European Union Bill

My Lords, at last we are moving towards the end of the debate, and the main lines on both sides of the argument have been laid down. That is accurate, but we must recognise that the weight of the argument has been solidly in one direction. It is a bit like the Barnsley by-election. Who will lose their deposit: the supporters of the Bill or those who say that it does not go far enough? The only thing we have to look forward to now, apart from the significant contributions of my noble friends Lord Tomlinson and Lord Liddle, is the winding up from the noble Lord, Lord Wallace. I am afraid that we do so with some mischievous glee, because he has form on this issue. He is not the only member of the Wallace household who has such form, but perhaps we should not pry into what is said over the breakfast cereal: snap, crackle and pop. At the beginning of the debate, the noble Lord, Lord Howell of Guildford, prayed in aid the fact that in the other place the Second and Third Readings were passed without division, and there were no Divisions on amendments. This Chamber is at its best when it does not rerun the partisan jousts of the other place, but sets itself aside, across the Benches, and says to the other place, ““We think that you have got it wrong””. On this Bill, the overwhelming weight of argument is that the other place so far has got it wrong and we should ask them to think again. I could save some time for the House by indicating the noble Lords with whom I agree and whom I follow. The trouble is that that would probably take up as much time as saying what I want to say in any case. We all recognise the contributions of the noble Baroness, Lady Williams of Crosby, and of the noble Lords, Lord Richard, Lord Brittan of Spennithorne, Lord Davies of Stamford, Lord Hannay, Lord Taverne and Lord Kerr of Kinlochard, to name but a few. As the noble Lord, Lord Richard, said, this is a bad Bill. It is bad in its construction and bad in its underlying methodology. As a legislature, the least that we should expect of the Executive is that they should bring forward Bills, especially on constitutional issues, that are underpinned by an organising principle. That principle should inform and give coherence to the entire Bill. That is singularly lacking in this case. Not only does the Bill lack any such unifying principle, it is schizophrenic. It is built on the conflicting principles of popular sovereignty on the one hand and parliamentary sovereignty on the other. The guts of the Bill put in place detailed mechanisms establishing what are in effect binding referendums. The Bill makes it clear that the process of agreeing a transfer of powers and competences to the EU will be an act of Parliament followed by a confirmatory, binding referendum, all followed by a unanimous decision of the Council. I said that it makes it clear, but it does not quite do this because of the significance test. When I read the details of the test, I was tempted to think that it is only there in order to provide outdoor relief to the legal profession, because I am sure that many members of that profession will make a great deal of money by arguing about what is significant and what is insignificant. I have two points to make. Is it sensible to create a situation where Parliament’s decision is set aside on the basis of a referendum with the possibility—indeed, probability, I am afraid to say—of a derisorily low turnout? I know that that may be difficult for some noble Lords to accept, because I know that some Members of your Lordships’ House and the other place are moved almost to paroxysms of agony and ecstasy when it comes to matters European. However, I doubt whether that is the position of most electors. I think that they will take a slightly more proportional and measured approach and stay at home. Therefore, a very low turnout is a real possibility, setting aside the position of the Government in the Council and the measured consideration of Parliament. I just ask whether that is a sensible way to proceed. Secondly, on referendums, let us remember the de Gaulle problem, which basically boils down to the fact that a Government can determine the question that is asked but they cannot determine the question that the electors answer. The French people cared little about de Gaulle’s very sensible proposals on reform of the French Senate and regional government in France, but they did know that they had had enough of the general and they voted against him in the referendum in order to get rid of him. That had nothing to do with the content of the referendum, and that situation is likely to be rerun if we go down the route that the Bill invites us to go down. The main part of the Bill establishing mandatory, confirmatory referendums is couched in terms of popular sovereignty. Then we suddenly come to Clause 18, and with that clause everything changes. Popular sovereignty disappears and is replaced by a rather curious assertion of parliamentary sovereignty. In terms of a principled argument, Clause 18 turns everything on its head and stands in flat contradiction to everything that has come before in the Bill. A legislature deserves something better—at least an attempt at internal consistency and coherence. I believe that it is just possible for parliamentary sovereignty to coexist with a diluted form of popular sovereignty, with advisory referendums on clearly significant and important issues. However, it is difficult to see how parliamentary sovereignty can, over the longer term, survive a sustained onslaught of mandatory, binding referendums, particularly when we introduce them on a whole series of detailed propositions with which, I am afraid, the electorate may have very little direct interest. Finally, it is clear that the primary political purpose of the Bill is to perpetrate a constitutional outrage, which, as has been mentioned before, is to bind successor Parliaments. I think we all recognise that, and in that case the Government’s acceptance of a sunset clause is a minimum requirement.