what has been a high quality debate, although there was a point, when the noble Lord, Lord Davies, was talking about anoraks, when I thought that a good definition to look for in a political anorak was that of someone who wishes to return after dinner to a two-hour discussion of arcane issues of constitutional procedures and international engagement. We recognise that we are all part of the political anorak class.
We have ranged over parliamentary sovereignty, parliamentary democracy, political trust, the problem of trust in Parliament, and whether we are putting representative democracy at risk, as at least one noble Lord said—I think it was the noble Lord, Lord Hurd. We have to recognise that the concept of parliamentary democracy, about which the noble Lord, Lord Hurd, spoke so passionately, is to some extent at risk. In Britain, as in other European countries—a point made by another noble Lord in the debate—we have more educated but at the same time much less trustful electorates. How the political elite responds to and works with our mistrustful electorates is part of the problem that we all face. I have to say that it was my own experience in the 1975 referendum that referendum campaigns provide an opportunity to focus the attention of a public who, for much of the time, are only really prepared to listen to politicians who can offer soundbites.
Lord Davies of Stamford
I am grateful to the Minister for giving way. He is a very intelligent man and he has had enormous experience of politics from the academic world and now from the Front Bench in the House of Lords. Is he seriously saying that the way to increase public respect for the political process or public involvement in the European issue is to ask the public to turn up to vote on a referendum on the appointment of judges in the European Union?
Lord Wallace of Saltaire
My Lords, I am merely pointing out that we all face some rather large structural problems in our democracy. I also note that we face some extremely complex issues in attempting to define what we mean by parliamentary sovereignty, to which we will return later.
We have seen a number of other interesting elements in this debate. I liked the emergence of the Stoddart/Hannay/Kerr consensus. I enjoyed hearing the noble Lord, Lord Foulkes, as I think I understood him, emerge as a staunch campaigner for electoral reform. I noted the noble Baroness, Lady Symons, resurrecting the doctrine of the mandate that has reappeared in Labour Party policy as a means, I think, of attempting to argue that the coalition agreement is illegitimate. I would just remind her that, many years ago, when I was giving evidence to a committee on which she sat—I think it was on the Salisbury convention—she asked me about clear mandates in manifestos. I had to point out that the clearest pledge in the 1997 Labour manifesto was to hold a referendum on the alternative vote.
Lord Wallace of Saltaire
In either sense, if it was a mandate, the Labour Government did not fulfil it.
The noble Lord, Lord Hannay, asked me why the Government had not yet replied to the Constitution Committee. I have seen the Government’s response, which was submitted to the committee last week—last Wednesday, I believe. I do not understand why it has not yet been published, and I very much hope that it will be published within the next few days.
Lord Hannay of Chiswick
I would be grateful if the Minister would not play hide and seek with this matter. Presumably, if it has been transmitted, he knows what is in it. Could he just say what it says?
Lord Wallace of Saltaire
That would take me a long time. I assure the noble Lord that I will make sure he gets a copy as soon as possible and that it is published as soon as possible.
Lord Wallace of Saltaire
All of it, indeed. I will investigate why it has not yet been published. I assume there is a delay, for which I apologise.
The noble Lord, Lord Kerr, asked to what extent publics are bound by what their plenipotentiaries have agreed. It is a delicate question in all democratic states. In the United States, congressional ratification is required; in other states, it is parliamentary or popular ratification. That is another large issue of sovereignty, democracy, consent and international negotiation. It applies not just to the European Union but to all international treaties, and it is a problem for all democratic states.
Part of the campaign that we need to undertake to rebuild confidence in the European Union is clearly to have a Government who are going to argue the case for more constructive European engagement. I was glad to hear a number of noble Lords say that the practical approach of this coalition Government to the European Union has been positive. We need now to argue the case for constructive engagement in the European Union, both in other countries and within the European Union. I am confident that the coalition Government will do that over the next few months. Had it not been for the Libyan engagement, we would already have started. I promise noble Lords that we shall move in that direction. However, part of regaining trust is also giving the public confidence that competence creep and all those things which they currently mistrust about the European Union will be stemmed for the foreseeable future at the very least.
There are two major issues: one is whether or not referendums should be advisory or mandatory; and the other is the question of a minimum turnout level. We argued the question of minimum turnouts to the point of exhaustion on the Parliamentary Voting System and Constituencies Bill, in the course of which I became much better educated than I had ever wished to be about the integrity of the electoral register. I remember exchanging views with the noble Lord, Lord Rooker, as to how many times he and I were registered in our respective different residences. The Government—and, I think, most of us—have severe doubts about having a minimum turnout level.
Taking my cue from the noble Lord, Lord Kerr, perhaps I may cite a leading constitutional authority on the question of referendums—Margaret Thatcher— and her contribution to the debate on the then European Community referendum. She said:
“I believe that if there is a high poll and a clear majority, the result will in fact be binding on Parliament whatever one may say in law about parliamentary sovereignty. I cannot envisage that a Parliament, whatever individual Members might have thought, if there were a clear vote against … It is not advisory or consultative in the event of a clear result. It would be binding on everyone … It would bind and fetter parliamentary sovereignty in practice. But if there were a low poll, and an indecisive result, the question would arise whether the British people had genuinely given their verdict by their vote. The Government might regard themselves as bound, but the result could not fetter the decision of Parliament”.—[Official Report, Commons, 11/3/1975; col. 315.]
The Government’s position on these referendums is that the result would be binding on the Government, but we also accept that no such decision could bind Parliament as it would not be consistent with parliamentary sovereignty. There would of course be major political costs to Members of Parliament who wished to disregard a clear popular vote, but one might envisage circumstances in which, in an emergency, Parliament wished to bear that cost.
Lord Foulkes of Cumnock
The Minister has made an interesting and important statement. He has obviously thought carefully about this so could he explain to the House the mechanism by which Parliament might disagree with the decision in a low turnout referendum? What would be the mechanism for Parliament to overturn it?
Lord Wallace of Saltaire
I am sure the noble Lord is as expert on parliamentary sovereignty as I am. No Parliament can bind its successors; any Parliament can overturn a decision of a previous Parliament or even a previous decision of that Parliament. That is part of what we understand by the doctrine of parliamentary sovereignty. There is nothing we can do to prevent a future Parliament from undoing what we are doing. That is my limited understanding of all of this.
Perhaps I may quote a greater constitutional expert than myself.
Lord Davies of Stamford
Before the Minister moves from this point, perhaps I may follow up on the question posed by my noble friend Lord Foulkes following his momentous statement about parliamentary sovereignty. It is important for the House to understand how in practice it would be possible for Parliament to exercise that sovereignty and to disagree with a referendum.
I refer the Minister to Clause 3(2)(a) of the Bill, which states:
“The referendum condition is that … the Act providing for the approval of the decision provides that the provision approving the decision is not to come into force until a referendum about whether the decision should be approved has been held”.
In other words, Parliament would have passed a Bill, turned it into an Act and the electorate would then have voted. For Parliament to be able to exercise its sovereignty in opposition to the decision of the electorate—which the Minister said is a possibility—it would presumably have to repeal the Bill which it passed before the referendum took place. Is that the procedure the Minister has in mind?
Lord Wallace of Saltaire
The noble Lord is extremely good at interrupting Ministers and others in full flow. I repeat: Parliament can reverse decisions that have already been taken, either by resolution or by parliamentary Act. That is part of our current, unwritten constitution.
I was in the middle of quoting Professor Bogdanor who, together with two noble Lords, is regarded as one of the major constitutional authorities in the country. On referendums, he said in written evidence to the Constitution Committee:
“Voters entrust their power to representatives, but they give them no authority to transfer those powers … Such authority can be obtained only through a specific mandate, that is a referendum”.
The logic of all those referendums is the same: they are decisions on whether to change who holds power and how that power may be used. No decision can be more eminently qualified than one that could move an area of policy from the responsibility of this House to the responsibility of the European Union. That is part of the area in which we now find ourselves—decisions about the transfer of power.
Lord Foulkes of Cumnock
I have an important point and apologise for taking up time, particularly at this hour. The Minister said that this applied to AV in exactly the same way as it would apply to these European referenda. Is he saying that, if the referendum has a pitifully low turnout and only a marginal vote in favour, it is then open to us in this Session of Parliament, so that we are free to repeal the legislation which provided the power to the people in that referendum? If that is the case, it is a very interesting and welcome announcement.
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.
Baroness Symons of Vernham Dean
My Lords, I am not sure whether the noble Lord is aware of the impact of what he said a few moments ago, because I think that he changed the terms of engagement. I hope that he will look at what he articulated in relation to turnout and results. He referred to the fact that Mrs Thatcher said that a low turnout and marginal results would not bind Parliament but that a high turnout with a clear result would, through common sense, bind Parliament. He spoke as though we had not already passed legislation on AV. The AV Bill has passed. Even if there is only a 15 per cent turnout and only 51 per cent of that 15 per cent vote in favour of AV, it is binding. That is what Parliament has decided.
I cannot understand how we place that position, which none of us wanted, alongside what the noble Lord has just said about Mrs Thatcher articulating a common-sense principle in the event of low turnout and a very marginal result. He needs to look at what he said just now. We think that it was great, but I am not sure that his colleagues will. I hope that he will look at that carefully and give us a clear view that will be supported by everyone on the government Benches—his own Benches and the Conservative Benches—before we get to Report, because I think that he has changed the terms of engagement. He could tell by the reaction from my noble colleagues on this side of the House that we all thought that. It is an important point, but let us leave it. The hour is late. The noble Lord has done very well over amendments that he did not expect to take. I thank him for his courtesy to the House in dealing with this in the way that he has.