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The Statement also referred to a new fund of £3 million per year to support state schools catering for significant numbers of service children. Is this all additional money which does not come in whole or in part from any existing funding programmes for children of members of the Armed Forces? How many service children do the Government envisage that this money, over and above the pupil premium arrangements, will in reality be able to support in a meaningful way?

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The Government's report entitled The Armed Forces Covenant, made available with the Statement, refers on page 11 to what the Government "will consider" in relation to measures to minimise the social and economic impact of military life and to enable equality of outcome with other citizens, as well as special treatment for the injured and bereaved. The use of the words "will consider" might seem to some a bit weak and vague. Why would the Minister disagree with that view?

The Statement outlined a number of measures, at least some of which appear also to have been the previous Government's policies, as set out in 2008 in the first cross-government strategy on the welfare of Armed Forces personnel and in the 2009 Green Paper, which proposed innovative policies to improve welfare. Can the Minister confirm the total amount of new investment that will be provided to implement the proposals to which he referred in the Statement? Will he also confirm that all this is new investment and is not to be found from within existing resources, and that it is not already contained in whole or in part in any existing programmes announced by this or the previous Government? I also ask that in the context of indications that further cuts may be made by the Government in Ministry of Defence expenditure.

In conclusion, we will support the Government when they do the right thing. In setting out to enshrine the covenant in law, the Government are entitled to the support of the Opposition, and, if they do it properly, that is what they will have. Our Armed Forces and their families would expect us to come together and to work to make a success of this important announcement.

5.36 pm

Lord Astor of Hever: My Lords, I thank the noble Lord for his general support for the Statement. I start by welcoming him to the Dispatch Box in his new position as shadow Defence Minister in this House and I very much look forward to working with him. Defence is such an important issue that I wish to be as open as I am able to be in sharing information with him.

The House will be very grateful to the noble Lord, Lord Tunnicliffe, who did a very good job of keeping me on my toes. The noble Lord was in his party's defence team for a number of years and, picking up one of the points that the noble Lord, Lord Rosser, made, I acknowledge the steps taken by the previous Administration on the military covenant issue. I know that this matter was close to the heart of the noble Lord, Lord Tunnicliffe.

The noble Lord, Lord Rosser, asked whether this is a U-turn. It is not. The steps that we are taking in enshrining the principles of the covenant in law fulfil the pledge made by the Prime Minister last summer. This coalition listens and we are very grateful for the work and advice of the Royal British Legion. Significantly, the covenant is being recognised in statute for the first time and it is right that the Third Reading of the Bill should take place after publication of the Armed Forces covenant to allow informed debate.

I may not be able to answer all the noble Lord's questions and, if I do not, I shall certainly write to him. He asked me to explain a bit about the community

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covenant. The scheme aims to encourage public service providers, the private sector and the voluntary and community sectors to volunteer support to their local Armed Forces community. The nature of the support offered will depend on the needs of the local community but it could take the form of, for example, free access to leisure facilities, discounts in shops and restaurants, or special provisions in local service delivery, such as additional support in accessing public services. The community covenant is intended to be a two-way arrangement, and we will actively encourage the local Armed Forces population in their area to offer support to their local community. This might include participation in open days, school visits or helping with community projects, and it will be determined by the needs of the local area. The community covenant is about integrating service life into the local community and improving engagement between the local service population and other members of the community.

The noble Lord asked about the pupil premium for service children. I can confirm an additional fund of £3 million a year to support state schools catering for significant numbers of service children, including the children of reservists. Many schools run into problems because their pupils have to move quickly with their parents or a new batch suddenly arrives and this can be very disruptive. We understand that up to 36,000 children in England alone will benefit from this.

Finally, I have placed 150 copies of these publications in the Printed Paper Office. I accept that there is a lot to absorb in them and accordingly I am very happy to organise a briefing on the Armed Forces covenant for those Peers who would be interested and my office is in touch with the relevant officials to identify suitable dates. This will enable Peers to digest these publications fully and they will then have the opportunity to ask me or the relevant experts questions.

5.41 pm

Lord Craig of Radley: I thank the noble Lord very much for repeating the Statement and I look forward to reading the documents he has talked about. A number of the areas of support mentioned in the Statement for Armed Forces personnel, veterans and families deal with health, education and local government support. These are devolved Administration responsibilities. Can the Minister explain how the Government are going to ensure that all the devolved Administrations march in step and that there is no possibility of some postcode lottery in the treatment of individuals by separate Administrations?

Lord Astor of Hever: My Lords, the noble and gallant Lord, as always, raises a very important issue. Much of what is contained in the document is UK-wide but where matters are devolved, such as education and healthcare, which the noble and gallant Lord mentioned, the devolved Governments are taking forward a number of measures to support the Armed Forces community which reflect the different legislative landscape and the way in which their public services are delivered. It is for them to publicise the measures they are taking. We will work with their respective new Governments to get the best outcome for the Armed Forces community.

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Lord King of Bridgwater: My Lords, I welcome the Statement but it is worth reflecting that during the time I was the responsible Secretary of State I never heard the phrase "military covenant" used at all. During that time it was accepted, and understood by all who were involved, that we had a responsibility to care for our servicemen. I appreciate that it is the first time the opposition spokesman on defence has spoken, but I found it rather difficult to contain my normal calm self when I heard him complaining about why we were not spending more money on certain aspects of the covenant. How much more we could do if we had not inherited the biggest defence deficit in modern times-£30 billion. Even the papers today make clear the problems we face.

There is heightened public concern because of the campaigns and activities in which we are involved at the present time. Out of Iraq and Afghanistan is coming a legacy that will require enormous attention, considerable expense and priority consideration in housing and health. I welcome the statements made by my noble friend, particularly about housing as there is a distressing number of homeless ex-servicemen and a number who are severely handicapped and homeless. However, the issue is not just the housing of ex-servicemen. We are told that if efficiency improvements provide the resource, something will be done about serious problems in existing service housing, which certainly ought to have the priority in any official covenant. Covenants are fine, enshrined in law is fine, but it is the actions that are taken and the care that is given that matter above anything else.

Lord Astor of Hever: My Lords, my noble friend makes a very good point and I am certainly not at all happy to be a Minister in this very difficult financial environment. Honouring the covenant does not necessarily mean having to spend large amounts of money. Ensuring that service personnel, their families and veterans are treated fairly can often be about adapting existing policies where the particular needs of the service community have not previously been taken account of. Many of the commitments in the covenant are being led by other government departments and will not rely on the defence budget.

My noble friend made a very good point about the homeless. We take the issue of former personnel who find themselves without a home very seriously. Research carried out specifically in London shows that the proportion of veterans among the homeless population has fallen dramatically over the last 10 years.

Lord Touhig: My Lords, I greatly welcome the Statement and look forward to many of its proposals becoming law. I want to ask the Minister about our 5.5 million veterans, many of whom feel that when they take off their uniform Britain forgets them. Can the Minister tell us precisely what benefits veterans will get from the veterans' card? Further, as there are so many veterans' charities-doing wonderful work that perhaps we as a country ought to be doing-many veterans do not know where to turn when they are in difficulty. What progress has been made by Veterans UK in its ambition to become the number one point of contact for ex-service men and women who need help?

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Lord Astor of Hever: My Lords, the noble Lord asked me about the veterans' card which I understand will be launched next year to access commercial discounts or privileges and to consider how this could be expanded to include service families. Anyone who served in the Armed Forces will be entitled to have this veterans' card-so a lot of Members of this House can apply to get the card. The card will be sponsored and paid for by retailers. Nothing will come out of the defence budget. I understand that some retailers are going to offer discounts of up to 50 per cent. I know of a particular pizza chain which is prepared to offer up to 50 per cent off throughout the country. If any noble Lord would like to come and discuss it afterwards, I can reveal the name of the chain.

Lord Lee of Trafford: My Lords, today's Statement said:

"The Armed Forces covenant is not just about words, it is about actions".

However, most of today's Statement is very much long on words and generalities and rather short on specifics, and falls considerably short of the weekend's spin and hype. Nevertheless, there are a number of steps in the right direction. I want to ask my noble friend two specific questions. First, regarding the £3 million over and above the pupil premium to support state schools, he mentioned that 36,000 pupils are likely to benefit. How is this likely to be allocated? Is it going to be so much per head for service children or will schools have to bid for the allocation? Secondly, policy option five on page 32 of the Strachan report talks of encouraging Olympic involvement. Can my noble friend say anything about the involvement of service personnel, such as veterans and those who are wounded, in the coming Olympics and whether there is going to be any priority allocation of tickets? Overall, we need time to study these reports and I very much look forward to the Armed Forces Bill coming to this House when we can have a full and proper debate on the covenant.

Lord Astor of Hever: I thank my noble friend for his questions. It is the intention that the pupil premium for service children in state schools will cover the whole of the UK so it is broader than the pupil premium. I will have to write to my noble friend regarding how schools will bid for this.

I was looking through these different publications earlier and saw in one of them a chapter on the Armed Forces' help for the Olympics. I will have a word with the noble Lord afterwards and point it out to him.

Lord Stirrup: My Lords, I thank the Minister for repeating the Statement, which has much in it to be welcomed. However, is not a key point of enshrining a requirement in law that there should be a remedy if the requirement is not met? In this case, the remedy seems to be that Ministers will have to explain themselves in Parliament. However, as the noble and gallant Lord, Lord Craig, pointed out, many issues that have caused such problems for our service families over the years are outwith the control of the Ministry of Defence. I refer, for example, to their inability to get access to dental services, to their having no choice of schooling for their children, and to their losing their place on

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NHS waiting lists when they move with their spouses. Given that fact, and accepting that devolved authorities are a different and difficult case to which we may wish to return, and given the particular nature of the remedy in this case, will the Minister say whether the Secretaries of State for the relevant departments-for example, health and education-will be held to account in Parliament at the time of the annual report, rather than just the Secretary of State for Defence?

Lord Astor of Hever: My Lords, I thank the noble and gallant Lord for his question. I very much hope that they will be held to account when the annual report comes out. This will cover deficiencies in any of the departments, so I hope that they will be named and shamed.

Baroness Fookes: My Lords, will my noble friend elaborate on the health arrangements when injured servicemen have to go into civilian life? At present there is often a horrible gap in provision.

Lord Astor of Hever: I thank my noble friend for that question. Again, the issue is covered in one of these publications. We are giving a lot of thought to it and I will write to her on that issue.

Lord Soley: My Lords, I very much welcome the decision to have this covenant. However, is the noble Lord aware how complex this is going to get? I will give an example that has been touched on already. One of the main problems is service personnel who have been in the services for a long time, who have seen armed conflict and who come out and find it very difficult to settle. It is a question not just of housing. Consequent rates of suicide, attempted suicide, hospital admissions and prison admissions are all extraordinarily high, as the Minister knows. We ought to discuss-perhaps when we get into the detail of the Bill-whether there is not a more sophisticated role for Armed Forces charities, which could have some of the work outsourced to them. Ex-service personnel will often relate better to them than to local or national government institutions.

Lord Astor of Hever: My Lords, the noble Lord makes a very good point. We always work very closely with service charities. One area that was raised by the noble and gallant Lord was that of veterans and mental health, where we work very closely with the charity Combat Stress, and with the NHS, to explore and develop appropriate models of care and support. We recently launched a 24-hour mental health helpline, run by the charity Rethink on behalf of Combat Stress, which is funded through the NHS.

Baroness Finlay of Llandaff: In his Statement, the Minister referred to the loss of a loved one. Will he confirm that the Government remain committed to improving the coronial system so that families are not traumatised by delayed or improperly conducted inquests, and that the principles outlined in the Coroners and Justice Act will continue, even though the exact structure is under discussion? Will the Minister confirm also that the voices of those representing people who have been bereaved through military conflict will be embedded

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in those reforms and will be considered; and that, should the conduct of an inquest be inadequate, there will be recourse through the local authority ombudsman?

Lord Astor of Hever: My Lords, we take the issue of coroners very seriously. I cannot today give the noble Baroness the confirmation that she wants. Discussions are going on as we speak between the Ministry of Defence and the Ministry of Justice on this issue, and the response will be apparent very soon.

Lord Thomas of Gresford: My noble friend will recall that I wrote to his right honourable friend Mr Fox about veterans' courts, and the possibility that we could introduce them in this country in the way that they have been in certain states of the United States of America. They are courts to which veterans could apply to be heard if they get into trouble with the civil authorities. I note that the last page of the Government's response, under Annex D, "Further research required", states:

"Possible areas for further exploration include ... The profile of the service community in prison: length of service, family background, age, etc".

Does the Minister agree that the problems of veterans in prison should be pushed up the agenda rather than onto the back page of the report, and that their interests should be seriously considered by the Government?

Lord Astor of Hever: My Lords, I thank my noble friend for that very important question. I have not seen a copy of the letter that he sent to my right honourable friend, but I will make a point of seeking it out. The issue of veterans in prison is one that we take very seriously. We are in touch with the Home Office about that and I would welcome further discussions with my noble friend on this very important issue.

Lord Selkirk of Douglas: Will my noble friend say how veterans will be informed about their benefits and privileges under the veterans' card that will be issued? Will this be done through service charities or by the Ministry of Defence?

Lord Astor of Hever: I thank my noble friend for that question. We have not come to a final decision. The card will not be launched until next year. It will probably be launched by the Ministry of Defence, although it will be paid for by the retailers. At this stage I cannot provide my noble friend with the answer that he wants.

The Lord Bishop of Chester: My Lords, the language of "covenant" is interesting because it is both religious and legal in its history. Tying down what the covenant means is crucial. The language of the scope of the covenant is in the subjunctive: all these things "should" happen, not "must" or "will" happen. What independent monitoring of the working of the covenant is envisaged beyond reporting by a Minister to Parliament?

Lord Astor of Hever: My Lords, that is where the external reference group comes in. It brings together representatives from across Whitehall, key service charities such as the Royal British Legion and SSAFA, the

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three Families Federations and representatives from the academic world. It delivers an independent judgment on the Government's efforts in supporting the Armed Forces community. I mentioned earlier Professor Hew Strachan, who is a member of the ERG which is chaired by Chris Wormald from the Cabinet Office.

Lord West of Spithead: My Lords, I thank the Minister for repeating the Statement today. I agree that he has shown great support for the Armed Forces, and I know that he has found it very difficult. When I fought in the Falklands, in my naivete I felt that in the final analysis my country would look after my wife and children if things went wrong. I did not believe that a covenant was necessary. I am generally pleased that there is a covenant, but I will not be sure until I read the detail.

What I did know in the Falklands was that the capability of the weapons systems, and the sheer number of units involved, were more important to me than almost anything else. The document states that all Governments have no higher duty than defence of the realm. I do not believe that in terms of funding over the past year, the MoD has taken the top priority for spending. Will the Minister confirm that bearing in mind articles such as that today in the Times, and the fact that more money is being looked for, defence will now take the top priority among all departments for spending?

Lord Astor of Hever: My Lords, we will certainly keep all the other departments up to speed on this. As the noble Lord said, for years Governments have talked of supporting the military, tending to focus largely on what it spends on equipment. I can assure the House that the Armed Forces covenant is about our obligations as a society to our military personnel.

Baroness Dean of Thornton-le-Fylde: My Lords, I welcome the Statement from the Minister today. It is a pity that it had to go through a process in the Commons whereby the Government did a U-turn. It would have been much better not to have put themselves in that position from the beginning.

There are three documents. We have not had much time to read them, but I welcome the Statement. In many respect, the documents raise more questions than they answer. The Minister referred to the Armed Forces Bill, and we will discuss that in depth in this House, but my concern is that the content of the covenant is worthy of a full and analytical discussion in this House, quite apart from the Bill. Knowing how committed the Minister is to the welfare of our personnel, I invite him to agree with me that it would be appropriate to discuss the documents we have been presented with today in a proper debate in this House in advance of the Armed Forces Bill coming before us.

Lord Astor of Hever: The noble Baroness makes a very good point, and I will certainly take it up with the usual channels. These are very complicated publications, and there is an awful lot to absorb. That probably cannot be done just by a briefing in this House or in the Ministry of Defence, so I am very happy to consider that.

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On the timing, Members of another place will have an opportunity to debate the Armed Forces Bill in the Committee of the Whole House on 14 June, and the Third Reading will be on 16 June.

Fixed-term Parliaments Bill

Bill Main Page
Copy of the Bill
Explanatory Notes

Report (2nd Day) (Continued)

6 pm

Clause 7 : Final provisions

Amendment 22A

Moved by Lord Grocott

22A: Clause 7, page 4, line 3, leave out "comes into force on the day it is passed" and insert "shall come into force subject to its approval in a referendum in which the turnout exceeds 40%"

Lord Grocott: My Lords, Amendment 22A is grouped with Amendment 23, but I do not intend to move Amendment 23, which is about the relationships between the two Houses, in advance of the publication of the House of Lords reform White Paper. I understand that we will be getting it tomorrow, so having a discussion today is rather pointless.

Amendment 22A refers to the need for major constitutional issues to be ratified by referendum. I am acutely aware that the idea of a referendum at all is not too popular at the moment. I was not very keen on the last one, but I am now that I know the result. I know that my justification for raising this was that a real-world event of some significance occurred between Committee and Report on the Bill. This is a constitutional Bill of some significance, and in between the two stages a very important event took place: the referendum on first past the post versus the alternative vote. It is absolutely right and proper that when the first referendum in 40-odd years has taken place, it should be considered.

I am pretty surprised that there has been no official statement on the result of the referendum to either House, as far as I know. There certainly has been no statement to this House, and I do not think there has been one to the other House either. I fear that I know the reason. Perhaps the Minister can give me a more principled reason than this, but I fear that it is in both sides of the Government's interest to pretend that the referendum has not happened. The Liberal Democrats obviously do not want to be reminded of the result, and the Conservatives, who may be muttering beneath their breath and punching the air silently, if it is possible to do that, may none the less feel that they had better not say too much about it at the moment because it might upset their coalition partners. I do not have either of those inhibitions. I am very happy to talk about the referendum and its significance for this legislation. I want to make sure that I remain in order.

I have to add, in parenthesis, that there is almost a conspiracy of silence among the media on this referendum. I think of two newspapers in particular-the Guardian and the Independent-which set great store by the referendum and campaigned for a yes vote. I am sure we would have had no end of in-depth analysis if there had been a yes vote, but as far as I can discover,

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although I cannot claim to read both papers in detail every day, there has been virtually no reference to the outcome of the referendum. There is a kind of a news blackout on discussing it. I do not intend to discuss it at length.

Lord Newton of Braintree: I can hardly believe what I am hearing. In the referendum, the Labour Party was split. I am not sure whether it was split down the middle or at some other juncture, but it was clearly severely split, with its leader going one way and a lot of other people, including the noble Lord, another. Can he tell us what his Front Bench would have said had there been a statement?

Lord Grocott: I am responsible for all sorts of things, but I am happy to say that, by my choice-who knows what might have happened now-I retired from the Front Bench. One reason why I wanted to retire from the Front Bench was to have the sheer joy of discussing these constitutional issues without any inhibition.

Lord Falconer of Thoroton: What the Front Bench would have said is that we accept the will of the people.

Lord Grocott: That is absolutely right. Just to correct a mathematical point, the Labour Party was not split down the middle. There was a majority of Labour MPs and Peers, a huge majority of Labour councillors and, so far as we know, activists and a colossal majority among voters. I see my noble friend Lord Reid in his place. He took an identical view to me and many other members of the Labour Party on the issue.

If the intervention was intended to embarrass, it has merely prolonged my remarks and enabled me to put the record straight on what the Labour Party did in practice in a referendum. The commitment of the Labour Party was to hold a referendum, not to tell people what to do, although I must admit that some of us in the Labour Party tried to influence the outcome. There has been a news blackout on this referendum, and I think I have explained the reason why.

The obvious question to ask is: what is the significance of this reference to the referendum in the Bill before the House? I think it is very significant indeed. The first point is to remind everyone of the colossal majority, by any reasonable expectations, in the referendum. It was passed in every voting district in the United Kingdom except, I think, seven. In most of the polling districts, between two-thirds and three-quarters of those asked said they did not want any change. I draw at least a couple of lessons from that that are significant to this Bill. It tells us pretty clearly that the public have very little appetite for major constitutional change. Many of us have argued that time and again in vain. Some of us did so through long periods of the night and were much criticised for it. We tried to point out to the Government and others that the public were just not raising these issues. There was no appetite for them whatever. If anyone is in any doubt that should a referendum be held, let us say, on fixed-term Parliaments-which of course reduce the power of the public; I will come to that in a moment-I have very

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little doubt that the outcome in that referendum would be similar to the outcome in the referendum that we have recently held.

The other thing I want to mention is something that I might be able to convince the House on. The outcome gives the lie to the oft repeated-in fact, ad nauseam repeated-comment, particularly by the Deputy Prime Minister, although others are guilty as well, that somehow or other we have a broken constitution, a broken politics, in this country. I have heard that word "broken" time and time again. One or two people who take close interest in these issues might be able to repeat that. I do not see any evidence, certainly not based on the result of that referendum, that that is what the people of this country think. They make all sorts of criticisms about politicians and politics, which is a healthy thing to do, but when it comes to the basic democratic construction of our constitution, the public's involvement in it, their ability to speak to and canvass their Members of Parliament, their ability to participate in elections and the freedom with which any conceivable opinion can be expressed, this country's constitution, far from being broken, works remarkably well in comparison with-I would go so far as to say any country in the world-certainly the vast majority of countries in the world.

Please may I urge a little rethink, particularly on the part of the Liberal Democrats, on this constantly repeated phrase about a broken constitution? It does this country no favours-obviously-and it happens not to be true in the eyes of the electorate. If there were a broken constitution, my word, you could rest assured that the members of the public who constantly canvass their MPs-write to them, e-mail them, visit them at their constituency offices and so on-would be letting their Members of Parliament know. If any former MP is going to stand up and tell me now that the public are deeply concerned about broken aspects of the constitution, please do so and I will readily give way, but that is not my experience.

I know there is no great mood in the House to set forth on another referendum, but, as I said, this is the only basis on which I could introduce this subject, which was also raised in Committee. I ask the Minister on what basis, if any, he thinks the public want this huge change to their constitution. When he answers that question, I would like him to confirm-he owes it to this House, as this has been raised on many occasions, but we have not yet, as far as I can recall, and I have been here most of the time, had a clear answer to this question-that if this Bill passes in the way the Government want, there will be fewer general elections in this country; the public will be consulted less frequently. I regard that as a step backwards. We all know about problems with turnout, and I do not want to overstate my case, but I find a general election day as an awe-inspiring event if you think about it-I do not normally think about it in these terms because I am so busy. We have had all the opinion polls and all the chatter, and then there is a curious calm on election day when the public decide, and we never quite know what they are going to decide or the basis on which they make their decision.

If this Government are proposing, as they are, that there will be fewer general elections in the future-my

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calculation is that there would have been three fewer since the Second World War-could they at least acknowledge that this is the case and that they are going into this with their eyes wide open? It is very important that they do. I would like the Minister to tell us what the evidence is that the public want this change. Do they know the significance of what the Government are proposing? Furthermore, given that again we are being repeatedly told that all these constitutional changes are part of a coherent whole-the Bill we just considered, this Bill and the one that is coming down the track on House of Lords reform-I really would like to know what criteria the Government use to determine whether a constitutional Bill is of sufficient significance to be put to the people in a referendum. When I asked the Minister that in Committee, although he is a very honest man and good at dealing with this Bill he did not give a particularly straightforward answer. He said:

"The noble Lord, Lord Grocott, asked my noble friend Lord McNally which issues would be submitted to a referendum, and my noble friend replied: 'the Government believe that Parliament should judge which issues are the subject of a national referendum'... Indeed, it will be possible for Parliament to make that judgment on any legislation".-[Official Report,15/3/11;col. 193.]

It is not a very straightforward answer, let us be absolutely honest, to say that Parliament will judge when there is a heavy Whip-we all know perfectly well that this recent referendum would never have gone through the House of Commons on a free vote. That applies to the other half of that Bill, which increased the size of constituencies, so may we please have other criteria, aside from saying that it has to go through Parliament? Of course legislation has to go through Parliament. I want to know the basis on which the Government decide whether major constitutional Bills such as this one or the House of Lords reform Bill should be subject to referendums. What made the proposed change in the voting system subject to a referendum but, unless the Government have had second thoughts, not these other constitutional Bills? I beg to move.

6.15 pm

Lord Cormack: My Lords, not for the first time the noble lord, Lord Grocott, has entertained the House with some good, robust constitutional common sense. I would just gently rebuke him. I am glad he has decided not to press Amendment 23, because he above all people must realise that the phrase "elected House of Lords" is a contradiction in terms. One cannot have an elected House of Lords; what the Government are, I believe, about to propose-and our suspense will be at an end tomorrow, I am told-is the abolition of the House of Lords and its replacement by a totally different sort of second Chamber. It behoves all of us in this place to recognise that reality and then to debate it on its merits or, as I believe, lack of them. We cannot allow ourselves to be deluded into talking about House of Lords reform when in fact we are going to debate House of Lords abolition. I am glad, therefore, that he is not going to move that amendment.

As to the amendment that he has moved, I am not sure how he could expect the Deputy Prime Minister to make a statement on the referendum. It is very

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difficult to make a statement when your face is covered in egg, and very difficult for the Prime Minister to make a statement when all he could do was echo a predecessor and say, "Rejoice, rejoice". We know why there was no statement, but we are all glad at the result.

The noble Lord has placed before your Lordships' House one very important question which it is important that my noble friend the Minister should seek to answer and which, for all his sensitivity, charm and many other qualities-and I do not say that in any sense facetiously-he has failed adequately to address until now. What are the criteria to determine a referendum? It cannot merely be what Parliament decides, because that means what is convenient for the Government of the day. Do not let us again delude ourselves into believing all the fine rhetoric surrounding this Bill. The Executive in our country are drawn from the legislature, and I do not object to that at all; I never have. It is the Executive who are the driving machine in all this. I personally do not like referenda, but they are in the system now. If our constitution, of which the noble Lord has spoken both eloquently and accurately, is to be safeguarded for future generations, it is important that we establish a principle that on major constitutional issues such as devolution, our continued membership in 1975 of the Common Market, as it then was, or the future of either or both of our Houses of Parliament, there should be the opportunity for the people, untrammelled by other considerations that inevitably crowd upon them during a general election, to be able to decide.

I hope that all those in government at the moment will reflect on that as we approach detailed debates in coming days, weeks, months and, I trust, years and determine what at the end of all that debate should happen. It is very important that we have a clear and coherent answer to that. It is unreasonable for us to suggest that my noble friend the Minister could give a comprehensive answer this evening. Of course he cannot-he has to consult his ministerial colleagues and superiors-but he can at least tell us that he has heard the words of the noble Lord, Lord Grocott, and that he recognises that there has to be an intellectually defensible set of criteria that determines what a major constitutional issue is and what it is not, and when there should be a referendum and when there should not.

Like the noble Lord, Lord Grocott, I am not implying that there should be a referendum on the Bill now before us, but I congratulate him on ingeniously using this opportunity to bring up a very important issue that gives us all a chance to reflect on it as we move towards an issue that truly will affect not only the future of this House but the future balance and stability of our constitution as a whole: the constitution about which the noble Lord spoke with such quiet passion and eloquence. Let us see what my noble and learned friend has to say before we end the Report stage of what is not the most glorious constitutional measure this House has been asked to consider.

The Lord Bishop of Chester: My Lords, briefly, I support the noble Lord on his amendment. I do not think that the constitution, or even our politics, is

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broken, but a certain amount of damage has been done. In my lifetime I have seen a tendency for participation rates in voting to fall, along with an increasing sense of weariness with modern politics and disrespect for politicians. I am on the record as saying, when the Constitution Committee published a report on referendums last year, that there is a place for them in building confidence. Interestingly, the participation rate in the recent referendum was really rather encouraging. It was higher than we thought it would be in the lead-up to it. A cautious but proper rediscovery of the place for referendums has a part in rebuilding political life in this country.

More substantially, I should like to try a thought experiment on your Lordships. Let us imagine that we had a Bill before us that proposed to extend the life of a Parliament from a normal term of five years to six years. Would we think that that required a referendum? We would probably think that it did because it would extend the maximum term from five years to six, but in practice we are going to extend the length of Parliaments by an average of about a year. Why is this not an issue on which there should be a referendum?

Lord Howarth of Newport: My Lords, I agree entirely with those who have just spoken that it would be helpful to the House-indeed, I think it is a necessity-that some clear principles should be articulated as to when a referendum would be appropriate. I understand the case for referenda on major constitutional issues. After all, the constitution is the property of the people and not of us as parliamentarians. If significant aspects of it are to be changed, there is a strong case for saying that they should be changed only with the permission of the people. However, I invite the House to consider the proposition that every significant constitutional change that we have seen over the last several decades has diminished the centrality of Parliament in our constitution. Whether it has been accession to the European Union, devolution or the development of the practice of holding referenda, we can see in all these instances that the capacity of the Parliament of the United Kingdom to take the major decisions that the people of the United Kingdom elected it to take has diminished. So before we express enthusiasm for the proliferation of referenda-perhaps no noble Lord wants to see their proliferation, although we should note that the European Union Bill seems to offer the scope for at least 57 varieties of them-we should consider what this may mean for the centrality and the character of Parliament in our national life.

Lord Reid of Cardowan: My Lords, I thank my noble friend for giving us an opportunity to speculate on the nature and the circumstances that might make it imperative to hold a referendum. It is unreasonable to expect the Minister to respond in definitive terms, and I do not think that we would necessarily push for that tonight; but it is reasonable to expect two things. The first is that the Minister, who as noble Lords have said has been more than reasonable in his attempts to respond to and clarify some of these issues, should attempt to answer the point. Secondly, he should consider some of the criteria that might compel a referendum on subjects the nature of which we are

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now discussing. He might like to consider, for instance, that one of the elements that would compel a referendum would be on subjects that are closely related to those which have recently been the subject of a referendum, and when the course being proposed by the Government would, in effect, alter that decision of the people in some incidental fashion.

Hypothetically, the people could resoundingly decide to reaffirm first past the post as an electoral system. If there was then any suggestion of a move by either Chamber of Parliament to reject it, obviously that could not be done, especially in the wake of an overwhelming decision to reject the system of alternative vote. If any attempt was made by either Chamber of this House to change that decision, perhaps by putting it through Parliament itself, it would be an outrage. If it was good enough to do it by referendum in the first place, it is good enough to do it in the second place. It is no argument to say, "We did not like the result the first time around, and so we will change the system". That is partly why the alternative vote was rejected. Therefore one of the criteria might be that there has been a recent vote on a subject.

A second criterion might be that something was a fundamental part of the British constitution, such as the voting system itself. It would appear from past experience that that requires a referendum. That might be the second criterion which a priori we would suggest would require the people to be consulted. A third criterion might be a fundamental change in the constitutional arrangements for the governance of the United Kingdom, such as the abolition of one of the two Houses of Parliament. As the noble Lord, Lord Cormack, said, we might speculate that we will have a proposal before us not for the reform of the House of Lords, but effectively to abolish it and replace it with a senate. I leave aside the substantial arguments as to whether this is taking place in the context of, whether intentionally or otherwise, the other House having been denigrated. I merely point out that abolishing a House of Parliament would be a major and fundamental constitutional change and therefore might be a subject for the Minister to consider as one of the criteria I have mentioned.

A fourth criterion would be the complete and fundamental diminution of the powers of one of the Houses of Parliament. I speculate again that if, for instance, we were to create a senate whose representatives were elected by, say, proportional representation, that would hugely diminish the powers, status and role of the other place. That is because the other House is only powerful relative to the second House of Parliament under the British constitution by virtue of the fact that the latter is constrained to scrutiny. If the second House were to add democratic legitimacy to its perceived wisdom and maturity, especially using a system that some people claim is more democratic than first past the post, that could not but diminish the powers of the House of Commons.

Finally, if each one of these criteria was an a priori reason for holding a referendum, we must conclude that any move to bring forward measures to change our constitution that included all the criteria-an electoral system that had already been put to the

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people, a proposal to abolish a House of Parliament and diminish the rights of the other House by the restoration of a new second House-would mean that they would be compelled to include in any legislative proposals an assurance that there would be referendum on them all. I shall give way to my noble friend.

6.30 pm

Lord Cormack: I am most grateful to my noble friend. Would he not agree that the power of another place would be even further diminished if those elected to a second Chamber were on a 15 or 20-year term, were not eligible for re-election and were therefore not accountable to anybody?

Lord Reid of Cardowan: Well, of course, my noble friend is speculating. It is hard to believe that the other Chamber would bring forward proposals for the creation of a second House which would so hugely diminish its own powers by bringing in a new electoral system that would then be claimed in the second House to be more legitimate than that in the first; and for a period that was three times as long; for a House that was already widely recognised as being greater in its maturity and wisdom. That would be the greatest case ever of turkeys voting for Christmas.

Should such a proposal come forward, I think that many people in the House of Commons would be very reluctant to diminish their own position, particularly since they have just seen a campaign launched for changing the British constitution-this was the yes to AV campaign-on the basis that MPs were all lazy, cowardly laggards. I think that such a proposal would not be met with universal approval in the House of Commons. I say merely that, if by some mental aberration of that House, such proposals were brought forward and were to concern not only a subject for which one of the criteria had already been put to a referendum-that is, the voting system, which is elemental to the British constitution-but also the abolition of one of the Houses of Parliament and the diminution of the other, each of these individually would be reason for having a referendum. Taken together, there would be an absolutely compelling case for it. I am sure that the Minister in his straightforward fashion, and given that he is a man known for his neutral and objective position in all these matters, will be able to put this to his colleagues, up to and including the leader of his own party, bring it back and reassure us all on it.

Lord Deben: Is it not a common feature of the four examples that the noble Lord has suggested that a referendum can be argued for only when it changes the basis upon which those who would otherwise vote for it have been elected? I am personally opposed to referenda in all circumstances, but it could be argued that it is improper for people who are elected on one basis to make huge changes in their own interest and present that to the people. The four examples that he used have that commonality. Would it not be a good thing for Governments, oppositions and coalitions to think carefully before they bring before the Houses of Parliament such changes without a referendum built within them?

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Lord Reid of Cardowan: I agree absolutely with the noble Lord. There is one condition and qualification which the Minister could bring forward as an objection. He could say, for instance, that it would be entirely unreasonable for us to ask the Government to give a commitment to a referendum on such a subject unless they knew the precise details of the referendum, of the question to be put and so on. That would be a cast-iron argument were it not for the fact that the Government have already rushed to the television studios to assure us that they would willingly accept a referendum on the Scottish question were it put, without knowing the wording, the timing or the conditions of it. So that objection would entirely fall.

I am trying to be helpful to the Minister tonight, not by laying down demands for a definition but by suggesting that there might be criteria which he would like to consider before he comes back to the House. Whether it is a White Paper that we have to expect or a grey paper-perhaps by tomorrow morning it will merely be an essay on the British constitution that is being proposed-and whatever the form of the coalition agreement's operational eminences which exude from discussions in Cabinet, I hope that he will be able to come back and tell us that it is such an important subject that we will all get the chance to vote again, because we so enjoyed the last referendum.

Lord Norton of Louth: My Lords, the key point has been made, but not yet by me. I want to reinforce what the noble Lord, Lord Grocott, said. Many of the measures being brought before us are premised on the assumption that our political system is broken. Like the noble Lord, I do not accept that it is and there is empirical evidence for showing that the people do not accept it. I accept that there is a crisis of confidence, but it is a crisis of confidence not in institutions but in politicians. There is a danger of displacement taking place here, of saying, "Well, it is not us, it's the system. We'll change the system". There are problems in that, so I accept the premise on which the noble Lord is proceeding.

My fear is that we may get ourselves into a situation where people do think that the system is broken if we keep messing about with it and making disparate changes without any clear rationale for them, rather than individual changes. If the Government start having a referendum on one issue which they feel for whatever reason there should be a referendum on, but then deny it on another issue which people think is important and there should be a referendum on, they will create problems in terms of how people view the system and how it is being operated.

I have always argued against referendums because I have an objection on principle to them; the Government's problem is that they do not. When they start holding them, they need to have a clear rationale for those occasions when they are clearly appropriate and those when they are not. Otherwise, we create a problem of delegitimising issues, with people thinking, "Well, this is really important, but we're not going to accept it unless it's subject to a referendum. Why can the Government have a referendum on A, when we attach real importance to B and we've not been given a say on the issue?". To cope with that, as the noble Lord, Lord

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Reid, indicated, you need a very clear framework which is transparent and explained to people, so that they know the basis on which the Government are proceeding. You cannot do it on an ad hoc basis. You need clearly to adumbrate the overarching framework or, if necessary, come up with those issues which clearly fall within the framework of necessitating a referendum.

The Constitution Committee of which I am member, as is the noble Lord, Lord Pannick, produced its report on referendums and tried to identify those areas so that we could at least get agreement on them. The Government need to think about what framework they are using for promoting referendums. They cannot do it on simply an ad hoc basis, saying that it is up to Parliament, because Government bring the Bill before Parliament. We need to know why they are doing that, and that they are doing it on the basis of principle rather than political desirability. The more politicians do the latter, the more we run the danger of people starting to worry about what the Government are doing and their trust being lost. It is essential that we maintain that trust. If the crisis of confidence is in politicians, it is up to us to get it right.

Lord Pannick: My Lords, the noble Lord, Lord Grocott, has served a very valuable purpose, because he has identified with precision one of the main defects in this Bill and so many of the proposals for constitutional change that have been brought forward by this Government and are still to be brought forward.

The essential point surely about constitutional principles is that they are intended to be neutral; they are intended to be objective criteria by which we and the people judge the propriety of the conduct of government. They do so by convention, by practice and, if change is proposed, they do so by public consultation, by pre-legislative scrutiny and by an attempt to achieve consensus. The Government's inability to identify when a referendum is appropriate-the noble Lord, Lord Grocott, asked the Minister to explain the Government's position on this in Committee and the Minister was unable to do so-is a manifestation of constitutional reform and change that is being proposed on an ad hoc basis; it is being proposed if and in so far as it is politically convenient for the coalition to do so.

Constitutional change cannot command public respect when the public perceive politicians as using constitutional means such as a referendum-means which are designed to control politicians-as a way of holding a coalition together. One has to do better than that. One has to identify a principled basis for using or not using a referendum. To bring forward constitutional change in this way-without public consultation and without any attempt to identify and then to apply objective, coherent principles on matters such as referendums-leads inevitably not only to poorly drafted, inadequate legislation but guarantees that the legislation, when enacted, will not command public understanding, far less public respect, and ensures that the legislation will remain on the statute book only in the short term.

Lord Newton of Braintree: My Lords, having rashly intervened on the spur of the moment earlier I decided that I had better stay until the end of debate in line

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with the conventions. I am very glad that I did because, in an old-fashioned phrase, it has been worth a guinea a minute. I shall associate myself later with some of the latter speeches but, first, I should say to the noble Lord, Lord Grocott-who thought that I was trying to embarrass him-that I was congratulating him on his sheer effrontery. I am not sure that the same is not true about the latter part of his remarks about Governments tampering with the constitution with no overall aim because, frankly, this is not the first Government that this charge could be levelled at-and he was a member of the last. However, on the latter point I am in complete agreement with him.

I wish to pick up on the comments of my noble friend Lord Norton, the noble Lord, Lord Pannick, and, not least, the noble Lord, Lord Reid-who made one of the most excellent speeches we have heard in these proceedings-on House of Lords reform. I agree with every word they said. As a coalition loyalist-well, mostly-I hope my colleagues will stop this messing about with the constitution. They have not got an architect drawing up what they want to get out of it, a great deal of it looks as though it has not been thought through and it does not reflect the basic fact that we have a constitution which, by and large, has served the country well and continues to do so, a point made by the noble Lord, Lord Grocott, and which was implicit in other speeches.

Having made those troublesome remarks-I saw my Whip looking at me and wondering whether I really had told him that I would be docile and loyalist this week-I assure my noble friend on the Front Bench that I will be good on this Bill. However, I am not promising that if we go on getting this kind of stuff.

6.45 pm

Lord Higgins: My Lords, I apologise to the House for missing the first few minutes of this debate. However, fortunately, I have heard enough of what has been said since to be provoked into speaking.

Throughout the whole of my parliamentary career in another place I had a passionate feeling that Edmund Burke was right-that Members of Parliament were representatives not delegates-and that there was a danger that the use of a referendum could undermine that basic principle. I therefore have a word of caution about what has been said today, although I agree wholeheartedly with everything that my noble friend Lord Norton and the noble Lords, Lord Pannick and Lord Reid, have said. However, one or two caveats ought to be made, particularly in the light of the recent referendum where the result was rather good. Having said that, it was also in some ways-particularly in London-rather surprising. None the less, if there is any contemplation of future referendums, it is very important to write in provisions both in regard to turnout and majority, and that it ought not to be mandatory in the sense that after the result has been declared it does not come back to Parliament. It is very important that that should be so.

To whatever extent one can limit the range of referendums-I much prefer "referendums" to "referenda"; it is the gerund-we should make sure that the line is clearly drawn. To say, "We will have

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referendums only on constitutional matters", will not, I suspect, satisfy one's constituents. I always explained to my constituents that I was not concerned with what a majority of them might think. I would take account what a majority of them thought but would then take into account the debates which took place in the House of Commons and various other arguments I might hear. Constitutional issue or not, it is still the case that one needs to take other matters into account and not only what a simple majority of the population believes. I have considerable qualms about this.

If you asked what referendums the public would really like to have, I have no doubt that, despite the enormous change in social issues over the past half a century, it is still the case that they would like a referendum on capital punishment-and I have little doubt which way such a referendum would go. Therefore we must be very hesitant about going down the route proposed today. However important the individual issue may be-and to some extent we have mixed up the issue of House of Lords reform-we should consider very carefully the idea of spreading referendums wider and wider.

Lord Falconer of Thoroton: My Lords, characteristically, my noble friend Lord Grocott has proposed an amendment which has caught the interest and imagination of the House. This has been a very good debate-almost the best in relation to the Bill. I strongly support what my noble friend Lord Grocott has said. My noble friend Lord Reid made a brilliant speech, which indicated what a loss to the leadership of both the nation and the Labour Party he is. I agree with what the noble Lords, Lord Newton, Lord Norton of Louth and Lord Pannick, have said. I think it is important to indicate why we are here. The way that you can change the constitution in this country is simply by an Act of Parliament. By and large, Parliament has been responsible in changing the constitution. Let us take, for example, our attempts to change the role of the Lord Chancellor, which got very short shrift from the House of Lords; there was a two-year delay, and it was substantially changed. The experience of the last 12 months in relation to constitutional reform has indicated a fundamental change in how constitutional reform is looked at by Parliament.

This is the second of three Bills in a suite of parliamentary reform. The first Bill reduced the number of Members of Parliament, which had not been done by Parliament by almost 100 years, because it was thought that it should be dealt with by an independent group. It proposed and passed a referendum on AV, which no political party wanted-save, possibly, the Liberal Democrats, faute de mieux-and the public did not want. That change was not introduced on the basis that people thought that it was the right thing to do for the constitution; it was introduced as a result of a deal done between two political parties. Parliament passed it, so Parliament in effect was willing to give approval to something that was not in the interests of the country, necessarily, but reflected what two political parties wanted. The reason Parliament did that, inevitably, was that unusually, because of the coalition, those two political parties controlled both the Commons and at that stage the Lords.

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The Advocate-General for Scotland (Lord Wallace of Tankerness): I am sure that the noble and learned Lord will want to complete the picture and remind the House that the proposal for a referendum on AV was also in the Labour Party manifesto at the last election. He seems to have ignored that fact.

Lord Falconer of Thoroton: I do not know whether the noble and learned Lord noticed, but we lost the election. In a sense, I would not have been able to say that we would have had much credibility in putting that forward as the losing party-but you might think that that illustrates my point. The AV referendum was defeated, and the party that proposed it was defeated; the Liberal Democrats did not propose it and the Tories did not propose it. Because of the deal that was done and because of the influence that the coalition has on both Houses of Parliament, it is possible for such a constitutional change to get through both Houses of Parliament. An even more interesting point is that I do not think, although the noble and learned Lord will know better than I, that the AV constitutional change-if we ignore the referendum result for the moment-would have actually passed through Parliament; the only way that an attempt could be made to get it on to the statute book was by using the referendum route. The Conservatives would not have voted for it and half of my party would not have voted for it; all the Liberal Democrats would have voted for it, but I do not think that that constitutes a majority.

Most countries have some sort of entrenched or embedded position to protect the constitution, because most countries believe that if their constitution is working it should be more difficult to change it than other provisions. The heart of our constitution is in our democratic arrangements, such as how long Parliaments last, how we elect Members of Parliament, how we determine what the constituencies are and how many constituencies there are. All those arrangements have been fundamentally changed by the first two Bills, except that the AV referendum was defeated. The significance of the defeat in the AV referendum is that it indicates that the public are not interested in, or particularly keen on, a particular change in those particular systems. Before this series of Bills was introduced, my inclination would have been to be more trusting of Parliament to stop changes that go to the heart of the constitution and do not have popular support. Inevitably, in the light of what the coalition has done, one's faith in Parliament's ability to resist, because of the coalition, goes down.

The importance of what my noble friend Lord Grocott is proposing in this amendment, which I doubt he will push to a vote-but it is an incredibly important debate to have-is that, if parliamentarians are prepared to play with the constitution in the way that the coalition has done, as simply a counter to be given away in order to get into power, Parliament needs to look at how you protect the constitution against backroom deals in smoke-filled rooms. I am not aiming that particularly at the Liberal Democrats or the Conservatives; I am saying what the consequence is of coalitions.

I end with a reference to the noble Lord, Lord Tyler. I do not know whether noble Lords remember

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the excellent contribution that he made to the Parliamentary Voting System and Constituencies Bill, but he was an enthusiast for all of it. I happened to read in my Observer after the AV thing was lost, where the noble Lord said words to the effect that, "Now the AV vote has been lost, I should remind the Conservatives that there still yet needs to be a vote on the new constituencies that are being drawn". I took that to mean that it was all basically politics that was going on, that it as just a deal that was done, and that if the Liberal Democrats did not get AV they might look askance at what they had previously said was a major constitutional change. I understand why constitutional change. I understand why the noble Lord did it, but does that not suggest that we need to build in a few more protections in relation to major constitutional change? It would appear that this House, which has previously been good at stopping major constitutional change, is now faced with a coalition that has not viewed constitutional change with the same degree of responsibility as previous Governments.

I take the point made by the noble Lord, Lord Newton. He is absolutely right that from time to time we did propose constitutional changes, but we got drawn up short by Parliament. That has not happened with this suite of constitutional measures. That is what my noble friend Lord Grocott is saying needs very careful thought. It might not be a referendum that is needed, but something is certainly needed to give a bit of strength to Parliament to resist the possibly politically motivated constitutional changes that the coalition has brought forward-as opposed to in the national interest.

Lord Tyler: I wonder whether in the course of his rewriting of history, the noble and learned Lord could just indicate which proposals for changing our constitution during 13 years of Labour Government, many of which he himself was responsible for, he ever suggested should be put to the public in the form of a referendum.

Lord Falconer of Thoroton: The Welsh Assembly, the Scottish Parliament, the Mayor of London-those are the ones that come to mind immediately.

Lord Brooke of Sutton Mandeville: I was out of the Chamber so I did not speak, but in the light of the noble and learned Lord's response to the noble Lord, Lord Tyler, will he comment on the fact that the three referendums that he described were all done one after another-and one had the sense that the policy was being made up as they went along. Only when those three had been done were we allowed a referendum Bill itself.

Lord Falconer of Thoroton: I think that the referendums Bill came between those on Scotland and Wales and the London Mayor, but I may be wrong about that. However, I agree with the underlying thrust of the question. Once we started on the route of referendums we realised that we needed some principles, but those principles guided only the process for a referendum; they did not determine when there should be a referendum and when there should not. Maybe it is that issue that we now need to move on to.

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Baroness Farrington of Ribbleton: My Lords, before my noble and learned friend sits down, may I draw to the House's attention that there was also a referendum in Northern Ireland?

Lord Falconer of Thoroton: Thank you very much indeed for that. I also draw to the attention of the noble Lord, Lord Tyler, that there was also the referendum on a north-east regional assembly. No doubt before I leave the room there will be 53 other referendums that I shall refer to.

Lord Wallace of Tankerness: First, my Lords, as I think the noble and learned Lord, Lord Falconer of Thoroton, said, we owe a debt to the noble Lord, Lord Grocott, for moving his amendment and stimulating an interesting and thought-provoking debate. The noble Lord, Lord Grocott, said that he was not going to move or speak to his Amendment 23 regarding your Lordships' House. Although he did not, it was certainly the subtext of a number of the contributions-and sometimes not even the subtext, as the clever speech made by the noble Lord, Lord Reid, indicated. When I listened to what he was inviting me to do or not to do, phrases such as "Greeks bearing gifts" seemed to come to mind from time to time. However, there will be ample opportunity to reflect on the issues in relation to the future of your Lordships' House over many weeks and months to come.

7 pm

I also disagree with my noble friend Lord Cormack, who sweepingly said that we were all glad with the result of the recent referendum. Not all of us were glad, but we will let that pass. However, the noble Lord, Lord Grocott, started by asking why there had not been a Statement. While I was not glad with the outcome, as a good democrat I accept the will of the people; indeed the noble and learned Lord, Lord Falconer of Thoroton, suggested that that would have been the content of the statement. Indeed, the legislation provided for what would happen whether the will of the people was for a yes or a no vote.

In Committee, I think that the noble Lord, Lord Grocott, suggested that we might have a referendum on the question of four versus five years whereas, by contrast, this amendment is more fundamental. It asks the electorate to decide whether the Bill as passed by Parliament should be brought into force and to have a legitimacy threshold of 40 per cent. Clearly, that would require further primary legislation as no provision is made in this amendment. It is obvious from the important discussion that we have had-and the noble Lord's amendment reminds us-that while questions of referendums are of considerable constitutional significance, the referendums themselves tend to be very rare.

My noble friend Lord Higgins reminded us of the Burkean principle: we have a system of representative democracy and Parliament is entrusted with the power to make many important decisions on behalf of the people of this country. There must therefore be an exceptional reason to ask the people a direct question in a referendum. I rather suspect that most of your Lordships would subscribe to that view. It would be

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particularly unusual in the context of this Bill, given that it does not seek to give the Government or the Executive any additional powers but, rather, seeks to take power away from the Executive to strengthen Parliament. It will be Parliament that is strengthened by this; this Bill takes away the power of the Prime Minister to call a general election at a time which may be propitious for his own party. However, some important questions have been asked regarding the context and what might trigger a referendum.

The noble Lord, Lord Grocott, asked a number of questions. He asked what public indication there had been of support. In a letter to the Constitution Committee, my honourable friend Mr Mark Harper, the Minister, indicated that a survey conducted by Populus for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms. A poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported their establishment, and a survey conducted by the Scottish Youth Parliament in August 2010 found that 76.4 per cent of young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament.

The noble Lord also asked about the number of general elections that there would be. That is not as straightforward a question to answer as it might superficially appear because it would depend on how many occasions the provisions for an early election were triggered, if at all. We cannot by any stretch of the imagination work out how many that would be but it is important, too, to recognise that there are many ways in which we engage the public in the political process. We discussed some of those issues last week.

Your Lordships' Constitution Committee examined the use of referendums in the previous Session and, while noting that referendums may become part of the United Kingdom's political and constitutional practice, it also identified the fact that there were a number of significant drawbacks. It indicated, however, that it was likely that some fundamental constitutional issues would be determined by means of referendums. A fixed-term Parliament was not one of those listed. The noble Lord, Lord Reid, said that he did not necessarily expect a full or comprehensive reply this evening. However, I will ensure that the comments made by all your Lordships are considered by my ministerial colleagues who are involved in the field of constitutional change.

We may also want to reflect on this: inevitably, even if we were to make a distinction between what might be "fundamental"-the word used by the Constitution Committee in its report-and what might be significant, it will be a matter of judgment for Ministers concerned. It is interesting that when the Constitution Committee was working on an inquiry undertaken during the life of the previous Government-I was a member of that committee at the time-it put this response from the previous Administration into paragraph 95 of its report:

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That was the position of the previous Government, who advocated, as I indicated, a referendum for changing the voting system to the alternative vote in their manifesto but did not recommend one in connection with introducing a fixed-term Parliament.

As I thought about the party opposite when it was in government, I noticed that the noble and learned Lord did not mention in reply to my noble friend Lord Tyler that there was no referendum on freedom of information or on the incorporation of the European Convention on Human Rights into our domestic law. I do not recall that we were urging him to do that at the time but those were clearly important, constitutional measures. Neither was the change to establish the Supreme Court-a fundamental issue regarding the separation of powers-the subject matter of a referendum. Thinking about the arguments while they were going to and fro, it occurred to me that the only way that you would ever get the absolute definition and clarity which so many noble Lords called for was, possibly, through a written constitution. Indeed, I note that the Constitution Committee itself said:

"A written constitution could provide a more precise definition of a 'constitutional issue', and define which issues required a referendum before any change. The arguments for and against introducing a written constitution are outwith the scope of this inquiry".

They are also outwith the scope of this debate and it is certainly not the policy of the Government to have a written constitution. However, I rather suspect that if we ever did have one it should be the subject of a referendum. The point there is: if you are ever to get the clarity without it having to be a matter of judgment by Governments of whatever hue-a coalition or a majority party of red, blue or yellow-it would inevitably then be the subject of a decision on their part as to what did or did not reach that level of importance.

I hope that I have indicated that there may be a distinction for the fundamental level. For example, the abolition of the monarchy or the secession of part of the United Kingdom are clearly of that level. As I have indicated, we do not believe that a fixed-term Parliament falls into that category. The previous Government of the Labour Party did not appear to think that it fell into that category either. In the whole plethora of measures that were brought in through the CRAG Act before the last election, I think only the possibility of having AV was going to be subject to a referendum.

Baroness Farrington of Ribbleton: The Minister appeared to me to indicate that were part of the United Kingdom to secede, that should be the subject of a national referendum. Did I misunderstand him?

Lord Wallace of Tankerness: My Lords, if I might clarify I think I said that that was one suggestion put forward by the Constitution Committee. It said that that might be one of the occasions that would trigger a referendum but it is certainly not the policy of this Government to have a referendum on Scottish independence. The Prime Minister has made it clear that that would be a matter for the Scottish Parliament. Let me make that point very clear: it was one of the cases suggested by the Constitution Committee as,

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possibly, reaching that threshold. This illustrates the point that these are inevitably subjective issues. Any Government who wished to make a distinction about fundamental significance would find that that could vary from Government to Government. However, I undertake that the comments made by your Lordships will be fed back, and I am sure that there will be other occasions when the issue of referendums is discussed. A number of colleagues who talked generally about referendums did not necessarily think that the subject of fixed-term Parliaments lent itself to a referendum. Against that background, I ask the noble Lord to withdraw his amendment.

Lord Grocott: My Lords, I am not just being polite when I say that I am grateful to everyone who has taken part in this short-well, not so short-debate. I was straightforward with the House in saying that I was introducing the amendment not with a view to the House reaching a decision on it, but because I felt that it was important that the House should have an opportunity to reflect on the fact that a major referendum had taken place on a major constitutional issue and that lessons could be learnt.

Many people have contributed; there have been nine contributions. The Minister said at the end, as I was going to ask him to do, that he would take the views that had been expressed back to his colleagues. Normally it is mere politeness to say that but I really would recommend him to do so; he does not have to include my remarks, but if he includes the other nine contributions in the evidence that he takes back to his colleagues, it might even make them think again about this whole, not overly related programme of constitutional reform on which the Government seem to have embarked.

The contributions were terrific. It is impossible to summarise them, although it is fair to say that there was widespread concern about the way in which these constitutional changes are being taken through Parliament without in all or any cases, as the noble Lord, Lord Pannick, has said, proper pre-legislative scrutiny, proper consultation with the public or any proper attempt to get widespread agreement before any move is made. I hope that some lessons have been learnt from that.

I have to respond particularly to the noble Lord, Lord Newton, who chided the previous Labour Government for the various constitutional changes that we made. I am not sure that I need quite the same defence that I was preparing; I was amazed when it was pointed out how many referenda that there had been on various aspects of the previous Labour Government's constitutional reforms. I say to him that it is a different situation when a Government are returned with the clearest possible manifesto commitment-in Scotland and Wales particularly, there is absolute clarity about the commitment there-and a large majority.

I can tell the noble Lord, in the privacy of this meeting, that there were some constitutional changes that we could seriously have done without; I mention in passing the decision to change the electoral system for the European Parliament from first past the post to proportional representation. I am even more convinced now that, had that been put to the public rather than

16 May 2011 : Column 1209

unilaterally decided by Parliament, we should have a splendid first past the post system for the European elections as well.

Noble Lords: Hear, hear!

Lord Grocott: Encouraged by that response, I might bring forward a Bill to provide for just that.

There are various other contributions that I really ought to refer to. I must respond to what the Minister said. On public support for the proposal, he needs to be cautious about relying on opinion polls on what the people think about constitutional change. If my memory is not mistaken, there were large majorities in opinion polls-how they were determined, I am not quite sure-in favour of a change in the voting system. We were repeatedly assured by the Liberal Democrats but we, the politicians in all parties, particularly the Conservative and Labour parties, were convinced that the public did not particularly want a change in the voting system. What the sampling of the pollsters was I am not sure, but be wary of that as a basis for making constitutional change.

Once again, the Minister evaded the question-I suppose he has to-about actually confirming that the Bill will mean that the electorate, the people of this country, are consulted less frequently in general elections. There will be fewer general elections as a result of the Bill. The right reverend Prelate the Bishop of Chester put it brilliantly, if I may so: if we were going to change the interval between elections from five years to six, of course the public would need to be consulted on that, whereas we should be under no illusion whatever that the Bill increases the period between elections on average from four years to five. That is the seriousness of what is being suggested.

7.15 pm

I have even heard a Minister-I think it was the Deputy Prime Minister-say in defence that the period between elections has historically been about five years if you eliminate the very short Parliaments. Well, if you eliminate all the Parliaments under five years, obviously the average is going to be five years. I did not major in maths or anything, but that is probably true.

I think that I speak for the House if I say that the masterly contribution, the coded warning to the Government, came from my noble friend Lord Reid. Constitutional reform is probably about the only aspect of our national or international policy for which he was not at some stage responsible as Secretary of State; he seems to have done pretty well everything else. I was glad to hear his views on the subject expressed so clearly. It was particularly relevant that he reminded us that the referendum that was my reason for introducing this amendment did not simply say no to the alternative vote; it was an affirmation of public support for first past the post. I agree strongly with him that, should that come up in any guise in the document that we eagerly await on Lords reform, it would be an insult to the public if there were a suggestion that any other kind of electoral system should apply in any reform to the House of Lords.

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Like the noble Lord, Lord Cormack, I stand corrected. I must not call it "reforming" the House of Lords-it is abolishing the House of Lords and, to put it neutrally, replacing it with a very expensive senate. I understand that that is what is being proposed, but we will know soon enough.

My noble friend Lord Howarth reminded us again that there is consistency in the Government's position on constitutional reform, certainly with regard to the previous Bill and this one: in both cases they are diminishing Parliament rather than strengthening it. This Bill clearly diminishes it by making it less frequently refreshed by the electorate. Those of us who are ex-MPs understand that, essentially, you just know that you need an election after a period of time and that you need to have your mandate refreshed, let alone anyone else's. It is difficult to argue that the Bill on parliamentary constituencies does not weaken the link between the electorate and the House of Commons, because it makes constituencies bigger. The Commons cannot be strengthened if you are making constituencies bigger, so presumably that weakens it. This is one of the many reasons why I was opposed to both the Bills that have come before this Parliament.

I will not trespass on the patience of the House any longer. I found myself wanting to say how much I agreed with pretty well everyone who contributed to the debate, and the Minister would be doing a service not just to this House but to his Government if he reported to them the feelings of this House on constitutional matters of the kind of magnitude that we are discussing, and how-to put it gently-not enough thinking has been done about them. With the leave of the House, I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

Amendments 23 and 24 not moved.

Amendment 25

Moved by Lord Pannick

25: Clause 7, page 4, line 6, at end insert-

"(4) Sections 2, 3 and 6(3) shall have effect only until the first meeting of the new Parliament after the next parliamentary general election, but that Parliament or any subsequent Parliament may bring those sections back into force for the Parliament's own duration and until the first meeting of the following Parliament if a resolution to that effect is approved by each House of the Parliament in question."

Lord Wallace of Tankerness: Amendment 25 is clearly linked as a package to the suite of amendments that the noble Lord, Lord Pannick, spoke to on Report on the first day. While it is not strictly consequential, the Government nevertheless believe that it would be unnecessary to divide the House on this, triggering a Division. However, we have made our position clear that we did not support the amendment, and we reserve our right to return to the issue at a later stage.

Amendment 25 agreed.

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Statement of Changes in Immigration Rules

Motion of Regret

7.20 pm

Moved By Lord Avebury

Lord Avebury: My Lords, this is the second time in a week that we have debated a statement of changes in the Immigration Rules only after they have come into force. The changes in this statement, correcting the drafting errors in HC 863, which your Lordships debated last week, came into effect on 6 April, and the rest of the changes that we are now debating came into effect on 21 April. Therefore, if the Government accept any criticisms of these changes, they would obviously have to be dealt with in a further statement at some point in the future when the faulty provisions had already been in effect for some time. This must have been the reason for the convention that changes are laid before Parliament at least 21 days before they come into force. That gives time for errors, or rules that are deemed to be wrongful by the House, to be corrected by a further statement. I am sorry that our Government should assume that, whatever we may say about this statement this evening, it will not be of sufficient weight to require any change in the wording. The 21-day convention should be respected and I hope that the Minister will confirm that what has happened in this and last week's statement will not set a new precedent.

The statement has come in for even more severe criticism from the Merits Committee than last week's. There is no impact assessment when the Government's own impact assessment guidance says that one must be formally produced and published when a proposal enters Parliament. I read that as being the date on which the proposal is laid before Parliament which, in this case, was 31 March. Since the impact assessment is a continuous process, as the guidance emphasises, the excuse that it has been waiting for the approval of the Regulatory Policy Committee is unacceptable. An interim IA should have been published on 31 March and replaced by a final IA in time for this debate. I ask my noble friend to agree that this is the practice that will be adhered to without fail on all future statements of changes to the Immigration Rules. It simply is not good enough to say, as my noble friend Lord Attlee did in his letter of 26 April dealing with matters raised when we discussed the fees regulations on 29 March, that:

"We will publish an impact assessment of the Tier 4 changes in due course".

The Merits Committee points out that the code of practice on consultation provides that, in normal circumstances, consultation should normally last for a minimum of 12 weeks, and that where the period of

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consultation extends over a holiday period-such as the Christmas and New Year breaks, as this one did-consideration should be given to a longer period for consultation. This consultation ran from 7 December 2010 to 31 January 2011, allowing only eight weeks for stakeholders to respond. The Explanatory Memorandum mentions the consultation in one short paragraph, but without explaining why the normal period was cut by a third in circumstances that would be expected to command an increase.

The questionnaire featured 19 questions, most of which required a simple yes, no or don't know answer. This provided a useful picture of the extent to which respondents agreed with the proposals. However, there were six questions asking respondents to elucidate the first response or to offer alternative proposals and, as the Merits Committee says, there is no analysis of these replies. On the whole, respondents agreed with the Government's proposals, two exceptions being the requirement that a student should return home to apply, and further restriction on a student's right to work. Most respondents disagreed with the proposal on the minimum level of study offered for standard sponsor licence holders. Can my noble friend say how the responses are reflected in the final shape of the changes, and will she provide written answers to the questions in paragraph 27 of the Merits Committee report?

I now turn to the major problem with this statement, to which the Motion refers: that it removes the protection afforded by the rules to some victims of domestic violence who may therefore be forced to remain in the abusive relationships on which their immigration status depends. Paragraph 289A provides that, during the probationary period, an immigrant's spouse or civil partner who is the victim of domestic violence may be granted indefinite leave to remain if she can establish that the relationship has broken down as a result of domestic violence. However, this statement says that she must also be free of unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. According to the Immigration Minister's letter to the chairman of the Immigration Law Practitioners' Association of 4 April, the number of people admitted under paragraph 289A is about 700 a year, and he added that the vast majority of these have no criminal convictions. I will come on to that point later.

The Secretary of State, Theresa May MP, has repeatedly affirmed that she wants to end all forms of violence against women and girls, and on International Women's Day she published an action plan for the purpose, which met with universal approbation. This statement is incompatible with the Secretary of State's approach, because it will lead to women being trapped in abusive relationships, as I believe that officials have already acknowledged. Their argument is that the number of cases is likely to be small and can be dealt with by considering whether settlement should be granted outside the rules.

Relying on the UKBA to identify cases that are eligible for a discretionary grant of ILR outside the rules is unsatisfactory in the light of the appalling record of bad decisions under the domestic violence rule. The NGO Rights of Women established that, in

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the six quarters from April 2009 to September 2010-the latest available figures-the proportion of refusals under the domestic violence rule that were overturned on appeal varied between 61 and 69 per cent. It says:

"The fact that applicants in domestic violence rule cases are so much more likely to be successful on appeal than applicants challenging other immigration law decisions indicates a problem with the UKBA's understanding of domestic violence and how it applies the rule".

I put it differently. The culture of disbelief concerning violence against women has obviously infected the UKBA to such an extent that it would not be safe to leave it to decide when to grant settlement to a person who has committed a minor offence, or even a major offence, arising from an abusive relationship.

We accept that the number of people who are likely to be affected is small, and we now know from the Home Secretary's letter to Rights of Women, which was sent at 1 pm this afternoon, in reply to the 106 organisations which oppose this provision, that there has not been a single case under rule 289A where the applicant had an unspent conviction. However, as the Government declare in their call to end violence against women and girls, no level of violence against women and girls is acceptable. We suggest that the default solution should be to disregard their convictions. In the case of a particularly serious crime, the Secretary of State already has the power to refuse an application for leave to remain on the grounds of,

That comes from rule 322A, which is quoted in the Home Secretary's letter.

In any case, a victim who has an unspent conviction is likely to be deterred from applying for settlement because she has no guarantee that sympathetic consideration will be given to a discretionary grant of settlement on the grounds that the offence which led to her unspent conviction was related to the abusive relationship. Examples were given in the letter to the Secretary of State from 106 NGOs working on this issue. I understand that Home Office officials appeared to accept the NGOs' submission that some women may not come forward because they will fear that the mandatory requirement to refuse an applicant who is otherwise qualified under rule 289A is likely to be applied to them, whatever may be said in the guidance.

Officials also agree that there is an incompatibility between the unspent convictions requirement and the Government's absolute commitment to end violence against women and girls. That is why the matter was put to the Home Secretary after the meeting between lead NGOs and officials on 20 April. The Home Secretary now says that it is accepted that the two commitments are very delicately balanced and that the key is to allow for a woman to separate her life from her abusive husband. No doubt the NGOs will take up the offer to help develop guidance to staff who consider the applications under the domestic violence rule faute de mieux. However, they will do so with great concern that their unanimous advice to start from an unblemished rule on domestic violence has been ignored. I beg to move.

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7.30 pm

Lord Hunt of Kings Heath: My Lords, I shall speak to my Motion, which,

In speaking to this general debate on the two Motions, I say first that the Motion of the noble Lord, Lord Avebury, raises some very important points about the effect of the changes on survivors of domestic violence and the negative impact on the Government's commitment to end violence against women and girls. In particular, there is an inconsistency, as he pointed out, between the Home Secretary's statement on domestic violence and the consequences of this statement of changes. Even if the number of cases is likely to be small, there is clearly a matter of principle to be discussed here.

My own Motion arises from concerns that a statement of changes has been laid without an impact assessment. As a result of this lack of information, the Merits Committee has drawn the statement of changes,

The noble Lord, Lord Avebury, has already referred to this point and I want to emphasise the points that he made.

Clearly, there are several important questions that remain to be answered, and the Merits Committee has identified eight or nine of them. I will not read through its list of questions-I have no doubt that the noble Baroness is well able to answer them-but there are two or three that I would highlight. First, will the changes contribute to reducing abuse of the student immigration system? Secondly, what will be the costs and benefits of the changes for the education sector? We have debated at Oral Questions and on Statements on several occasions over the past few months the impact that this is likely to have on the education sector. The noble Baroness will be aware that the Opposition's concerns have very much focused on the unintended consequences for several of our educational institutions. I should be glad of some further information about this.

A third specific question for the noble Baroness is what impact the changes will have on the UK economy. When these proposals were first set out by the Government some months ago, we understood that several countries were gleeful at the thought that students who would have come to the UK would now go to those other countries. We are in a competitive situation. We are talking about the kind of students that we need to attract to our country.

The noble Baroness will probably be aware that I have a background in the health service. There is clear evidence that overseas students who come to our medical schools and go back to their own countries continue to maintain important links with the UK, which has had real benefits for the stimulation and sharing of medical knowledge, and the ability of British companies to sell their goods to other medical systems. I am very concerned that these changes could impact

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on the ability of our country to do business with other countries, and about the more general economic impact that that will have.

We then come to the core of the concern. The Explanatory Memorandum states:

"A draft Impact Assessment of the changes to Tier 4 has been prepared, however it is awaiting final clearance by the Regulatory Policy Committee. The Impact Assessment will be published in due course, once it has been finalised".

We now know from a further report by the Merits Committee that,

"The UK Border Agency ... has now confirmed that they do not intend to publish the IA until June".

The statement of changes came into effect on 21 April. We were given it without the impact assessment, which we are now not to have until June. The Merits Committee considers this approach "highly regrettable". The noble Lord, Lord Avebury, said that it is quite unacceptable. I agree. I am sure the Regulatory Policy Committee is a very august body, to which I defer and pay due acknowledgement. However, it takes the biscuit that this committee has to deliberate for months before Parliament is allowed to see the initial work on the impact assessment. This is unacceptable.

I say to the noble Baroness, whom we are all delighted to see in her place, that the Home Office has previous form in this area. Indeed, on 3 May we debated the statement of changes in Immigration Rules HC 863. The Government were rightly criticised for not publishing a comprehensive explanation of the findings of the consultation on that statement. These debates are valuable. I hope the noble Baroness will be able to provide some assurance that the points are taken to heart by her department, and that when there are future statements rather more information will be given.

The previous time we debated this, I am afraid I went down the cul-de-sac of discussing statutory instruments and House of Lords reform. I certainly do not expect the noble Baroness to respond to me if I go down that route again. I do not intend to push this to the vote and I doubt the noble Lord does either. However, it will be a pity if tomorrow, in the Statement, the draft Bill and the White Paper, very little is said about the powers of a reformed second Chamber. One of the reasons why I am a little doubtful as to whether the Government's House of Lords reform proposals will make considerable progress is the failure to tackle the issue of powers. I have no doubt that, were this House to be 80 per cent or 100 per cent elected, the noble Lord and I would not hesitate to put this to the vote tonight. We would certainly feel that we had the legitimacy to do so. I do not expect the noble Baroness to join me in that debate. However, the day before we get the Statement, it is irresistible. I am glad to support the Motion of the noble Lord, Lord Avebury.

Baroness Hussein-Ece: My Lords, I follow my noble friend Lord Avebury in his comprehensive introduction to our reasons for raising this matter tonight-the problems that we envisage in the changes and their impact, particularly on women who may suffer through domestic violence. I shall confine my remarks to that and I will not keep the House too long.

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I welcome the Government's announcement that, from 1 April next year, women on spouse visas who experience domestic violence will be able to access mainstream welfare benefits for a short time while their application for indefinite leave to remain is decided by the UK Border Agency. This is extremely positive. It is in line with the Call to End Violence against Women and Girls action plan launched by the right honourable Home Secretary a few months ago. It included a commitment to finding long-term solutions to support those who have had no recourse to public funds. As we have heard, last week she restated her commitment that domestic violence must be taken seriously. However, my big concern about the statement of changes is, as set out by noble friend Lord Avebury, about the impact and, indeed, the unintended consequences of these changes as they apply to women in abusive relationships. We fear that those women may not come forward as a result of these changes. We know that women in abusive relationships are vulnerable-that is a given-and often do not come forward for a considerable length of time. Those women already live here and are British, but imagine women in these circumstances for whom their immigration status is an additional factor. They are even more vulnerable and subject to abuse.

We know that half the women in UK prisons say that they have suffered domestic violence. We also know that perpetrators of domestic violence often make false allegations about the victims of abuse to the police, which can result in criminal proceedings and possibly a conviction. The convictions cited could be for minor offences. I will give an example. As I mentioned in the debate we had some time ago on International Women's Day, I set up the first domestic violence project for women with a Turkish and Kurdish background in Hackney and Islington nearly 20 years ago. I saw the full range of abuse suffered by the women whom we helped, in all its horrors. Many of these women were often too scared to come forward and get help because of threats from other family members and for fear of being ostracised by their immediate community if they reported their abusive partner to the police. For example, a woman may be trapped at home looking after her children and be totally reliant financially on her partner. He could refuse to give her money to buy food. I know that such cases have happened. I have dealt with a similar case where, in these terrible circumstances, a woman who took food from a shop-she stole food to feed herself and her children in a quite desperate situation-went on to receive a conviction for shoplifting. These already vulnerable women would be further disadvantaged if a minor caution or conviction, such as the failure to have a valid TV licence, became a deterrent to seeking help. I have dealt with a lot of these heart-rending cases. One involved a woman who finally found the courage to report her violent partner to the police only to be murdered on the streets of Hackney after he had been let out on bail the next day, without her being informed.

The UK Border Agency has said that it will continue to provide leave when needed to help protect women and girls. However, there remain huge concerns that this is insufficient, and that the rules will deter women

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from coming forward. We have already heard about the quality of some of the decisions taken by the UK Border Agency, and this is another big factor. In light of this, the wider context and the evidence that we are hearing and know about on the ground, I would ask my noble friend the Minister to reconsider this issue and to take it back. It does, and will, affect a relatively small number of women who are victims of domestic violence, but surely protecting all women must be our paramount concern.

7.45 pm

The Minister of State, Home Office (Baroness Browning): My Lords, I thank the noble Lords, Lord Avebury and Lord Hunt, for the opportunity to debate these Motions. A large number of points have been raised and I will do my best to deal with the issues to which they give rise.

The Motions before us deal with two distinct subjects: changes to the rules relating to domestic violence, which were addressed by the noble Lord, Lord Avebury: and changes to tier 4 of the points-based system, which are covered by the Motion of the noble Lord, Lord Hunt. Both noble Lords raised matters of progress on the part of the Home Office and the way in which we have made information available. I hope to deal with that point, which applies to both the noble Lords' Motions. I will deal with the Motions in turn, starting with the Motion of the noble Lord, Lord Avebury.

Domestic violence is an important issue. The noble Lord is quite right to say that it is an area where the Government are only too well aware that we need to balance two equally important principles: first, that residence in the UK is a privilege reserved for those who can make a positive contribution to the UK and abide by its rules; and, secondly, that victims of domestic violence should be protected. We, of course, attach great importance to that.

As has been mentioned, the Home Secretary has made clear the Government's and her own personal commitment to tackling violence against women in all its forms. Tackling domestic violence is an important part of the overall strategy and we have made clear our commitment to supporting and protecting its victims. Every year approximately 1,200 people, who had come to this country to marry, apply to the UK Border Agency for indefinite leave to remain following incidents of domestic violence, so it is not such a small problem after all. The UK Border Agency gives priority to these domestic violence cases, which are dealt with proactively by specialist case workers. Improvements in the process have ensured that decisions are made quickly and fairly. Currently, more than 62 per cent of domestic violence applications are decided within 20 days. In 2010, leave was granted in 67 per cent of cases.

As has been mentioned by the noble Baroness, Lady Hussein-Ece, some applicants face a particular problem because they are destitute and have no recourse to public funds. When I was first presented with this brief, I too had a lot of questions for officials, particularly around what constituted a minor crime. I share her concern that we have to make sure that we get this right. She gave examples of offences such as shoplifting and the non-payment of TV licences. The Government

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have recognised the risk that women in this position might feel trapped in an abusive relationship. Because of this we have continued to fund the Sojourner Project to provide refuge places for these vulnerable victims. In just over one year of operation, the project has provided vital support to 725 women and more than 420 children. However, Sojourner is not a long-term, sustainable solution, so we have announced that after April 2012 women on spousal visas in need of refuge places will be able to access welfare benefits while their claim for indefinite leave to remain in the UK is considered. This is a major step-it has been welcomed-in ensuring that this vulnerable group remains protected and safe from abuse. Therefore, I hope that I can reassure the House that the Government's commitment to safeguarding victims of domestic violence, whatever the changes being made in legislation, is a high priority.

I turn now to the changes the Government have recently made to the settlement rules. Having looked at them as a new Minister and asked a lot of questions, I do not believe that these changes are incompatible with the commitment that we have given to protecting women and girls in abusive relationships. The Home Secretary's Statement in November 2010 made it clear that there must be an end to the link between temporary and permanent migration. We must be clear that settlement is not automatic-rather, as I have said, it is a privilege to be awarded only to those who abide by the laws of the country. The UK Border Agency has always taken into account the character and conduct of applicants for settlement and other categories of leave. The rules have always provided that leave will "normally be refused" if it is undesirable to permit the individual to remain because of their character, conduct or associations, so in that respect the changes serve to give more certainty to applicants. I take on board what the noble Baroness said about women's reluctance to come forward. It is a very difficult area, but I hope that this measure will provide more clarity.

The new settlement rules mean that the UK Border Agency will be taking a more objective view about what type of offending should lead to a refusal. That should help where there are areas of uncertainty. They provide a more direct response to the sentences imposed by the criminal justice system. Set against this are the difficult and vulnerable circumstances of women and girls in abusive relationships. We need to get that balance absolutely right and to support them against the equally clear requirement for applicants for settlement to be free of convictions.

In cases where we have a moral duty to protect a victim of domestic violence, I can assure your Lordships that there would be no question of requiring them to leave the UK or to remain in an abusive relationship because of a minor conviction. For example, I would not expect the non-payment of a television licence to be regarded as a major matter of criminalisation. If such a case had arisen previously, the applicant's behaviour would have been considered under the character test, and there would have been no certainty that settlement would have been granted under the previous rules. As now, the agency would have considered whether to exercise discretion outside the rules. That provision is not being removed.

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As to the arguments that the introduction of this new rule introduces or increases the likelihood that a victim of domestic violence would not come forward, I believe that the rules are now much clearer. I hope that the noble Baroness may wish to discuss this matter with me further, and perhaps we may take a closer look at the clarity that the changes should bring. For the reasons I have outlined, I am not persuaded that there is a high risk, or one that we cannot take action to mitigate. I do not doubt that reluctance to come forward exists for many reasons-for example, a mistrust of authorities or the control being exerted by an abusive partner, as the noble Baroness mentioned, but we should not respond to that risk by condoning criminality by domestic violence applicants. It is a question of the balance that I mentioned at the beginning of my speech.

That underlines why the work of corporate partners such as Eaves, which runs the Sojourner Project, and others such as the Southall Black Sisters and Rights of Women is so important. I have seen correspondence and I know that their views are being listened to. We welcome and support the invaluable assistance to victims of domestic violence offered by such groups, and will continue to work with them, in particular to ensure that everyone involved is clear that the UK Border Agency will give the most careful and sympathetic consideration to all the facts in any application affected by the rule change. The individual and the circumstances surrounding them will still be important.

My noble friend Lord Avebury asked for a written response to paragraph 27 of the Merits Committee report. I am very happy to do that and I will of course write to him.

I turn now to the Motion of Regret in the name of the noble Lord, Lord Hunt. The issue at hand is whether the Government should have published a more comprehensive analysis of the outcome of the student consultation. The noble Lord referred in particular to the 29th Report of the Merits Committee, which states:

"The Statement has been laid without an Impact Assessment-the Explanatory Memorandum ... says that one has been prepared but is awaiting final clearance by the Regulatory Policy Committee. There are also significant gaps in the analysis of the consultation responses".

Your Lordships will recall-and it has already been mentioned-that there was a debate on similar issues in this House on 3 May in the context of the debate on the consultation on limiting economic migration. The statement of changes relating to the student consultation predates that debate and it is therefore unsurprising that the Merits Committee's reports on the two consultations raised similar issues. However, I should reiterate what my predecessor said during that debate. We are quite clear that it is right and proper to provide the Merits Committee with the information that is necessary for it to do its job. I give my assurance to the House that in future that will be the case.

The issue having been raised, however, it would be remiss of me not to put this again in the context of previous practice in this area. The noble Lord, Lord Hunt, drew the attention of the House to the fact that the Home Office has form in this matter. I gently

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remind him that that form predates the current Government. While it is generally accepted as good practice, there is no legal obligation on the UK Border Agency to consult on changes to the Immigration Rules, because that does not involve primary legislation.

In March 2010, the previous Government made significant changes to tier 4, the student route, without a formal public consultation. Despite taking the views of key partners, they did not publish any formal explanation of findings. Similarly, in March 2006, following consultation, the previous Government published their policy for a points-based system, but did not publish the 517 consultation responses they had received.

I am satisfied that this Government have gone to great lengths to seek the views of the public and the sector, and to take account of these views in developing our final policy. On 23 November, the Home Secretary informed Parliament that she intended to hold a public consultation on reforming the student visa system. As has already been pointed out, this process began on 7 December 2010, when the Home Secretary announced our proposals and the consultation paper was published. The consultation ran until 31 January 2011, shorter than the standard 12 weeks, in order to announce decisions at a time that would allow the sector and students to plan for the following academic year. Our consultation received more than 30,000 responses-10 times as many as the consultation on economic routes-and officials spoke to representatives of no fewer than 200 institutions during the consultation period. On 22 March, the Home Secretary made a full Statement in the other place setting out the detail of the Government's decisions and the public reaction and data that had informed those decisions. On 31 April, we published a detailed statement of intent describing the full policy package, and laid changes to the Immigration Rules to implement the first changes resulting from the consultation.

However, the brief window between the closure of the consultation and the announcement of policy meant that at the time that the statement of changes was issued, further work was necessary to ensure that the impact assessment was of high quality and accurate. Work continues and I can confirm that the impact assessment will be published when the next changes are made to the Immigration Rules in June-next month. The Minister for Immigration has confirmed that the impact of these changes will be a reduction in the number of main applicant visas in the order of 70,000, along with a reduction of about 20,000 in the number of dependants. It is true that, like the previous Government, we have not simply published every consultation response. We published a summary of the 30,000 responses to all the questions asked and answered in the consultation. We also indicated the level of support in relation to every response. We felt that this was helpful information for Parliament and interested parties to have.

The Government code of practice on consultation states:

"Following a consultation exercise, the Government should provide a summary of who responded ... and a summary of the views expressed".

16 May 2011 : Column 1221

I hope noble Lords would agree that that is what has happened. Consideration should be given to publishing the individual responses received but, in this instance, the volume of responses made that impractical. The level of response demonstrates a high level of public engagement with the policy development process, and the changes we have made to our final policy show that we have genuinely listened to and taken account of the views expressed.

We have received positive feedback from the university sector. Perhaps I may now pick up on the point made by the noble Lord, Lord Hunt, about the economic impact. Universities UK said the reforms,

It is also the case that we will close tier-1 post-study work after 2012, but the brightest and best graduates will still be able to move into skilled sponsored employment through tier 2. The Government recognise the important contribution that international students make to the UK's economy and to making our education system one of the best in the world. The Government's aim is not to stop genuine students coming here, with all the implications that that would have for the wider economy, but to eliminate abuse and to focus on the high-quality and high-value sectors.

I am most grateful to all noble Lords who have spoken in this important debate. I gently invite the noble Lords, Lord Hunt and Lord Avebury, who have tabled these Motions of Regret, to consider not pressing them.

8 pm

Lord Avebury: My Lords, we are most grateful to the noble Baroness for her careful reply and for answering some of the questions put to her by the noble Lord, Lord Hunt, and me. I am also grateful to the noble Lord, Lord Hunt, for saying that domestic violence is a matter of principle, not of numbers. That is the way that we have always looked at it. It does not matter whether there is only one case, or even none. That still means not that women in abusive relationships were not deterred by the previous set of rules but that they will be more deterred by a mandatory penalty imposed as a result of any convictions.

I am grateful to the noble Baroness for saying that she will give us a written answer to the eight questions posed by the Merits Committee, two of which were dealt with in more detail by the noble Lord, Lord Hunt. He was asking, in particular, about the economic impact of the changes, as did the Merits Committee in the third of its questions. The noble Baroness told us that there will be 70,000 fewer applications as a result of the changes, but she did not then go on to say what the impact of that will be on the economy of the country. Obviously, if there are 70,000 fewer applicants, that means less money coming into universities at a time when they are facing serious cuts to the money that they receive.

Baroness Browning: I am happy to confirm that the brightest and best students, who have the greatest contribution to make to the UK and our economy, will continue to be welcomed under the student route, but the scheme is looking at the brightest and best, as opposed to the number hitherto.

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Lord Avebury: I think that the noble Baroness is talking about tier 1. We have no objection to the changes made to tier 1. The changes are all to tier 4, are they not? That is where the loss of the 70,000 students will arise, as I understand it.

I am also grateful to my noble friend and the Government for the changes that they have made to allow persons who are waiting for a decision on their application to remain as a result of being in an abusive relationship to claim benefits. We should be very grateful to the Government for that. However, at the end of the day, there is a threat to women in abusive relationships which will deter people from applying.

That was the unanimous conclusion of the 106 organisations which signed the letter, including Rights of Women, to whom the Home Secretary has now replied. I suggest to my noble friend that whatever other discussions she holds as a result of this debate, it will be useful if Ministers would agree to meet a delegation from a representative sample of the 106 organisations, so that she can explain, as she has done to the House today, what is the Government's thinking on those issues, and perhaps take away with her any further suggestions that they may make. Of course, they will take part in discussion on the guidance but, as I said, the guidance is not necessarily the end of the story. In the past, we have had guidance which appeared perfectly satisfactory on paper, but which has resulted in adverse conduct by the UK Border Agency. The noble Baroness did not quite take the point that I made about the large number of cases of applications which are overturned on appeal, which indicates a systemic disorder within the UKBA in dealing with domestic violence cases.

I am grateful to the noble Baroness, the noble Lord, Lord Hunt, and my noble friend, and I beg leave to withdraw the Motion.

Motion withdrawn.

Statement of Changes in Immigration Rules

Motion of Regret

8.04 pm

Tabled by Lord Hunt of Kings Heath

Motion not moved.

European Union Bill

Main Bill Page
Copy of the Bill
Explanatory Notes

Committee (5th Day)

8.05 pm


Moved by Lord Howell of Guildford

16 May 2011 : Column 1223

Lord Stoddart of Swindon: My Lords, I oppose the Motion on the basis that it is completely unfair to bring on a major Bill at 8.05 pm, when, presumably, the House is to rise at 10 pm tonight. This is supposed to be the fifth day of consideration on the Bill. It is certainly not the fifth day, although it is a fifth of a day. That is unseemly and unfair to all noble Lords who have taken part in discussion on the Bill so far and who wish to do so at a proper hour in future.

We were given notice that the Bill would be considered again today only on Thursday. Until then, I think that everyone who was interested in the Bill had the impression that the next consideration would be tomorrow, instead of which it is coming on at 8.05, after Report of a major Bill and the previous debate. Frankly, that is not good enough. It is treating this House with contempt.

That is exacerbated because, as I understand it, there has been virtually no consultation with those who have been concerned with the Bill. The usual channels have just said, "Oh well, we'll give it a run on Monday. Never mind the arrangements that people might have made to do other things. We will put it on. No one will object". I am objecting now, and objecting strongly.

I was unable to be here on Thursday. When I saw this appear on the business, I made inquiries about what time it was likely to come on. I was told that it would be at 6 pm. Even on the basis of information available on Thursday, we have lost a further two hours. To embark on a Bill now with major amendments is unbecoming to the Government and the usual channels. As I said, there has been complete disregard of the convenience of noble Lords who wish to speak to the Bill.

It is not as if there is an urgency about the Bill. We do not need the Bill tomorrow or next month; we do not need it next year. The Government have said that we do not need it in this Parliament, because none of its provisions will be operative in this Parliament. What on earth are we doing here at 8.10 pm embarking on the so-called fifth day of an important Bill? It is completely wrong and the Government ought to be ashamed of themselves.

Of course, the situation is even worse than that. Tomorrow, when we will embark on the Bill again, another major Bill will be debated before it-the Postal Services Bill, and God knows how long that will go on for. I shall almost be tempted to speak on it myself so that we talk out tomorrow's discussion on this Bill.

Therefore, tomorrow we will have only half a day, if that, to spend on the Bill. The Committee is being cheated of the time that it was promised, which I believe was six days. Bearing in mind the time that we lost on previous days, we will certainly not have anything like six days. In any event, as this Session goes on until next May, why on earth do we want to start debating a Bill at this time of night? I hope that the Government will reconsider their decision to take the Bill into Committee tonight and agree to oppose the Motion before us.

Lord Triesman: My Lords, I cannot recall an occasion yet when the noble Lord, Lord Stoddart of Swindon, and I have been in complete accord but we are this evening. I share the view that it is absolutely extraordinary

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that most of us should have stood by ready to start debating this Bill at 6 pm only to find that it has started, even with a few minutes' intervention from the noble Lord, Lord Stoddart, way past 8 pm. I do not believe that that is helpful to the government Front Bench, let alone to both parties opposite or, indeed, to us. I shall not repeat what the noble Lord, Lord Stoddart, said at any length, because he made the point very forcefully. It is extremely hard to understand what is so pressing as to mean that we should discuss absolutely critical issues about constitutional arrangements between our Parliament and Europe on this type of timescale. We are shoe-horning it-that is the only way that I can describe it-into tiny pockets of time very late in the day with the prospect of holding debates extremely late at night, when we all know that proper justice is not done to the matters that we need to discuss.

I take the Bill very seriously, just as the House took the Fixed-term Parliaments Bill seriously this afternoon. They are big constitutional issues by any standard. As I said, I take this Bill very seriously, although I have a very different view from that of the noble Lord, Lord Stoddart, for example, on a number of its provisions. However, that is neither here nor there. We either take it seriously or we do not. I think that we are being asked to perform a serious job in a trivialised way and I cannot believe that the House will find that acceptable. I hope that the Front Bench opposite will have a credible answer and a credible timetable.

Baroness Falkner of Margravine: My Lords, perhaps I may detain the House for a minute or two to comment on the speeches that noble Lords have just made. As we understand it, it is the operations of the usual channels that have resulted in such peculiar anomalies-if I may call them that-in the conduct of the Bill. On the previous two days in Committee, we had extraordinary groupings. I know that Members on the Cross Benches were as perplexed as we were about how those groupings had been determined, and there was consensus across the House that they had not worked very well.

We were then told last Thursday that there was going to be an additional day in Committee-today. In other words, if the House had not sat on Friday, we would not even have had one working day's notice. It was simply a coincidence that the House sat on Friday and that we therefore had one working day's notice. We were led to believe that that was agreed among the usual channels and that in fact the opposition Benches of the noble Lord, Lord Triesman, had requested the extra day today. However, from the tone of the debate, it sounds as though that may not have been the case.

I hope that my noble friends on the government Front Bench will bear in mind that, if we are to have serious scrutiny on the Bill, as we all want, and time to prepare seriously for that serious scrutiny, we require slightly more notice than we were given on this occasion, and we require slightly more attention to be paid to the way in which the Bill has been conducted to date.

8.15 pm

Lord Pearson of Rannoch: My Lords, I concur with everything that has been said by the three previous speakers-an unusual event in itself, I think. Perhaps I

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may press the Government on a rumour that another so-called day in Committee may be offered next Wednesday, 25 May, when the President of the United States will be paying a visit. I cannot believe that that is a suitable time to hold another half-day or whatever on the Bill, and I look forward to the Government's reply.

Earl Attlee: My Lords, all noble Lords know that business is organised by the usual channels. I agree that the House is working very hard at present and I can think of few noble Lords who work harder than the noble Lord, Lord Stoddart of Swindon. However, we have plenty of time to undertake valuable work on the Bill. In fact, we still have an hour and three-quarters, and it is not an unusual time of day to be considering such legislation. I do not believe that the House or the general public would understand if we went home an hour and 45 minutes early, especially if they worked out the cost of doing so. Therefore, I hope that noble Lords will agree to go into Committee.

Lord Stoddart of Swindon: We have an hour and three-quarters. Is this to be considered a day of Committee?

Earl Attlee: My Lords, I very much doubt that the usual channels would consider an hour and three-quarters to be a whole day. However, I shall pass on noble Lords' views to my noble friend the Chief Whip, who is not too far from me, and I am sure that she will take that into consideration in her discussions with the usual channels. However, I strongly suggest that we go into Committee on the Bill.

Motion agreed.

Clause 6 : Decisions requiring approval by Act and by referendum

Amendment 39A

Moved by Lord Liddle

39A: Clause 6, page 5, line 6, leave out subsection (4) and insert-

"(4) The referendum condition is that-

(a) a joint committee of both Houses of Parliament publishes a report containing a recommendation about whether it is necessary for a referendum to be held in respect of a draft decision; and

(b) the joint committee's recommendation is approved by a resolution of each House of Parliament.

(4A) If both Houses-

(a) agree a referendum is necessary, a referendum shall be held; or

(b) agree that a referendum is unnecessary, the referendum condition shall be satisfied without a referendum being held.

(4B) If a referendum is held, the majority of those voting in the referendum must be in favour of the approval of the draft decision before a Minister of the Crown may vote in favour of it."

Lord Liddle: My Lords, I shall also speak to Amendment 39B. These are probing amendments. We are not saying they are perfectly drafted but they are an attempt, as always from this side of the House, to be helpful to the Government. They are an attempt to substitute a parliamentary process for the Government's

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attempt to define in the Bill every single circumstance and change of rule to which their referendum lock would apply. Instead of trying to define all the circumstances in the Bill, these amendments propose a parliamentary process by which the issues would be determined on a case-by-case basis. They represent a new subsection (4) to Clause 6. We put forward two options, which I will explain in a moment.

The basic difficulty with the Government's approach to this Bill is that it requires an extraordinarily long list of issues to be codified in legislation that are subject to the so-called referendum lock. Heinz talked about its 57 varieties. This Bill has 56 varieties, we count, of referendum lock. These are not just major new treaties. It has become clear in our consideration of the Bill that a lot of changes within existing treaties would be subject to this lock.

The Bill allows Ministers but not Parliament some very limited discretion to decide that the referendum lock does not apply in limited circumstances that we have debated in our earlier sessions: the exemption clause under which Ministers can decide that the matter does not affect Britain or is simply a codification of existing treaties; and the significance clause, which is very narrowly applied to paragraphs (i) and (j) of Clause 4(1).

A better form of exercising discretion and judging whether a referendum is required would be to put the matter in the hands of Parliament and not in the hands of the Government. In these amendments we sketch out two possible ways of doing this. Amendment 39A suggests the establishment of,

This was proposed in roughly similar terms by the Opposition in the other place. Amendment 39B, which the noble Lord, Lord Triesman, and I think is a more interesting amendment, proposes the establishment of "an independent review committee", which would advise Parliament on what matters it regarded as requiring a referendum. We can all envisage what the composition of such an independent review committee would be. It would definitely contain constitutional lawyers, judges and constitutional experts such as the noble Lords, Lord Norton of Louth and Lord Hennessy of Nympsfield-they are plentiful in our House. It might contain a business person, a trade unionist, a representative of civil society and people from the nations and regions of Britain. Its purpose would be to advise Parliament on whether, in the particular circumstances that arise, a referendum would be a proportionate way of dealing with the issue in question. It would be given criteria such as whether it was a significant issue, an urgent issue that had to be dealt with in a short period, or an issue of national interest that required to be carried through swiftly.

These issues would be discussed by the independent review committee, which would advise both Houses of Parliament on whether a referendum was justified. This idea is in keeping with the spirit of the Lords Constitution Committee's recommendations in its report on referenda. It stated that referenda should be confined to fundamental constitutional issues, but acknowledged

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the difficulty of defining in a full list what those issues were. At the end of its list of recommendations, the committee stated:

"This is not a definitive list of fundamental constitutional issues, nor is it intended to be".

It seems that it is a very difficult thing to decide in advance. Therefore, it is right that there should be some kind of parliamentary mechanism that would decide what issues are of fundamental constitutional importance. On the question of how we do this, and the detailed set-up of a committee on such a process, we on this side of the House do not have a dogmatic view. However, we would seriously like the Government to consider this point as an alternative to the incredible complexity of putting in the Bill all the different varieties of referendum lock.

That is the logic of our amendment. In my remaining time, I will say why this is a better way for the House to proceed. In the debate about whether referenda are required, a judgment should be made about proportionality. Is the issue really of fundamental constitutional significance, or is it a relatively minor issue that does not justify a referendum? The value of the judgment on proportionality was brought home to me when I listened to the very thoughtful reply that the noble Lord, Lord Howell of Guildford, gave at the end of last week's debate. I will try to summarise the Minister's argument without traducing him. He said that it was all very well for us on this side of the House and on the Cross Benches and other parts of the House to say that we were in favour of a referendum on the euro, but why then should we not have a referendum on common European defence, on participation in the office of a public prosecutor or on border controls? These issues, he argued, were as significant as whether Britain should join the euro.

There is a point here of fundamental importance. The reason why we have to have a referendum on the euro is that one is either in it or out of it; it is a fundamental choice about whether one joins or not. However, issues such as a common European defence are much more subtle and require a judgment about proportionality. I do not want to criticise the Minister, for whom I have the greatest respect. However, in his argument on a common European defence policy, he stated:

"Allow me to elaborate on some of my remarks. A decision on whether to join a common EU defence is fundamental, as it could result in a common EU army".-[Official Report, 9/5/11; col. 759.]

That is a total straw man in the debate about a European defence. Certainly it would be a fundamental constitutional issue if we were to set up European military forces. However, if one thinks about the realistic development of European defence in the next 10 or 20 years, we are talking about better rules for the harmonisation of defence procurement, which is a very practical matter. Does something like defence procurement really require a referendum? In the parlous state of our defence budget-we have heard today about how the Government are planning further cuts in defence-a practical man or woman would say, "We have to have more practical co-operation in Europe on defence procurement". Do we really think that this is an issue on which the British people think they should

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be voting in a referendum rather than that the people they chose to represent them in Parliament should decide?

The same sort of argument about proportionality can be applied to other aspects of this Bill, such as the public prosecutor. We heard a lot from the Minister about how it is a fundamental issue in how we organise our legal system, but is it really? For instance, if it were limited purely to tackling financial fraud in the EU, surely this would be just practical common sense. In terms of proportionality, it is not a matter that would require a referendum, and nor would changes in Schengen. As a result of what is happening in north Africa, we may have to take steps towards much stronger rules on asylum, but is that something that fundamentally challenges our border controls? We need to make judgments about the proportionality of what is proposed, and in our opinion that can usually be done only by a parliamentary committee, ideally an independent committee, that looks at these matters.

8.30 pm

Lord Pearson of Rannoch: The noble Lord seems to be saying that referendums should be held only on really important issues, such as whether we join the euro. Would he therefore agree that we should hold a referendum on something even more important: whether we stay in the European Union at all?

Lord Liddle: We all know the noble Lord's views on this matter. The experience of the 1975 referendum was that it did not resolve the issue of whether we stayed in the European Union. We won a yes vote, but it did not resolve the fundamental issue. However, on issues such as the euro, there is a fundamental constitutional principle at stake, and it is right to have a referendum, so there are circumstances in which referenda are the right thing to do.

In the light of the AV referendum result, which I regard as the betrayal of the Liberal Democrats in the AV referendum by their partners, when I looked at the coalition agreement I was surprised by what it said. We are now told that the Liberal Democrats are going to adopt a much more muscular, robust relationship with their coalition partners. Well, on this Bill, let us have a look at what the coalition agreement says. It says:

"We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty".

In other words, you would have a referendum on a big treaty, but the agreement continues:

Yet every page of this Bill fully and directly contradicts that coalition agreement where the agreement says that passerelles and other matters should be subject to referenda.

Baroness Falkner of Margravine: I, too, have a copy of the coalition agreement in front of me. While the noble Lord is right in what he says about bullet point three, he is very selective in his interpretation of what to pick and choose, because he does not notice that bullet point four says:

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"We will examine the case for a United Kingdom Sovereignty Bill to make it clear that ultimate authority remains in Parliament".

If the noble Lord had been watching the news, and was aware of government statements in the year since the coalition agreement was made, he would know that no sovereignty Bill is about to be introduced into either House of Parliament but that the areas where there might be changes in sovereignty-in other words, a transfer of power and competencies-might be covered for the use of referendums.

Lord Liddle: I have the greatest affection for the noble Baroness, but I think that her attempt to justify the fact that the terms of the coalition agreement have not been met in this case is neither muscular nor robust. I think, therefore, that our friends on those Benches have something to think about. What I am suggesting that our friends on those Benches think about is the merits of the amendments that this side is putting forward. We are offering a mechanism by which a lot of the unacceptable trivia in the Bill could be assessed in a proper way by an independent committee that would advise Parliament about whether they were fundamental or matters that would not require a referendum.

I suggest that there is possibly a germ of consensus in the coalition agreement. We on this side have moved our position from when Labour was in government because we now believe that matters such as passerelle clauses and simplified revisions of the treaty should be approved by a proper Act of Parliament. That is a significant move on this side of the House towards greater parliamentary accountability. I should have thought that the Lib Dems ought to seize that as an advance in accountability. We should confine referenda to these fundamental issues that your Lordships' Constitution Committee said needed to be defined. An independent committee would be a good way of doing this.

I am sorry to have gone on at such length-

Lord Dykes: I intervene only briefly and thank the noble Lord for giving way. Is he not perfectly correct in general and in the specifics he mentioned? There is no apparent transfer of power, notion or concept built into the EPPO proposals. That is the European Union being allowed by the sovereign member Governments to deal with matters to do with any financial misdemeanours affecting Union finances. There is no extra transfer of power there at the margin at all. Why are the Government so obsessed? My noble friend the Minister kindly and co-operatively said at the end of the previous Committee session that he would focus on the important areas that the noble Lord has emphasised today in his remarks. However, he then goes back to say, "Ah, we must have the whole list as well. They are important as well". There is no logic to it, particularly with the EPPO proposals.

Lord Liddle: I think the noble Lord, Lord Dykes, is right on that subject. The problem is the people who believe in the thin end of the wedge, but the way to deal with that is to have a proper process for deciding what is significant and requires a referendum and what does not in the form of an independent process that people will respect. That is what we are proposing

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in these amendments. It is a sensible compromise for the way forward that I hope the Government will consider seriously. It would resolve an awful lot of the big problems that people have with this Bill. I beg to move.

Lord Waddington: My Lords, the noble Lord referred to the two amendments as probing amendments. I think that they could better be described as tongue-in-cheek amendments. Similar amendments were moved in the House of Commons, but at least they applied to Clauses 3, 4 and 6. These amendments mysteriously apply only to matters dealt with in Clause 6. For the life of me I cannot understand why, as I am sure others will not either, if Parliament is to be involved in these matters, Parliament as a whole should not be involved. Quite obviously, members of the public will wonder what this mysterious body is. At least if Parliament as a whole was involved, they would know what was going on.

Lord Liddle: The noble Lord has made two points which reflect a misunderstanding of what this side is trying to propose. Parliament would be involved because it would be Parliament that would take the decision on whether a referendum was necessary on the basis of advice from either a Joint Committee of both Houses or some kind of independent committee which had real expertise on it. This is not being proposed tongue in cheek, but makes a serious point.

Lord Waddington: Of course I accept what the noble Lord says about the proposal not being tongue in cheek, but I certainly do not accept his argument. The fact remains that if you put in a Bill that a mysterious committee is going to have some say in the matter, you are moving even further away from a situation where the general public has any confidence at all that its views are considered when vital decisions are made. I fail entirely to see how giving a Joint Committee of both Houses a key role in deciding whether there should be a referendum will help to restore trust in the EU. I am bound to say-obviously this will not find favour with everyone in the House-that the House of Commons, controlled by the Whips, has never proved to be an effective check on the ambitions of the Europhiles, and this House, I have to say, seems to suffer from a built-in Europhiliac tendency. The idea of having a Joint Committee and expecting it to come up with a unanimous recommendation for a referendum is just pie in the sky, and I suspect that the noble Lord knows that perfectly well.

I remind the House that on 9 May, the noble Lord, Lord Hannay, implied in an unguarded moment that it was inconceivable that a Government would just give everything away for no gain. But the public are of the view that we have made a habit of giving things away. Sometimes Ministers have listened to anguished cries from the Guardian that if we do not agree with our partners we are going to be isolated, when it really would not be the end of the world if the others went ahead without us and, for instance, wasted their money on empire building like the setting up of the European External Action Service while we continue to benefit from the single market. I think that that would be a good idea.

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