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Lord Clinton-Davis: My Lords, whatever the noble Lord says, I do not believe in referenda, and I have said that. I believe that referenda are essentially alien in the political democracy in which we thrive. MPs are ultimately answerable to the electorate at the general election, and that should be so. The referendum in 1975, in which I ashamedly voted no, clearly had that demerit. A referendum gives one the opportunity to ventilate one’s feelings on a very wide scale, not least on the general record of the Government in office at the time. The real issue on which a decision is now required is whether we should remain a member of the European Community. All too often, that issue is sidelined, and unfortunately all experience vouchsafes that.

A referendum on the treaty begs the question of why we did not have one on far more fundamental issues affecting Europe. The voices of the Conservative Party at that time were somewhat muted. The case which the Opposition make for a referendum now revolves around a statement made by Tony Blair when leader of the Labour Party. Accordingly, one is impelled to ask why other statements made by him were not accepted by the Conservatives. Suffice it to say that that statement made by Blair was, in my judgment, wrong, albeit in entirely different circumstances from those which we are considering today. Of course this treaty has certain similarities to the former treaty—that is not surprising—but it is not the same. That has been the subject of many debates on this Bill and I will not enlarge on this theme today, although the issue has been touched on by my noble friend Lord Anderson.

It is somewhat dismaying that certain politicians, particularly but not exclusively in the Conservative Party, are now prepared to embrace something which they never would touch in government. The logic of their actions is not only opportunistic but extremely perilous. On this issue they have exhibited a unique intellectual barrenness. Not so long ago it voted for, and as a Government believed in, the European Union. Now it has changed and it is sad that it cannot admit that that change has occurred. It stands virtually alone in the European Union. None of its fellow conservative parties in Europe adopts its stance but it has certain allies; for example, the French hunting party, Sinn Fein and Marianne Thieme, the leader of the Dutch Party for the Animals. The Conservative Party is prepared to risk everything. Can we really stand alone when we consider our position with China, India, Russia and the wider world? Is it not important to have an effective voice on climate change, starvation and disease, which affect countless millions in the third world? Are we not more likely to be heard as an influential member of the European Union than if we are outside? Why put all this in danger?

Putting aside the Conservative quest for the Man Booker Prize for fiction, are they unconcerned about other issues raised in the treaty, such as the reduction in the size of the Commission, the share of our vote in the European Union, the end of rotating presidencies, children’s rights—which are dealt with in the treaty for the very first time—climate change, international development and much else? This treaty is far more extensive and significant than the constitution which was previously in place. What, then, is the ultimate

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goal of the Conservatives? Some want to exit from the European Union altogether, while some prefer, for dubious political ends, to play around with this matter, casting no credit on those whom I otherwise respect highly; namely the noble Lords, Lord Howell and Lord Hunt. They took a very different line when they served in government, and I am sad that they have departed from that today.

4.15 pm

Lord Ramsbotham: My Lords, I have added my name to this amendment because of a simple word which has already been quoted by the noble Lord, Lord Howell, in his admirably clear opening speech. It is the word “trust”. In 1979, in the May of the general election, I was commanding the troops in Belfast. On the Monday of that week the then Secretary of State, now the noble Lord, Lord Mason, invited a number of us to have a drink with him at Stormont before he returned for the election. At the end of the party, his civil servants formed a double line down the stairs to his car, and as he appeared they began to sing, “Will ye no come back again?”. He put up his hand and said, “Cut that out. Did you not hear our Prime Minister say last October that we had lost the trust of the country? If a party in Government has lost the trust of the country, it will not be elected. I do not expect to get back on Thursday. Thank you for what you have done and goodnight”. He then walked down to his car.

The business of trust has always seemed to me to be hugely important. As a layman in this matter—I am told that Cross Benchers are best described as radicals of the extreme centre with the right to lash out in every direction—I could not help but read the three manifestos produced in 2005. The Labour Party manifesto stated:

“It is a good treaty for Britain and for the new Europe. We will put it to the British people in a referendum and campaign wholeheartedly for a ‘Yes’ vote to keep Britain a leading nation in Europe”.

Of course we want to be a leading nation in Europe, but that was a firm commitment. As the noble Lord mentioned, a large number of people in this country believe that it was a commitment, and despite the admirable care, determination and attention to detail with which this treaty has been debated in this House, nevertheless for the public there is the matter of trust in their Government—the Government having said that whatever it was, a constitution or whatever, it would be put to them. It is not deserving of trust if that opportunity is denied.

Lord Blackwell: My Lords, it is a great privilege to follow the noble Lord, Lord Ramsbotham. As he says, the question before the House today is not whether this House approves of referendums and not whether this is a good treaty, but simply whether the Government should be held to their promise to hold a referendum on the constitutional treaty. The Government have erected two lines of defence in order to fend off this possibility.

Their first line of defence is that the treaty is different, and no doubt we will hear that again when the noble Baroness winds up. She will say that the

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treaty is different because it replaces existing treaties, whereas the Lisbon treaty is an amending measure. You do not have to be a lawyer to understand that it is the treaties that result at the end of the process which have to be looked at, not the process by which you get there or what the treaties are called. You have to compare the text of the constitutional treaty with the European treaties that result at the end of the Lisbon process. I will go on to argue that those two treaties have very similar texts, and it is those texts—those we have at the end of the legal process—that will have a legal and constitutional impact on the UK. The texts of both treaties are primarily existing treaties. In both cases, the existing treaties have been maintained in large part—some amendments were added to the constitutional treaty and the whole text reprinted, while in the case of the Lisbon treaty, the amendments were put in and the whole text was reprinted as a consolidated text. The Government have now provided those for us. To pretend that the two texts are different because they were arrived at by different processes makes for an extremely dubious argument. However many times the Government repeat that these two texts are different, as if repetition on its own will give the statement substance, it is clear that that line of defence has no substance at all.

Their second line of defence is to say that if you do insist on comparing the texts, it will be clear that they are different. It is an argument the Government have avoided as far as possible—perhaps for the obvious reason that they know the difficulty they would have if this House engaged in it—and they have refused to this point to provide a comparison of the texts of the two treaties side by side.

In recent weeks, we have had a breakthrough and I am extremely grateful to the Lord President for her correspondence with me on this topic and for putting it in the Library of the House. In that correspondence, the noble Baroness put forward an analysis by Professor Peers which compares the texts of the two treaties. He suggests that there are 35 differences between the text of the constitutional treaty and the consolidated text after the Lisbon amendments—that is 35 differences in treaties containing 400 articles and 328 pages, including the protocols.

I have asserted in previous debates—and the Government have not rebutted it—that there are only two articles in the constitutional treaty which have not been transferred, in whole or in part, to the consolidated treaty text following Lisbon. I believe three articles have been added to the Lisbon text. The vast majority of these 35 differences—some 30 in all—are simply changes to the wording of articles which appear in both texts and the rest of the articles are the same. The issue for the House is to judge whether those differences are significant.

There was another breakthrough earlier this week when the counsel for the Government, defending their case in the High Court against Stuart Wheeler, made their case by saying, “Of these 35 differences, we would like to point to five which are particularly significant”. So now we are getting very close to the chase. What were these five? It is important that I should read them out because they are quite interesting.

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The first was extending the opt-out on policing and criminal law. I agree there is an extension there. The second was additional warning powers for national parliaments on subsidiarity. Noble Lords can make their own judgment as to how significant that is. The third was the protocol on the Charter of Fundamental Rights, which a committee of this House has said makes no difference to the legal standing of the charter. The fourth difference was an express statement that national security is the responsibility of nation states. The fifth difference was the flexibility clause, Article 308 as was, that will now not apply to foreign policy. As the noble Lord, Lord Lamont, said earlier, if those are significant differences from the constitution, you wonder what the assurances we were given at the time of the constitution were worth. It is up to the House to decide whether those five significant areas we are now homing in on justify not having a referendum where the constitutional treaty required one.

None of these 35 textual changes affects any fundamental aspects of the constitutional treaty on which a referendum was promised. None of them deals with any of the extensions of competences; none of them deals with the extension of QMV; none of them deals with the collapse of the Third Pillar, other than in relation to the increased ability to opt in or out; and none of them deals with the increased powers of the president, the European Court and the European Parliament. So none of the fundamental aspects of the European constitution which led to the commitment to hold a referendum have been changed and the Government are down to using fine amendments to the drafting to escape from their commitment. It is, of course, a judgment that the House has to make, but I believe that both the first and second lines of defence collapse under scrutiny.

This leads one to conclude that the only reason the Government are making these arguments is to get themselves off the hook. It is therefore up to this House to stand up for the British people and to protect the promise that was made to them by all the main parties, including my own, that they would have a say and that this constitution would not be passed without their consent. The British people have not been asked that question and have not given their consent. I say to those on all sides of the House who support the direction of the European Union and believe that this is a good treaty, that if they allow the Government to get away with a short-term, expedient win on the referendum, it will only be at the expense of building up the scepticism of the British people and their resentment of the arrogance of those in power. They will have only themselves to blame for the scale of the backlash against the European Union and all those to do with it that will inevitably result.

Lord Tomlinson: My Lords, some rather intemperate accusations have been made, such as a “breach of trust with the British people”. Let us examine exactly what happened. My right honourable friend Tony Blair made a promise on 20 April 2004 that I believe was fundamentally wrong, and I said so at the time in your Lordships’ House. Nevertheless, that promise was made, but in the context of there being a constitutional

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treaty that would be a constitution for Europe. I say to the noble Lord, Lord Blackwell, that when he goes through the minutiae of comparing texts, he should bear in mind that there is a fundamental difference between something called a constitution, which is a constitution and has the role of a constitution, and an amending treaty to the existing one.

I will give evidence not only of my views but of views that other Governments have taken. For example, the Government of Denmark—much admired in some of our discussions in Committee and on Report by some of the Eurosceptics in this House—were committed to a referendum on the original constitutional treaty. Denmark was one of the member states that had clearly made that the case. In the discussion following the collapse and withdrawal of the constitutional treaty and then the negotiation of the amending treaty, the Danish Justice Ministry reported to the Danish Parliament on the reform treaty. Its view in its published legal analysis was that under the Danish constitution, if powers are transferred to an international organisation by a treaty, that treaty can be ratified only by referendum. It concluded, however, that:

“for Denmark, the Lisbon Treaty does not transfer new powers to the Union. On this basis, the Justice Ministry concludes”—

and advised Parliament—

“that Denmark can ratify the Lisbon Treaty by normal procedure”.

So the Danish Government, the Danish Parliament and the Danish people took exactly the same decision as we are being recommended to take in this country. It is a question not of a breach of trust but of a complete change of circumstances. As we heard in Committee—I do not propose to go through it in detail—that is not only the question for ourselves and Denmark; it is also the position in relation to the Netherlands, one of the two countries which, following its then constitutional obligation, had a referendum on the constitutional treaty, which was rejected by the people in that referendum. The Netherlands then referred the new amending treaty to Dutch constitutional experts. The Council of State, having examined the changes, reported that:

“Unlike the Treaty establishing a Constitution for Europe, it”—

that is, the reform treaty—

“provides no arguments for a gradual expansion of the EU towards a more explicit state or federation”.

On the basis of that, the council concluded that there was no need, and no constitutional obligation, to have a referendum.

We are in the company of good parliamentary systems and good systems of democratic control in those national parliaments—Denmark, much admired by Eurosceptics, and the Netherlands, a good and fundamentally democratic country—and we are following precisely principles and practice. The amendment is an exercise in mischief-making that should be rejected by the House.

4.30 pm

Lord Howe of Aberavon: My Lords, I proceed with some hesitation and anxiety. It is not the first time in my career that I find myself speaking from the Back Benches out of line with the Front Bench, and it is

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something that I hesitate to do even on this occasion. I do so because I am above all concerned with what is likely to be the least damaging outcome of this long series of transactions for British interests in the long run and our position within the European Union.

I start from a premise which regards referenda as alien devices in our constitution. I would not have had a referendum in 1975—I shall come back to that later. Important decisions of this kind are to be taken by a democratically elected Parliament. We get into a bad habit if we go on down the referendum road. It is with only that question that I intend to deal.

I do so by looking at the dreadful warning of the 1975 referendum. I know that it came out with the right result for almost everyone at that time. That was a piece of luck and depended on a number of other much more fundamental factors. My fear is that a referendum on this issue under this Government at this time will produce an outcome which is disadvantageous to our country.

I draw two lessons in that respect from our experience in 1975. Nobody can doubt that the decision then being taken was of fundamental importance. Macmillan was the Prime Minister who made our first application to join the Community in 1961. He opened the debate in August 1961 by saying that it was,

“perhaps the most fateful and forward-looking policy decision in our peacetime history”.

He was right about that. His successor, Edward Heath, when he came to open the debate on the White Paper in October 1971, said:

“I do not think that any Prime Minister has stood at this Box in time of peace and asked the House to take a positive decision of such importance as I am asking it to take tonight”.—[Official Report, Commons, 28/10/71; col. 2202.].

Those were the views of two distinguished statesmen about the fundamental question of our accession to the European Community, as it then was.

Neither of them considered at that time that it was necessary to depart from our traditional democratic parliamentary method of deciding it. It was left to Parliament to decide. The first lesson that I draw is that it was not necessary, sought or argued that we should in relation to a decision of such importance of course proceed to the people. It was taken for granted by everyone that it should be taken by Parliament. We came to have the referendum in 1975 not because of any fundamental change in that issue but because of conflicts, tension and strife within the then Labour Government. That is the sharp difference. It was recognised until that happened that a referendum was not to be desired.

There are three reasons to be drawn from that for believing that it would be wrong to have one now. At least that referendum addressed beyond any doubt a single, intelligible, major, fundamental issue, and that was the issue that was presented to the electorate at that time. The electorate were not presented with a 1,000-page bundle of miscellaneous documents—despite my diligence over many years, I confess that I have not read them all; I am not a master of many of the details. However, I could have coped with the 1975 referendum question, which was:

“Do you think the UK should stay in the European Community (the Common Market)?”.

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That question is relatively simple to understand and hugely fundamental. If you are to have a referendum at all, that is the kind of question to put—not this extraordinary shambles that provokes such dissent and the debates that we are having.

Moreover, if the Government had failed to secure the affirmative resolution that they wanted from that referendum, that would have had serious implications, but only for the United Kingdom. We were asking ourselves what we should do; it did not matter one jot to the well established, existing Community members. On this occasion it is quite different, having seen the impact throughout the Community of votes that have gone the wrong way, whether in Denmark, France, the Netherlands or—where it may go the wrong way tomorrow—Ireland. It was a different, fundamental question—very simple, and with a referendum quite different from ours.

Even so, although it went the right way, having the referendum in 1975 damaged the interests of the United Kingdom. First, it eroded our credibility, standing and influence within the Community. Happily, I am able to say that restoring our credibility and effectiveness in the Community thereafter was undertaken overwhelmingly under the leadership of my noble friend Lady Thatcher, but that was repairing damage done even by a referendum that had been won. Even then, it had a damaging effect on us, because it also distracted from other business that the UK should have been addressing and had a divisive impact on the Government of that time.

Lord Gilbert: My Lords, the noble and learned Lord keeps saying that certain referenda went the wrong way. Leaving aside the Stalinist echoes of that remark, I infer that to mean that they went the way that he disagreed with. He has said that if there is a referendum under this Government, the results will be disadvantageous for the United Kingdom. Would it be fair to infer from that that he thinks that the people, were they so trusted, would vote no?

Lord Howe of Aberavon: My Lords, I am not going to become a prophet, but it is going to be doubly difficult to have confidence in the decision that the people might return at such a referendum. I do not disguise my own belief that we ought to retain our position as an increasingly effective member of the European Union. Moreover, I am glad that that is the objective of all the political parties represented in this House, except UKIP. I am delighted, for example, that my own party, through its leader and its spokesman on foreign affairs, has left nobody in any doubt that we intend to and must remain within the European Community, or European Union as it is now.

I have not dealt with the mistrust argument, although I recognise its power. I just do not believe that we should go through a referendum procedure to remedy the betrayal at which people are entitled to point. That is not right. It is not right to use this House to correct the misdeeds of the democratic Chamber, nor, in this respect, to correct the misdeeds of the Government themselves. I put that on one side, but with great regret.

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Lord Elton: My Lords, if we are not here to correct the errors of the democratically elected Chamber, what are we here for?

Lord Howe of Aberavon: My Lords, perhaps not all my arguments are as sound as each other. There may not be much strength in that argument, but I feel some unease about this allegedly disreputable, non-elected crowd daring to intervene in the betrayal of the election by the electees. That, however, may be too sophisticated an argument.

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