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As far as the history of the matter is concerned, as I said, I do not believe in the rosy view of history presented by the noble Lord, Lord Owen. The fact of the matter is that this system—the holding of referenda—has not entered the constitution. People have argued for it, but it has not actually happened. For the reasons that I have given and out of respect for parliamentary government, it should not happen.

Lord Campbell of Alloway: My Lords, I am very much obliged to my noble friend. May I ask a very simple question? I hope that he will not be angry with me. How will we accommodate the distress of the people, who have, frankly, had a promise reneged upon, which they understand in a way that my noble friend does not? How will they be dealt with, other than by a referendum unless and until the next general election? In the mean time, is there any other way?

Lord Brittan of Spennithorne: My Lords, I assure my noble friend that the last thing in the world I wanted to do was to express anger towards him or arouse anger in him. He made a fair point. Of course, what the popular opinion is on this is relevant and important, but it is not decisive. Whether this treaty is different from the last one is arguable and has been argued and I do not propose to take the time of the House on it.

Although I do not pound the streets of Richmond, as I used to when I was its Member of Parliament, all the evidence, whether in Richmond or elsewhere, suggests that although much is written about this in the press, it is not an issue about which the public feel very strongly; it is an issue about which the media feel strongly.

There is a point to be made about the promises made by the parties. As I have said, I will not try to parse the treaty or say whether it is different from the previous one. The fact that political parties—rightly or wrongly; in my view wrongly—promised a referendum on the previous treaty should not be decisive for the House in deciding whether to require a referendum to be introduced. We have to exercise our personal judgment and make a personal decision about whether it is in the interests of this country, in terms of the evolution of the constitution of this country—whether we want to have more referenda—and in terms of the impact of what we are doing on Europe.

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No reference has been made to the Salisbury convention in this debate, although it was discussed in previous debates. The Salisbury convention was a prudent, self-denying ordinance of the House not to use its legal power to frustrate the will clearly expressed by an incoming Government in their manifesto. It is quite a different matter for this House to say that it has the right not just to refrain from stopping a Government implementing their promises, but to force a Government to implement their promises. Whatever the considerable merits of your Lordships' House, which we all agree about, it is not an elected body, and it is peculiarly inappropriate to say, “Not only should the Government keep their promise but we, of all people, are insisting that they do so by a particular form of populous democracy—that is, a referendum”. There is something faintly ironic, and beyond, in this House arrogating to itself the intention or the right to do that. It is for those reasons that I cannot go along with the proposal that there should be a referendum.

5.15 pm

Lord Neill of Bladen: My Lords—

Lord Radice: My Lords—

The Archbishop of York: My Lords—

Baroness Ashton of Upholland: My Lords, for obvious reasons, I am not trying to work out exactly whose turn it is to speak, but the Liberal Democrats have not had a speaker for a long time. So after the most reverend Primate the Archbishop of York has spoken it will be their turn. But we will make sure that all noble Lords get in, so please do not worry.

The Archbishop of York: My Lords, I listened to the noble Lord, Lord Ramsbotham, and was persuaded by his argument on trust and how the three parties put in their manifestos that there will be a referendum. But what was that referendum about? It was about a constitution and if you want to persuade me that the treaty is the same as a constitution you have to do better than simply say, “The element of trust is important”.

Of course trust is important. As a man of the cloth, I believe in trust; I believe in honesty and fairness. But let us put that trust in a context which is actually important, otherwise we are going to behave like that true story of an American warship that was found in Newfoundland, giving out a signal saying, “Turn round, turn left, turn right”. It saw these big lights as it was moving forward. The message came back, “You turn left”. It was thought that it had destroyers on board and it went on and on. Then finally, someone said, “We can’t turn, we are a lighthouse”. You cannot simply go forward because you have the intention of being something—it is a question of content, context and reality.

When I read manifestos I see that they are simply an expression of intention. That intention for them to be carried out often requires Acts of Parliament. The Government must be frustrated by their own manifesto because Parliament has said “No”. Because we are

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living in a democratic institution which allows Parliament to be the high court of the land, it means that whatever intention anybody had, they are subject to its particular parliamentary democracy. I believe that parliamentary democracy is the answer. If you ask anybody if they want to vote on any subject, and we see this quite a lot in the Church of England, they do. But does that mean that that is always the right question?

These manifesto commitments are subject to Parliament. The rule of this House is to revise legislation from the other place and improve on it. Would the six amendments improve the treaty? Would they improve the legislation which has come from the other place? I do not hear that. What I am hearing is, “Delay it. Let’s go to the public”. That is not the way to improve legislation or revise it in this Chamber. The role of this House as a revising Chamber is going to be in a far worse position by simply saying, “We are going to delay it because we want a referendum and because, by the way, all three parties had that in their manifestos”. The good thing is, as the law is passed, it always talks about the,

whereas the Lords Spiritual do not have it in their manifesto. I do not have to have to go for a referendum. I do not have to be persuaded because it was never in our House. But I need better arguments.

I came to this country, running away from Amin’s troubles, in 1974. We had not been able to vote there for a long time. I came to this country because I was from the new Commonwealth and I was able to vote in all kinds of elections. The first election in which I took part was in a referendum in 1975. I read about, and understood, what I was being asked to vote on, and I voted “Yes”. The problem is that if there is a referendum now, being one of the Lords Spiritual in this House, I no longer have a vote, so I ask not to be deprived of what I had lost in Uganda.

Finally, if you ask whether the Queen will still be supreme in Parliament under the new treaty, will the answer be yes?

Noble Lords: Yes.

The Archbishop of York: My Lords, will this Parliament still be the highest court in the land?

Noble Lords: Yes.

The Archbishop of York: My Lords, will foreign policy, defence policy and law and order still be governed by this country?

Noble Lords: Yes.

The Archbishop of York: Then why, my Lords, are we making this fuss?

Lord Maclennan of Rogart: My Lords, the challenge is to follow that. I heard the noble Lord, Lord Owen, describe a part of Britain’s constitutional history, on which I remember being closely associated with him. I

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remember standing shoulder to shoulder with him on most of the issues that were discussed at the beginning of this country’s membership of the European Union in the 1970s, but I part company with him today on its precise relevance to the issue before us.

The question of whether Britain should join the European Community, as it then was, was of immense importance. Even if one took the view, as I did, that in a parliamentary representative democracy referenda are not ideal because they tend to lead, despite the disavowal of the noble Lord, to a plebiscitary notion of how we should govern ourselves, it was arguable then that this was an issue that should be decided by the public.

By any objective test, the Lisbon treaty is a very different matter for this country. Having served, along with the noble Lords, Lord Tomlinson and Lord Kerr of Kinlochard, on the convention that drafted the constitutional treaty, I am bound to say that in my judgment, even if the constitutional treaty had been adopted, it is arguable whether it would have been sensible to have a referendum. I know the political arguments—I heard them in my own party—as to why we should have one. Once again, it was arguable that this treaty, drafted and signed by 27 members, which purported to establish a framework that would in some sense be final and a framework for further jurisdiction by the European Court of Justice, was of such emblematic importance that it was necessary or appropriate to have a referendum. In the case of the treaty of Lisbon, which is just one of a series of amending treaties, I cannot understand why the Conservative Party in opposition finds it necessary to argue that it should be treated any differently from those that it was responsible for negotiating in connection with the Single European Act.

Baroness Quin: My Lords, I am grateful to the noble Lord for giving way. In order to reinforce his point, I refer to the example of the Netherlands that was quoted earlier. The Dutch people are, I believe, as deeply attached to democracy as we are in this country and yet there seems to be little clamour in the Netherlands for a referendum on this treaty. Is it not the fact that the Netherlands has largely accepted the advice of the independent Council of State that the two treaties are very different?

Lord Maclennan of Rogart: My Lords, I accept that entirely and I was coming to that point. I take the view that the treaty of Maastricht had a much greater effect on the governance of this country, as did the Single European Act, over which the noble Baroness, Lady Thatcher, presided and which was also of much greater significance in terms of the transfer of sovereignty. It is an absolute travesty to talk about the transference of sovereignty in the Lisbon treaty. The mere repetition of this by the rag press in this country should not disguise from sophisticated Members of this House the reality of the limitations of the Lisbon treaty.

Lord Vinson: My Lords, I am grateful to the noble Lord for giving way. As a member of his party mentioned my name earlier, I would like to make a small intervention about the lack of sovereignty and about our current

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relationships with Europe. The Lisbon treaty is special because it is the final salami slice of a transfer of yet another great whack of our ability to govern ourselves. I would like to come back to that later but this is the point that the noble Lord is missing in his peroration.

Baroness Ashton of Upholland: My Lords, I am sorry, I always seem to be doing this to the noble Lord, but interventions need to be questions at this stage in our deliberations.

Lord Maclennan of Rogart: My Lords, the Lisbon treaty is of such a different order of magnitude that many of the countries that were committed to holding referenda on the constitutional treaty decided not to go down that route and to use their more normal constitutional provisions. To me that is almost as significant as the differences between the substance of the constitutional treaty and the terms of the Lisbon treaty, which the noble Lord, Lord Blackwell, enumerated in some detail. The only sense in which I disagreed with him was in his evaluation of the importance of these differences. I believe that they are profoundly different in that they modify the extent to which this country will be driven forward by decisions within the European Union in the areas where we have an opt-out.

The most powerful question for this House was put very succinctly and clearly by the noble Lord, Lord Ramsbotham, as is not entirely surprising for those of us who have come to know and admire him. He raised the issue of trust which is core to this debate. But I would put it to him and to other noble Lords that the British public has a right to expect of this Parliament that it will use its judgment in the circumstances of the day to decide whether a course of action advocated and promised at an earlier date is relevant and in the interests of the country.

Lord Forsyth of Drumlean: My Lords—

Lord Maclennan of Rogart: No, my Lords, I wish to finish this point. Those who are treating this as a matter which could be easily decided by the public one way or the other are overlooking how this action is perceived in other European countries today. There is, for the European Union as for this country, a growing danger of marginalising ourselves in the debates of the Union, and there is a growing danger that as the world becomes more fragile, more fissiparous and less mindful of what led to the setting up of the Union, through our navel gazing we will cease to play the part we ought to play—the influential role. When we take actions of the kind being proposed here, in the circumstances of the day, when so much has changed in the European Union and the treaty over the past two or three years, it is a kind of self-indulgence and an abnegation of our responsibility to use our judgment about what is appropriate in fulfilling our role as Members of this Parliament.

Lord Radice: My Lords—

5.30 pm

Lord Neill of Bladen: My Lords, I am the last of the four who put their names to the amendment to speak, so perhaps the noble Lord will give way. I shall not be very long.

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The questions I want to ask are simple: was a promise made to the electorate; is the promise still applicable; and should it be honoured? Everyone is agreed that there is no doubt that all three parties made manifesto commitments, and certainly the Labour Party made a commitment to put the constitutional treaty to the electorate by way of a referendum. That takes one on to the second question: is it still applicable? The only reason I have heard for it not being applicable is that we are now looking at a different creature from that considered by the Constitution Committee. I have this to say to noble Lords: I served on that committee under the chairmanship of the noble Lord, Lord Grenfell, when we were looking at the constitutional treaty. Today I looked back at the report published at the time, the 41st report of the committee in 2003-04, where we reported on the convention’s draft constitutional treaty on the future of Europe.

In passage after passage of that report there are references to the proposals we are now considering under the current Bill and have been talking about for weeks. I put it to noble Lords that what we now have in the Lisbon treaty is a repackaging of what was in the constitutional treaty with some changes and some add-ons. To me it makes not the slightest difference if at the heart of it is the old constitutional treaty—it is all there. I do not think that Mr Blair or Mr Brown promised that there would not be a comma added, a change made, or even the 35 changes referred to by the noble Lord, Lord Blackwell. We have the essence of it here, and lawyers are perfectly capable of looking at it to see whether the essence remains. We have been doing that in tax avoidance schemes for years.

I was told that if I looked at the report of the Dutch Council of State, I would be impressed by it. Indeed, my noble friend Lord Hannay is an enthusiast. With great respect to the Council of State, I have to say it deploys arguments of a character which carry absolutely no conviction with myself or, I should have thought, with many lawyers. On page 11, the report states that the Charter of Fundamental Rights is no longer within the treaty, as it was in the constitution. However, Article 6 tells us that it is to have exactly the same standing as if it were included; the point is of treaty quality. To me, it does not make a fig of difference whether it has been moved out and does not form part of a pillar. The council goes on to say that the second element to be used in assessing the proposed reform treaty is the division of competences, while the next sentence states that the division will not be substantially affected by the proposed reform treaty. It then points out that there are differences, but that the substance is not changed.

When we come to the symbols, the name of the treaty establishing a constitution reflected a particular vision of European co-operation. The existing treaties were to be repealed and replaced by a treaty which is a single, binding constitutional document embracing the entire constitutional order, and was unprecedented in the Union’s political history. But what if those same provisions are just scattered like peppercorns by way of amendments over the existing treaties? It is all there, but the fact is that it is not labelled as a constitutional treaty. It goes on to point out that the state symbols

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have been removed: that there is nothing about an anthem and there is nothing about a flag. But the anthem still plays and the flags still fly in front of every hotel. There is an omission, it states: it is no longer said that EU law is supreme. But there is a declaration to that effect; no one doubts that that has been the case law for many years.

After all that, it states that the significance of these changes should not be underestimated. I suggest that the changes are of no material importance and that what we have is the old Lisbon treaty. The two treaties are recognisably the same—they are not identical of course—and a promise has been made; that promise ought now to be fulfilled.

In his maiden speech at Second Reading, which impressed me very much at the time, the right reverend Prelate the Bishop of Chichester reminded the House of a figure known to me in my youth—not personally but I knew of his reputation—George Bell, the Bishop of Chichester. He was a figure of towering moral strength but I shall mention only one or two of his achievements. In the 1930s he rescued, or did his best to rescue, churchmen who were being tyrannised by Hitler; he moved on to help Jews to escape; he was the first churchman to go to the Isle of Man to see that remarkable array of scholars, engineers, lawyers and so on who were arrested overnight and whisked off there. His courage was such that he stood in the then House of Lords—not this building because it had been blitzed—in wartime and said that the policy of obliterating Berlin was immoral and that there was no justification for pursuing it. For me, he is a towering moral figure and I cannot help asking myself how he would regard a Government failing to carry out a manifesto pledge of this character.

Baroness Symons of Vernham Dean: My Lords, perhaps I can come back to the fundamental case put by the noble Lord, Lord Howell of Guildford, in moving the amendment. As I understand it, his case is based not on whether referendums are good or bad, not on whether this treaty is good or bad and not on whether the Opposition, when they were in Government, had a referendum on the treaty for which they were responsible. His is a very straightforward point: he claims that the Government promised a referendum on this treaty at the time of the last election and that, in all conscience, therefore, the Government should hold the referendum now. That, as I understand it, is his fundamental case.

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