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Lord Richard: The noble Baroness has used the word "deference" perhaps three times. Who on earth has talked about deference? I did not mention the word and I have not heard it mentioned in this Chamber this evening. What on earth is she talking about?
Baroness Falkner of Margravine: I think that the noble Lord, Lord Richard, knows exactly what I am talking about, and what I am talking about is trust. I am talking about an attitude. He can read Hansard as well as I will tomorrow, and he will see that I said that there was a tone-I did not suggest that the word "deference" had been used-in proceedings earlier this evening, and the tone is, "We know best".
Lord Hannay of Chiswick: I am most grateful to the noble Baroness for giving way. I really think that she ought not to use this term "deference". If I understand it rightly, this House is part of the legislature of this country and has a voice to express views on matters and to take decisions. We are not asking for the people of this country to express deference; we are expressing a view about the constitution of this country. That cannot be dismissed by accusing people who say that they are against referendums of camping on deference. I would like, frankly, to abandon that thought, which I do not think fits in our constitutional practice.
Baroness Falkner of Margravine: My Lords, again, I have to say that I think that when we say that we are giving up representative democracy in favour of plebiscitary democracy, we are on ground which is difficult to explain out there in the media. In the debate on Amendment 1, the noble Lord, Lord Kerr of Kinlochard, said that it was undoubtedly true that the public did not trust Parliament on EU matters to the extent that they had done in the past, and that there was a disconnect-
Lord Kerr of Kinlochard: I did not say that. I said that I shared the view expressed by the noble Lord, Lord Howell, that the public at large have become less convinced of the merits of the European Union. I said nothing about Parliament and its role in relation to the process.
Baroness Falkner of Margravine: I thank the noble Lord for reminding us of his exact words. It will be useful to read Hansard when it comes out. I completely accept that his version is probably the appropriate version of what was said. However, I will pursue the point I am making for another second or two. I say this particularly in response to the noble Lord, Lord Hannay. It is pretty difficult to justify the idea that an unelected House of Lords, which is absolutely part of the constitutional framework, should deliberate at length about whether the public are capable of making a judgment on matters of considerable significance-that is how they see them according to opinion polls-but that we should then disregard that, as this amendment would do, by saying, "We will have a referendum, we will come back and we will disregard it". That is my opinion, which I am sharing with the Committee as other noble Lords have done.
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I come back to the other element in this group of amendments, which is the 40 per cent threshold. I think that noble Lords will agree that you could get a very low turnout-perhaps it was the noble Lord, Lord Clinton-Davis, who mentioned something like 20 per cent. However, given that the public are being asked to express a view on the matter, it would be odd subsequently to overturn the Act of Parliament which had determined that the change should go ahead simply because the turnout was low. The need to gain a particular threshold would set another hurdle for the Minister to jump over. I am not completely opposed to the figure, but it is rather curious that it is 40 per cent.
I also think it rather curious that we would be saying, "If it is 39 per cent we will not accept it, but if it is 41 per cent we will". It is an arbitrary figure. We could select any arbitrary figure, and I do not understand where the 40 per cent figure comes from. If a Minister had signed up to a change and we had an Act of Parliament, it would be incumbent on the Government to sell their viewpoint. That would be set out in the statement and in the reasoning given in the statement. As for the suggestion that the failure to convince 40 per cent of the public to vote in favour might result in the resignation of Ministers, I think that, in that case, that would be the honourable thing for Ministers to do. As the Bill stands, however, there is no threshold. It simply states that if,
Lord Grenfell: I apologise for not hearing all the introduction of the noble Lord, Lord Williamson. I was searching for Sir Patrick Nairne's commission's report on referendums issued 15 years ago. I found what I wanted; it is on the subject of thresholds. He said:
"The main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy e.g. 60%, 65% or 75%".
Forty per cent is modest to the point of indulgence. I cannot understand why anyone who is considering Amendment 6 would think that a threshold of 40 per cent of those entitled to vote was more than they could bear. It seems a big concession. Sir Patrick said in a footnote:
"A turnout threshold may make extraneous factors, such as the weather on polling day, more important".
I have always been very suspicious of people who start talking about the weather in relation to polling, because it can work both ways. If it is pouring with rain, people tend to stay at home; if it is a beautiful, sunny and warm day, they can find external activities more interesting than going to a polling station. That theory does not work well.
My second point is that the Government cannot have it both ways. If you want to resort to a simple plurality in a referendum, you should bear in mind that the general sentiment in Parliament, and perhaps outside, is that major constitutional change should be the result of something more than a simple plurality. The obverse of that is that matters subject to a simple
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I am against referendums in general, but the idea of having a simple plurality for something that the Government do not consider to be of high constitutional importance is, quite honestly, unacceptable.
Baroness Nicholson of Winterbourne: My Lords, I am one of those who the noble Lord, Lord Foulkes of Cumnock, has not recognised this evening. I support the Bill, and I made that plain in an earlier debate. I wish to stress that again, because it appears that somehow I am Miss Invisible to the noble Lord, despite our long friendship.
Lord Foulkes of Cumnock: The noble Baroness is absolutely the last person who would be Miss Invisible to me. I have the greatest respect and admiration for her. If I went further, I would embarrass both of us. I can only apologise for not recognising her. Unfortunately, on this occasion, I must disagree with her profoundly on her judgment. Otherwise, she is wonderful.
Baroness Nicholson of Winterbourne: The noble Lord is of course a gallant Scot and turns a beautiful compliment. However, I have to disagree with many noble Lords on this batch of amendments, despite the eminence of those who have spoken for them, including the noble Lord, Lord Hurd of Westwell, whose work and leadership in politics I have followed all my life. Indeed, I have to disagree with even the noble Lord, Lord Hannay, because I believe I am correct in saying that the Government have answered the Constitution Committee, but the committee has not yet made the Government's response open to the rest of us.
I am standing because I oppose the amendments, which seem to display a lamentable lack of confidence in the British public and their capability to make up their own minds and display their views clearly if they so wish. It is absolutely true that there has been a progressive alienation of the British public from the European Union's activities. Sadly, that is not unique to the United Kingdom. That is perhaps the tragedy of the European Union. I personally perceive it as a great success. It has brought all nations together in a most wonderful way, involving peace and reconciliation, and it grows ever larger in its mission. None the less, in every member state that I know, the turnout in European elections is dismal. Unless people are forced to, they do not come out to vote for Members of the European Parliament, which is the directly elected portion of the European Union over which the general public can have some control, and they can at least have their own choice on who they wish to elect.
However, there is a fundamental reason for that that will not go away, and it is partly why I strongly support the Bill and oppose these amendments. The fundamental reason is that the European Union is by
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This is a good Bill because its foundations are based on regaining the trust of the British people and reconnecting them with the European Union. As a former Member of the European Parliament, I have seen the failure of the UK to reconnect the British electorate with the EU. It is miserable for a candidate to watch the results of the count at a European Parliament election. One sees a tiny turnout and it is very sad. However, as I said in my previous speech on the Bill, the key to this lies in our own hands. We have not talked about the European Union in the way that the modern world demands if it is going to pay any attention. Successive Governments have not bothered to connect either House of Parliament with European Union legislation and policies as they have gone through, yet we have always had the authority so to do-that authority has always lain in our hands.
If the Bill is going to connect with the British people, it must be positive and optimistic about what any future Government or Parliament might put in front of the British public and try to explain. Therefore, a threshold would be a completely negative mechanism, as would an advisory referendum. If either were adopted, we would be reneging on our responsibilities to the British public by saying: "You cannot really have a referendum because we do not trust you to put your views forward correctly. We will not allow you to have a referendum, but will just give you something advisory-and if a particular proportion of you does not turn out, we will not take account of your views". In that case we should not have a European Union Parliament election in the first place, and nor should we have local government elections, with their dismal turnouts.
An advisory referendum would further increase the current and long-standing disconnect between the British people and the European Union. It would also heighten the cynicism that the British public have about any political decision in any of our work. That is a sad thing for us all, and it is what we are fighting against. An advisory referendum-which seems a contradiction in terms for a start-would be seen as a fig leaf. A Government and Parliament could ignore the result. Is that something that we could explain honestly to the British people? "We want you to turn out and tick a box, but we have the authority to ignore what you tell us". That, surely, would reduce turnouts to almost zero. Any sensible British elector would prefer to go to the pub, watch football, look at something else or do something that interested them more than bothering to tell the Government their opinion, which the Government is then mandated to say no to. It
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A threshold is similarly negative. These two things would encourage those against a treaty change to discourage people from voting. It would lead to further misinformation of the kind that we are subject to all the time from our rather volatile media, and which we are trying to overcome. We should not forget that a threshold is in fact a no vote; it is not simply a neutral abstention. Therefore, the amendments are hardly what I as a pro-European want to see. They are political amendments that are not in the interests of reconnecting the British people and rebuilding trust.
Au fond, I believe that these amendments reflect a fear of referenda, which I cannot share. In today's world, fierce expressions of the will of sections of our society are part of our modern interconnected world, as is the regular public polling of our opinions. This is more democracy and not less. Are we perhaps afraid because it is a challenge to us as modern politicians? Our comfortable-perhaps too comfortable -world of representative democracy is challenged by referenda just as much as it is by the web-gathered, flash-mob expression of views that has become so commonplace. Is a referendum merely a formalised version of that? I think that it is much more than that, and I want to work to make the case that we can give all sides of the argument in a referendum in a way that even web-based, flash-mob polling cannot achieve. I fully support the Bill and oppose these amendments most fiercely.
Lord Tomlinson: My Lords, we have heard two speeches from the Liberal Democrat Benches- from the noble Lord, Lord Phillips, and the noble Baroness, Lady Nicholson-both seeming to blame the malaise in European politics on the absence of referenda. However, I suggest that if we want to know what created and exacerbated the disconnect between the electorate of this country and the European elections, which the noble Baroness, Lady Nicholson, talked about, the answer is that it was the rather misguided action of my own party, when in government, in changing the electoral system to the European Parliament.
Creating multi-Member regional constituencies, which guaranteed the first three or four people on the party list a place irrespective of their contact with the electorate, was a totally misguided act. It has taken European politics further and further away from the people. Under the old system, constituencies had European information systems available in their party offices. However, they have all disappeared and have become the prerogative of regional parties. You can see in the consistent decline in participation in regional elections that people have no interest in Members who gain their places almost automatically under this system. There is scepticism and cynicism in relation to European elections but it is not that people regard them as unimportant. In my former constituency of Birmingham West, the turnout at the last direct elections that we had with single Member constituencies was just short of 40 per cent. In the first election conducted on regional lists, where there was an attempt to link
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I was provoked into getting to my feet by the noble Baroness, Lady Williams, who took me on a walk down memory lane regarding the 1979 referendum. I remember that referendum well for two reasons. One was that I was so confident of getting a successful yes vote in that election that I went to the then parliamentary bookmaker in the House of Commons, Mr Ian Mikardo, and asked him what odds he would give me on a yes vote in every constituency in the United Kingdom. I gave him £10 of my hard-earned money in return for odds of 200:1. So uniform was the result of that referendum that it was only the outer fringes of the United Kingdom-Orkney and Shetland and the Western Isles-that led to Mr Mikardo keeping my £10 rather than me getting £2,000 back from him. There was an enormous spread.
The other thing that I remember most about the 1979 referendum which is pertinent to this issue was the number of people who told me that that referendum would produce the settled will of the United Kingdom for a generation. However, it did not produce it for a week after the election. As soon as one referendum was lost, there were all sorts of demands for other issues to be looked at. The referendum mechanism failed to settle anything, other than the position of the Government, which is what it was intended to settle in the first place.
The noble Lord, Lord Williamson, was at his persuasive best in moving his amendment. He was reflecting what, I hope, is the settled will of your Lordships' House concerning the 40 per cent threshold. The House of Lords Select Committee on the Constitution got it absolutely right in its report at paragraphs 37 and 38. As so many people have spoken since the noble Lord, Lord Hannay, mentioned those paragraphs, they bear repeating into the record. They state that,
- "the European Union Bill is a radical step-change in the adoption of referendum provisions ... In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill's provisions are inconsistent with the Government's statement that referendums are most appropriately used in relation to fundamental constitutional issues".
The noble Baroness, Lady Nicholson, says that the Government have replied to that. They would, wouldn't they? More important is the advice and guidance that we got from our highly respected Select Committee on the Constitution and I believe that we discard that at our peril. I hope that the House will support the amendment of the noble Lord, Lord Williamson.
Baroness Brinton: My Lords, I wish to speak against the amendments. I am grateful to other colleagues for having mentioned the 1975 and 1979 referendums. The EU referendum in 1975 was my first active campaign as a Liberal. I joined the party the year before, and I lived and worked in Scotland in the run-up to and immediately after 1979. I want to talk about the impact of that threshold in Scotland. I am very grateful to the noble Lord, Lord Foulkes of Cumnock, for the comments that he made earlier. He is right to some
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In 1979, my day job was as a very junior studio manager with BBC Scotland. On a couple of mornings after the election, I was the poor soul who was sent out to find vox populi on the streets of Edinburgh to talk about the election results and about the impact of the referendum. It was apparent that the people completely distrusted their politicians as a result of having spoken but not being listened to. There was certainly some shock among those people-I will not describe them as active politicians-who regularly voted. The fallout in Scottish politics in subsequent years was very evident. I have no doubt that that was why there was such a strength of feeling in 1997 when we saw real distaste in Scotland about what was happening in Westminster. The people felt disfranchised.
When a threshold is ignored there is a disconnection with the ballot box, a disenchantment with the political process and, more worryingly, a distrust of politicians. I respect the view of my noble friend Lord Hurd of Westwell, but we either have to let the people speak-however they may speak-or we can choose to have Parliament speak. There I pick up on the point made by my colleagues, that sometimes we may not have a referendum and then Parliament speaks, but once we choose-
Lord Foulkes of Cumnock: I shall not argue about the vox populi after the referendum-I might have been one of the voxes and I might have been quite populi. We keep hearing about the distrust of politicians and I wonder whether that distrust is greater when a referendum does not achieve 40 per cent compared with when Members of Parliament pledge not to put up student fees and then do the opposite.
Baroness Brinton: It is very interesting how many people think they voted Liberal Democrat in May 2010. Had they done so, we might have been the major partners in the coalition Government and not the junior partners. The key thing is not just about those who may have voted in a certain way, but the impact of the voice of the people being ignored. That is my concern and I am concerned about having a referendum overturned by Parliament. That is why I oppose the amendment.
10 pm
Baroness Symons of Vernham Dean: My Lords, as your Lordships will be aware, I tabled Amendments 7, 8, 15 and 16, which are in this group. I quite understand that the issues are different in the various amendments under consideration, but I believe that it was right to put them together and that their general thrust is in the same direction. I thank the noble Lord, Lord Williamson, for the way in which he introduced the amendments, and the noble Lord, Lord Hurd of Westwell, who made his points so clearly and fully. The Labour Front Bench-and, I believe, almost all those on the Labour Benches, although I have not interviewed them all personally-supports the principles behind the amendments.
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I make one thing abundantly clear. We are not, in principle, against referendums. Some of your Lordships have expressed that view; that is not the view held as a matter of policy by the Labour Party. We believe that referendums have a place in most democratic countries-not necessarily in all. That was made clear from Second Reading, when we said that we would expect to have a referendum, for example, on adopting a new currency, on leaving the European Union, or abolishing the monarchy or either House of Parliament. We believe that referendums are appropriate for issues of real constitutional importance. I do not want anyone subsequently to misinterpret my remarks on that point.
In that respect, we are at one-at least, I thought we were-with the Government, who said that they, too, believed in issues of constitutional importance being the subject of referendums. The Constitution Committee stated something very similar. That is what makes the Government's position so implausible.
The Constitution Committee said in paragraph 38 of its report published on 18 March:
"In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill's provisions are inconsistent"-
- "with the Government's statement that referendums are most appropriately used in relation to fundamental constitutional issues".
That is a difficult charge, and I hope that the Minister will address it when he answers this debate. The Constitution Committee, on which, I remind him, his party, the Conservative Party, the Cross-Benchers and my party sit, came to the collective view that the Bill's provisions are inconsistent with the Government's stated policy on the issue.
For our part, we think that the reason for it is to hold the coalition together. It is to keep the Eurosceptics happy, while keeping the Liberal Democrats more or less so. The noble Baroness, Lady Williams, said that far more elegantly a moment ago, but I hope that her party will look very closely at what she said, because it showed an admirable clarity of approach on her part.
The question therefore arises: why should the British public be called on to support a political aim by voting, for example, on the number and system of appointing EU Commissioners, or the appointment of judges and advocates-general to the European Court of Justice, or even some decisions about the EU's competence on foreign policy, as set out in Schedule 1? The truth is that the British public will not turn out for such referendums. We all know that. We shall have a hard enough time getting a respectable turnout on 5 May on changing the voting system in this country-something which is of real constitutional importance.
Much of what is covered in this Bill as subject to referendums is Parliament's responsibility to deal with, and that is why we are here. A threshold turnout for a decision that is mandatory is just plain common sense. If the turnout threshold is not attained, it seems to me to be also just plain common sense that a referendum should be advisory only in its impact.
The Deputy Prime Minister, the leader of the Liberal Democrats, when speaking on the Barnsley by-election brushed off the result-in which his party gained 4 per
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Lord Phillips of Sudbury: I hesitate to interrupt the noble Baroness, but I cannot help observing that the point about the Barnsley by-election was that the abysmal turnout of 36 per cent did not nullify the election, which is what the proposal here would do.
Baroness Symons of Vernham Dean: In the election of an individual Member of Parliament, however low the turnout is, it does not nullify the election, but that is not what we are talking about. We are talking about constitutional change. It is a very different point. I would have thought that the noble Lord, Lord Phillips of Sudbury, given how connected he is on these issues, would be among the first to recognise that a long-term constitutional change is very different from electing an individual Member of Parliament.
We on this side would be prepared to consider a figure that the Minister puts forward but, more important perhaps, a figure that his colleagues in another place would find acceptable-something perhaps better than an abysmally low figure. However, in order to have future treaties or treaty changes decided on a turnout, however we define what is abysmally low, the turnout must be such that it does not undermine our parliamentary system of government. Low turnouts will simply not be credible. They will not be credible to most sensible people and the British public are sensible people.
Parliament has a duty to deal with these matters. We have to shoulder our responsibilities. We cannot just run for cover when something difficult is put to us. How can the Government suggest that asking the British public to decide on the appointment of Advocates-General will somehow reconnect the British public with Europe? Plainly, it will not. It is far more likely to turn off the British public and I suspect that the Minister knows that as well as the rest of us do. Either that or we will simply revert to the point where we do not have referendums at all.
This move towards dealing with any tricky issue by means of a referendum is simply not consistent with our parliamentary democracy. As my noble friend Lord Davies of Stamford said, the turnouts would not even be of the abysmally low level described by the Deputy Prime Minister. The turnout would more likely be not abysmal but quite catastrophic-perhaps 10 or 15 per cent. That is not democratic. That is undermining democracy, at least in its parliamentary form.
Let me turn to the points raised by the noble Lord, Lord Phillips of Sudbury, who has in the past spoken passionately about reconnecting the British public and has good credentials on this issue. He spoke of the widespread scepticism in the country about protecting the UK's interest against the EU. I agree with him that there is that view. How widespread and how deep is the scepticism may be a matter of debate between us,
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Four speakers spoke in support of the Government's position on this-the noble Lord, Lord Phillips, and the noble Baronesses, Lady Nicholson, Lady Falkner of Margravine and Lady Brinton. It was perhaps noticeable that those were the only four and they may give some comfort to the Minister. However, he will also note, as we do, that the position of the Liberal Democrats is at odds with how they voted on the possibility of a referendum on the Lisbon treaty.
The noble Lord, Lord Hurd of Westwell, said that this was a wearisome business. At this time of night, I think that we all sympathise with his sentiments. He told us that there had been a time when only two members of the Major Cabinet had supported the use of a referendum and that he, as one of them, was "a bit wobbly". I do not believe that dealing with the coalition document should be anything like "approaching an altar", as he described it. The point about the coalition document is that it was never put to the British public. The noble Lord said that the significance clause was perhaps a way out of the problem but, as we discussed earlier today-although many of us may feel that it was quite a long time ago now-the significance clause will in itself probably be the subject of huge controversy and no doubt of judicial review, too.
Therefore, I hope that the Minister will agree with his experienced and wise friend, the noble Baroness, Lady Williams, that on any issue a turnout of a very low proportion of the population really cannot trump the views of Parliament. Let us suppose that the turnout is only 10 per cent or 15 per cent. Why should that view trump the views of a Parliament that was elected by perhaps 60 per cent or 65 per cent of the electorate? How is that by any measure conceivably democratic? How is it right? How is it rational?
The noble Lord, Lord Stoddart, says that people must be listened to. Of course they must be, but they must be listened to if a turnout is of significant numbers of the public to express a view. It has to be a number that can be interpreted as a national view on the issue that is under consideration. However, if the turnout is very low-abysmally low, for example-those views should be only of an advisory nature. The noble Baroness, Lady Williams, was right when she said that the Bill expresses no confidence in parliamentary democracy. If the Minister will listen to no one else, surely he will listen to the noble Baroness with all her experience. Surely he, who rightly voted against a referendum on Lisbon, can see the force of this argument.
The noble Baroness, Lady Falkner, says that the tone of the debate was one of "We know best" and of expecting deference. I have to say to the noble Baroness that I really did not recognise that in the debate today. I was sorry that she said what she did. I thought that she put words into the mouths of others in a way that was simply not sustainable by reference to what noble Lords had actually said.
I agree with the noble Lord, Lord Kerr, that referendums for the most part should be of an advisory nature. He said that they should be on every occasion.
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The point to which I hope that your Lordships listened carefully was that made by the noble Lord about the mechanisms on negotiating in Europe. I do not know how many noble Lords have had that pretty awesome responsibility that the noble Lord shouldered in a previous life. However, he is right. The responsibility to deliver on what you initial is a grave one and, if you cannot deliver on it, it is right that you should resign. This is not an arcane or trivial point. It is fundamental to how international treaty-based alliances work and no one knows that better than the noble Lord, although I hope that there are others in the Chamber who recognise the force of the points that he made.
My noble friend Lord Foulkes said that he would like to see a Thatcher amendment, as it was described earlier in the debate. I think that he has a point. He is quite right to say that people do not always vote on what is before them. Unfortunately, they often vote on a whole number of other issues and sometimes they vote on the popularity of those putting forward the matters on which they are meant to be voting. The AV referendum will be an acid test. It may well mean that the application of referendums without thresholds in the future will be completely unacceptable. I hope that noble Lords recognise the Pandora's box that may well be opened on 5 May.
The Minister has a brief. He will stick to that brief this evening; he will stick to it like glue. I know that and he knows that. Having been a Minister for many years, I understand that probably as well as anyone in your Lordships' House. But I also know that Ministers must listen to the voices around them in this Chamber. They must listen to the tone of the debate and come to judgments about what it is right to do next. The Minister bears a great responsibility in that respect. He bears a great responsibility to make a judgment about what is right in terms of the advice and guidance that he gives to his fellow Ministers about the way in which this issue should be pursued on Report. I am sure that the Minister has been listening, because he is a good and sensible man, and that he will put what is right before party-political advantage.
Lord Wallace of Saltaire: My Lords, I think the time has come for me to grumble quietly. We have had a range of interesting speeches in what has been a high quality debate, although there was a point, when the noble Lord, Lord Davies, was talking about anoraks, when I thought that a good definition to look for in a political anorak was that of someone who wishes to return after dinner to a two-hour discussion of arcane issues of constitutional procedures and international engagement. We recognise that we are all part of the political anorak class.
We have ranged over parliamentary sovereignty, parliamentary democracy, political trust, the problem of trust in Parliament, and whether we are putting representative democracy at risk, as at least one noble Lord said-I think it was the noble Lord, Lord Hurd. We have to recognise that the concept of parliamentary democracy, about which the noble Lord, Lord Hurd,
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Lord Davies of Stamford: I am grateful to the Minister for giving way. He is a very intelligent man and he has had enormous experience of politics from the academic world and now from the Front Bench in the House of Lords. Is he seriously saying that the way to increase public respect for the political process or public involvement in the European issue is to ask the public to turn up to vote on a referendum on the appointment of judges in the European Union?
Lord Wallace of Saltaire: My Lords, I am merely pointing out that we all face some rather large structural problems in our democracy. I also note that we face some extremely complex issues in attempting to define what we mean by parliamentary sovereignty, to which we will return later.
We have seen a number of other interesting elements in this debate. I liked the emergence of the Stoddart/Hannay/Kerr consensus. I enjoyed hearing the noble Lord, Lord Foulkes, as I think I understood him, emerge as a staunch campaigner for electoral reform. I noted the noble Baroness, Lady Symons, resurrecting the doctrine of the mandate that has reappeared in Labour Party policy as a means, I think, of attempting to argue that the coalition agreement is illegitimate. I would just remind her that, many years ago, when I was giving evidence to a committee on which she sat-I think it was on the Salisbury convention-she asked me about clear mandates in manifestos. I had to point out that the clearest pledge in the 1997 Labour manifesto was to hold a referendum on the alternative vote.
Lord Liddle: It was on the voting system.
Lord Wallace of Saltaire: In either sense, if it was a mandate, the Labour Government did not fulfil it.
The noble Lord, Lord Hannay, asked me why the Government had not yet replied to the Constitution Committee. I have seen the Government's response, which was submitted to the committee last week-last Wednesday, I believe. I do not understand why it has not yet been published, and I very much hope that it will be published within the next few days.
Lord Hannay of Chiswick: I would be grateful if the Minister would not play hide and seek with this matter. Presumably, if it has been transmitted, he knows what is in it. Could he just say what it says?
Lord Wallace of Saltaire: That would take me a long time. I assure the noble Lord that I will make sure he gets a copy as soon as possible and that it is published as soon as possible.
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Lord Wallace of Saltaire: All of it, indeed. I will investigate why it has not yet been published. I assume there is a delay, for which I apologise.
The noble Lord, Lord Kerr, asked to what extent publics are bound by what their plenipotentiaries have agreed. It is a delicate question in all democratic states. In the United States, congressional ratification is required; in other states, it is parliamentary or popular ratification. That is another large issue of sovereignty, democracy, consent and international negotiation. It applies not just to the European Union but to all international treaties, and it is a problem for all democratic states.
Part of the campaign that we need to undertake to rebuild confidence in the European Union is clearly to have a Government who are going to argue the case for more constructive European engagement. I was glad to hear a number of noble Lords say that the practical approach of this coalition Government to the European Union has been positive. We need now to argue the case for constructive engagement in the European Union, both in other countries and within the European Union. I am confident that the coalition Government will do that over the next few months. Had it not been for the Libyan engagement, we would already have started. I promise noble Lords that we shall move in that direction. However, part of regaining trust is also giving the public confidence that competence creep and all those things which they currently mistrust about the European Union will be stemmed for the foreseeable future at the very least.
There are two major issues: one is whether or not referendums should be advisory or mandatory; and the other is the question of a minimum turnout level. We argued the question of minimum turnouts to the point of exhaustion on the Parliamentary Voting System and Constituencies Bill, in the course of which I became much better educated than I had ever wished to be about the integrity of the electoral register. I remember exchanging views with the noble Lord, Lord Rooker, as to how many times he and I were registered in our respective different residences. The Government-and, I think, most of us-have severe doubts about having a minimum turnout level.
Taking my cue from the noble Lord, Lord Kerr, perhaps I may cite a leading constitutional authority on the question of referendums-Margaret Thatcher- and her contribution to the debate on the then European Community referendum. She said:
"I believe that if there is a high poll and a clear majority, the result will in fact be binding on Parliament whatever one may say in law about parliamentary sovereignty. I cannot envisage that a Parliament, whatever individual Members might have thought, if there were a clear vote against ... It is not advisory or consultative in the event of a clear result. It would be binding on everyone ... It would bind and fetter parliamentary sovereignty in practice. But if there were a low poll, and an indecisive result, the question would arise whether the British people had genuinely given their verdict by their vote. The Government might regard themselves as bound, but the result could not fetter the decision of Parliament".-[Official Report, Commons, 11/3/1975; col. 315.]
The Government's position on these referendums is that the result would be binding on the Government, but we also accept that no such decision could bind Parliament as it would not be consistent with
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Lord Foulkes of Cumnock: The Minister has made an interesting and important statement. He has obviously thought carefully about this so could he explain to the House the mechanism by which Parliament might disagree with the decision in a low turnout referendum? What would be the mechanism for Parliament to overturn it?
Lord Wallace of Saltaire: I am sure the noble Lord is as expert on parliamentary sovereignty as I am. No Parliament can bind its successors; any Parliament can overturn a decision of a previous Parliament or even a previous decision of that Parliament. That is part of what we understand by the doctrine of parliamentary sovereignty. There is nothing we can do to prevent a future Parliament from undoing what we are doing. That is my limited understanding of all of this.
Perhaps I may quote a greater constitutional expert than myself.
Lord Davies of Stamford: Before the Minister moves from this point, perhaps I may follow up on the question posed by my noble friend Lord Foulkes following his momentous statement about parliamentary sovereignty. It is important for the House to understand how in practice it would be possible for Parliament to exercise that sovereignty and to disagree with a referendum.
I refer the Minister to Clause 3(2)(a) of the Bill, which states:
"The referendum condition is that ... the Act providing for the approval of the decision provides that the provision approving the decision is not to come into force until a referendum about whether the decision should be approved has been held".
In other words, Parliament would have passed a Bill, turned it into an Act and the electorate would then have voted. For Parliament to be able to exercise its sovereignty in opposition to the decision of the electorate-which the Minister said is a possibility-it would presumably have to repeal the Bill which it passed before the referendum took place. Is that the procedure the Minister has in mind?
10.30 pm
Lord Wallace of Saltaire: The noble Lord is extremely good at interrupting Ministers and others in full flow. I repeat: Parliament can reverse decisions that have already been taken, either by resolution or by parliamentary Act. That is part of our current, unwritten constitution.
I was in the middle of quoting Professor Bogdanor who, together with two noble Lords, is regarded as one of the major constitutional authorities in the country. On referendums, he said in written evidence to the Constitution Committee:
"Voters entrust their power to representatives, but they give them no authority to transfer those powers ... Such authority can be obtained only through a specific mandate, that is a referendum".
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The logic of all those referendums is the same: they are decisions on whether to change who holds power and how that power may be used. No decision can be more eminently qualified than one that could move an area of policy from the responsibility of this House to the responsibility of the European Union. That is part of the area in which we now find ourselves-decisions about the transfer of power.
Lord Foulkes of Cumnock: I have an important point and apologise for taking up time, particularly at this hour. The Minister said that this applied to AV in exactly the same way as it would apply to these European referenda. Is he saying that, if the referendum has a pitifully low turnout and only a marginal vote in favour, it is then open to us in this Session of Parliament, so that we are free to repeal the legislation which provided the power to the people in that referendum? If that is the case, it is a very interesting and welcome announcement.
Lord Wallace of Saltaire: I wish to resist getting too far into hypothetical issues about what might happen in a great emergency in a future Parliament. I simply wish to state that Parliament is sovereign. There is nothing in the Bill that would bind this or any future Parliament from legislating, notwithstanding the provisions of the Bill, or from disapplying the provisions of this legislation, or indeed acting contrary to the will of the electorate expressed by them in a referendum. In this sense of fundamental parliamentary sovereignty, any referendum is advisory. All that the Bill says is that a referendum will be mandatory on the Government who receive the result of that referendum. I am conscious, from the unusual quiet, that the heating has just been switched off and that we should not delay the House too much longer.
Lord Kerr of Kinlochard: Would the Minister accept that he made a slightly selective quotation from Professor Bogdanor's memorandum? The bits of the memorandum that he read out were those governed by phrases such as "it could be argued", and "it may be suggested". It is clear that those were not the views of Professor Bogdanor. Towards the end, having listed various contrary arguments, his memorandum concluded:
"The solution to these difficulties is to provide that the referendums be explicitly advisory".
The last lines of his memorandum were,
"The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliaments through a referendum lock. Was it not the Queen, in Lewis Carroll's Through the Looking Glass, who declared that she had been able to believe in six impossible things before breakfast?".
The Minister should beware of selective quotations.
Lord Wallace of Saltaire: It is hard enough that one of the first experts on the European Union whom I ever met when I was a junior academic was the noble Lord, Lord Williamson. I am doing my utmost to resist bowing to the great wisdom of some of the experts from whom I have learnt in the past.
We have covered the issues in this large number of amendments very thoroughly and it is time for us all to reflect on them. I will ensure that the Government's response to the Constitution Committee is published
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Baroness Symons of Vernham Dean: My Lords, I am not sure whether the noble Lord is aware of the impact of what he said a few moments ago, because I think that he changed the terms of engagement. I hope that he will look at what he articulated in relation to turnout and results. He referred to the fact that Mrs Thatcher said that a low turnout and marginal results would not bind Parliament but that a high turnout with a clear result would, through common sense, bind Parliament. He spoke as though we had not already passed legislation on AV. The AV Bill has passed. Even if there is only a 15 per cent turnout and only 51 per cent of that 15 per cent vote in favour of AV, it is binding. That is what Parliament has decided.
I cannot understand how we place that position, which none of us wanted, alongside what the noble Lord has just said about Mrs Thatcher articulating a common-sense principle in the event of low turnout and a very marginal result. He needs to look at what he said just now. We think that it was great, but I am not sure that his colleagues will. I hope that he will look at that carefully and give us a clear view that will be supported by everyone on the government Benches-his own Benches and the Conservative Benches-before we get to Report, because I think that he has changed the terms of engagement. He could tell by the reaction from my noble colleagues on this side of the House that we all thought that. It is an important point, but let us leave it. The hour is late. The noble Lord has done very well over amendments that he did not expect to take. I thank him for his courtesy to the House in dealing with this in the way that he has.
Lord Williamson of Horton: My Lords, I want to make one or two brief comments on this long debate. When you have been here for two hours and seven minutes, it is quite difficult to remember what you proposed, but I think that I can still do it. There were two separate proposals. First, I put forward the general proposal in Amendment 5 that we should move to an advisory referendum. I think that the House should consider that and decide whether it is going for advisory or obligatory referendums. That is a general issue, which needs to be decided.
Secondly, I am grateful for all the support that I have had from around the House for my second proposal, which is in Amendment 6. Apart from the Liberal Democrats, everyone else has supported it, which is not surprising, as this was the position taken by the House of Lords as a whole a few weeks ago. I thank all those who have spoken on this, in particular the opposition Front Bench. The proposal is that, where there is a very low turnout, instead of being mandatory, the referendum would be advisory and Parliament
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I have proposed that the final decision-because by definition there would be a miserable turnout of the British people-would be with Parliament and the Government, who would be able to decide on the basis of the result before them. In my view, the normal situation would be that they would endorse the view of the British public. Let us say that 36 per cent vote, which is quite possible. Normally they would endorse that and the press headlines would simply state, "Good: Parliament and people together". That would be the reaction and it would be extremely positive, not negative. The Liberal Democrat Benches are quite wrong in their assessment of what the public reaction would be in those circumstances, and I find that rather depressing.
In cases where there was a poor turnout, either it would be endorsed by the Government or the public themselves would say, "This is such a miserable result, let's not bother with it any more. We don't care about how the Advocates-General are appointed, so forget it". That would be the British public's reaction.
With those comments, which I felt bound to make after two hours and seven minutes, and seeing that it is now two hours and 11 minutes and that we are rather late, I will withdraw Amendment 5. Yet these issues will absolutely inevitably come back at a later stage because, as I said in speaking to Amendment 6, the House's view on this is so recently established that we can be fairly confident that it will be endorsed again. Let us wait until Report to endorse it. So, for the moment, I beg leave to withdraw the amendment.
Debate on whether Clause 2 should stand part of the Bill.
Lord Tomlinson: My Lords, in view of the extensive exchanges that we have had on Amendments 3 and 4 and the group starting with Amendment 5, and the number of issues on which the noble Lord, Lord Wallace, clearly has to reflect before coming back to the Committee, I shall not press my opposition to Clause 2 standing part. However, I shall return to it if the Minister's reflections do not prove satisfactory.
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