|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
However, I am trying to make more than a legal point; there is also a moral argument here. The British Government are reneging on a compromise that they signed up for in the negotiations on the Lisbon treaty in 2007. They are overturning promises to our partners that they solemnly made. Of course the Government are entitled to say that for future treaties they can bring in new processes of ratification; they are perfectly entitled to say that and we can debate those processes. However, in relation to Article 48(6), the Bill proposes to introduce new procedures that place new obstacles to the use of treaty provisions to which Britain has already signed up. We signed up to that with the explicit purpose of not being subject to the cumbersome processes of ratification that the Government are now, retrospectively, trying to impose. That raises questions about the Government's integrity.
Lord Kinnock: I am following my noble friend closely, and I am sorry to interrupt him, but does he accept that his declaration that the Government are entitled to make provision for the future is a moot point in the context of this Bill? The Government, as well as presenting this Bill, have repeatedly and solemnly declared that no use will be made of it in the lifetime of this Parliament-none whatever-because there will be no concession in the direction of competences or powers, however defined. That being the case, are not the Government seeking to do what no Government or Parliament can do, and that is to bind future Parliaments?
Lord Liddle: My noble friend Lord Kinnock, for whom I have enormous respect, corrects me on this point. I was trying to make a point about whether our European partners were aware of the new constraints being imposed on the British Government's flexibility in relation to provisions which the British Government have already signed up to. Has the Prime Minister written or otherwise communicated to his European Council colleagues to explain that the deal which Britain did in 2007 is now off the table? Can Parliament be informed of the reaction of our partners to the knowledge that the flexibility which they thought the British had signed up to is no longer available? If we have not got that from our European partners, there should be a pause-after yesterday, pauses in the legislative process are almost a formal part of our proceedings. There should be a pause while this communication with our partners takes place, because it is not right to go back on these promises.
I would like to talk briefly about what I regard as the impracticalities of the Government's proposals, to which several noble Lords have referred. The most notable instance of the use of Article 48(6) is the way in which it is being used for the establishment of the European stability mechanism in the euro area. That is clearly not a decision that extends the EU's competence because the Maastricht treaty provided for the creation of a single currency and the establishment of an economic and monetary union, both objectives to
5 Apr 2011 : Column 1660
This is the point about practicalities. Let us imagine that Britain was in the euro and that we were engaged in those discussions about the establishment of the stability mechanism. That is not as much a flight of fancy as it would be to assume that the Bill will get through this House unscathed. If you were David Cameron and in the euro and facing this situation, you would have to say, "Sorry, I'll have to consult my Foreign Office lawyer before I can decide whether we can go along with this". The Foreign Office lawyer would point to Clause 4(4) of the Bill and say, "There are three possible ways we can avoid a referendum on this. It is clearly not an accession. If we are in the euro, it clearly applies to us-so the basis we are using for avoiding a referendum on this thing, which does not apply to the UK, could not be used. Is it a codification? Well, it might be". I suppose that if you were a politician in a tight corner, you might try to argue that it was a codification. However, the point that I am trying to make is that in a crisis situation where Article 48(6) is being used, these provisions would prevent a British Government having the flexibility to act in a sensible way in British interests.
If we were forced into having a referendum in such a situation, the bond markets would be gyrating with the movements of the opinion polls. Obviously that is ridiculous, because we are not in the euro and we are not going in at the moment, but am I hypothesising a completely ridiculous scenario? Let us think for a moment about a situation in which we faced a second banking crisis in Europe and action had to be taken to recapitalise banks across the Union at very short notice. I do not think that that is an entirely negligible risk although I obviously do not want to see it happen. At present, as regards competence on this issue, the Commission is requiring member states to set up their national systems as we have under our Banking Act 2009 to deal with that kind of national crisis. If we had to deal with it on a European basis, what would be the position? If we were faced with a choice of whether to set up an EU-level agency, would it be subject to the referendum lock provided for in the Bill? As a result, the ability-this is a very serious point-of a British Government to defend our national interests would be gravely affected because they could not take emergency action to put in place a European solution to the problem.
These amendments are extremely important. We on this side of the House believe that the provisions of the Bill are not at all realistic or practical. They are from the world of Eurosceptic fantasies. They raise difficult legal issues and difficult political issues. Worst of all, they just do not make practical sense.
Lord Pearson of Rannoch: My Lords, I wonder whether I could press the noble Lord to give an answer to a question that I put to other noble Lords but which
5 Apr 2011 : Column 1661
was used to do all sorts of other things. When it came before the Luxembourg Court for judgment in 1996, those words were simply ignored by the Court. I gave noble Lords the example of Article 308 in the past. I also give noble Lords the example of Article 122, which was used in the interregnum between one Government and another. Can the noble Lord answer those points and set your Lordships' mind at rest that Article 48(6) will be followed, unlike the way in which those articles-and there are more flexibility clauses-have not been obeyed in the past?
Lord Liddle: With the greatest respect, I think that the noble Lord is confusing two things. I am looking in the direction of the noble Lord, Lord Kerr. I think that Article 48(6) deals with cases where there is a clear competence-for instance, in the case that I was talking about of the single market in financial services and in the previous case about the euro, the establishment of economic and monetary union and of a single currency. I think that the noble Lord is talking about the general clauses which are now subject, under the Lisbon treaty, to considerable constraints. I will look into that and perhaps we can have a discussion.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, it would be an implausible exaggeration to say that I have enjoyed this debate, but it is a privilege to hear the fine minds of many of your Lordships playing on these issues, which are undoubtedly complex. I do not make any apology for that, because much of the EU legislative scene is extremely complex, as are our relations with it. I strongly agree with the point made by the noble Lord, Lord Hannay, that although this seems to be an abstruse issue, which I shall address in great detail in a moment, it is also central and raises fundamental points about the whole nature and purpose of the Bill. I should also put in a good word for my Belgian friends, who came in for criticism of the kind that, frankly, I do not like. I will let that pass for the moment.
As the debate has ranged a little beyond the central point, to which the noble Lord, Lord Tomlinson, rightly urged we return, I hope that I will be allowed a few paragraphs trying to explain the context in which we come both to adherence to the central issue of the amendment and to the Bill.
We believe that there has been disaffection among the British electorate in recent years. I think that it is a mistake for the most enthusiastic supporters and builders
5 Apr 2011 : Column 1662
The competences and powers have been handed over, in many cases-this is an argument that we have heard buzzing across the Floor of your Lordships' House this afternoon-for good reasons. As my noble friend Lord Deben said, great things can be and have been gained by the handing over of competences and powers, whether or not you call it pooling of sovereignty. Others would argue, as we have heard today and often before, that the handing over of those powers has not been for the good. That wider debate has gone on and will continue in future.
Of course, the Bill does not concern what has been handed over in the past. I know that that is a matter of criticism for some of my noble friends and others in the other place, where there was considerable criticism that the Bill did not try to wind things back into the past, although it is worth reminding ourselves, as the noble Lord, Lord Stoddart, did, that the House of Commons passed the Bill and gave it to us for scrutiny, which we must perform in detail.
However, that fact of dissatisfaction cannot be dismissed or pushed aside by those who seek to understand the disquiet not just in the media and in the so-called anti-European or Eurosceptic papers but among a wide number of people and organisations, including some extremely learned people and leading lights in the legal profession. That is why the coalition's programme for government gives the undertaking:
Lord Dykes: I am most grateful to the Minister for giving way so early in his remarks. I apologise for interrupting him. Is he asserting that the Government have in recent weeks and months been in receipt of lots of e-mails and letters from members of the public advocating withdrawal from Europe or being strongly anti-European? Does he recall what, on the last day of the Committee of the Whole House in the Commons, the Member of Parliament for Ipswich, the distinguished son of my noble friend Lord Deben, Mr Ben Gummer, said? He said:
"Over the past few days, I have had nearly 100 emails and letters about forests, but since 7 May I have not had a single letter or email about withdrawal from the European Union".-[Official Report, Commons, 1/1/11; col. 793.]
Lord Howell of Guildford: I have no idea whether that is the case with the excellent son of my noble friend Lord Deben, who is a lively Member of the other place. I do not think that that has any relevance to the general concerns expressed over the years
5 Apr 2011 : Column 1663
Lord Howell of Guildford: I am not too keen on giving way now. We have had a long debate. I do not want to be rude in any way and I greatly respect the noble Lord, but if I could be allowed to get past my first paragraph, that would be quite a treat.
I was going on to say that it is because of that dissatisfaction that, in our programme for government, from which I was reading, the coalition made a commitment to introduce legislation to establish a referendum requirement for treaty changes that transferred power or competence from Britain to Brussels-I cited the words referring to powers-and, in the process, to strengthen the power of the British people to exert their influence over such decisions and thereby increase their engagement with those decisions and the work of the European Union more generally. I may say that that task was notably pushed aside in a rather cavalier way by the previous Government, with the result that there was a very noticeable decline in public enthusiasm for and commitment to the European Union.
I do not want to rehearse in depth the arguments that I went over on Second Reading related to the principles, but I repeat that, contrary to the views of those who have depicted the Bill as some kind of anti-European device, I see it firmly as a tool to strengthen our position, role and effect as a member state of the European Union, because of its impact on citizens' involvement with the issues before them and their engagement with the EU. Of course, that means referenda. If, like my noble friends Lord Deben and Lord Garel-Jones, you do not like referenda, that is a perfectly respectable position to hold. They will recall that, again and again, referenda have been used. At the time of the Lisbon treaty and the ill fated constitution for the EU, all three parties were in favour of referenda. That was the position then. No doubt the noble Lords had their objections then, so it is not surprising that they will have their objections now. I respect that, but this is a difference that we cannot necessarily bridge. Either we are ready to see the use of referenda in this electronic age or we deplore them and think that they are in some way an attack on parliamentary sovereignty. I do not believe that to be so, because Parliament remains sovereign regardless.
Lord Clinton-Davis: Does the noble Lord gain any satisfaction from the fact that not a single member of the government party has accepted the argument that he now adduces? Everybody has spoken against the Bill that he now favours. What has he got to say about that?
Lord Howell of Guildford: It is certainly true that in your Lordships' House there has been a notable weight of criticism against the Bill. I fully accept that. I have to remind the noble Lord that the House of Commons passed this Bill without the opposition of his party. This is a House of Commons Bill, as the noble Lord, Lord Stoddart, reminded us. It could be that those who feel strongly and are most expert in aspects of it or feel most strongly about broader issues are those who come forward to speak.
Lord Liddle: The Minister said this at Second Reading. Labour put down a reasoned amendment in the other place which expressed many reservations about the Bill. It is not true to say that Labour did not oppose it.
Lord Howell of Guildford: Labour did not oppose the Bill overall, but it certainly urged that we should scrutinise it and that, by heavens, is what we are doing. No doubt we will be doing a good deal more of that.
With this legislation, we are, in our view, plainly acting in the spirit of the Laeken declaration, which noble Lords will remember urged that we should seek to find ways, which are widely recognised throughout the whole of the European Union, not just in this country, to bring the processes of the Union and its legislative procedures closer to the people. That was 10 years ago. It urged us to act on that basis. It seems to me timely-if anything, a little tardy-and certainly appropriate for the era in which we now live that we should bring forward legislation on which, we hope, we can build an architecture of faith and commitment to the European Union for the future and a building that we hope will last although, obviously, we would not like to see-we will be debating this later-future Governments remove the foundation stones from that architecture and destroy it. That would be a pity, but it will again be a matter of opinion and debate. The Bill is put forward with that kind of faith and intention in our minds. Frankly, calling it a fraud on the public is a deeply regrettable statement-deplorable, in my view-and not at all in line with the tone of debates in this House of Lords. I think that it is a pity that people should speak in that way.
I want to come to the core issue in the debate. The simplified revision procedure allows the European Council to decide to make amendments to the part of the Treaty on the Functioning of the European Union that concerns internal policies. That is what the noble Lord, Lord Kerr, stated quite clearly. This is the Article 48(6) issue. The noble Lord said that the treaty changes under the simplified revision procedure are not allowed to transfer further competence from the UK to the EU. Here I hesitate, because I am going to challenge the viewpoint and authority of the noble Lord, Lord Kerr, and many others, but certainly the noble Lord, Lord Kerr, who is a great expert. After all, he was, I understand, rapporteur of the European constitution, which came to, I am afraid, a sticky end, but he has vast expertise. However, it is possible to transfer further powers from this country to the institutions of the EU. The potential for a substantial amendment to be made under this mechanism means that we should treat, logically, changes under the simplified
5 Apr 2011 : Column 1665
Lord Kerr of Kinlochard: Could the Minister give us some examples? I cannot think of examples of transfers of powers that do not involve a change to the treaties. Can he explain what these transfers are?
Lord Howell of Guildford: I was in the midst of saying that I would do that. Article 48(6) can be used to amend Part 3 of the TFEU, which covers Union policies and internal actions, such as the internal market, agriculture, freedom, security and justice, competition, employment, the environment and public health. In the past, the Lisbon treaty agreed to move 51 vetoes from unanimity to QMV. Somewhere I even have a list, which I shall secure in a moment, of the kind of vetoes, emergency brakes or moves to compel the United Kingdom to do something new or a new power or sanction on the UK involving a treaty change that might or might not qualify under paragraphs (i) and (j) of Clause 4(1) as significant, might or might not be exemptions if they did not affect this country and might or might not therefore become one of the items that might lead to a legislative treaty ratification process that might require a referendum. That is the situation.
Lord Kinnock: I hesitate to interrupt the Minister, because this is an issue to which we must perforce return. When he refers to the 51 vetoes that are alleged to have been sacrificed in the context of the Lisbon treaty, I am sure that he will acknowledge that a large number of them suited the purpose of the United Kingdom's national interest and that there was no argument about them. Nine of them referred exclusively to transitional arrangements being made for the purposes of the unification of the Federal Republic of Germany, while many others-I will give instances one by one in the course of this Committee-had absolutely no effect whatsoever on any loss of sovereign power by the Parliament or people of this United Kingdom. I hope that the Minister, who is an honourable man, is not going to take the risk of distracting us from discussion of what is actually provided for in Article 48(6) by making references that are at best redundant.
Lord Howell of Guildford: I understand the feeling of the noble Lord on this, but I want to come in a moment to the reasons why a number of these things would not trigger a referendum. Some things will; some things will not. Most of the items that the noble Lord just mentioned sound to me-I do not know what specific items he is mentioning, but I have already mentioned a list-like items under paragraphs (i) and (j) of Clause 4(1) that would not pass the significance test, so there would be no referendum. I shall explain later that many of the pictures that have been presented of tiny items triggering a single referendum are completely unrealistic in the context of past experience, of which the noble Lords, Lord Kerr and Lord Hannay, have
5 Apr 2011 : Column 1666
As far as the simplified revision procedure is concerned, I have explained that Clause 3 would extend the requirements that we are proposing for treaty changes under the ordinary revision procedure, which is a vast and cumbersome thing, in Clause 2 to those transfers of power under the simplified revision procedure. We think that our consistent approach is logical and will help to garner the trust of the British public that we are not seeking all the time to expand the EU's powers through the back door of the famous competence creep or, in this case, power creep, which has worried so many people who feel that Parliament is not being a sufficient safeguard of the interests of this country.
Lord Foulkes of Cumnock: I have one simple question on the point made by my noble friend Lord Tomlinson when he intervened in my speech. Perhaps the Minister could give us just one or two examples from the past where, if this legislation had been in existence, a referendum would have been triggered.
Lord Howell of Guildford: I have given some examples from the past and I have some more here. There have been 51 vetoes to unanimity, most of which would have failed a significance test, would have been exempted, would not have applied to this country or would have had no influence on our affairs. I am advised that another past example of a transfer of power is when the Court of Justice was given the new power to impose fines on member states for non-compliance in specific areas. Were that to have been proposed in an area under Part 3 of the Bill or Article 48(6), it would represent a transfer of power which would have to be assessed over the tests in this Bill.
Lord Kerr of Kinlochard: I think that the proposal to which the Minister was referring for giving a fining power to the court was originally proposed by the United Kingdom but I am more worried about the definitional point. I have not yet heard an example of a transfer of competence or powers-the words used by the Minister at Second Reading and again today. I hear about voting rules, and the Government can of course refuse to change the voting rules, but I have not heard about a transfer of power.
I do not think that any example yet given by the Minister is of a transfer of power; that is, something we give up. If the Court of Justice is given a fining power, no British court has a power to levy fines withdrawn. It is not a transfer. I agree that that may be an additional power to the Court of Justice but that is
5 Apr 2011 : Column 1667
Lord Howell of Guildford: I think that we have agreed that we are concerned with powers under Article 48(6) and the noble Lord is worried about powers rather than competences. It is true that the transfer of powers is not defined in European legislation, so we have to look at these detailed points, such as the surrender of certain vetoes or the removal of the availability to hold to a veto, and look at issues where a sanction is imposed on the United Kingdom which involves the limitation of a power moving to the higher levels of the European Union and taking it away from this country. These may be small powers. I want to come to what I believe to be a canard-that all this will lead to an endless series of referenda. It will not and I shall show exactly why it will not. But they are transfers of power and they come in a variety of forms. I have mentioned two or three. I will seek to get a longer list as we discuss these things but the pattern is there. The pattern of power must be considered as well as the pattern of competences.
Let me address what lies behind the amendment and the worry about Article 48(6); namely, will this procedure as applied to the transfer of powers as well as to the transfer of competences which would trigger the referendum requirement, provided they got over the significance hurdle, the exemption hurdle and other hurdles, lead to numerous referendums on trivial issues? If it did, I think that I would agree with some of the rather cruder and blunter criticisms of the Bill that this would not be a sensible way to proceed, with constant concerns about quite small issues triggering a referendum for the whole United Kingdom. Clearly, that would be absurd.
First, one has to face a fact which I think some of us-the very wise and experienced noble Lords on the Benches on all sides of the House-must know very well. Treaty changes, whether they have or have not transferred competence or power from the UK to the EU, have been very rare. That is for the obvious reason that it is very difficult for any country in agreeing a treaty change in any of the member states, some of which have referendum provisions with similarities to those proposed in the Bill, to get those treaty changes through. There have been enormous difficulties.
To bring home the point, the last treaty change, the Lisbon treaty, was packed with all sorts of smaller issues-they tend to come in packages for the very good reason that getting a treaty through on anything is extremely difficult-and took 23 months to ratify in 27 states, not to mention the three years of the constitutional treaty which went nowhere. The noble Lord knows all about that. We expect a similarly lengthy process with the current treaty changes, even on the tiddler, as it were, of the eurozone stability mechanism, which the noble Lord, Lord Liddle, mentioned, and certainly with future accession treaties as well.
Lord Hannay of Chiswick: I am most grateful to the noble Lord for giving way. Can he tell us whether any other member state has a referendum requirement for an Article 48(6) decision? I believe that the answer is no, but I am sure that the Government will be better informed than I am. Perhaps he would also note that the example he gave about the ability to fine by the European Court of Justice was in a treaty revision. That treaty revision would fall under a quite separate provision of this Bill, which we have not yet discussed but which we will come on to discuss, and will have nothing whatever to do with Article 48(6). Therefore, it merely reinforces the argument that the Article 48(6) reference is otiose.
Lord Howell of Guildford: I was just about to make points on the question raised. It would have been reasonable-I would not put it higher than that-for the noble Lord, whose wisdom I respect, to have allowed me to go ahead with what I was saying rather than interrupt me to say something that I was about to say and so lengthen the whole business: we have already been on this debate for two and a quarter hours. I plead with your Lordships that if we could just restrain ourselves a little we would make some progress.
I was turning to the important point about what other countries do when they are trying to get through treaty changes. That seemed to be absent from the attitude of many of the understandable critics among your Lordships about what is going on in the European Union. We heard speeches at Second Reading and in this debate implying that we were stepping out alone and marginalising Britain, that this was a completely different pattern and that we would cause the fury of other European member states. Incidentally, I am not sure that I can answer fully the noble Lord's perfectly justifiable question on the consultations we have had and at what level with our European partners but I can assure noble Lords that all our posts in Europe have been fully briefed on this and have discussed it with their opposite numbers.
Let me just go through some of the immense hurdles, some of which are higher than anything we are proposing here, which many other member states already practise. In Austria, the President must certify that treaty changes are in conformity with the Austrian constitution. If changes are judged to be a revision of the federal constitution, a referendum is required. In Denmark, a referendum is constitutionally required if the treaty transfers competences to the EU and is not voted on by five-sixths of the majority in Parliament. In France, a referendum is required if a treaty change necessitates a constitutional amendment, and incidentally I notice that the French require a referendum on future accession treaties, which of course do not arise in this Bill. That may be to the dismay of some, and we can debate it later. In Ireland, a referendum is required if a treaty is thought to alter the scope and objectives of the European Union, as we know. In Lithuania, a referendum is mandatory according to the constitution if treaty changes involve the partial transfer of competences of government bodies to the institutions of the European Union. In Slovakia, a referendum would be held on a treaty which relinquished sovereignty to the European Union, although there is a rider that the Slovakian constitutional
5 Apr 2011 : Column 1669
Lord Howell of Guildford: If I may just finish my sentence. The list builds up a picture of sensible attempts by member states who are enthusiastic supporters of the European Union to make sure that their people are closely involved in the processes wherever there is any transfer of competence or power.
Lord Liddle: I am deeply sorry, but I think that there is a fundamental point to be made here. There is a confusion which should not be allowed to enter this discussion. What the Minister has read out are the constitutional requirements of member states for full treaty ratification, whereas in this set of amendments we are talking about what is required for the simplified revision procedure. It is there precisely to avoid this full rigmarole. Why are we putting this in the treaty?
Lord Howell of Guildford: It is simply because the simplified revision procedure involves changes in the treaty. In many cases I have described, particularly where the significant test is applied and is not satisfied under paragraphs (i) and (j) in Clause 4, there would not be referenda here or in many other countries. But in other areas, through the simplified revision procedure and part of what we called the passerelle in our impassioned debates on this issue in the House at the time of the Lisbon treaty, it is possible to generate either transfers of competence or transfers of power. These are things on which there would be a natural incentive for the better use of existing powers in order to achieve certain objectives, like better co-operation over civil nuclear power or one of the other things that has been raised. They would also be matters where a real effort would be made by all countries because of the complexity they all face in pushing through treaty changes of any kind; even some quite small changes would trigger elaborate procedures in other countries. There will be a natural and sensible tendency to avoid changes and developments that involve treaty changes.
We simply do not accept that there is an appetite in the European Union for a further round of treaty change, given the arduousness of the ratification process, let alone one that would transfer further power from the UK to the EU. We certainly do not subscribe to the view that the addition of the simplified revision procedure will launch a new culture of regular treaty changes that seek to transfer power on a single issue. That is not the way the system has worked or will work in the future, as those who have been involved in it will know. My last involvement was many decades ago, but I had my share of it back in the 1970s and 1980s. Nations will know that when they come to deal with
5 Apr 2011 : Column 1670
I know that this is complex but it is a comprehensive approach to the whole question of the transfer of competences and powers. I beg noble Lords to understand that that is the reality of the position. Otherwise, individual issues are bound to be deferred-this is going to be the natural way; it has worked in the past and it will work again-until a whole raft of issues requiring attention can be wrapped up and packaged. That would ensure one treaty change which would cover a multitude of issues and one ratification process and, where relevant, one vote, as was the case with the Lisbon treaty. We recognise the kind of creature that comes along-it is the Lisbon treaty. That is just the sort of amalgamation of small and large issues, some of which under this Bill would certainly require a referendum, that should be and should have been put to a referendum.
We disagree most strongly with the proposition-this House disagreed with it and I think we carried sensible public opinion with us in doing so-that the Lisbon treaty should be somehow brushed aside and not put to a referendum because of the arguments about whether it did or did not parallel the European constitution beforehand. The noble Lord, Lord Tomlinson, said it would not but he remembers, because he was a doughty campaigner in all those Lisbon debates, that there was a very strong sentiment the other way which remains to this day, enlivened and reinforced by the fact that if you actually read the words in the two documents, the constitution and the Lisbon treaty, they turn out over a broad stage, as the noble Lord, Lord Stoddart, knows very well, to be identical. We are not fools, and nor are the public when they are told about this matter.
Lord Grenfell: I thank the noble Lord for giving way. Could we please try to get this straight once and for all? The constitution prepared by the EU Constitutional Convention was meant to be a constitution. The Lisbon treaty was in fact a series of amendments to two existing treaties, and the novelty of this was that when it was ratified, the Lisbon treaty disappeared into thin air and did not exist any more. It would have been odd to have a referendum on something that did not exist. What we were left with was amended versions of the two original treaties. That is very different from having a full-blown new constitution.
Lord Howell of Guildford: I will call the noble Lord my noble friend because he is that. He will recall how we went around and around this debate. It is perfectly
5 Apr 2011 : Column 1671
In short, including the simplified revision procedure in the scope of the referendum conditions would not unleash frequent trivial referendums. In the same way, we do not accept that there are likely to be regular treaty changes in the future under the ordinary provision procedure. That is one set of reasons why there will be nothing very different from these large treaties coming along on which there is a basic division of view. We say that these things should be put to the British people. Others disagree, including my noble friend sitting further along the Bench. They think that somehow Parliament can continue to be relied upon to be the safeguard to prevent the further ceding of powers and competences. We have considerable doubts about that, and of course the noble Lord, Lord Pearson, has even greater and stronger doubts than the Government.
However, we recognise that the simplified revision procedure has been set up to allow for amendments to specific parts of the treaty to be made in a more streamlined way, which is the point just made by the noble Lord, Lord Liddle. We recognise that on occasion an Article 48(6) decision might be used to agree a change that might involve a small transfer of power but on which it would not be appropriate to hold a referendum. We have therefore gone one stage further and proposed a mechanism to assess whether certain types of transfer of powers under the simplified revision procedure should be put to a referendum. This is known as the significance test, which we will no doubt debate in further groups of amendments. It applies to any decision that falls under the criteria of either Clause 4(1)(i) or (j), both of which I have mentioned.
If the decision is deemed not to have a significant impact, a referendum need not be held, although an Act of Parliament-and this is a considerable addition to what went on in the past-would still need to be passed in all cases before the UK could approve any treaty change. We have built in this mechanism, the scope of which we will return to, to provide a further safeguard to prevent referendums being held on trivial matters. For example-I am asked for examples all the time-a new power under a future use of the simplified revision procedure that compelled Governments to provide annual statistics to the European Commission would not necessarily be considered significant enough to warrant a referendum, but a new power to compel UK businesses to adhere to further regulation might well be deemed significant and might turn up in some package or treaty that we would have to deal with in a better way than we dealt with the Lisbon treaty when that went rushing through.
This is a further example of how the Government have considered the scope of the referendum lock carefully in the light of the conclusions of the Constitution Committee's inquiry. We think therefore that Clause 3 presents the British people with a clear, consistent approach to all types of future EU treaty change while maintaining a proportionate approach to the future use of referendums.
As in other countries, referendums will occur only for major transfers, or groups of transfers, of competence or power from this country and Parliament-which would obviously be of constitutional significance. That is a summary of the reasons why we think that this amendment is misplaced and seems to be based on a misunderstanding of the nature of the Bill, of the procedures by which treaties come about and are dealt with by this country, and of the politics of how, if we want to secure trust and support for the European Union as a whole, we should be going down this path.
The amendment represents a clear attempt to dismantle the provisions in Clause 3. As I have explained, we feel that it is important that decisions under the simplified revision procedure are subject to the same provisions of the Bill as treaty changes under the ordinary revision procedure-which are massive and cumbersome as I have described-including the assessment of whether a change would constitute a transfer of power.
Although these matters are of concern and your Lordships have applied great assiduity and care to looking at them, I think that I have said enough to justify the Government's assertion that Article 48(6) decisions should be treated in the same way as any other type of treaty change. If Article 48(6) decisions that transfer power or competence from the UK are deemed insignificant, there will be no referendum, although, significantly, there would be an Act of Parliament. If the decisions are larger and more important and form part of great treaties that come before this nation and are slowly processed through all member states, in several instances-including from now on in this country-through a referendum as we believe is proper, we think that that is a healthy and democratic development. On that basis, I ask noble Lords not to press their amendments.
Baroness Anelay of St Johns: My Lords, my noble friend has sat down and there has been an agreement through the usual channels that this might be a convenient moment for the noble Lord who moved the amendment to respond and for us to move on after that. There have been a considerable number of interventions. My noble friend the Minister has been extremely generous with his responses. I invite the Committee to move on and the mover of the amendment to speak.
Lord Stoddart of Swindon: My Lords, I really cannot agree with that. The Chief Whip is suggesting that there should be a limit on Committee stages. This is Committee and it is open to any Member at any time,
5 Apr 2011 : Column 1673
Baroness Anelay of St Johns: My Lords, of course I do not seek closure. I know that my noble friend has been very generous in his winding-up remarks and that noble Lords have been keen to intervene to achieve elucidation. These are indeed very important matters. I appreciate that we are now reaching two hours, 48 minutes. We do not have anything by way of a guillotine in this House, but we have self-regulation. I believe that it is the sense of the Committee that it would be right for the mover of the amendment to respond now to the position put by my noble friend Lord Howell.
Lord Kerr of Kinlochard: I am grateful to the Minister for his considered reply. I strongly agree with his point about public disquiet and concern. Particularly in this House, we underrate the extent to which public opinion has moved against the European Union in recent years. However, the Bill will do absolutely nothing to remedy that concern and disquiet. What we need to do, and this is a responsibility particularly of the Government, is to be out selling in public the truth about the European Union. However, I agree with the analysis that the Minister provided at the outset of his remarks.
He was also quite right to range widely before focusing on my amendment, because, alas, the debate had ranged very widely. I did not realise how many of the captains and the kings would come in and how much Sturm und Drang we would have as we ranged over the battlefield. Quite a lot of the debate was, as the noble Lord, Lord Richard, pointed out, technically a little bit out of order, but it was very interesting.
I have to disappoint one or two noble Lords who spoke in favour of my amendment-and I note that only two spoke against it, none of them from the government Benches. My disappointed comes from the fact that the scope of my amendment is extremely narrow. If the Government were to accept it, and I do not know why they do not, the particular procedures applying to treaty amendments that result from the simplified process would fall away and all treaty amendments would be handled in the same way. I do not know why Clause 3 is needed as well as Clause 2. I was not arguing today that nothing that is done by the simplified procedure should ever justify a referendum-that is my view, but it was not the argument that I was making today. My argument today was that there was no need for Clause 3 and no need anywhere in the Bill for any reference to Article 48(6). We need proper, substantive definitions based on the content of a treaty amendment-what it says, what it does-to decide how significant they are and whether there is a requirement for a referendum. I will probably be somewhere else on the spectrum of that debate from the Minister. You need to address the substance of the treaty amendment, not the process by which the treaty amendment was arrived at.
Clause 2 refers to: "Treaties amending or replacing TEU or TFEU". The title of Clause 3 is: "Amendment of TFEU under simplified revision procedure". If
5 Apr 2011 : Column 1674
The Minister spent a long time trying to persuade us that you could, under the simplified revision procedure, transfer competences to the European Union, despite the plain wording of Article 48(6) that you cannot transfer competences to the European Union by that root.
Lord Howell of Guildford: I hesitate to do to the noble Lord what has been done to me for the past two hours-constant interruption-but I did not say that. I was talking about transfers of powers. I conceded the perfectly clear point made by the noble Lord that transfers of competences under Article 48(6) are not possible because they are excluded in the treaty. We are talking about transfers of powers, which is a different matter. I described the kinds of powers and said that, in order to be comprehensive and logical and gain the public confidence, it is our belief that the procedure should cover the transfers of both competences and powers. That is what I said.
Lord Kerr of Kinlochard: My Lords, I fear I am still unconvinced. I do not understand these powers. Can we have a definition of powers? What do we mean by powers when we talk about the Bill? Most people seem to think that the powers of the European Union are the powers we have given it. Over there they are called les compétences de l'Union, which is badly translated back into English as competences. This is about powers; the two words mean the same. At least that is my understanding. If we are giving them a different meaning, fine-but let us have a definition.
My bigger point, however, is that this is a technical amendment designed to probe why we need to have a Clause 3-I cannot for the life of me see why-but the Minister did not address that point in his response. I am very grateful to him for considering the debate and responding as he did, but I am unconvinced. Although I am ready to withdraw the amendment today, I shall be back. For the moment, I beg leave to withdraw the amendment.
Lord Tomlinson: My Lords, I hoped not to have to move my opposition to Clause 1 standing part of the Bill. After the persuasive arguments of the noble Lord, Lord Kerr, I was hoping for a sufficiently clear explanation from the Government to have satisfied me on the point about Article 48(6). However, as we do not seem to have made a great deal of progress on that-I shall not tire the House by going over all the arguments-it is my intention to move that Clause 1 does not stand part of the Bill unless we reach a satisfactory arrangement in relation to the amendment of the noble Lord, Lord Kerr.
I stress to the Minister who will answer the debate that this is essentially a probing amendment to ask about the role of a Minister of the Crown in dealing with treaty changes in the future, and about the role of Parliament and the way in which judicial review of ministerial decisions will work in practice. Under the Bill, a referendum would be required only if the Government of the day wanted to support a treaty change. That is clear. If the Government are not so minded, they can block the change at the negotiation stage in the European Union. The Government see this as a straightforward mechanism, but I would like to examine it a little further.
The Government contend that if they were not in favour of any treaty change, such a block would be absolute because all types of treaty change that are subject to the referendum provisions would have to be agreed unanimously at EU level. The withholding of agreement on behalf of the United Kingdom would therefore mean that a proposal could not be part of any new treaty or form part of any treaty change. There would therefore be no referendum because there would be no such treaty change. This would apply both to treaty changes and to new treaties.
Can the Minister explain how this would work? The helpful fact-sheet that the Government published earlier states that the Minister presenting the measure has to decide whether any treaty change transfers a power or a competence from the United Kingdom to the European Union. I hesitate to say a power or a competence in view of the discussion that we have just had-to which we will have to return-and the distinction that has been drawn will have to be bottomed out in the course of our discussions on the Bill. However, let us for the moment stick with either a power or a competence. The Minister, moreover, will have to decide whether the transfer amounts to one of significance. It is a powerful provision that the Executive are taking to themselves; it is not one that they will necessarily share with Parliament. That is my understanding, but if the noble Lord believes that Parliament will always share the decision he can put me straight on that. However, I wish to probe the point further.
In making the decision, the Minister will be required to make a reasoned statement to explain the decision that he or she has taken and to explain why the change
5 Apr 2011 : Column 1676
On the timing of the parliamentary intervention, will the reasoned statement be made in Parliament? Will it be written or oral? In either case, will it be open to challenge in Parliament at the point that it is either written or given orally? If the Minister's response is that such a reasoned statement is not open to parliamentary scrutiny and challenge at the time it is given, can he explain when and how-I quote from the fact-sheet-under Clause 4 of the Bill,
How would that work? How would Parliament add a referendum at any stage, as suggested in the fact-sheet? What mechanism would Parliament have to deploy to trigger a referendum if it felt the Minister had got it wrong?
Our own Constitution Committee accepts that ministerial statements would be subject to that ministerial review. At Second Reading there was a little confusion over that. The noble Baroness, Lady Falkner of Margravine, put a rather different point of view but, having reread it, it is clear that that is what is meant. That is the view that the Constitution Committee also took.
Let us suppose that such a judicial review is mounted. For example, the Minister might decide that a treaty change is necessary but that it is not significant enough to trigger a referendum. Let us suppose that one of our colleagues, perhaps a noble Lord, decides to challenge that decision through judicial review-they could do it through a parliamentary position but let us stick with judicial review for the moment. Does the change that the Minister wants to see going through go ahead even if legal challenges are pending through the judicial review process, which may be mounted by a Member of either House or indeed a member of the public, or does the Minister wait until the legal proceedings have been completed before the change comes into force? This is potentially something of a legal minefield. As I think I mentioned at Second Reading, it will no doubt be grounds for endless wrangling in Parliament over the wording of a reasoned statement. I am sure that there will be those who want to challenge, by whatever means available to them, any decision not to have a referendum. Equally, on the other side of the argument, there will be those challenging the decision to have one. Add to that the legal route of judicial review and we really have what our own Constitution Committee describes as a really complicated and difficult position.
We have already had ably demonstrated in your Lordships' House a very different interpretation of the Bill in Amendment 1 from Clause 1(5). My point is that that was not necessarily just a political argument, although obviously politics is all part of this; it was an argument about the impact of Article 48(6) and what the legal position already is. Among the very clever noble Lords we have discussing these things are those
5 Apr 2011 : Column 1677
I want to raise a political point, too. The measure has been described by our own Constitution Committee -on which sit members of the Minister's party, the Conservative Party, my own party and the Cross Benches -as a measure that,
How does that help to address the disaffection which the Government believe is the trigger at the heart of the Bill and the fundamental basis for bringing it forward? I am not suggesting that a degree of disaffection does not exist-although it can be exaggerated-but question whether the measures do anything to address that disaffection. Will a measure that hinders rather than helps transparency and accessibility in the law worsen that disaffection rather than ameliorate it? I beg to move.
Lord Davies of Stamford: My noble friend's amendment addresses a situation that I regard as a nightmare, in which not merely ministerial decisions in an executive capacity are open to judicial review-something that we have been used to in our constitutional practice for the last generation or so-but also a decision by Parliament. As I understand the present situation and as I read the Bill, were it to become an Act a ministerial decision to approve a treaty change under the significance rule without going to a referendum would nevertheless be a decision by Parliament, because Parliament would have to approve and ratify that treaty change. Parliament would decide that it was able to do that without a referendum. It would not be a ministerial decision. Quite clearly, if there was a ministerial decision to go the referendum route and not use the significance rule, that would be a ministerial decision, but it would immediately be ratified by Parliament, as I read Clause 2 of the Bill.
"The referendum condition is that ... the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held".
It is quite clear that the first decision of a Minister would be not to use the significance clause but to go to Parliament. Parliament would pass a Bill, which would come into force as an Act only when a referendum had been held. It would again be Parliament's decision to have the referendum. As I understand it, it would be Parliament's decision either to have or not to have a referendum. As is the present position, in all cases Parliament would have to endorse or ratify an agreement that we in some way change the treaty or add to the competencies of the Union. That is the position under the Bill at present and the position if it were amended as we tried to amend it earlier this afternoon.
That means that my noble friend's Amendment 3 would apply in a situation in which Parliament had taken a decision. What was justiciable-the subject of
5 Apr 2011 : Column 1678
Lord Wallace of Saltaire: We have had a technical debate-thank goodness, in a sense. I shall dash back home and get my European Union juriste linguiste dictionary and look at one or two translations of terms, particularly "power" and "competence". I recall some years ago, in the early discussions on Schengen and British border controls, explaining to a French audience the difference between border checks and border controls, the former being selective and the latter systematic. It was explained to me that the translation into French of "check" is "contrôle" and the translation of "control" is "contrôle". The subtlety of the English language did not easily play in French. This may be part of what we are getting at here.
The amendment raises some interesting questions about parliamentary sovereignty, as the noble Lord, Lord Davies of Stamford, recognised, and about the evolution of judicial review. I take it as given that ministerial decisions will be made in the first place to Parliament. Noble Lords will be well aware that the Government are taking through, as part of a package that includes this Bill, a number of measures to improve parliamentary scrutiny of new legislation. Ministerial decisions would, therefore, go in the first instance to the scrutiny committees of both Houses and would be examined fully by both Houses.
In the evolution of judicial review, which, as we all recognise, has become a good deal more active in recent years, whereas ministerial judgments are frequently subject to judicial review, judicial review of parliamentary decisions is a great deal more hesitant. The Solicitor-General said in the other place:
"Judicial review has increasingly become part of the legal armoury since the second world war. Ministers, whether of the present Government or the last, are not above the law, and it is for our independent judiciary to arbitrate, through judicial review cases, in disputes between the citizen and the state. The courts apply the laws enacted by Parliament, and Parliament can make, amend and repeal legislation as it thinks fit".-[Official Report, Commons, 18/1/11; col. 691.]
The evolution of judicial review, it seems to me as a non-lawyer, is therefore likely to take a rather different approach to ministerial judgments on executive issues and ministerial Statements, which have been thoroughly scrutinised and accepted by Parliament. I hope that that begins to explain why, in the Government's opinion, this amendment is not necessary. I have absolutely no doubt that there will be those who will wish to apply for judicial review of all ministerial decisions related to the sharing of powers within the EU. We have seen that already. That is precisely why one of the measures that we are taking to try to rebuild public trust in our
5 Apr 2011 : Column 1679
In the case of the judicial review brought by Mr Stuart Wheeler in connection with the treaty of Lisbon, the European Union (Amendment) Bill had received Royal Assent before the judgment of the court had been handed down. The issue was whether the Government should ratify before the process of judicial review had been completed. It is quite clear that a Government would not proceed to ratify a treaty amendment until a process of judicial review had been completed, although I think it unlikely in the extreme in the delicate relationship between our common-law judiciary and a sovereign Parliament-
Lord Hannay of Chiswick: The Minister has gone into an interesting point, which I wanted to ask about. The Stuart Wheeler case is relevant because there were attempts by a number of people to suggest that Parliament should suspend the completion of the ratification process until the judgment on the case was reached. The Government of the day declined that, correctly in my view, but the noble Lord is quite right that the deposit of the instrument of ratification took place after the court had ruled. It is not quite that the ratification was not complete; the deposit of the instrument of ratification, which is the last stage, had not happened. Am I taking it from him that the Government's view will be in future that, if this sort of situation arises, they will not interrupt the parliamentary process of taking a decision on the European Union matter that is before them, so that the only impediment will be to the final deposit of an instrument of ratification and not to the completion of the parliamentary ratification?
Lord Wallace of Saltaire: My Lords, the noble Lord is raising a point whose subtlety is close to that with which juristes linguistes deal. My notes say that the Government would not complete ratification until a judicial review challenge had been taken. I have also been suggesting to noble Lords that a stronger parliamentary engagement and oversight in examining a ministerial judgment would make judicial practice in accepting claims for judicial review less likely in the future.
Lord Hannay of Chiswick: I do not think that we need pursue this matter this evening, but can the Minister be more precise when we come to that point at a later stage in the Bill? It is quite important. If the Government's attitude is going to be that they will stop the process in Parliament while the legal process is going on, that is a completely different thing from saying that they will not complete the process by depositing an instrument of ratification until that is over. Will he clarify that point at a later stage or in writing?
Lord Wallace of Saltaire: I am happy to do so. I recognise that there are a number of complex judicial as well as parliamentary sovereignty issues at stake, some of which we will return to later, but I offer that
5 Apr 2011 : Column 1680
Lord Davies of Stamford: I would have preferred the previous Government to have taken an even more robust line on the Stuart Wheeler case and to have in no way taken account of the judicial review in proceeding with the ratification process or depositing the instruments of ratification. It seems intolerable that there should be any judicial oversight of the proceedings in Parliament. That seems to be explicitly excluded by the Bill of Rights. I would be particularly worried if the present Government went in for a process of slippage, going even beyond the insufficiently robust approach of the last Government and allowing the timetable for the parliamentary consideration of a particular Bill to be affected by proceedings in a court of law.
Lord Wallace of Saltaire: I foresee that when we get to the debate on Clause 18 we shall have a great many discussions on the exact relationship between the judiciary and Parliament and parliamentary sovereignty. The time for that debate is not now but then.
Lord Kerr of Kinlochard: Does the Minister agree that the likelihood of judicial review is greatly enhanced by the creation of the significance test? In almost any case where Parliament does not wish to have a referendum because it has accepted the Government's statement that the issue is not sufficiently significant to justify a referendum, that will be challenged in the courts. The issue will not be whether to go ahead and complete the process of ratification but whether or not to have a referendum. It will be a bold Government who decide to go ahead and complete the process before the court has ruled on the significance point. What is extraordinary is that we should create a system where we are going to invite the court into the middle of our legislative procedures. If we have not finished here in Parliament, we will have to suspend if the significance test is being challenged.
Lord Wallace of Saltaire: My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.
Baroness Falkner of Margravine: I wonder whether I might help my noble friend a little, because the point brought up by the noble Lord, Lord Kerr of Kinlochard, is interesting. Our understanding of this issue is that the Minister would provide a statement setting out his reasons behind why the item under discussion either was or was not of significance, so the possibility of judicial review would therefore apply to the reasoning behind the Minister's statement. In that case, it would seem that it would not be Parliament's judgment under question but the Minister's reasoning, presumably guided by legal advice.
Lord Wallace of Saltaire: I have no doubt that we will return to this on Report and I will write to noble Lords when I have had exact and subtle legal advice. The ministerial statement will be the beginning of a parliamentary process, which is intended to be a robust part of the consideration of what is and is not significant. On that basis, I hope that the noble Baroness will be willing, for the time being, to withdraw this amendment. I promise that I will write having taken abstruse legal advice.
Baroness Symons of Vernham Dean: My Lords, let me put the Minister out of his misery: yes, I will withdraw the amendment but perhaps I might make a couple of points in doing so. It seems to me that the noble Lord, Lord Kerr of Kinlochard, was right in his point that the significance test is likely to trigger the sort of legal review we are talking about. That is far more likely to arise in cases where the Minister has decided not to have a referendum. The point here, at least as I see it, is not whether the Minister's decision is being questioned by judicial review but that it is the Minister in Parliament. It is not like a Minister taking a decision about exercising his judgment outside Parliament. The point is that it is the Minister in Parliament, supported by Parliament. It is therefore a parliamentary decision which is being challenged by judicial review.
I am bound to say that we are talking about quite big stuff here. This is not just a reinforcing of the current position where ministerial decisions are challenged but the Minister, with the support of Parliament, being challenged through judicial review. If that review goes against Parliament, the outcome is that a referendum would be triggered. Would we really in those cases go as far as asking for Royal Assent to a Bill or a decision which is then to be looked at all over again through a referendum? That is quite a big constitutional point and I am interested in the way that the Minister has put it.
This provision will trigger a multiplicity of challenges. We will be very lucky if we have just one, as we did in the Wheeler case. This is laying something open to judicial review and I would be grateful if the Minister, when he has consulted all those great legal books and superb academic treatises that he has on the subject, would write rather more explicitly. The Minister made some points to the noble Lord, Lord Hannay, and it would be very helpful if we could see them in writing. If we need to go over this ground again on Report, we must obviously do so but it may be that the Minister will be able, when he has had the opportunity to consider it, to meet some of the points that we have discussed. I beg leave to withdraw the amendment.
"(i) throughout the United Kingdom if the treaty affects the United Kingdom;
(ii) throughout Gibraltar, where the treaty affects Gibraltar;
(iii) where the treaty affects one or more British overseas territory, throughout the affected territories;
(iv) where the treaty affects the Crown dependencies, throughout those Crown dependencies; or
(v) where the treaty relates to financial regulation, those jurisdictions in sub-paragraphs (i) to (iv) which will be bound by the rules in the treaty or decisions made under the treaty;"
Baroness Symons of Vernham Dean: My Lords, the Minister may or may not be relieved to hear that this is another probing amendment-or, rather, two, in Amendments 4 and 12. Obviously, the same point is made in both and although the amendments may appear long it is really a simple point. I am sure that we all understand our close relationships and our responsibilities to and for our overseas territories. We also understand that Gibraltar alone, of all our territories, is part of Europe and is affected by European treaties or changes to them. Yet the Bill states that where a treaty change affects Gibraltar, it would have to be the subject of a referendum not only in Gibraltar but in the United Kingdom. Can the Minister please be a tad more specific about this?
In almost every case, a treaty change which affects Gibraltar might well affect the United Kingdom too, so holding a referendum in this country and in Gibraltar would be understandable if you buy the basic premise of the Bill. But if, as in some circumstances, a treaty change were to affect Gibraltar alone and not the rest of the United Kingdom, would a referendum in the whole of the United Kingdom really be necessary? There were two ways of reading that, so I am raising a genuine question with the Minister. I fully accept that the eventuality is remote but it needs some clarification.
Similarly, what if a treaty change at some point in the future laid specific responsibilities on members of the European Union to change the law in their overseas territories? While I accept that we do not all have the same relationship with our overseas territories-the complexities of l'outre-mer in the French relationships were fully explained to me when I was a Minister, but they may not be as clear to me now as they were at the time-let us say that there was a change in a treaty or a treaty provision in relation to, let us say, money laundering or gay rights, both of which have been the subject of considerable controversy in some of our own overseas territories. Does not the logic of the Government's position mean that, in all fairness, it would be proper to hold referendums in those territories so that they would have the same rights as the citizens of Gibraltar automatically have on treaty changes which affect them? I stress that this is a genuinely probing amendment and I would be grateful for any clarification that the Minister can give us.
Lord Wallace of Saltaire: My Lords, I am extremely glad that the noble Lord, Lord McNally, has just joined me on the Bench as he is the Minister responsible for relationships with the Crown Dependencies. I would simply query the noble Baroness's opening statement: that I am sure we all understand the nature of the relationship with the Crown Dependencies and the overseas territories. I have dug out the last definitive
5 Apr 2011 : Column 1683
Lord Wallace of Saltaire: It was years ago, as the noble Lord says, but every time that I questioned it in opposition I was referred back to that statement. It says that on a number of occasions, there are a number of blurred edges to the constitutional relationship between the United Kingdom and these islands. I have scars on my back about this. On a visit to Jersey two years ago, I questioned whether the current constitutional relationship was sustainable in the light of globalisation in financial and other arrangements. I was subjected to attacks for a week in the local press, the best of which suggested that both my wife and I were French spies, so attempting to clarify the relationship can get one into deep trouble. I do not recommend that we go too far down that road.
If a treaty were to affect Gibraltar alone, we would certainly have some interesting questions but it is difficult to imagine a situation in which such a treaty change might happen. As the noble Baroness rightly suggests, there is a range of issues where the different, semi-independent entities around the European Union are affected. Monaco, Andorra and the départements and territoires d'outre-mer, or DOM-TOM, have a rather different relationship with the European Union from ours. As the noble Baroness will recall, we chose to encourage our overseas territories to fund themselves through becoming offshore financial centres rather than getting them to a closer association with the EU so that others could fund them. That might possibly have been a mistake but it is where we are.
Lord Davies of Stamford: I think that I heard the Minister say that if an issue affected Gibraltar alone, some very interesting questions would arise. That implies that the Minister wants to leave the legislation as it is currently drafted without those interesting questions, as he describes them, being addressed. Surely he would agree that it would be completely barmy for the people of the United Kingdom to have to vote on a referendum on a matter that affected Gibraltar alone. So why can we not simply change the text of the Bill in a common-sensical way so as to exclude that possibility completely? It would be very easy to do.
Lord Wallace of Saltaire: My Lords, I think that this is the point where I should refer to Protocol 3 to the 1972 treaty of accession to the European Union under which Gibraltar chose to become a member of the EU and the other Crown Dependencies chose to become non-members of the EU but with a number of associated areas. That is another complex area. I find it impossible to envisage a situation in which there would be a treaty change that applied to Gibraltar alone. Ultimately, this is a hypothetical question, but I see that the noble Lord wishes to pursue it further.
Lord Davies of Stamford: I ought not to be satisfied by that; when we are drafting legislation in this place, we should try to make it as complete as possible, just
5 Apr 2011 : Column 1684
Lord Wallace of Saltaire: My Lords, I have scars on my back from the extent clause. I have tried on previous occasions to raise the question of the extent clause and the conditions under which UK legislation applies to the Crown dependencies. This is a very arcane area.
Baroness Anelay of St Johns: My Lords, it is the custom of the House that two noble Lords should not be standing at the same time. We are in Committee; I wonder if the noble Lord, Lord Hannay, might take his seat.
Baroness Anelay of St Johns: I would be grateful if the noble Lord took his seat. I appreciate that he is the most courteous of Members of the House and simply did not hear me at that point. When making interventions in Committee, it is a matter of course that one does not need to interrupt a Minister in his or her flow. One is permitted in Committee to allow the Minister to complete an explanation before the next person gets up.
I appreciate that both the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Hannay, wish to ask questions. The noble Lord was on his feet first; perhaps the noble and learned Baroness might allow him to ask his further question first.
Lord Hannay of Chiswick: My Lords, I am grateful to the noble Baroness. I am sorry if I transgressed in some way. Strangely enough, I was actually trying to be helpful to the Minister-unusually, so far, in this Committee stage. The answer that he gave is correct. The circumstance that the noble Lord, Lord Davies, refers to is virtually unthinkable since EU law applies to Gibraltar because it is part of the EU, as in our treaty. The idea that you can then legislate for some tiny part of the EU is pretty alien to the way that Europe does its legislation. The Channel Islands and the others are in a completely different situation, as the Minister says, and European law does not apply to them.
Baroness Butler-Sloss: My Lords, I do not want to strike a note of discord with the Minister or indeed with the noble Lord, Lord Hannay, but the noble Lord, Lord Davies, has a point. If you read Clause 2(2)(a) as perhaps a court might read it, there is the possibility-however remote, as the noble Lord, Lord Hannay, says-that in future something might happen that affected Gibraltar but did not affect the United Kingdom. As it reads at the moment, the UK would have to have a referendum. That is my interpretation of the paragraph.
Lord Wallace of Saltaire: My Lords, I offer to get the sharpest minds in the Government to look at this again and see if there is a real problem. This is a worthwhile probing amendment. I might perhaps mention that the coalition Government are committed to looking at the issues of tax avoidance, in which these various Crown dependencies and associated entities like Monaco and Andorra-particularly Monaco, the constitutional relationship of which with France is at least as cloudy as that between the Crown dependencies and the United Kingdom-will come into play. It may well be that others in this House would like to pursue some of those questions further, perhaps through a committee inquiry, but, I suggest, not as part of this Bill. With regard to this Bill, Protocol 3 to the European Communities Act 1972 sorts out who is in and who is out.
Baroness Symons of Vernham Dean: My Lords, I thank the Minister. The thought of him as a French spy is vastly entertaining; I had never thought of him in quite that sense. It has cast a whole new light on his part-time activities. I was not entirely clear from what he said-I will have to read his remarks in Hansard-about the differences that he was drawing between Crown dependencies on the one hand and overseas territories on the other, but we can look at that.
There is a specific point about Gibraltar. I fully concede the point made by the noble Lord, Lord Hannay, that it is a very remote possibility, but an issue that comes up again and again is self-determination for dependencies and overseas territories. The issue regarding Gibraltar is that it would not be able to exercise self-determination in the way that other overseas territories do because of the treaty of Utrecht. In my day, if you moved away from that treaty for a single moment you were in deep trouble. I make the point because it means that Gibraltar is in a rather special position; it is not just that it is part of the European Union. Of course, one might say that the Spanish would be bound by the same issues.
The point is not for us to think of every possibility, racking my brains as I am so to do. The point is to have legislation that is as clear as possible. We should make this clause clear so that we are not left with someone trying to think up some clever eventuality where we might have a real difficulty on our hands; rather, we should forestall such difficulties by having greater clarity. It is an absurdity to think that an issue that affected only Gibraltar could be the subject of a referendum in Darlington, Dagenham and Dorking. That really would be a silly position for us to be in. I hope that the Minister will kindly give this a little
5 Apr 2011 : Column 1686
Lord Wallace of Saltaire: My Lords, I apologise that I had not cited the treaty of Utrecht. The noble Baroness will of course be familiar with the grant of 1204 by the King of England as the Duke of Normandy, which is the basis for the Channel Islands' relationship with the United Kingdom-a document that appears to have been lost some time in the later 13th century and no one knows exactly what it said. That is part of the oddity of the situation. Having had an interesting excursion into some of the byways of the outer shores of the British constitution, though, I hope that the noble Baroness will be willing to withdraw her amendment.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, I presume that later in the consideration of the European Union Bill we will get on to the Schleswig-Holstein question. In the mean time, it is my responsibility to speak to the Motion to approve the Legal Services Act 2007 (Approved Regulators) Order 2011.
The power to make this order is in paragraph 17(1) of Schedule 4 to the Legal Services Act 2007. The order seeks to designate the Institute of Legal Executives-ILEX-so that it can allow its members to conduct litigation and regulate them in doing so. In practice, the extent to which ILEX will be able to deploy this right will be limited by its own regulatory framework, which will mean that the only ILEX members who can conduct litigation if this order is made will be associate prosecutors employed by the Crown Prosecution Service. The Legal Services Act classifies the conduct of litigation as a reserved legal activity that can be carried out only by a person who is either "authorised" or "exempted" by the Act. At present, associate prosecutors are exempted to carry out specific litigation.
ILEX has drafted specific rules that will set out the processes by which the work of associate prosecutors will be integrated into ILEX's regulatory regime. Under these rules, associate prosecutors will be required to
5 Apr 2011 : Column 1687
Both ILEX and the Legal Services Board have consulted on ILEX's application for designation. The responses were broadly supportive, including those from other legal services regulators. In making its recommendation to the Lord Chancellor about this order, the Legal Services Board has satisfied itself that any issues arising from the consultation have been addressed.
In anticipation of this order, ILEX has applied to extend the scope of its regulatory framework so that it can grant a wider range of litigation rights to a wider range of its membership. It falls to the Legal Services Board to determine this application. Clearly, any extension to the range of ILEX practitioners who can conduct litigation independently could have a significant impact on the legal services market. The Legal Services Board has a statutory duty to promote competition within that market, so I would expect it to evaluate the potential impact carefully in considering ILEX's wider application.
Baroness Gale: My Lords, I thank the Minister for bringing this order before us tonight. We are pleased to support the order, which naturally emerges from the Legal Services Act 2007. ILEX is already an approved regulator, but its powers as a regulator will now extend to regulating those who conduct litigation.
ILEX was recognised as an approved regulator as a result of the Legal Services Act 2007, the aim of which was to liberalise and modernise the regulation of the legal profession as well as to increase access to legal services. The Act moved away from self-regulation to independent regulation, which was a major step in improving consumer confidence in legal services. It was a very good piece of Labour legislation. At a time when we see daily restrictions on access to justice and the availability of legal services, there is a need to encourage the intention and practice of the Legal Services Act in broadening access where possible.
ILEX does an excellent job in regulating its part of the profession, and legal executives also do an excellent job in the services that they provide. Furthermore, this part of the profession draws from a wider social background than other parts of the profession-something that the strategy for social mobility, which was published today, could learn a lot from. This is a sensible proposal that will enable ILEX to regulate certain members who conduct litigation. I am sure that it will further improve the regulatory system.
Baroness Hayter of Kentish Town: My Lords, I declare an interest as chair of the Legal Services Consumer Panel, which is an independent part of the Legal Services Board that recommended the order to the Lord Chancellor.
I warmly welcome the order, which will enable ILEX, as the body that regulates legal executives, to allow certain members to conduct litigation. The order is a notable first and is important for two reasons. First, it will permit associate prosecutors to be regulated by a professional body-the Institute of Legal Executives -in regard to the litigation work that they do. I believe that this arrangement will ensure that the consumer interest is reflected through these regulatory arrangements. Secondly, the order makes ILEX an approved regulator for litigation rights generally, which is a step on the way to ILEX empowering legal executives to provide litigation services to the public.
I would like to say a word about ILEX and its members, whom I hold in high regard. ILEX grew out of the old Solicitors Managing Clerks Association and has taken a real lead in diversity-in which I know the Minister takes a particular interest-in the profession. Three-quarters of ILEX members are women and 13 per cent are from black or ethnic minority backgrounds, compared with under 8 per cent in the population. Perhaps particularly important today, as my noble friend Lady Gale referred to, ILEX has provided a route to qualification as a lawyer for those who have neither started as a graduate nor had contacts in the profession. Indeed, just 2 per cent of ILEX members have a lawyer for a parent. ILEX has been a real beacon in providing "second chance" professional entry that is open to people from a wider range of backgrounds than many of our learned societies. Four out of five members do not have a parent who went to university. Very few ILEX members come from traditional legal or professional backgrounds.
Yet ILEX has created opportunities while firmly maintaining the standards of qualification. There are some 7,500 fellows of ILEX, who are subject to the code of conduct and all the same expectations of professional and personal standards and commitment to their clients as any other lawyer.
This order will help ILEX to continue to act as a gateway to the solicitors branch of the profession for a wide range of entrants. From a consumer perspective, it is a step towards clients having access to those from a wider social understanding and background, mixed with common sense and empathy. Your Lordships will understand why I am so supportive of this order-I recognise that not every lawyer is-but I am confident that, overseen as it is by the Legal Services Board, ILEX and its members will show themselves worthy of the new responsibility that they are about to get with this order.
Lord Thomas of Gresford: It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.
In my youth, managing clerks were a very important part of the solicitors' branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.
Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.
Baroness Butler-Sloss: My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.
The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:
Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.
Lord McNally: My Lords, I am very grateful to the noble Baroness, Lady Gale, for her welcome from the opposition Front Bench. I am not having a particularly good day at the Dispatch Box as I am told that I left out a very important part of my opening speech, which I will now give to the House.
At present, associate prosecutors are exempted to carry out specific litigation work under statutory designation by the Director of Public Prosecutions. However, this designation ends on 1 May this year. If replacement provisions are not made under this order, associate prosecutors will not be able to carry out unsupervised litigation work after that date. This represents a large proportion of the CPS workload in the magistrates' courts, and direct supervision by Crown prosecutors would have a significant knock-on effect for the CPS's higher court work. The consequences of this for the CPS, and the wider criminal justice system, would be considerable.
The forthcoming termination of the DPP's designation of associate prosecutors was brought about by concerns expressed during the passage of the Criminal Justice and Immigration Act 2008 that associate prosecutors are not independently regulated or subject to a professional code of conduct. It was intended that arrangements should be made to bring them within ILEX's regulatory and professional framework since ILEX is already an approved regulator for other reserved legal services. Therefore, a voluntary arrangement was made between the CPS and ILEX in 2008 which requires associate prosecutors to become members of ILEX in order to be designated by the DPP. In practice, therefore, all associate prosecutors have been subject to regulation by ILEX since that time. In essence, this order simply places that arrangement on a statutory footing.
I am grateful for a number of the comments that were made, particularly from the noble Baroness, Lady Hayter, in her capacity as chair of the Legal Services Consumer Panel. I have had brief contact with ILEX recently in connection with diversity. I am very pleased that the noble Baroness put on record the diversity which ILEX already represents, and to which other parts of the profession still aspire. It is important that we recognise that in its work and in these new responsibilities.
The noble Lord, Lord Thomas of Gresford, echoed that support for ILEX as a route to gaining professional qualifications and pointed to its success in promoting social mobility. That again echoes our earlier discussion. However, he gave a warning about the importance of training within ILEX. I am told that the training of prosecutors is to be conducted in accordance with ILEX's rights of audience and litigation certification rules. AP qualification courses will be provided by the CPS. ILEX has satisfied itself that the CPS training programmes are fit for purpose. Under the memorandum of understanding, ILEX or persons appointed by it will periodically review the AP training programmes and assessment materials to make sure that they meet the criteria in the rights of audience and litigation certification rules. The CPS will notify ILEX of any proposed changes to its training programmes or the development of any new training modules. ILEX will review such materials to determine whether changes are consistent with the criteria in the rules.
The noble and learned Baroness, Lady Butler-Sloss, also made an interesting intervention. I am fascinated by the tributes that she and the noble Lord, Lord Thomas of Gresford, paid to managing clerks. My experience of this area is as an avid watcher of the recent television series "Silk", in which the clerks seem to be the key movers in dramas that put politics into the shade. Perhaps that was done to attract an audience. However, the noble and learned Baroness put on record a matter that I will take back to my right honourable friend the Lord Chancellor. She said that the ambitions of ILEX to move into civil or family areas should be "viewed with caution". I am sure that that will be the case as regards my right honourable friend the Lord Chancellor and other parts of the profession, although from what the noble Baroness, Lady Hayter, said, ILEX is progressing in building its professional capabilities.
In anticipation of this order, ILEX has already submitted an application to the Legal Services Board to enable it to allow suitably qualified members to conduct litigation in civil and matrimonial matters. However, the Parliamentary Under-Secretary of State for Justice has undertaken to draw to the Legal Services Board's attention all the points made when this order was debated in the other place, so that the board can reflect on them in its consideration of ILEX's application. I am happy to do the same in respect of this evening's debate, in which a number of colleagues have made useful comments that will be of advantage to the Legal Services Board when it looks at this matter.
I hope that the debate has served to demonstrate that the specific arrangements made by ILEX, as an existing approved regulator, are appropriate for the purpose of authorising associate prosecutors in the conduct of litigation. Certainly I am satisfied that this is the case, based on the recommendations made by the Legal Services Board. I commend the order to the House.
Baroness Anelay of St Johns: My Lords, noble Lords will know that Whips are multitasked. However, I feel that I would be trespassing on the indulgence of the House if I sought to take such an important amendment. Perhaps I might suggest that the House do adjourn during pleasure for-in fact, not even for a few seconds, because my noble friend Lord Wallace has timed his arrival to perfection.
"(c) following the holding of the referendum, in each House of Parliament a Minister of the Crown has moved a motion that the House approves Her Majesty's Government's intention to ratify the treaty, and each House has agreed to the motion without amendment."
Lord Williamson of Horton: My Lords, I declared an interest at Second Reading and I now rise for the first time in Committee to speak also to Amendments 6, 13 and 14, which are in my name, and to similar amendments in the name of the noble Baroness, Lady Symons of Vernham Dean. So far today, I have been in the minority: that is to say, the minority that did not interrupt the Minister, the noble Lord, Lord Pearson of Rannoch, or the noble Lord, Lord Stoddart of Swindon. However, by the time we have dealt with this amendment, I hope that I will be in the majority. That is my plan, and I hope that we will begin to get a good deal of agreement on the amendments in this group.
I see the amendments as a normal part of scrutiny. We had a few discussions earlier today about whether some amendments were very broad and went beyond scrutiny. I consider that these amendments are a proper part of the scrutiny of a Bill that has been through the other House.
A prime purpose of the Bill before us is to establish a referendum lock in relation to the potential transfer of power or competence, as discussed, from the United Kingdom to the European Union. I think that this will not give rise to any referendums-or at least to very few-because the UK Government will simply not take the action that would trigger a referendum. However, we cannot be sure what the situation will be in future Parliaments or future Governments, and, although I do not expect it personally, it seems that we could face a blizzard of referendums. For that reason, I consider it important that we should decide the conditions for the application of these referendums so as to ensure the confidence of the British public in their results.
All the referendums that might arise under the Bill would be mandatory. To this extent, they would be a form of referendum government, as opposed to the parliamentary government to which we are accustomed. Amendments 5 and 13 would reintroduce Parliament from the cul-de-sac where it is at the moment under the Bill. The amendments would ensure that, following a referendum, it was necessary for a Minister to move a Motion in Parliament approving the intention to ratify the treaty and for Parliament to agree it. That is a change from the Bill and it goes further than Amendment 6, about which I shall now say a word.
With Amendment 6 go Amendment 14 and the amendments tabled by the noble Baroness, Lady Symons. It is possible that some of the referendums would be on important issues that would be likely to attract the attention and votes of a significant number of citizens. However-we have been over this ground to some degree-other issues set out in the Bill are certainly less important, and the British public might be relatively indifferent and not vote in significant numbers. Looking at the list of items, I must say that I would find it very difficult to enthuse the British public to vote in a referendum on them, and that is why I put forward Amendment 6. It would establish that, if the number
5 Apr 2011 : Column 1693
Noble Lords will be familiar with the proposal in this amendment because this House discussed at length and passed a similar proposal on the Parliamentary Voting System and Constituencies Bill, which was moved on that occasion by the noble Lord, Lord Rooker. He has established himself in the pantheon of those dealing with the constitutional effects of referendums and, with this amendment, I have the modest hope of following his example. Of course, I have the confidence and hope that this House, having voted for this very approach only a few weeks ago, will not hesitate to do so again in relation to Amendment 6. There is nothing like having consistency in the House and I hope that we will be able to see it in force again when we deal with this matter in the EU Bill.
That is a very simple presentation of these amendments and, in my view, they are quite simple in their purpose and are not entirely a European Union matter. They also concern how we handle referendums, which I consider quite important and on which I have quite strong views. I voted the way most people did in this House on the previous occasion and I hope that these amendments will commend themselves to the Committee. I beg to move.
Lord Davies of Stamford: I support the noble Lord's amendment. I am not someone who likes referenda at all, in any circumstance, and I have always made that quite clear, so I hope someone does not quote me from the past as being inconsistent in supporting this amendment. When one is scrutinising any Bill in Committee, I think we are in the business of trying to remove some of the worst disadvantages or most unattractive features of a Bill so that we end up with something a little better than what is originally presented to us.
I totally agree with the analysis of the noble Lord, Lord Williamson, that the way in which, and the purpose for which, the Bill has been set up would not lead to a large number of referenda. It is completely impractical and inconceivable to have endless referenda often on very petty subjects. I made that argument at Second Reading and I note that the noble Lord, Lord Williamson, agrees with that. The result is that we will not have many referenda. I will not read from Schedule 1 again, as I did that earlier in today's proceedings. I read out a different list of examples at Second Reading to prove the same point and to show how very inconsequential for the great majority of the public a lot of these issues-on which the Bill provides that we should have referenda-would be if any decision were taken about them or about the decision-making process to be used in relation to decisions made under them. Those sorts of issues-this must be the greatest understatement of the evening-would not enthuse the public.
I know perfectly well that the good people of Lincolnshire are second to none in their civic sense and their support for the democratic process. All of us in this country are very proud of our parliamentary traditions and are worried that in recent elections, there has been a circular decline in the participation rate of the electorate. However, if we present to the electorate the sort of issues in Schedule 1 and ask them to try to master the subject-or to form any view on it at all-and then to take time out from their leisure-time or working-time activities to turn out at the polls to cast a considered vote on these subjects, we are being not only completely unrealistic but deeply insulting to them. They would say, "That is what we elect you to Parliament to decide.".
The result would be that only the very small number of people-one might refer to them as anoraks, but perhaps that would be disobliging-who are enormously enthusiastic about some arcane or technical aspect of the European Union or some other subject thrown up by one of these referenda would vote. We could have incredibly low participation rates. We could easily have participation rates of less than 20 per cent. If noble Lords read Schedule 1 and ask themselves what proportion of the country would be prepared to spend their private time on those issues, we could easily come to the conclusion that we will be lucky to get 10 per cent of the electorate turning out.
It would be monstrous if we took a decision that would have important practical consequences in relation to the matter under review on that basis. It might have even more important knock-on consequences if we were unable to take part in a major initiative which our partners in the European Union thought was essential because of the way the world was moving in whatever field-the economy and the single market, the environment or law, justice and home affairs. It might have considerable consequences on our influence and position in the European Union or our ability to defend our interests in the world generally if we could not go along with what was obviously a sensible initiative.
To leave the matter in the hands of that tiny minority of the electorate would be to treat those issues frivolously and irresponsibly. If we have to have those referenda-I repeat that, personally, I think that the whole idea is fundamentally misconceived-the mitigation of the situation proposed by the noble Lord, Lord Williamson, is about as good as could be devised in the circumstances. I therefore hope that the amendment is given the most sympathetic treatment and support in this House.
Lord Hurd of Westwell: My Lords, I may not be alone in your Lordships' House in feeling a little weary that, after all this time, two things which could be kept separate have been inextricably mingled together: the question of holding a referendum and the question of the British position in and policy towards Europe. This has been dragging on in one form or another for a long time now.
It is almost 17 years to the day since I had a message from the then Prime Minister, John Major: would I undertake a delicate mission for him, which was to sound out his Cabinet one by one on the proposition of committing the party to holding a
5 Apr 2011 : Column 1695
I am as realistic a politician as anyone here. I understand the political urge; I understand the coalition document; I understand why my noble friend Lord Howell utters the words "coalition document" almost with the tone of one approaching an altar. I understand the realities of the situation, and they require a measure of this kind, but if we could find some way of mitigating it-to use a phrase which has already been used-then we should try to do that. Some way of reasserting at any rate the concept of a parliamentary democracy, in which it is Parliament that takes decisions on ratifying treaties, would be a step in the right direction.
I am approaching the noble Lord's amendment from a slightly different angle, but this is the angle from which I see it. As I read the Bill, there are certain ways in which a referendum can be made unnecessary. One way is the significance clause, which has already been referred to and which we will be debating. It will be a method of avoiding a referendum on insignificant matters. That procedure is laid down: the Minister makes a statement, which can be challenged in judicial review, but it is a government initiative and Parliament takes the decision. The other way is implicit in this amendment: it is to let the people do it. If there is a proposition in which the people are totally uninterested, or uninterested to a very substantial extent and they record that lack of interest by not turning up-by staying at home-then there is an overwhelming argument in terms of democratic theory and, as the noble Lord said, in terms of the recent practice of this House of saying that, in that case, the referendum is advisory and not binding. Then the matter will not go through but be returned to the place which ought to be the fountain and authority of this decision: it will go back to Parliament.
That is the provision of this amendment, and it is a sound one. It is an imperfect, incomplete way of making it clear that we have not abandoned the basic thought that we are in a parliamentary democracy and that Parliament should take decisions of this kind. We accept that, in certain cases which are specified and numerous, the people should be consulted directly. We have got that far and there is no rowing back from that. However, by passing this amendment we should emphasise that that is not all that could be said on the matter and that there is a case for taking a modest step towards a return to parliamentary democracy in this field. My noble friend on the Front Bench is never stubborn and I hope that he will feel able to smile on
5 Apr 2011 : Column 1696
Lord Stoddart of Swindon: As I understand it, Amendment 5 would restore parliamentary democracy. I think that that is about right. I understand all those who are completely in favour of parliamentary democracy untrammelled, and it is difficult to argue against it. However, if you have agreed to a referendum and the people say one thing and then Parliament says another, you are back where you started. Quite frankly, I think that that would cause outrage and undermine the authority of Parliament. If Parliament has agreed that there should be a referendum of the people, the people should decide. After all, in the last analysis, one way or another, the people are the ultimate sovereign. So I cannot support Amendment 5.
Amendment 6 is different. As I understand it, it says, "This is a great issue and you should expect people, citizens, to take an interest in it and come out and vote". The figure of 40 per cent is pretty low. Of course there are precedents, and as the noble Lord, Lord Williamson, mentioned, only a week or two ago this House voted for such an amendment. On AV, it would be very difficult for the House to go back on something on which it decided a few weeks ago. It could apply in this Bill. I well remember the 1977 referendum in Scotland when-
Lord Stoddart of Swindon: Yes, it was in 1979. There, the 40 per cent threshold was introduced by a few people who were not very much in favour of Scottish devolution, and the proposal did not pass because of the 40 per cent. That was accepted by people. Of course, eventually, the campaign for Scottish devolution won on a reasonable and substantial majority. I am afraid that I would be against Amendment 5, but I would be very happy to support Amendment 6.
Lord Hannay of Chiswick: My Lords, I find myself in the unusual position of agreeing with half of what the noble Lord, Lord Stoddart, said and the very usual position of agreeing with absolutely everything that the noble Lord, Lord Hurd, said, which is not surprising because I have been doing that for a long time. I should like to make two or three points. First, the Government owe us a clearer reaction to the views of the Constitution Committee of this House on referendums in relation to this Bill. At Second Reading, we heard nothing about it whatever. We have not heard a single response from the Government to the report of 17 March. I really think that we must now ask that the Government state their position clearly. Of course, they stated their position on the Constitution Committee's report of last October when we had a debate. It was rather a long time ago, so perhaps they could refresh our views on that.
This matter is important because the 17 March report stated that referendums should be used only for major constitutional issues. In the view of the Constitution
5 Apr 2011 : Column 1697
Secondly, I am not sure how well it has sunk into everyone's minds that this Bill in its approach to referendums is totally different from any legislation that has provided for a referendum in this country before now. Up to now, we have had referendums on the European Community in 1975, on Scotland, on Wales, on Northern Ireland and now on AV. Every one of those was a separate piece of primary legislation that laid down the precise conditions and circumstances in which the referendum was to be taken. However, this is a blank cheque for referendums-referendums a-go-go. Some of them are no doubt on matters of considerable importance and some of them on matters of lesser importance. The point is that if we pass this Bill in the form that the Government have proposed, we are taking a major step towards plebiscitary democracy and away from representative parliamentary democracy. We should have absolutely no illusions about that. It is completely different from the situation with the other referendums, and they cannot be quoted in any way to defend the Bill because this situation is quite different.
I would like to make a further point to the Minister and to his colleague, who is now unwell. I feel very bad about that because we gave him a rather hard time before the dinner break. Now that I know he was not well, I wish that we had not. However, he used this argument again and again, as did the noble Lord at Second Reading. I do not doubt the sincerity with which they say that the purpose of the legislation is to reconcile the British people with the European Union better than they are currently. Their analysis of the problem in this country is absolutely correct, but their prescription for a solution is completely incredible. It is just not believable that holding a series of referendums on the European Union is going to make the people feel more favourable about the European Union than they do now.
In fact, the exact contrary is likely to be the consequence. I know that it is not the consequence that the Government wish to see or which they are aiming for, but having lived through the saga of Britain's relationship with the European Union for about the past 40 years, that is what is going to happen. We saw it in 1975 when the protagonists of the referendum, Tony Benn and others, assured us that once the referendum was over it would all be finished and we would be happy kittens in a basket. Two days after the referendum, they were campaigning for another one to reject any further integration into the European Union, or whatever it was. Frankly, this is not credible. The Government's story does not hold water.
I accept that the solution put forward by my noble friend Lord Williamson is only a palliative, but it is an important one. It would meet the point that we were not slipping down the hill towards a plebiscitary democracy because we would leave Parliament in charge
5 Apr 2011 : Column 1698
Baroness Williams of Crosby: My Lords, I add briefly to what the noble Lord, Lord Hannay, has said by making a couple of additional points. The first is that in many ways this Bill expresses a lack of confidence in representative democracy, which troubles me quite profoundly. Of course we know that we already have issues surrounding the faith and trust of the electorate in us. For Parliament itself to say that it cannot be fully trusted with issues of such importance when it has made a thoughtful and deliberate decision, when that decision has been subjected to discussion both in this House and in another place, and when constituents have been duly consulted so that all that can be set aside by a referendum that might have had a very small number of participants, is not only risible but is extremely dangerous politics. That is one of the reasons why the argument for 40 per cent is so strong.
The second reason is quite straightforward. The threshold of 40 per cent will simply discourage those who want to hold a referendum to suit their own special interests, and nothing wider than that. Rather than spend money on a referendum for which they cannot get a substantial turnout, they will decide not to press the issue.
I have spent 10 years of my life working as a professor in the United States and have seen the devastating effect that referenda can have on responsible politics. One pulsing example is the bankruptcy of the incredibly rich state of California because of a series of referenda that have made it impossible for it to raise local taxes of any kind on property. That is one of the reasons why this richest of all states is today bankrupt and cannot afford even to pay for its own state university. There is an argument for referenda, but it must be narrow and it must be related to exceptional cases and, as the Constitution Committee said, to issues of overriding constitutional importance and to nothing else. It was appropriate for the devolution of power to Scotland, it was appropriate for the devolution of power to Wales, but, beyond that, as an instrument-let me put it bluntly-for holding a party together against its own internal divisions, it is not appropriate. I am speaking not just about now but about my own experience as a Minister in Harold Wilson's Cabinet of the 1970s, when as a last resort the referendum was brought in as a way to enable the Cabinet to escape making a difficult decision. It had its uses, but those uses should not be exploited time and again.
The third reason that I put before your Lordships-and I want to put some weight on it-is that, whether we like it or not, there is a considerable difference in the level of public support for the European Union in the different parts of the United Kingdom. Scotland has consistently shown itself to be very much more enthusiastic about the Union than England; Wales is somewhere between the two; Northern Ireland is perhaps the least enthusiastic part of the United Kingdom. But to have a referendum that might be deeply divisive, where one part of the United Kingdom strongly supported the idea that a power be given over to the European Union and another part dug in deeply against it, would be a very dangerous path to go down if one did not have a major majority behind any such decision. That is another good reason why we should not lightly go into a referendum, certainly not without a massive part of the population being behind it.
The amendment would discourage foolish referenda. It would stop special interests trying to exploit the referendum as a way to impose their views on the general public. It would be in favour of the unity of the United Kingdom and not inclined to divide it. Finally, and not least important, it would say decisively that to put representative democracy at risk should be done only on the basis of a very substantial part of the United Kingdom's thoughtful and intelligent electorate.
Lord Kerr of Kinlochard: My Lords, in my heart of hearts, I take a harder position than the noble Lords, Lord Williamson and Lord Hurd. I will support their amendment because no amendment on the Order Paper delivers exactly what I want. Referendums should only and always be advisory. The idea of a mandatory referendum is fundamentally destructive to the principles of parliamentary democracy. The noble Lord, Lord Hannay, said that what we have here is a palliative; I would rather have a cure.
First, I would cite the noble Baroness, Lady Thatcher, in support of what I have just said. It was a great pleasure to hear the noble Lord, Lord Hurd, tonight. He and I both experienced how rash it was to disagree with the noble Baroness, Lady Thatcher, so I wish to agree with the view that she expressed in the debate in 1975 on the Referendum Bill that the referendum should only be advisory and that if it were mandatory it would be destructive of parliamentary sovereignty.
An additional argument concerns timing. An advisory referendum, and possibly even a mandatory referendum, would not be quite so objectionable if it preceded the negotiation of the change in the EU texts to which the Government had agreed.
I was very much against the idea of a referendum on the euro in 1994-I do not remember that my opinion was sounded; quite rightly, it was not-but that was not quite as bad as what is foreseen in the Bill. If we were now to decide that we wished to join the euro, that would be followed by a negotiation with our partners that are now in the euro and might or might not result in our joining the euro. The Bill states that at the end of the process in Brussels-when the Government have extracted concessions from others around the table and a consensus has been found, the decision has
5 Apr 2011 : Column 1700
The concept of interlocuteurs valables is quite important. When an ambassador is received by the state to which he is accredited, he presents his credentials. When the Foreign Secretary or his side-kick start a negotiation in Brussels, it is accepted that they speak for their Government. It then follows that if they do a deal, their Government will not renege on it. So when in the end a deal a struck-if one is struck-all participants are pledged to deliver it.
I was shocked when the French referendum on the constitutional treaty did not lead to resignations in the French Government. The people who negotiated the text which the French decided to reject should immediately have resigned. However, there may be a difference between a presidential and a parliamentary system of government; a president can stand away from an issue and blame the Government. You cannot do that here. If in a referendum on some arcane issue-which, on the basis of the Bill, might be decided on a very low turnout and a very low majority-we decided that we were going to renege on the deal that had been done and the text that had been initialled in Brussels, I would hope that the Ministers who had initialled the text and those who had negotiated for them would resign. They would have to.
Whether a referendum is mandatory or advisory depends in part on when it is. Here we have the worst case; under this Bill, all referendums will be after the negotiations. They are all linked to treaty changes and to a process that has taken place in Brussels; the outcome is brought back and the decision is taken on whether it should go to a referendum. If the referendum finds against the Government, it should lead to the resignation of the responsible Ministers. In honour, they would have to do that.
The noble Lord, Lord Hannay, earlier quoted tellingly from Jean-Claude Piris's memorandum to the Commons European Scrutiny Committee about good faith. He spoke about the implications of adding new hurdles to the simplified treaty revision procedure. There is a bigger issue of good faith here. We are going to send our negotiators to negotiate and, when they have completed the job, they will carry on and there will be no change unless the country votes for it. I would much prefer an amendment that makes it purely advisory-a Thatcher amendment. There is no Thatcher amendment on the Order Paper now. I therefore support the amendment proposed by the noble Lords, Lord Hurd and Lord Williamson.
It is a huge delight to find myself in agreement with what the noble Lord, Lord Stoddart, said about Amendment 6; he is completely correct. As to what he said about Amendment 5, the two go together. It is a technical point and I do not think that there is a difference. Amendment 5 is a necessary consequence of Amendment 6, but the noble Lord, Lord Williamson, will correct me if I am wrong.
Lord Williamson of Horton: Amendment 5 would establish an advisory referendum in all cases and not only in the case where there was the 40 per cent
5 Apr 2011 : Column 1701
Lord Foulkes of Cumnock: I am sure that, if the noble Lord, Lord Kerr, put down what he described as a "Thatcher amendment" on Report, he would find a lot of support for it. We will have another opportunity for looking at that. Returning to the intriguing speech of the noble Lord, Lord Hurd, and the almost exciting start when he described what John Major had asked him to do, I thought that we were going to get revelations about when John Major questioned the parental legitimacy of some of his Cabinet over Maastricht. I am sure that that would have been equally interesting.
We should go back to the eloquent speech made by the noble Lord, Lord Deben, in the debate on Amendment 1. He questioned, as have a number of noble Lords in this debate, the whole purpose and legitimacy of referenda in our parliamentary democracy. I thought that he put that well and I share a lot of his concerns, particularly in the context of the two Scottish referenda, which the noble Lord, Lord Stoddart, mentioned. He said that, in 1979, we did not get the required 40 per cent. We had to get 40 per cent of the electorate in favour as well as a majority of those who voted, on the basis of an amendment by George Cunningham that had been agreed by the House of Commons. Then, in the referendum in 1997, we got a substantial vote in favour of Scottish devolution.
We may have had a better campaign in 1997 and people in Scotland had perhaps moved on in their thinking, but one of the main reasons for that change is that people do not always vote in referenda on the question on the paper before them. They vote for a whole range of extraneous reasons. As I am sure everyone remembers, in 1979 the Labour Government were not at their most popular whereas, when we put the question forward in 1997, that immediately followed the great revolutionary result that saw Mr Blair become Prime Minister. It was a very popular Labour Government. People were perhaps influenced by all these other extraneous things. That is the case in referenda in general, which is one of the reasons why I share the suspicions about them. They should be use rarely and sparingly in our constitution, if at all. I have gone along with that.
I was much in favour of our membership of the European Union in the 1975 referendum. That was the first referendum and it was on a major issue. The noble Baroness, Lady Williams, and I campaigned strongly on the same side and, back then, for the same party. We had a huge campaign and it was a major issue-the crucial issue of our continued membership of the European Union-not just some trivial little matter included in this Bill.
The noble Lord, Lord Stoddart, referred earlier to the fact that this House agreed to reject a 40 per cent threshold in the AV referendum. I was against that AV referendum, as I am against the referenda here, but I voted in favour of a 40 per cent rule as mitigation or a palliative, as someone referred to it. The AV referendum was pushed through by the inbuilt majority opposite. Now that it is happening, the fact that we will not be having the later stages of this Bill until after the result of that referendum gives us an interesting opportunity. If I am right and we get an embarrassingly low turnout in the AV referendum and it is passed by a very small majority, there will be a lot of questioning by Conservative MPs and Peers. Say that there is a 20 per cent turnout, with 12 per cent in favour and 8 per cent against. We are supposed to change our whole constitution on the basis of a poor turnout and a trivial majority. That might give us pause for thought when we come to the further stages of this Bill about the wisdom of some of the things that are being proposed in relation to referenda. It might make even the noble Lord, Lord Stoddart, think that we ought to put in some kind of safeguard or qualification for referenda that are dealing with other matters.
I feel that this series of debates-the Second Reading debate and the debates on these two major groups of amendments-are Alice in Wonderland debates. They do not seem at all real to me. Almost no one on the Liberal Democrat or Tory Benches, apart from the Minister, has got up and supported this Bill-not with any great enthusiasm, anyway. It is astonishing that the Bill is being pushed through this House. I asked in an earlier debate who the author of the proposals in the Bill was. What is the genesis of it? The Deputy Prime Minister is proud that he was the father, or the godfather, of the AV referendum, but no one seems to take either the credit or the blame for this. We do not know how it happened. If my noble and learned friend Lord Falconer was here, no doubt he could tell us. I have not read Mr Laws's book yet, so I do not know whether there is a revelation about this Bill in that. However, I hope that someone can tell us why we are in this situation of having a Bill that no one seems to want and pushing it through both Houses with debate after debate on some astonishingly complicated and dangerous provisions. It makes me worry.
We have a new Minister now. I share the concerns about our having asked questions of the previous Minister, the noble Lord, Lord Howell, now that we know that he was not in the best of health. I am sorry if I have contributed in any way to harassing him. It certainly was not intended. But this Minister is a young, vigorous and robust Minister in the fullness of health and fit as a fiddle, so perhaps he can tell us the basis for pushing this through. Perhaps he can give us an argument for it. Perhaps he can try to convince us. We are ready to be convinced if the arguments are there. Perhaps, even, he can convince some people on his own side. That would at least be a step forward.
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
5 Apr 2011 : Column 1703
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
5 Apr 2011 : Column 1704
Lord Richard: My Lords, I have listened to the noble Lord, Lord Phillips, with great interest. He is about the only speaker on the other side of the House who has had a good word to say about the Bill in any shape or form, and even he was fairly grudging when he did so. It reminds me a little of the story of the man who was going through the courts in a civil action and lost at first instance. He went to the Court of Appeal and lost there; he went to the then House of Lords and lost there too. When he came out he turned to his counsel and said, "Where do we go next?". His counsel looked at him and said, "You know, we should breed from you". The noble Lord's is about the only support for the Bill that we have heard either at Second Reading or today.
I start by making it clear that I do not like referendums. I believe basically in parliamentary democracy-that is what this country has lived with now for many generations and I hope that it will go on doing so for a large number of generations to come-so I do not approve of a situation in which it is felt for one reason or another that it is necessary to consult the electorate in the way that, for example, the Swiss do. I have some knowledge and experience of Switzerland, and I am bound to say that I find the extent to which they hold referendums there extraordinary. The polls are not very high; people do not take a great deal of interest in them. Occasionally there is an issue that excites people, in which case there is a proper contest. As the noble Baroness, Lady Williams, said, it is the same in the United States: if you see all the issues that are put on the ballot papers, you realise that it is consultation gone mad, to the point where it is distorting public opinion. So I do not like referendums; I am in favour of parliamentary democracy.
Let us look at the Bill. If we pass it and it becomes law, what are we going to be faced with in terms of referendums? It is all very well for the noble Lord, Lord Howell, and I am sorry that he is unwell, to stand here and say, "It doesn't matter; there aren't going to be any referendums anyway because this deals only with trivial issues and no one is going to have referendums on that sort of thing". I do not believe it. I know exactly who would want referendums on that sort of Bill; one usually sits on the Benches behind me and the other one sits down at the other end of the Bench below the Gangway. Of course they want referendums. The scope for judicial review proceedings is considerable. If I were a practising barrister, which I no longer am, I would say in terms of the future of my profession that on the whole this would be a Bill to be welcomed as there will be a lot of work in it for members of the Bar, but that is not a good thing.
If this is going to be only about trivia, why on earth are we legislating? Either it amounts to something or it does not. If it amounts to something, I am against it; if it does not amount to anything, we should not be doing it. What is the point? This is an edifice that has been erected for political purposes that will do serious damage to our constitution.
Baroness Falkner of Margravine: My Lords, it is tempting in Committee to refer to the several speeches that have been made before your own. I will try to refrain from that and speak to the amendment. Before I do, though, I say to the noble Lord, Lord Richard, and several of the other speakers who said that they had not heard anything from these Benches on Amendment 1 that it was only courtesy that made me hold back. There were several names to that amendment on the Marshalled List, one of them from within Liberal Democrat ranks, and I was holding back to hear from noble Lords whose names were on the Marshalled List. As I was about to get up to impart my pearls of wisdom to the Committee, the noble Lord, Lord Richard, got up and said that he had had enough and he wanted to hear from the Front Benches. It was only out of respect for the noble Lord's diktat that I sat quietly and said nothing on Amendment 1. It was not that we had nothing to say; the unpredictability of that invigorating debate was what held me back. I will speak for myself.
On this set of amendments, I think that I cannot beat the analysis and passion of my noble friend Lord Phillips of Sudbury, but I say to those noble Lords who suggest that the power of the Whips in the House of Lords is profound that anyone who knows the voting record of my noble friend will know that he, above all in our ranks, is one of the most independent-minded Members. None of the Whips could get him to do what they want if he does not want to do it. He is no compliant little representative of Lobby fodder.
On the amendments themselves, I echo the words of my noble friend Lord Phillips about the timing. The idea that we would pass an Act of Parliament to determine what the wish of Parliament is and then, once we see the result of the referendum, go back again to Parliament seems to me slightly convoluted. It would mean that the Minister, who would already have gone through a rather tortuous and convoluted process leading to a public say on the issue, could then turn round and overrule the public, who might have voted no. That would be truly extraordinary. Given what the Government have said apropos the disconnect between the public and the European Union and the disconnect between the public and government, that would be only exacerbated if we completely ignored the result of a referendum. In that case, I would probably agree with noble Lords around the Chamber who have said that it would be better not to have referendums at all.
Picking up the points made about referendums possibly undoing representative democracy in favour of plebiscitary democracy, I would say to noble Lords that in the debate on Amendment 1, which I listened to carefully, there was a tone-arcane though the issues were-that seemed to be saying, "We know what is best", as if the great British public out there is simply to be led by what we know to be best. Of course representative democracy is a valued and ancient tradition, but I suggest respectfully to noble Lords that, if the age of deference is not over, it is at least becoming much more of a challenge to retain that deference now that we have internet communications and various other means whereby the public feel that we do not sit in an exalted place vis-à-vis them.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|