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Some noble Lords have said this afternoon that the Lisbon treaty is not the same as the constitution. Of course it will not be the same word for word because certain different agreements have been made, some of them worse than the constitution. I simply cannot understand why our Government, virtually alone among the other 26 members of the European Union, believe that the Lisbon treaty is different from the constitution.

Lord Lea of Crondall: I am grateful to my noble friend for giving way, but there are 27 countries in Europe. France started this; France believes it is totally different. How can the noble Lord keep asserting things that are plainly not the case?

Lord Stoddart of Swindon: Let me quote some of the countries. There is Germany:

That was German Chancellor, Angela Merkel, in the Telegraph on 29 June 2007. Or there is Spain:

Or there is the Czech Republic:

Or there is the Austrian Government on 25 June 2007:

Or—the noble Lord, Lord Tomlinson will be interested in this—there is the European Parliament, which,

I could go on and on, but I know noble Lords will not want that. Finally, there is Jean-Claude Juncker, Prime Minister of Luxembourg:

The British Government seem to be alone amongst its partners in saying there is a difference between the constitutional treaty and the Lisbon treaty. There plainly is not, and nobody else believes it.

As noble Lords know I always want to be helpful to the Government. I want to be helpful in this instance and urge them to do the right thing, to keep their promise and have the referendum. I am sure that their rating in the polls would go up overnight.

Lord Lester of Herne Hill: We have heard about Wales and I will say a word about Ireland, where I have my holiday home. As everyone knows, Ireland is the only member state compelled by the interpretation of its constitution by the Supreme Court of Ireland to

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hold a referendum on this subject. I spend about two and a half months a year in the Republic of Ireland, where all three main parties are now to campaign in favour of support for the treaty of Lisbon—Sinn Fein of course is campaigning against.

I have not discerned the slightest enthusiasm among the general population of west Cork for the subject. I certainly have not discerned the slightest interest in the tabulated legalism which involves construing whether the treaty of Lisbon is very or only marginally different from the so-called constitutional treaty. I have discerned that, whatever happens in the referendum, it will be decided not because of the content of either treaty, but because of the popularity or lack of it of Brian Cowen’s Government and any resentment or lack of it towards the enlargement of Europe involving eastern Europe. It will be a referendum not on the treaty but on wider political considerations. It is uncertain which way the referendum will go but it will not at all be a barometer of support for the matters now being debated. I very much regret that it was ever decided to make a promise about a referendum and that in order to change policy all three parties, to some extent, are having to walk upon their hands. But the main thing is the merits rather than the legalistic arguments of the kind that we sometimes hear.

Lord Higgins: It is clear from the manifestos of the major parties that they have no objection in principle to the use of referendums in the context of European affairs. Over some 40 years in Parliament, I have had grave reservations about the use of referendums generally. I have tended to take the view of Edmund Burke that Members of Parliament are elected as representatives, not as delegates, and that the use of a referendum tends to inhibit their judgment, particularly in matters of great complexity.

But that view depends on Members of Parliament being able to fulfil their function. The reality is that over the past 10 years, with the use of programming—particularly, in the context of this Bill—Members of Parliament have not been given adequate time to fulfil the function they ought to do. Therefore, given the way in which this Bill has been treated in another place, there is a strong argument—regardless of whatever view one may take about whether the constitution is the same as the treaty and so on—for giving the public an opportunity to express a view which has not been reflected adequately in another place because of the way in which the Government have inhibited debate.

Baroness Symons of Vernham Dean: I thought that the proposed constitutional treaty was legally unprecedented. It would have legally abolished the European Union and refounded it under a single constitutional order. That is a very important point which has not been touched upon as yet. The IGC mandate made that very clear and records that all 27 heads of government agreed that:

The constitutional treaty would have done something which was legally unprecedented across Europe and here: it would have abolished all the previous treaties we have debated and introduced a single written

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constitution for Europe. That would have been quite novel for the UK where we have no written constitution.

This treaty is constitutionally different from the constitutional treaty because it amends existing treaties. In effect, it does constitutionally what the Single European Act, Maastricht, Nice and Amsterdam did—it makes amendments to its predecessors. Those previous treaties neither replaced nor repealed their predecessors—and that is the fundamental difference between the Lisbon treaty and the rejected constitutional treaty. That is what makes the difference and that is why going back to a promise made in regard to a constitutional treaty does not wash when we are now debating the rightness or wrongness of a referendum. The constitutional treaty would have done something quite different from what this treaty does in constitutional terms for all of us.

Lord Hannay of Chiswick: It is always a great pleasure to follow in a debate the noble Lord, Lord Pearson of Rannoch, because he always sets out in engaging transparency what he is trying to achieve. On this occasion he has damned with faint praise the idea of a referendum on Lisbon but stated that it is a step in the right direction. I cannot imagine why anyone else in this House, other than his noble friend opposite and the noble Lord, Lord Stoddart, would wish to go on that journey with him, even for a step in the right direction. It is very helpful that the noble Lord has indicated the objective that is being pursued.

On the content of the constitutional treaty and this treaty, to which the noble Baroness, Lady Symons, has just referred very effectively, it is sad that it is quite obvious that none of those who assert violently that they are exactly the same have taken the trouble to read the opinion of the Dutch Council of State. This is a totally non-partisan, non-party body of eminent lawyers and others which gives advice to the Dutch Parliament and the Dutch Government. What it states is not a textual analysis saying that there are six changes, 12 changes or 14 changes, but that the whole nature of the constitutional treaty—this is the point made by the noble Baroness, Lady Symons—was completely different from the Lisbon treaty. Its thrust and intention were totally different and that is why the two are not the same. It is not based on the numbers of dots and commas that have or have not been changed. I doubt that we shall ever get closure on this but I wish one or two people might read that opinion. It is only 15 pages long and it is quite cogent. It may not convince everyone but it is really quite cogent.

Whether or not referendums on European Union documents of great complexity are the right way to go and a more democratically legitimate method of gaining approval than that of parliamentary ratification is a serious argument. It is one which we are having here today and, despite having been called a bureaucrat 13 years after I ceased to be one, I have no hesitation in stating that, in my view, there is no foundation whatever for arguing that a decision on a document such as this, which consists of several hundred pages of complex prose, is democratically more legitimate if it is submitted to a referendum than if it is voted on in

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two Houses of Parliament. After all, the case for parliamentary ratification has been supported by every party in this Chamber for many years. Only more recently—and sometimes for opportunistic reasons—has it been questioned.

The figures for the referendums that took place in France and the Netherlands were much lower than the turnout in national elections for a Parliament that could have ratified the treaty and I do not find them convincing. The arguments for going ahead with parliamentary ratification and for not accepting the amendment are extremely powerful. Moreover, when we have tried a referendum in this country we were told at the time that it was going to clear the air and finish the argument for ever. I wish it had. But it has not, of course, and the noble Lord, Lord Pearson, and many of his friends are determined that it never shall. We should have no illusions about going down the referendum route; it would be damaging. It is less good and less democratically legitimate than, after very full scrutiny—with seven days in Committee and several days on Report to come—taking a decision in this House which does not involve a referendum.

6.30 pm

The Lord Bishop of Chester: This question has powerful arguments on both sides. I have come narrowly to the view that it would be wrong to support the amendment but only after thinking long and hard. At the end of the day—this is a point made in the previous debate by the noble Lord, Lord Brittan—we are a parliamentary democracy and I respect the right of the Government to decide to bring the treaty for parliamentary ratification. I suspect that the Government will pay a political price for that because their refusal to take the matter to a referendum will be thrown back in their face for a long time to come.

Opinion polls and other ways of determining popular opinion show quite a strong undercurrent against membership of the European Union or, at least, against certain consequences of our membership. In the months and years to come that should be addressed very seriously; otherwise, the fact that we have not had a referendum will be a running sore. There is a place for referendums in a democracy—I do not know whether the noble Lord, Lord Brittan, would agree with this—and there have been referendums on other occasions: in either 1975 or 1976; there will be one in Scotland apparently over the question of whether the union should continue; and there was one in Wales some years ago on whether pubs should open on a Sunday, which was obviously a matter of deep constitutional importance and came to a sensible conclusion. I am told by government representatives that if there was a proposal to change the voting system for Parliament, for example, that might very properly be put in a referendum.

The problem underlying the popular hostility to Parliament and to the European Union is, to a degree, a lack of confidence in politicians. That is partly the way in which politics is reported from the other place. I say in parenthesis that in my five or six years as a Member of this House I have observed a slight deterioration in standards. Earlier in the debate we

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had a suggestion that somebody had contempt for the people and there was a reference to childish debating points. I wonder whether these ways of expressing ourselves are the best way forward. At Question Time I often hear people shouting to get in rather than allowing the natural process to determine who should speak. There are real issues about how politics is conducted which I hope we will attend to.

I often go back to Lord Hailsham’s Dimbleby lecture 20 years ago where he spoke about the emergence in our country of what he called an “elective dictatorship”. The Committee stage of this Bill is not the time to go into that in detail but one could instance all sorts of ways in which that prophecy, when there was a Conservative Government, has come true. For example, the absence of free votes on questions where there ought to be free votes and the tendency for decisions to be made by the elected Government who do not take enough account of other institutions in our society. A democracy requires both elected representatives and strong institutions which the Executive know to defer to and to consult. In the years to come, although we may not have a referendum on this question, there are profound questions about how our democracy works and, unless they are attended to, there will be further calls for a referendum.

On the substance of the question, my impression is that the European Union is going less in the direction of a superstate than it used to be, partly as a consequence of expanded membership. One hardly ever hears today the mantra “ever-closer union”; that seems to have been quietly dropped. The treaty of Lisbon seems to be largely a response to the fact that the Union has grown so large. In many ways it has a more intrinsic recognition of the nation states within than previously might have been assumed to be the case.

There is a cumulative effect from having the different treaties over the years. If I felt that the treaty of Lisbon really was doing what the noble Baroness, Lady Symons, who is no longer in her place, was saying just now, I would come down narrowly on the side of going for a referendum, even in the face of the Government’s opposition. In view of what she and others—I refer to the contribution of the noble Lord, Lord Hannay—have said, I come narrowly down on the view that we should not try to force a referendum on the country. It would be deeply damaging and in practice it would be a very difficult process to see through. There are, however, profound issues that underlie the reason why the Prime Minister and other party leaders gave that assurance foolishly at the last election. If we do not attend to these issues in the years to come we will find that this question will come back to us again.

Lord Blaker: Since the noble Lord, Lord Lester, has referred to the Irish case, I would like to add a brief point about that. Ireland in fact had two referendums. The first referendum was on the approval or otherwise of the constitutional treaty and that was lost. The second referendum had two questions that were locked together. The first question was the same as had occurred in the first referendum; the second question was, “Do you believe that Ireland should continue its

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traditional policy of neutrality?”. That explains why the second referendum was carried—you had to vote either for two proposals or none.

Lord Lea of Crondall: I found the speech of the right reverend Prelate very timely. He said certain things that have not been said by anybody else about the problem of connecting with the people; he also said that the Government—the Labour Party in this case—and maybe the Liberal Democrats are doing themselves short-term damage. This is very important. It may well be that the Labour Party and the Liberal Democrats are doing themselves some short-term damage but why are they doing it? They are doing it because they think the strategic position of this country demands that we stay and play a very active part in the European Union. What is on the table is an incremental treaty—I do not know what other word would make some people happier or more afraid; it involves incrementalism. Although the treaty cannot be held responsible for this, we have seen, in the last year alone, several issues—Russia and energy policy through problems of justice and home affairs to migration and so on—in which it has become increasingly apparent that we need an extension of co-operation, of QMV and so on.

The question therefore becomes, “Is this something in a parliamentary democracy that is easy to judge by referendum?”. I echo my noble friend Lord Tomlinson in saying that I thought that the Prime Minister made the wrong decision four or five years ago to go for a referendum. He was perhaps on better terms with Rupert Murdoch at that time. The substantive reason is that if we look at the sort of campaign that we would run on a referendum it would be a xenophobic, one-sided, misrepresentation of what is happening in Europe. That would not enhance the value of parliamentary democracy and it would be a mad example of a reversion to populism such as would have been associated with a referendum in 1953 on capital punishment.

Parliamentary democracy requires a lot of things to make it work. It requires some balance of different priorities on expenditure along with the budget. It requires a balance between freedom of speech—as we were discussing the other day—and not allowing people freely to intimidate other people in the community. Every day of the week we have to get these things right through parliamentary democracy. If we allowed this to go forward this time and said, “This is how we operate parliamentary democracy in this country”, it would be a precedent that would come back to haunt us. Certainly we have to make the case; certainly on doorsteps there may be an issue at the moment because of a Pavlovian reaction to the question, “What happened to our referendum?”. That is where the noble Lord, Lord Pearson of Rannoch, is coming from; he wants to get out of the whole thing. That is not my paranoia; it is what the noble Lord has just said, as the noble Lord, Lord Hannay, pointed out. That is why I believe that we should stand up for parliamentary democracy.

If the Conservative Party comes up with some policy before a general election in 2010, I will be very surprised. It is currently putting together its policy

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with sticking plaster. If, as we all think is very likely, the treaty goes through, what exactly are we to make of David Cameron’s remark about not leaving matters there? That is the best he can do. There will be a crisis in the Conservative Party. Conservatives know that they cannot deliver the manifesto that they will cobble together on this topic, so where does that leave the sanctity of manifestos? As a trade union-oriented Member of the House, I point out that the Conservative Party is opposing the temporary and agency workers proposals. They were in the Labour Party manifesto, so since when has so much sanctity been attached to two-party and three-party politics?

Lord Pearson of Rannoch: As the noble Lord mentioned me, I would like to ask him a question. He prays in aid and makes much of our parliamentary democracy. Does he agree that the essence of our parliamentary democracy is the hard-earned right of the British people to elect and dismiss those who make their laws? Does he also accept that most of our national law is now made under an alien system of law-making in Brussels, with the House of Commons and your Lordships’ House powerless to change it or prevent it? Does he accept that he and I, on our different sides of the argument, have a somewhat different view of parliamentary democracy?

Lord Lea of Crondall: No, we cannot button down like that. The world about which the noble Lord, Lord Pearson, tells us is a total fantasy. I was a member of the EFTA consultative committee between about 1964 and 1973, when we left EFTA. Decisions were made under the Stockholm treaty, including the rules of public investment, freedom of establishment of businesses and many other trade and development questions; many international organisations, such as the WTO and NATO, were involved by treaty. We do not make our laws in isolation. I agree that it is difficult to explain that in a pub in Burton on Trent, but that is separate from the question that we are being asked to consider tonight. Indeed, with the Murdoch media, it would be very difficult, in a pub in Burton on Trent, to make it clear how Britain can best play its part through international treaties in the modern world.

Lord Selsdon: I did not wish to intervene, but I have spent nearly 40 years listening to schizophrenic pontificating politicians. While I was sitting here, I asked myself two things: how many of the letter “e” are there in the months of the year—there are six—and how many of the letter “r”? And how many political Peers are there? Are we talking about political Peers? The noble Lord, Lord Lea of Crondall, tried to put me down when I was going to be constructive.

At an early age, I was put on a secret committee of this House to determine what our strategy should be when—and if—we entered the EU. I spoke at one of those meetings with really great men and Peers and was told afterwards that I was not there to speak, I was there to listen because this European lark would take many, many years and people would bang on about it ad infinitum.

The noble Lord, Lord Lea of Crondall, spoke about hanging. When we had a vote in this House back in the 1970s, almost the same number of people

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voted to go into the EU as voted for the abolition of hanging. It was an overwhelming majority. What happened then? The Labour Party decided that it would intervene and introduce this new thing called a referendum. I had the job of raising money to finance our delegation to the European Parliament because the Labour Party refused to go and to send anybody. As a result, there could be no Treasury vote.

We were totally opposed to referenda; suddenly the Conservative Party is saying that they are a good thing. I think that they are a complete and utter waste of time unless you have consulted the people. There are many ways of consulting, such as an election. What a stupid thing to do—we nearly had an election before Christmas. I am a bit worried about the right reverend Prelate because something will be happening in his patch fairly shortly; I wondered whether he was making a political speech, but I am sure that he was not.

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