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My fundamental case is very straightforward too: it is that this treaty is not the constitutional treaty upon which a referendum was promised. At the time of the defining of the mandate for the new treaty at the intergovernmental conference, all 27 heads of Government agreed that:

That was not a statement of Her Majesty’s Government; it was a statement by the heads of all the Governments at the IGC.

The old former constitutional treaty would have been legally unprecedented. I have heard no one challenge that point. The abandoned treaty would have legally abolished the European Community and the European

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Union and would have refounded the European Union under a single constitutional order. The EU, in legal terms, would have become a new entity based on a single new founding treaty. The constitutional treaty, had it been passed, would have abolished all the previous treaties that we have discussed in your Lordships’ House. The Single European Act, the Maastricht treaty, Nice and Amsterdam would all have been replaced by a single treaty.

Lord Blackwell: My Lords, the noble Baroness says that no one challenges that. I put it to her that all of us who have spoken so far in favour of the referendum have challenged her point. If treaties that contained exactly the same clauses were to be replaced by one constitutional treaty, why is the legal effect any different if the treaty clauses here are exactly the same? It is a nonsensical argument.

Baroness Symons of Vernham Dean: My Lords that is not the point I am making. I am not arguing that there are not similarities; of course there are. No one is arguing that point. The point is that, constitutionally, what the old treaty would have done was legally unprecedented. That was my sole point. I have not heard that argument put, and I am sure that the noble Lord and his friends would have put it very forcefully. Mine is a different point from the one that I have heard the noble Lord put.

Lord Forsyth of Drumlean: My Lords—

Baroness Symons of Vernham Dean: My Lords, I have answered that point and I would like to get on.

Lord Forsyth of Drumlean: My Lords, I have a different point. It is serious; I am genuinely seeking information from the noble Baroness. Is the constitutional treaty that she is describing, which is so different, the same document that her colleague in Government, Mr Peter Hain, described as a simple tidying-up exercise? Can she not see that the Government have got form on this and have lost trust? That is why the referendum is so important.

Baroness Symons of Vernham Dean: Again, my Lords, the noble Lord is sidestepping the point I am making. I am not talking about what the right honourable Peter Hain may have said; I am making my point about whether or not the old constitutional treaty was legally unprecedented. I believe it was. The legal authorities say that it was. What Mr Hain may or may not have said in this respect, interesting as it may be politically and a jolly good way of making a bit of a political point, is not relevant here. If we really are having a serious debate, which the noble Lord says he wants, let us do so without the political point-scoring.

I return to my point, not the points made in another place. The abandoned treaty was legally and constitutionally unprecedented. All the previous treaties that we have seen amended their predecessor treaties. The constitutional treaty, had it survived, would not have amended them but would have abolished them, and it would have introduced a single written constitutional

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treaty for the European Union. The Lisbon treaty, by contrast, follows the pattern of previous treaties in constitutional terms. It amends existing treaties. In effect, it does constitutionally what the Single European Act, Maastricht, the Nice treaty and the Amsterdam treaty did: it makes amendments to its predecessors. The previous treaties neither repealed nor replaced their predecessor treaties. The old constitutional treaty would have done that, and this one does not. That is the fundamental case I am putting.

Baroness Deech: My Lords, perhaps I may raise a point about the constitution. We in this country, unlike the rest of Europe, have no definition of a “constitution”. The constitution of this country is not contained in one document.

Noble Lords: Order!

Baroness Deech: Does the noble Baroness not agree that this is simply a red herring?

Baroness Ashton of Upholland: My Lords, I want to make the same point as before; I will be completely consistent. At this stage noble Lords may intervene to ask a question, not to make a point. If the noble Baroness wishes to ask a question, that is great. If not, the point could be made if the noble Baroness wished to make a contribution.

Baroness Symons of Vernham Dean: My Lords, at the end of the noble Baroness’s intervention she asked whether my point was a red herring. Let me answer that if it is going to get the House excited. No, it is not, for precisely the reason that she stated. If we had had the old constitutional treaty, we as a country would have been signing up to a constitutional position that would have been unprecedented for us. We have not had that sort of element in our constitutional make-up before. I thank the noble Baroness for making the point so very well on my behalf.

That is the fundamental difference between the constitutional treaty and this treaty. In fact, if the Opposition were to win this argument—I do not believe that they will; I certainly do not believe that they ought to—the country would then have a referendum on something constitutionally different from the undertaking to have a referendum on the old constitutional treaty. That would have been a referendum on a treaty which would have been the totality of the existing provisions of European Union treaties for the past 50 years, which have made up so much of our constitutional position in Europe. A referendum on the Lisbon treaty, however, would be a referendum only on this single amending Act. It would be an Act of no more importance than its four immediate predecessors. That would be a very different proposition from that of a referendum on the old constitutional treaty, and that is why no promise has been broken.

The 27 Heads of Government knew what they doing at the IGC when they decided that mandate for the Lisbon treaty, when they decided that the constitutional concept of a single text called a constitution is abandoned—everybody agrees that that is the case.

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They recognised the clear difference between the proposition in the old constitutional treaty and that in the Lisbon treaty in terms of their constitutional impact. So should this House and so should the Opposition. It really is time for them to abandon their argument, which, however hard they try, they simply cannot stand up.

Lord Moran: My Lords—

5.45 pm

Lord Lamont of Lerwick: My Lords, it is this side now. We have heard from the Cross-Benches. The noble Lord, Lord Neill, spoke previously.

I shall be brief. I want in part to answer the point made by the noble Baroness, Lady Symons. If she is correct in her prediction that the Government will win this vote tonight, the Government will live to regret it. They may live to regret it as quickly as Friday when we hear the result of the Irish referendum. Even if they do not do so then, I believe that what Nick Clegg said before he was leader of the Liberal Party and before he changed his mind on this issue is true. He wrote in the Guardian that if the parties in this country were going to deny a referendum about the treaty to the British public it would increase cynicism not just about politics but about politicians dealing with Europe. He said that, if denied a referendum, the public would think that the politicians did not, as he put it, have “the cojones” to carry the argument about a referendum to the public. There was something rather ironic in the noble Lord, Lord Wallace, attacking the Labour Government for not taking the argument about the treaty and Europe to the public when what he was doing was to argue against taking the issue to the public.

Comparisons have been made with the Maastricht treaty, with which I was involved. On the most important aspect of the treaty of Maastricht, which was the possibility of the introduction of the euro to this country, the Conservative Party—followed by the Labour Party—promised to have a referendum were the euro ever to be introduced. That pledge, on that most important part of the Maastricht treaty, still applies and is still upheld not just by the Conservative Party but by the Labour Party as well.

It was the Foreign Secretary, David Miliband, who said on 3 July 2007 (at col. 803 of the Official Report) that the Maastricht treaty involved “a smaller transfer of power” than this treaty. He may not have meant it; it may have been a slip; but perhaps it was a slip in which he spoke more wisely than he knew. However, the point is not a sterile argument about one treaty compared with another. The fact is that we have had a whole series of treaties—Maastricht, Nice, Amsterdam and Lisbon—all of which have gone a bit further. Have we reached a tipping point? Have we reached a point at which the accumulation of powers justifies this issue being put to a referendum as was promised by all political parties at the previous election?

The public have demonstrated, again and again, that they would like a referendum. It has been demonstrated in opinion polls. My noble friend Lord Brittan said that if you ask the public whether they

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want a referendum about anything, of course they would always say yes. Possibly; but if they have actually been promised a referendum they are quite likely to want it even more. We have had referenda organised in 10 parliamentary constituencies under the auspices of the Electoral Reform Society, in which large numbers of people have voted and shown that they do not wish to accept this treaty. In one such referendum held in the constituency of Eastleigh, represented in another place by Mr Chris Huhne, more people voted for the principle of having a referendum than had for Mr Huhne at the general election.

On the point that the treaty of Lisbon differs from the constitutional treaty, at the very beginning of our debates the noble Baroness—although she handled each debate with great charm and skill—said, rather insidiously, that we should not have any quotations from foreigners. I could not really understand why: could it just be because almost every head of state is on record as having said that the differences between the treaty of Lisbon and the constitutional treaty are non-existent? With one exception, I will adhere to what the noble Baroness said. I will not quote the Belgian or Finnish Foreign Ministers; I will not quote Bertie Ahern, or the Italian or French Prime Ministers, but they all said it, again and again. I will not quote their actual words, but when the now Lord Chancellor, Mr Jack Straw—I do not think he is a foreigner—was asked in another place what constituted a constitutional treaty, and therefore made a referendum necessary, he said that you ought to have a referendum if it is a constitutional treaty, and what constitutes that is having an EU President and an EU Foreign Minister. Well, we have a different name for the Foreign Minister but those two proposals, which he said justified a referendum, are still here.

The noble Baroness, Lady Symons, argued that the constitutional treaty is very different from the Lisbon treaty, and that it repealed existing treaties whereas the Lisbon treaty does not. Yet, as my noble friend Lord Blackwell pointed out, she did not say that while the constitutional treaty abolished the treaties, it then went on to write the provisions back into the text. So, what is the actual difference? Now, this is where I will break the rule and quote one foreign politician, because President Giscard d’Estaing, the author of the constitution, gave the answer when he said:

I quote this because it is as revealing as all the other quotes that I am not using would have been: they tell us the motive. He went on:

There, we know it.

I could, indeed, also quote the correspondence that the German presidency under Angela Merkel circulated in canvassing this idea of using the device of having not a constitutional treaty but an amending one, with its political advantages. If there is any doubt that there is no difference between the two, it was made clear by my noble friend Lord Blackwell in pointing out that the Government have very kindly not just given us the

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treaty, but printed the consolidated text. With that and the amending treaty within it, we can compare it with the original constitutional treaty, and they are virtually the same.

The other point made was that Britain was perhaps signing a different treaty from that signed by other countries, because of the Government’s red lines. But the point that I made to the noble Lord, Lord Anderson, needs an answer. I pointed out to him that at the moment when the Government made their promise to have a referendum they had achieved many of their objectives on the red lines. In particular, they had achieved the objective that foreign policy was not subject to control outside this country. The noble Lord answered me by saying that the red line remained in place, but that is not the point. The promise was made that we would have a referendum, even though the red line had been achieved. They said that the treaty, even with the red lines, deserved a referendum, so why are we not having one now?

The noble Lord, Lord Owen, said, in his usual very even-handed and fair way, that there were differences between the two, but they are not large. I agree with him. There is the difference in how the Charter of Fundamental Rights is treated, subject to a protocol. But many people, including Select Committees in the other place, have argued that the protocol is not guaranteed to be watertight, and many academic lawyers have argued the same. So it would hardly seem that that by itself justified the abandonment of the commitment that was given to have a referendum.

This is a sad day for politics. I make no criticism at all of those who, like my noble friend and my noble and learned friend sitting beside me, have always been against referenda and who have made clear in the past their opposition to referenda on this sort of issue. Maybe the arguments are not overwhelming and maybe there never should have been a promise to hold a referendum; maybe it was not wise and maybe the treaty is not as different from others as I profoundly believe that it is. The fact is that the Government made a promise and should stick to it. The Liberals also went along with it, but they have not just ratted—they have re-ratted and re-re-ratted. First, they were for a referendum, then they were for abstaining, adamant for drift—and now they are firmly against a referendum. Who knows where they will be tomorrow?

If this amendment is defeated tonight, it would certainly be bad for our involvement in Europe but, above all, it is bad for politics in this country.

Lord Stoddart of Swindon: My Lords—

Lord Kerr of Kinlochard: My Lords—

Baroness Williams of Crosby: My Lords—

Lord Moran: My Lords—

Baroness Ashton of Upholland: My Lords, there have been only two Liberal Democrat speakers, so they are probably owed an extra speaker, if that is all right with the House. The noble Lord, Lord Moran, need not worry—he will speak.

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A noble Lord: Lord Kerr!

Baroness Ashton of Upholland: My Lords, I am very happy if the noble Lord, Lord Kerr, speaks.

Noble Lords: Lib Dems!

Baroness Williams of Crosby: My Lords, I am grateful to be the third Liberal Democrat to speak at this debate. I begin by saying very directly that I find the words of the noble Lord, Lord Lamont, for whom I have very considerable respect, offensive to an extraordinary degree. The Liberal Democrats, ever since 1981, when we were formed as an alliance and then became a merged party in 1987, have been consistently in favour of this country’s full membership of the European Union and of many of the ways in which we believe that it can confront the dreadful issues that now face us in the world. We have been the most consistent of the three major parties in this country, in that regard.

Let me go back historically for a moment. The Conservatives, under Mr Edward Heath, were the leading voices in favour of the European Union. Very shortly afterwards, they entered into some of the most far-reaching understandings, which carried this country into a considerable level of integration on the economic front under the leadership of Margaret Thatcher. They continued in that same guise until the time of the premiership of Mr John Major—a deeply divided premiership, in which the Conservative Party began the process of reaching fission on the issue of the European Union. Then, finally, in opposition, they have come out increasingly against the Lisbon treaty and, for that matter, moves towards greater integration in other areas of policy, such as climate change. This has not been the story of a consistent party.

6 pm

The Labour Party, in the days when I still belonged to it, was very much in favour of the European Union after the 1975 referendum. I shall have a word or two to say about that in a moment. By 1980 it had already changed its policy through 180 degrees, and decided that it wanted to leave the European Economic Community, as it then was. In 1981 it confirmed this at that year’s conference, deciding that it was committed to leaving. It stuck by that decision in the 1983 manifesto. Since that time it has been, first, indecisive, and then, in 1997 under the leadership of Tony Blair, enthusiastically supportive of the European Union. It is, again, a picture that has been very much coloured by what were seen to be the political advantages or disadvantages, in which the European Union itself played a secondary role to electoral and partisan considerations. I must reject what I regard as the rather cheap crack to the effect that, in some ways, the Liberal Democrats do not know where they are. On any proper reading of the last 25 years, they have known exactly where they are.

I turn from that to the noble Baroness, Lady Symons of Vernham Dean, who said, with her usual cogency, something important that has not played a prominent part in this debate. In subsuming all existing treaties,

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the changes that would have been made under the constitutional treaty proposal were more far-reaching than those in the treaty of Lisbon. Indeed, it would simply have prevented a whole set of parliamentary debates on earlier treaties, such as those of Nice and Maastricht, and even going back to the treaty of Amsterdam. She is absolutely right about that. It was a very far-reaching change in the category of legislation, which brought it within a different sphere from that of the treaty of Lisbon. I will not go into detail, although there are some interesting details. For example, in evidence given to the European Union Committee, Professor Dashwood specifically proposed that, under the treaty of Lisbon, the CFSP was defended and treated according to separate rules and understandings from those that would have been the case under the constitutional treaty. That was accepted by the European Union Committee. There are other examples, particularly in the field of foreign affairs, where one can point to a considerable distinction.

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