Hong Kong

Lord Mackay of Clashfern Excerpts

Tuesday 21st July 2020 Lords Chamber

[Lord Ahmad of Wimbledon [V]]

My Lords, as I am sure the noble Lord has noted, my right honourable friend the Foreign Secretary made a Statement yesterday in the House extending the embargo on arm sales to mainland China, which will now also be applied to Hong Kong.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the appointment of senior judges to give service in Hong Kong is an important part of its international character. What are the prospects of that continuing?

[Lord Ahmad of Wimbledon [V]]

My Lords, my noble and learned friend is right to raise this important issue. As we have seen in recent announcements, the appointment of judges has passed to the chief executive, but we also note the important announcement of Lord Reed, who made it clear in his statement on Friday 17 July that whether this practice continues will depend on if such a service remains compatible with judicial independence and the rule of law.

Libya

Lord Mackay of Clashfern Excerpts

Monday 13th July 2020 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, the noble Lord is right to raise the issue of central banks. Both sides need to get together on the two institutions to ensure equality of approach on that. We deeply regret that the oil blockade has been reimposed on oil facilities and we call on all parties, including those engaging in support of either side, to ensure that oil revenues can start flowing and bring some kind of economic rebuilding to the country.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, to what extent have the Government influence with the various participants directly to persuade them to join the conference that is so greatly needed?

[Lord Ahmad of Wimbledon]

My Lords, we continue to have strong alliances. Turkey is a NATO partner and, as has already been said, the UAE and Egypt continue to be constructive partners and allies to the UK. We will use our influence bilaterally and through multilateral fora.

Continuity Agreement: Kingdom of Morocco

Lord Mackay of Clashfern Excerpts

Monday 9th March 2020 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I congratulate my noble friend Lord Stevenson on getting the opportunity to debate this, and I particularly congratulate him on his initiative in making a very interesting constitutional suggestion. A lot of colleagues will probably have seen the Order Paper and thought that this subject was slightly technical and esoteric, which may be why the Chamber is not in danger of bursting its seams, but my noble friend has raised a very general point, which is that we are bad in this country at ratifying treaties. It is an important legislative role in other countries and, of course, the United States does it with great thoroughness—with such thoroughness that the executive branch tries to avoid any ratification process starting in the first place. Nevertheless, that is democracy, and I think there is a great lack of democracy here, where the bureaucrats negotiate these agreements and there is no opportunity at all to call them to account, or for Parliament to express a view on the content of these agreements. So I thought it was a very good suggestion, and I know my noble friend Lord Stevenson is a serious and determined colleague. When he makes a suggestion, it is not just intended to be a nine-day wonder. I am sure that he will continue with this and take it further, and he will certainly have all the support I can personally give him.

The agreement with Morocco carries forward our market access which we currently have as members of the European Union—I say “currently have”, but that means only long as the transition period lasts. I have to make a confession: during the debates on Brexit over the past four years—we had an awful lot of debates in the media, in this House and in public meetings, and I have taken part in all three types of debate—I quite often attacked the Government, and indeed tried to mock the Government. I said how utterly absurd it was for the Government to say that they wanted to sign more free trade agreements with more countries around the world and to go ahead with Brexit, which involved us overnight losing our access to about 45 different trade agreements that the EU already has with these countries. In actual fact, I must congratulate the Government on having, in this particular case—and one or two others, such as with Jordan—managed to agree in principle to carry forward the existing EU agreement without the discussion breaking, as I suspected it would, into completely new fields, with new demands for new concessions that would make this a very long-winded process. So it is only fair to say that I congratulate them on making that progress.

However, I very much retain my view that it would be a great mistake to open negotiations on new free trade agreements with countries where we are not just carrying forward an EU agreement and with those with which we do not currently have a national free trade agreement before we have concluded the negotiations with the European Union or the United States. When I say “before we have concluded”, I mean before we have either concluded them or have determined that there is no purpose in pursuing that particular subject with those countries for the foreseeable future—which of course is another possible outcome.

My reason for saying that is that, whereas in an agreement like this, which carries forward the terms of the existing EU-Morocco agreement, there is no change in the competitive position of exporters from the United States or the European Union—they pay duties at the present time, if there are duties and tariffs, and they will continue to pay them, and they are not a party to this particular deal, so their position is unchanged—if you started to negotiate a new agreement with another country where there are tariffs and quotas, we may find ourselves in a position where perhaps we can negotiate a position in which British exporters will not be paying them while, presumably, exporters from other countries will. British exporters would then gain an advantage in that particular market vis-à-vis exporters from those other two countries—looking at the EU as a country. The EU and the US might be less than pleased, although of course the amounts involved may be tiny. I think that Morocco accounts for less than 0.5% of our exports, but this could happen on several occasions in several different places. It is possible that this could be a considerable factor in the negotiations we might have with the EU and the US.

Goodness knows, those negotiations are going to be complicated enough, and there is no way that the Government will achieve their aim of concluding them by the end of this year. Given that, importing this new complication would be completely crazy and really would be very foolish because, after all, the EU and the US account for three-quarters of our exports. We would be threatening their position, or at least making life more difficult in the context of those important negotiations, for the interests of our exports to countries that represent perhaps less than 1% of our trade. That would not make any sense. I therefore retain my view about the tactics of this, despite recognising that the Government have actually succeeded in carrying forward the EU agreements in these cases in a way that I did not anticipate. I hope the Minister will agree with that apologia on my part.

Before I finish, I have another question to ask. It is clear that on the last occasion, the Foreign Office did not anticipate that the Polisario Front would wish to litigate in order to try to stop the entering into force of an EU-Morocco trade agreement. It has done so and it has succeeded, so it has held up the whole process and we will see what happens. I am told in the briefing which has been produced for members of the European Union Committee:

“We note that FCO officials have told us that they are confident the UK Agreement is consistent with EU law and the Government’s position on the status of Western Sahara.”


It may be that they are confident and that they are right. Last time, they were confident, but they were not right; they were wrong. My question to the Minister therefore is: what confidence does he have, and why does he have it, that on this occasion the FCO officials have got it right and that we will not go back to where we started and find ourselves entering into further litigation?

[Lord Mackay of Clashfern (Con)]

My Lords, I would very much like to hear the Minister explain the legal basis on which this matter rests, in view of the issues that have been raised in relation to Western Sahara. The issues raised are quite important, but at the moment I do not see exactly what the answer in which the Foreign Office will be confident is. I am willing to agree that I may be utterly wrong and that the noble Lord may be able to convince us all.

[Viscount Waverley (CB)]

My Lords, the noble Lord, Lord Stevenson, supported by the noble Lord, Lord Davies, made an important general point in his opening remarks. I want to take this opportunity to turn to the subject in hand. My only regret was not following through on a visit when I was in the region, particularly as the opportunity was presented to meet all the parties at the table.

The situation in Western Sahara rumbles on with all its complexities. There are suggestions that Western Sahara is a proxy arena for others. The Sahrawis are living in appalling conditions in Tindouf, with the Polisario Front criminalising any ability to leave the camps in favour of a return to their homeland. Various states are now opening consulates either in or in close proximity to Laâyoune and Dakhla. The UK High Court has implemented the ECJ ruling which recognises the self-determination rights of the Sahrawi people, this following that the EU partnership with Morocco should not include fishery grounds off the coast of Western Sahara. Mauritania has professed neutrality, while Spain’s Foreign Minister, Arancha Gonzáles, has reaffirmed the exclusivity of the UN-led political process. Additionally, the inadvertent words of the then UN SG in March 2016 that Western Sahara was “occupied” were inopportune and may haunt reconciliation, particularly as the issue evokes less emotion for Algerians than Moroccans as Algeria has no claim to Western Sahara.

President Bouteflika was considered too set in his inflexible ways, doing, some suggested, the army’s and deep state’s bidding. There has been hope and indeed expectation in certain quarters that, with the advent of President Tebboune’s quest for a “new Algeria”, change to his country’s foreign policy stance towards Morocco could be afoot. It is interesting to note that the former SG of the National Liberation Front party has recently intimated that the borders be opened, but went surprisingly further by advocating that “Sahara is Moroccan”. This may become relevant in that he might be being primed for high office, given that his coming from the same tribe as the President could have connotations in the preparation of the internal landscape, with a plan of strategy on the chessboard.

Across the way, I have been encouraged by King Mohammed’s indications of reconciliation through dialogue leading to the normalisation and opening of borders. His country rejoining the African Union will certainly have garnered momentum for this. It is to nobody’s benefit that the borders remain closed. Solution can be found when all sides adopt compromise, although attention might be given to the role played by Morocco subsequent to Spain’s withdrawal from the region.

Infrastructure investment, provision of basic services and economic and social development projects, which often go unrecognised, have improved the lot in many quarters.

We are not here to debate the benefits that can stem from tariff exemptions that can come only when Western Sahara’s status is determined. That discussion is in a different context, and so for another day. It is inconceivable that the UK’s position can differ from that of the UN and ECJ ruling. While ongoing aspects remain for consideration, this continuity ratification as presented is necessary.

Queen’s Speech

Lord Mackay of Clashfern Excerpts

Tuesday 15th October 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I do not feel competent to enter into all the speculations that the noble Lord has just made. It is somewhat of a surprise to me that Mr Churchill thought that the European Union was an important part of the UK’s arrangements with Europe. I think that the Council of Europe was what he had in mind, and I believe that that institution has had a very important role ever since he had the idea of setting it up.

As I said, I will not get involved in speculation about history. Rather, I am inclined to look at what we are supposed to be doing, and I do so in the presence of the distinguished author of Article 50—and subject to what he has to say about this, if he wishes to correct me later. However, I claim to have a certain amount of experience of looking at documents and European documents in the European Court of Justice, albeit a long time ago, although experience of that kind tends to stick with you.

First, I think that Article 50 is quite plain that the withdrawal agreement is one thing—it is an agreement—and, apart from and distinct from that, are the future relations, which are the subject of a framework, not a legal contract. The withdrawal agreement is definitely an agreement and is specified as such, but the framework is a distinct and therefore, I believe, less precise arrangement than the withdrawal agreement.

Secondly, it is the withdrawal agreement and the withdrawal agreement only that determines when, or whether, we leave the European Union. The date is fixed by the withdrawal agreement and, when it comes into force, we leave the European Union. If there is no agreement, Article 50 says that the member state wishing to leave will leave two years after the original request or at the end of an agreed further period.

I do not profess to know anything about the negotiations except what I read about them in the newspapers, although they do not all say the same thing and I do not find the descriptions of what is going on particularly clear. However, I feel strongly that the future relationships are not, and should not be, part of the withdrawal agreement, and the attempt to make them so destroys the purpose of the distinction between the two.

The arrangement as envisaged in Article 50 seems to be that, once a member state has withdrawn under the terms fixed in a withdrawal agreement, it is no longer a member state; it is a sovereign nation that can enter into negotiations for the future, and those future relationships are to be negotiated then. There is a certain amount of bowing to that in Mrs May’s agreement, if I can call it that. There is a good deal of reference to what is to happen in the future.

I was willing to take the view that the risk of the backstop coming into force was very small and that it was therefore something that Parliament should be able to accept. However, the more I think about it, the more I am of the view that the backstop has no place whatever in the withdrawal agreement. As a possible very simple draft, I have suggested as an amendment to the May agreement that all provisions dealing with future relationships come into effect only to the extent agreed upon in the agreement envisaged in the political declaration. I submit to your Lordships that that clarity is necessary if we are to avoid getting into very great difficulty. I cannot see, for example, how the detail of customs unions and the like can be determined without knowing the detail of the trade agreement; yet the trade agreement is for the future—it is a future relationship.

I strongly take the view that we must try to work in accordance with Article 50. We are not here to make up a new basis for leaving the European Union; that has been very clearly specified. For a legal document, it is extremely clear and makes the very important distinction that I have tried to press between what goes into the withdrawal agreement—which reflects the present situation—and determining the future relationship. Agreeing, for example, what is to happen about paying money, and to people from other parts of the Union who are in the UK and people from the UK who are in other parts of the Union, has to be determined at the time of the withdrawal agreement. That having been done, the withdrawing member is then independent and able to seek agreement on the lines of future relationships.

I understood at the time of the initial discussion on this matter that the European Union had said it was not prepared to discuss the future relationship until the withdrawal agreement was settled. Instead, the two appear to have been amalgamated in a way that makes for extreme difficulty. I think it is very important that we keep Article 50 in mind. I regard it as a tribute to my Scottish colleague that he was responsible for the draft.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Mackay of Clashfern Excerpts

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Lord McNally (LD)]

My Lords—

[Lord Mackay of Clashfern (Con)]

My Lords, I want to raise with the Minister the question of how the amendment we are discussing can come into force. It is not covered by the existing list of sections that come into force when the Bill receives Royal Assent. Therefore, it requires to be brought in by regulation. If it is correct—and I must say, I assume that the authorities who have spoken on it already are certainly correct—that it is contrary to the legal rights of the territories, it may be that the regulations seeking to bring this provision into force would be challengeable by judicial review.

In any case, we know from experience that the mere fact that something has been put into statute does not mean that it will happen; if it is subject to being brought into law by a ministerial action, it may never be brought into law at all. I have fairly profound experience of that myself. Certainly, considerable consideration of this by the law officers of the Crown would be required if the Government were going to make an order under the commencement provisions in respect of something that is legally challengeable.

I raise this question as a matter of justice, and justice of course requires that justice be done to all. One of the difficulties with this provision is that attempting to do justice in these territories may lead to injustice to these territories, in that the business they have will go to other places where there is no such regulation, doing nothing to help the ultimate situation and in fact bringing into effect a different type of injustice. Justice is a difficult thing to operate across the world, as we all know, and it may not be easy to effect it in this situation.

My main point is on the commencement provision and the extent of the Bill, which is subject to Privy Council regulation. There is a fair amount to be done before this becomes law.

[Lord McNally]

My Lords, I gladly gave way to the noble and learned Lord, Lord Mackay, because I know from long experience that his contributions are always of great help to the Minister at the Dispatch Box, as they were for me for a number of years.

The overseas territories cannot say that they have not been represented in the House this afternoon. There have been passionate speeches, not least by the noble Lord, Lord Naseby. I am not going to be so hypocritical as to advise him that he should not challenge the wisdom of the other place, having only a couple of hours ago extolled to your Lordships the very virtues of this House occasionally challenging the views of the other place.

Following on from the intervention of the noble Lord, Lord Judd, this has to be put in context. The noble and learned Lord, Lord Neuberger, said that we had no direct interest in this legislation, but when places are called the British Virgin Islands or the British Overseas Territories, we have a reputational responsibility we cannot avoid. If we do, we will damage our reputation. It is therefore right to look at this issue.

I was Minister for the Crown Dependencies—I see the noble Lord, Lord Faulks, nodding—and my noble friend Lord Beith and I worked closely together precisely to avoid the impasse we have now reached. We recognised that we had to work out the problems so that Britain could take on its proper responsibilities for these matters without doing too much damage to the dependencies which were trying to catch up. The way it has worked is one of the reasons why the dependencies qualify so well in the temperature-taking of various international organisations.

However, we have to go beyond the technicalities. Much of the cynicism, particularly among young people, is caused by issues such as the Panama papers and other exposures. Yes, the City of London has to take responsibility for the obscene avoidance of taxes and its co-operation with criminality in moving large amounts of money around in a dark economy. It is that which produces the cynicism that undermines our democracies. Ever since I have been in politics we usually blame the French, but we cannot simply use the argument that if we stop doing it, the French will do it. That is not an excuse for not doing the right thing and trying to set standards. David Cameron was quite right in trying to do this.

It is quite clear, not least from the interventions of the distinguished jurists we have in this House, that there is a problem. The solution was given by the noble and learned Lord, Lord Brown. My opinion of the Minister is boundless—he is going to have a couple of tough years ahead—and it would give him an opportunity to engage with the overseas territories to see whether the full implications of this legislation can be avoided by co-operation and initiatives, rather than the kind of process suggested by the noble and learned Lord, Lord Mackay. We have to see this in the context of a general public who are looking with nausea at what seems to be the ability of this money to find a home outside proper accountability.

I refer the noble Lord, Lord Naseby, to the briefing from 12 highly respected charities, and I understand the passion of the noble Lord, Lord Judd, in defending Oxfam. Although he did not name the Members of the other place, I will do so. In fact, Margaret Hodge and Andrew Mitchell are very well respected for their knowledge of and interest in these areas. We have to realise that the other place has been neither impetuous nor ill-informed in what it wants to do. But within the wider moral context set out by the noble Lord, Lord Judd, I hope that the Minister will find this debate useful in the very difficult diplomatic task that he now faces.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 17th January 2018 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I do not have anything to add to give force to the argument that has been put so forcefully by my noble and learned friend and the noble Viscount. All I will do, if I may, is add an anecdotal note. In 1936, I believe, a former Attorney-General and former Lord Chief Justice, Lord Hewart, wrote a book called The New Despotism. He was worried about the very powers that we are talking about today being delegated in a dictatorial way to Ministers. If it was a new despotism then, what is it now?

[Lord Mackay of Clashfern (Con)]

My Lords, the scope for regulation under the provisions that are in issue is very wide. It is an area in which there is, as the noble and learned Lord, Lord Judge, said, a great deal of legislation already. I therefore hope that my noble friend the Minister will be able to indicate some form of restriction that might be acceptable in relation to this particular power. In the debate that we had on Monday, he pointed out that the power would be used only in restoring, in effect, what might be lost as a result of our leaving the European Union and that, in particular, there is power under the European Communities Act 1972 to do a good deal under statutory provision that is not by primary legislation. I thought that, if that were the case, it would be a justification for using this particular method. In this case, however, there does not appear to be justification for anything like that. I therefore invite my noble friend to indicate, as far as he can, what restriction he has in mind and whether that restriction could be embodied in the terms of the legislation.

[Lord Cormack (Con)]

My Lords, I had not intended to speak and—I apologise—I have not taken a close interest in this Bill, but I was moved and impressed by what the noble and learned Lord, Lord Judge, and my noble friend Lord Hailsham said. The mantra of taking back control means only one thing to me: it is Parliament taking back control. It is not Parliament conferring a blank cheque upon the Executive, from whichever party they are drawn. I am disturbed that this principle appears very much at risk.

In the previous Divisions on this Bill I voted for the Government. I did so because I have not taken a close and continuing interest in the Bill, as I indicated at the beginning, and because I have a real regard for my noble friend Lord Ahmad of Wimbledon, who I have come to know well. I respect him greatly and regard him as a Minister who has proper regard for Parliament and the constraints under which Ministers should operate. I feel for him on this issue but add my appeal to the brief but eloquent appeal of my noble and learned friend Lord Mackay of Clashfern.

Taking up the point made by the noble Lord, Lord Pannick, I very much hope that my noble friend the Minister will indicate that he truly appreciates the concerns of those who are apprehensive about an accretion of power to the Executive, and that he will, after discussing the matter further with the noble and learned Lord, Lord Judge, come back at Third Reading with something that is acceptable throughout your Lordships’ House.

We are in difficult waters. This is a precursor to a long and I am sure complicated, but I hope not acrimonious, debate on the withdrawal Bill, on which the other place is coming towards the end of its deliberations. However, it is no part of the functions of your Lordships’ House to connive at the accretion of power to the Executive. Certain things should depend upon primary legislation, not the fiat of a Minister. I hope that my greatly respected noble friend Lord Ahmad will give me a response that will not oblige me to refrain from supporting the Government.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My noble friend is right to raise the point and I admire all noble Lords who have followed the thread. The reason I have gone into detail, as my noble friend has articulated, is that the range of amendments in this group is quite extensive. Also, as I have said before, it reflects the importance of the discussions we have had.

On the specific issue of Amendment 71A, on this occasion I regret that we are unable to meet the views of the noble and learned Lord. However, I hope that I have indicated at least in part that this is not a departure from the existing system. Indeed, it is something which has been applied previously and continues to be so. I hope, therefore, that I have convinced noble Lords that the Government’s proposed changes—aside from the differences set out by the noble Baronesses, Lady Kramer and Lady Bowles, which we have talked about and I appreciate and acknowledge—will ensure that proper safeguards are put in place in the Bill regarding offences, rather than removing the ability to create them and leaving a vacuum that we believe would weaken the UK’s anti-money laundering regime.

I hope also that I have convinced at least some noble Lords—I am looking behind me as well as ahead; it does not say that in my speaking notes. I have gone into detail but I believe that it was necessary to do so since, as I have always said, this is an important Bill. With those reassurances, I hope that noble Lords who have tabled amendments in this group will be minded to withdraw them.

[Lord Mackay of Clashfern]

Just before my noble friend sits down, can he help me on one point? There is already authority to make regulations in respect of money laundering which have criminal sanctions. If so, why is another provision to the same effect necessary? Can he help us further by explaining why it is necessary to do this not only for money laundering but in other areas where authority in primary legislation already exists to lay statutory instruments?

[Lord Ahmad of Wimbledon]

What I have been saying in the examples I have quoted is that the use of the regulations is not something new.

Sanctions and Anti-Money Laundering Bill [HL]

Lord Mackay of Clashfern Excerpts

Report stage (Hansard - continued): House of Lords
Monday 15th January 2018 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, the arguments have been put clearly and attractively by the noble Lords, Lord Pannick and Lord Faulks. Indeed there can, apparently, be a conflict between two very important and sovereign authorities of law—international law and domestic law. However, one has to favour the argument of the noble Lord, Lord Pannick; in other words, however much the attitude of the rule of law in Britain might respect international comity, it would be morally ultra vires to be prepared to perpetrate an injustice in the name of that loyalty. That would be utterly wrong. That, I think, is the answer to the whole question. In other words, as regards the point made by the noble Lord, Lord Faulks, our respect for international comity is very considerable but is not absolute. It is ameliorated and qualified by that condition, save and in respect of a situation of perpetrating a blatant injustice. That would be beyond our authority ultra vires.

[Lord Mackay of Clashfern (Con)]

My Lords, this is an extremely difficult question which amounts to whether or not the courts of this country have an authority to set aside a decision of the United Nations. We are under a clear obligation to follow a sanction decision imposed by the United Nations. However, I wonder whether the courts of this country, without absolutely challenging the decision of the United Nations, could give force to the Secretary of State’s attempt to change that decision: in other words, a system could be adopted under which the fault that is found with the United Nations procedure is endorsed by our courts in a way which reinforces the attitude of the Secretary of State in seeking to set aside that sanction rather than just going ahead with a decision which seems to fly in the face of our international obligations under the treaty to which my noble friend referred. I would like to believe that it might be possible for our Secretary of State to go to the United Nations in a case of this kind, with support from the courts of this country, to say that, so far as they can see, the decision of the United Nations is incorrect according to the circumstances narrated in a judgment of the courts here. That might be a way of handling this situation.

I understand the position so far as Europe is concerned. I am not sure whether this situation has ever arisen in that context. That can be looked at but I think there is a question about that. A slightly different situation arises for a group bound by treaty—as the European Union is—as against that for single nations, because if we can do it, who else cannot? We do not necessarily think that the rule of law is observed in the same way in every other country in the world but we cannot make a judgment on that point as a justification for this move. I wonder whether something of this sort should not be done.

[Lord Collins of Highbury]

My Lords, the noble Lord, Lord Faulks, said accurately that there was a balance to be struck here, and there is a debate to be had. I am not legally qualified and therefore wish to address the political and moral issues that have been raised. The noble Lord, Lord Pannick, said that this is an extremely rare situation and that we cannot pick and choose. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said in Committee:

“I see the force of the Government’s argument that the UK has no alternative under international law but to give effect to our obligations under the UN charter; indeed, Article 103 of the charter expressly dictates that these obligations prevail over any conflicting international law obligations.”——[Official Report, 29/11/17: cols. 703-4.]


The Opposition are concerned about the signal we would send if we adopted the amendment of the noble Lord, Lord Pannick. I hear his comments about the United Nations but this Parliament must uphold international law and the supremacy of the United Nations. It should not undermine that. If we adopt the amendment, we would send the signal to other countries, which may flagrantly flout decisions of the United Nations, that we insist that they should. We judge other countries by our own standards. The noble and learned Lord, Lord Mackay, is absolutely right that there should be provision for the British courts to consider a decision of the Secretary of State. However, ultimately they should support the Secretary of State and the United Nations, not say to the United Nations, “We are not going to accept that decision”. We cannot pick and choose; that is the fundamental point. Therefore, while I totally understand the power of the arguments put forward by the noble Lord, Lord Pannick, and have a lot of sympathy with them, there is one point that trumps all else—I use that word advisedly—namely, we must uphold the decisions of the United Nations.

European Union Referendum Bill

Lord Mackay of Clashfern Excerpts

Monday 23rd November 2015 Lords Chamber

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, I am sorry if my remarks offended the noble Lord, Lord Kerr, or made him a bit unhappy. I would not do that for the world; not only do I like him but I respect him and understand his expertise in these matters. However, I still have a difference of opinion with him, although quite frankly I would be quite happy if his amendment were accepted. If the EU behaved as he was intimating earlier on, it would help my cause. It would show that the EU, instead of being a partner, was in fact rather spiteful if, after the British people had voted a certain way, instead of accepting it with good grace the EU would want to be spiteful and put obstacles in the way of agreements that we could make outside the members of the EU. We ought to take that into account.

I return to the original contention, which is this: whether this is a binding referendum or some other sort, I do not know, but if the people have spoken then they will have to be listened to. There is no question about that. It is not a question only of the Government listening; it is more about Parliament listening. It is Parliament that will have to take action after the people have spoken, and the action it must take is to repeal the European Communities Act 1972. Once it did that, everything would fall into place; after the repeal it would then have to embark upon negotiations.

I think that the Vienna convention governs the unmaking of treaties. We would be acting within the Vienna convention if we adhered to the two-year period of negotiation and, after that time, either accepted the agreements that were made or not. Basically speaking, though, once the people have spoken, if they have said that we are to come out, no treaties or conventions will prevent this country coming out. If this Parliament decided otherwise, there could be a revolution.

I hope that I have made clear what my view is and that the noble Lord, Lord Kerr, is now unoffended. If his amendment is accepted, I am quite sure that later on we can make use of it.

[Lord Mackay of Clashfern (Con)]

My Lords, I am quite tempted to intervene in this debate. We had a full discussion of this issue, as noble Lords who were there will remember, when the European Union Referendum Act was being discussed here. The question arose of the basis on which European law applies in our country. The answer is clear: the 1972 Act makes European law the law of this country. We could get rid of that immediately by repealing the 1972 Act, but under international law we are also members of a treaty organisation. If we are going to observe international law, which on the whole I hope we would want to do, then we would have to go through the proper procedures for renouncing or denouncing a treaty. That is the next stage in the matter. It is clear that the law would no longer apply in this country as a domestic law, which is the result of the 1972 Act, once Parliament decided to repeal that Act. I think that that would be true of all the European law that has come in since 1972. None of it would apply here any longer, but the treaty obligations would apply and we would be obliged to follow the mechanisms laid down in international law for denouncing a treaty.

[Lord Hamilton of Epsom]

Before the noble and learned Lord sits down, would he accept that what has actually happened is that EU law has been enacted into British law? Anything that has been passed down from the EU is therefore on the statute book of the British Parliament, and therefore that would continue.

[Lord Mackay of Clashfern]

No, because that is all done under the authority of the 1972 Act by subsequent amendments under it. We had a lot of discussion about this last time and I do not want to start that up again if I can avoid it. Some of the devolution statutes had reference to Acts, for example, but they all flow from the 1972 Act. That Act is the authority for applying European law in the UK. That is why the courts of the UK are obliged to follow it because that is the law laid down by the Parliament of the UK. If that law were repealed, it would become a question of international law, and the rules of international law do not apply to domestic law except in so far as they are incorporated. It is only then as treaty obligations that the state proceeds thereafter.

[Lord Lamont of Lerwick (Con)]

My Lords, I was intrigued that the noble Lord, Lord Kerr, did not deny authorship of Article 50 of the treaty. I am rather sceptical that he is the author because Commissioner Christophersen assured me that he was the author of Article 50 and that through it he had laid a deep trap for the British. The noble Lord always had a great reputation for masterminding so much in Brussels, but I am not sure that Article 50 is actually his creation.

The noble Lord, Lord Kerr, made a powerful speech against my noble friend Lord Hamilton, and my noble friend Lord Hamilton made a powerful speech against the noble Lord, Lord Kerr. That seems to illustrate that the amendment the noble Lord is putting forward is really one of the arguments being used by those who wish to remain in. Their argument is that it is going to create an enormous amount of uncertainty, that it is incredibly complicated, that we have got all these trade negotiations and the repeal of British legislation has to take place before we can feel the effects of being outside. This seems to me to be what the campaign ought to be about. For the noble Lord, Lord Kerr, to think that the Government ought to publish a document detailing all this is to invite the Government to publish a document taking one side of the referendum question.

The amendment is redundant because of the government Amendment 24B and particularly subsection (1)(b) of the proposed new clause to which the noble Lord, Lord Kerr, referred, in which the Government have said—slightly to my distress—that they are going to bring forward examples of countries that do not have membership of the European Union. No doubt they will have in that that Norway is governed by fax, something that I absolutely dispute despite the intervention of the noble Baroness from the Liberal Benches. This amendment, requiring a report that would be pure propaganda, is therefore completely inappropriate when we have subsection (1)(b) of the proposed new clause inserted by Amendment 24B, which it would duplicate.

To go back to Article 50 and address the alarmism, I accept that there is going to be a degree of uncertainty. That uncertainty is going to be one of the arguments deployed by the people who do not wish us to leave. However, we are, as the noble Lord, Lord Green, pointed out, going to have two years in which these negotiations take place. The roof is not going to fall in nor will the buildings crumble while these negotiations go on. I am unsure whether we repeal the European Communities Act 1972 at the beginning of the process or at the end, but I should imagine that things would remain during the period of the negotiation for at least two years, and, as the noble Lord, Lord Kerr, has said, the two-year period is extendable. Life would probably go on much as it is now while the negotiations took place.

The noble Lord, Lord Kerr, tried to chill our blood even further by saying that we would be left alone in the room with the Commission. My goodness, that is one of the things that I regret that the Government did not try to achieve in the negotiations. They have done nothing to reduce the power of the Commission. If we had just one reform in the EU it should have been to reduce or get rid of the Commission’s power of initiating legislation. I do not see why civil servants should have the right to initiate legislation in the way that they do.

The image that, rightly or wrongly, I have of the Commission was reinforced by the way that the noble Lord, Lord Kerr, portrayed it. I do not believe that the Commission is going to act in some way completely divorced from the political will of member states. The noble Lord, Lord Kerr, said that there are some European Union countries that have an unfavourable balance of trade with the UK. I do not know which they are. There cannot be very many since we have a socking balance unfavourable to us. I cannot believe that Germany, which seems to call the shots within the European Union on almost every issue today, will not be able to persuade Slovenia, or whichever country it is, that it ought to come into line with the outcome of the negotiations. I do not believe that the Commission can act without political will. I believe that the Economics Minister of Germany has already publicly stated that he believes that Britain could get a free trade arrangement with the EU if it left. If Germany thinks that, there is a good chance that we could get it. However, all this is an argument for the referendum. It should not be in particular amendments to the legislation.

Freedom of Religion and Belief

Lord Mackay of Clashfern Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I congratulate the noble Lord, Lord Alton, on obtaining this debate, on the eloquent way in which he introduced it and on the tremendous illustrations that he gave of how bad the situation is throughout the world. I do not have the qualifications to follow him, and certainly do not have the qualifications to be in front of many leaders in this debate, but here I am, and I shall try to make the best of it. I also wish to express my deep gratitude to Edward Scott of our Library for the excellent brief he prepared for this debate, which shows the position in great and excruciating detail. I am sure that anyone who has read it will feel tremendous sympathy and a loathing for what is happening to so many of our fellow humans throughout the world for the simple reason that they have adopted a faith or belief, including a non-faith—no belief at all, which is also protected—in the execution of their ordinary lives and have been tremendously badly dealt with on that account.

I declare my interest as a professing Christian for most of my life, and a practising Christian so far as I can. I am sorry to say that I have not reached the extent of perfection in that area which I would have liked. I am glad that the right reverend Prelate the Bishop of Leicester is speaking in this debate, although I am very sorry that it will be a valedictory speech. He has given most distinguished service in this House and also in his diocese in an area where there is a great deal of difference and, I hope, also the dignity of difference in ethnic and other communities. I wish him well in his retirement.

Speaking from the government Dispatch Box when she was a Minister in the Home Office, the noble and learned Baroness, Lady Scotland of Asthal, expressed the view that her religion defined her personality. This shows that the restriction of a person’s faith or belief is as serious as any other restriction of personal freedom. The brief to which I have referred and the speech of the noble Lord, Lord Alton, show that mistreatment for faith and belief throughout the world extends to much more than restriction of bodily movement. It goes to serious injury and death in the most terrible circumstances.

Yesterday we had outside the House a demonstration relating to prisoners of conscience. This is a most important aspect of the human personality—the internal monitor which tells us that what we are doing is wrong, even when no human eye can see us, and whether or not what we are doing is in according with the tenets of the faith, belief or non-belief we seek to follow.

In preserving standards in society, listening to conscience is an extremely effective activity. More so even than an effective enforcement system, it can preserve society’s standards. It was valued in our nation during two world wars. Persons with a conscientious objection to military service were exempted from the universal obligation to enlist. It was also shown in relation to the Abortion Act.

Charities based on faith have done tremendous service in many nations throughout the world. It surely is the most terrible damage to a nation’s people that they are debarred from having these services simply on the ground of the faith of the organisation that is providing them. In our own country, we had the problem of the Catholic adoption agencies that were providing an excellent service but which were debarred from continuing to do so because they were not able to offer as full a service as some would have required.

I am sure that leading by example is one important way to contribute in trying to help with this tremendous problem. I am sure there are many other ways, which will be illustrated by the distinguished speakers to follow.

European Union (Referendum) Bill

Lord Mackay of Clashfern Excerpts

Friday 24th January 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Armstrong of Ilminster. I am all the more willing to do so because, in its four proposers, it has support from all the main parties in the House and from the Cross Benches. In a debate which has already shown a tendency to become partisan, it is important to move ahead on that kind of cross-party basis.

I support the amendment because if and when there is a referendum, there will be a huge amount of partisan speaking, writing and so on—and quite right, too—on both sides and there will be much that is confusing. However, surely we all ought to be able to agree that the question on the paper we vote on should be a genuinely level playing field. That is critical. Everything else about the campaign will not be a level playing field—and that is right because we live in a democracy—but the question should be.

We have before us two questions. The one in the Bill of the noble Lord, Lord Dobbs, has been considered by the body set up under Parliament’s authority to give advice on these matters and found to be defective. We have heard why it is defective. I will be interested to hear from the noble Lord, Lord Dobbs, when he replies to this debate, why he thinks that, despite it being defective, it should be persevered with. I hope that he will not persevere with it; I hope he will accept the amendment.

The other question, which has been put forward by the Electoral Commission and which we are now considering, is, as has been said by everyone who has spoken today, a genuinely level playing field. It is important that if and when this referendum takes place it is perceived to be on a question that everyone can recognise as being a level playing field. How on earth are they going to think that if the Electoral Commission’s advice has been junked on a form of words whose origin appears to be obscure at the moment? Perhaps the noble Lord, Lord Dobbs, can tell us whom Mr Wharton consulted before he put this on the Order Paper. Whose opinion did he take? He is, after all, a freshman Member and I doubt that he has done a great deal of drafting of referendum questions in his life. Whom did he consult?

I hope that the noble Lord, Lord Dobbs, will surprise us all by accepting the amendment, because the issue of a level playing field in the question to be asked is absolutely fundamental.

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will not be surprised that I am extremely concerned about this Bill, its implications and the time at which it has reached your Lordships’ House.

As I understand the Bill, it does nothing more than confer on the electorate of this country the right to an “in or out” referendum on our membership of the European Union—nothing more and nothing less. Further action is required from the Government and both Houses of Parliament before a referendum can take place under the Bill. It is clear from the present situation that no referendum is likely to take place before the next general election, the date of which we know—or at least at the moment we know—because of the excellent system of fixed Parliaments that has now been put in place.

It is clear that action by the incoming Government will certainly be required. I have reached the conclusion that any incoming Government holding a referendum during their term of office will wish to be in charge of all the details of that referendum and will put them in place through a public general statute. This will be put in place by the Government and run by the Government, with both Houses of Parliament—I hope more or less in their present forms—having a full opportunity to consider the details.

I am not a prophet—I do not know how many of us are—and I do not know exactly what the conditions will be in 2016-17. For all I know, the eurozone may be a distinct body from the European Union and a change of name may occur—as, for example, happened in connection with Maastricht when the name changed from the European Economic Community to the European Union. So the question will have to be decided ultimately in the light of the circumstances prevailing at the time of the referendum. That is absolutely essential.

[Lord Giddens]

Would not that also apply to the date of the referendum? Should not that be decided in the light of what is happening in the European Union at a particular point because it is becoming so transformed?

[Lord Mackay of Clashfern]

Exactly. Every part of this Bill can be altered by general legislation after the general election, including the date. However, the need for the date now is to give an entitlement to a referendum. If you do not put in a date, it will be in never-never land so it has to have a date now, but that date, like every other detail in this Bill, is subject to alteration.

Therefore, the extent to which we need to trouble about the detail is a substantial question. We do not know the circumstances of the referendum—at least I do not know—and therefore it will need to be adjusted in the light of the circumstances at the time. That will have to happen through a Bill authorised, put forward and promoted by the Government of the day. This Bill is not promoted by the Government of the day but by, essentially, the Member of the House of Commons who put it forward. He is a member of the Conservative Party and I know that the Bill is substantially supported by a good number of its members, but not all.

I am a strong believer in the European Union and our membership of it and have been for many years. I survived in government during the Maastricht debate, which would have been an experience for anyone, and there were demands then for a referendum on the Maastricht treaty. I have always found referenda difficult, but it is particularly difficult to have a referendum on a treaty because the chance that those people who vote have even read it—indeed, this may sometimes even apply to the legislators—is rather small. A referendum on a treaty is therefore difficult. At one time it was proposed to hold a referendum on the constitution of the EU, but that was equally difficult.

However, the question of whether, either now or in the future, you should be in or out is relatively simple. Just as it is in the Scottish referendum, it is a suitable question for a referendum. What this Bill does is give the British electorate the entitlement to have a referendum. As I said in response to the noble Lord, Lord Giddens, the date has to be put in, as otherwise there is no enforceable entitlement, but the actual date for the referendum needs to be fixed by Government action along with action by both Houses of Parliament.

I am anxious about this because of what has been said by the Constitution Committee. I shall read out what the committee said because it is important:

“Three further private members’ Fridays are scheduled in the House of Commons this session: on Fridays 17 January, 24 January and 28 February 2014. So if the Lords were to pass any amendments to the bill, in order for it to become law in this session it would have to return to the Commons in time for the Lords amendments to be considered on Friday 28 February 2014. The requirement in the House of Lords for minimum intervals between stages of a bill may make it unlikely that the bill would finish the Lords in time for any amendments passed by the Lords to be considered by the Commons on Friday 28 February 2014”.

I would like to know what the proposers of this amendment have to say in relation to that.

The danger I see is that by exercising our undoubted responsibility for scrutiny, and given that scrutiny is supposed to improve a Bill, we will improve it in such a way as to kill it. This troubles me a great deal, not so much from the point of this House and its position in relation to the Commons, but I consider it to be important in terms of the position of the country in relation to the European Union.

[Lord Anderson of Swansea]

Surely the pressure on time that the noble and learned Lord has explained is wholly arbitrary. It is not something which has been decided by this House; it has been forced upon this House. It is no fault of this House that there is such pressure of time. The implication of what the noble and learned Lord is saying is that even if the Bill is thoroughly flawed and thoroughly bad, we should just wave it on.

[Lord Mackay of Clashfern]

I did not say it was our fault—certainly not. The Bill started off as early as possible in the other place. It took some time because there was a lot of discussion. Members of the House of Commons considered it without a guillotine and it arrived here, I think, in early December. I remember well the Clerk reading out the fact that it had appeared.

[Lord Radice]

Should such an important issue as a referendum be introduced in the form of a Private Member’s Bill? Is not the reason we are in such trouble because it has been introduced under the wrong heading and in the wrong way?

[Lord Mackay of Clashfern]

There is no option. If the Government do not want to give the people an entitlement to a referendum, then unless your Lordships can enlighten me, there is no other option that I know of by which that can be made a statutory entitlement. Of course, your Lordships may wonder why they should have bothered, and I hope to come to that briefly—usually when you say “briefly” it makes your speech longer, but I hope that it does not do that to mine.

The point I want to make is this. UKIP, which is a recognised political party in our country and is represented here by the noble Lord, Lord Pearson of Rannoch, and others, has two issues. The first is that the people of this country should have a referendum. The second is that the people of this country, if granted a referendum, should vote to come out of the European Union. On the first question, UKIP appears to have a very considerable amount of public support, and indeed that was recognised in the debate on Second Reading.

But what about the parties simply putting a promise in their manifestos? The difficulty is that in recent years, all the parties which have been in government have promised a referendum, and yet no referendum has taken place. The result is that all the parties are being accused of making false promises that cannot be trusted. The noble Lord, Lord Owen, made this point very forcefully at Second Reading, and it strikes me as an extremely important one. If the small print of those promises were to be examined, I think it would be seen that there were no real false promises. However, from what I have seen over the years, any discussion of the small print does not form an important part of political propaganda, so the business of the false promise allegation has therefore gained a good deal of strength.

I know of no better assurance that anyone could give to the British people that they will have a referendum other than an entitlement to one in a Bill. However, the Bill, although it provides for the entitlement, need not and does not of itself actually produce a referendum. Before a referendum can take place under this Bill, action by the Government and by both Houses of Parliament is necessary.

[Lord Anderson of Swansea]

The promise is not bankable on the principle that no Parliament can bind their successor.

[Lord Mackay of Clashfern]

Exactly, and this Bill does not bind anyone—except that if it remains on the statute book, it will entitle the British people to a referendum.

[Baroness Quin]

From what the noble and learned Lord is saying, it seems that the Bill has no purpose whatever. Moreover, on his earlier point about timing, is it not the case that if we pass amendments to this Bill, it will be up to the House of Commons, if it decides that it wants to allocate more time, to do so? That could be done via the usual channels.

[Lord Mackay of Clashfern]

I have not myself been a Member of the House of Commons, but as I understand it our Constitution Committee, which knows much more about these matters than I do, has said that it is likely that if we pass amendments, this Bill will fall. That is a fact as stated by the committee. The noble Baroness has said that I am saying that the Bill has no purpose at all. I do not say that for a moment. The purpose of the Bill is that it gives the best assurance to the British people that they will get an “in or out” referendum in due course. However, it is only an entitlement and the full—

[Lord Quirk]

If the importance of this Bill is to guarantee the great British people a referendum, can the noble and learned Lord explain why its devisers have gone out of their way to put down the question in such a tendentious form—a form that actually goes against the advice of the Electoral Commission?

[Lord Mackay of Clashfern]

First, as I said, the Electoral Commission’s advice so far is provisional. Like me, it realises that the actual question will depend to some extent on the circumstances that obtain at the date of the referendum. I do not regard the question as particularly tendentious. The idea that those who are going to vote will not know, at the end of a referendum campaign, whether we are in the Union or out, is perhaps not the most—

[Baroness Farrington of Ribbleton]

Did the noble and learned Lord support Alex Salmond on changing the question for the Scottish people? I have listened very carefully, and with respect, to the noble and learned Lord. He appears not to particularly like the question, not to accept the date and not to accept that this is binding on a future Government. I have two questions for him. If he wishes the British people to take on good faith what emerges from here and from Parliament as a whole, surely he would support a better question? Secondly, why is the date in the Bill not during the lifetime of the next Government, given all that has been said about the large amount of work that the Prime Minister says has to be done before the people know the circumstances in which any question would be put?

[Lord Mackay of Clashfern]

As I said, the only purpose of the Bill, as I see it, is to provide the British people with an assurance that they will have an “in or out” referendum. Indeed, I think my noble friend said that was the principle of the Bill at the beginning. I have very little difficulty with the question as formulated by the noble Lord, Lord Armstrong, and would be perfectly happy with it. However, I do not think it is a really definitive question for the referendum itself because that would be much better looked at when, finally, the referendum actually takes place.

[Lord Giddens]

Is not the inference from what the noble and learned Lord says that anything could be in the Bill and it would not matter as long as it goes through? That, surely, is an absurd position. It is up to us in the House of Lords to make sure that the Bill is sensible and well reasoned and, especially, that the question asked is fair and impartial. That is absolutely central to any referendum, as any country anywhere around the world with experience of this shows. The question has to be clear, fair and impartial and it has to be the core of what determines the future of the country. It does not make any sense to say that it does not matter and we will come back to it later.

[Lord Mackay of Clashfern]

I do not say that the question does not matter—not at all. I perfectly understand that the question at the time the referendum is taken has to be fair, excellent and take full account of the circumstances. In response to the second question asked by the noble Baroness, there is quite a lot of work to be done, but I know of no way other than this Bill that gives an assurance to the British people, going into the next election, that they will have an “in or out” referendum.

[Lord Hannay of Chiswick]

Would I be wrong in saying that the whole trend of the noble and learned Lord’s reasoning, which I have been following with great care, is that the wording for the referendum should not be in the Bill at all but should be determined by statute in the new Parliament? If that is the case, would it not be better to at least follow the amendment of the noble Lord, Lord Armstrong, and have a decent wording in the Bill? There is of course no Motion on the Order Paper to dispense totally with the wording.

[Lord Mackay of Clashfern]

My Lords, in order to have an enforceable entitlement, it is essential, as I see it, to have a question that is related to the issue that you want to raise. Essentially, the Bill is legislating to say, “There shall be a referendum”. However, in order to be enforceable and to create a real entitlement, it has to state the time within which the referendum must happen, the question that must be raised, the mechanisms by which a system can be set and who the electorate are. That is all necessary in order to create an entitlement, but the entitlement does not mean that the referendum is going to take place only in accordance with the Bill. There is no question that this Bill binds any other Parliament any more than any other Bill with a sunset clause in it. This Bill does nothing except give that entitlement to the British people. If the Bill passes, I shall be interested in the number of manifestos that contain an undertaking to repeal it.

[Baroness Falkner of Margravine]

The noble and learned Lord has set out his position repeatedly and carefully but there is one point where I am unclear on it. Is he not aware that there is an entitlement, called the European Union Act 2011, which creates a steadfast, watertight provision that there will be a referendum should there be any change and transfer of powers from the United Kingdom to the EU? It does not even limit us to having that referendum by 2017. Should that happen before 2017, we would be required to have a referendum before 2017.

--- Later in debate ---

[Lord Mackay of Clashfern]

The noble Baroness can be assured that I know of that Act. Indeed, I took part in proposing an amendment to the then Bill which ultimately was accepted, after negotiation and with modifications, in the House of Commons. I do know about that, but the trouble is that it applies only when there is a transfer of power to the European Union. This is why it is so important that this is an “in or out” referendum.

This is what UKIP wants. I am trying to get round to saying that a terrible shadow is cast on the second question that UKIP is posing by the attitude to the first question. An important point for noble Lords to consider in relation to the Bill is that UKIP, as I understand it, is saying that the reason there has been no referendum, in spite of so many promises, is that those who are in favour of the referendum do not think that they will get the right answer in it. I do not believe that for a minute. If the British people had a referendum on this subject at more or less any time, but particularly after the next election, I think there would be a resounding yes to staying in the European Union. I am a very firm believer in the European Union, for reasons which I have given, including the one that I was glad to hear the noble Lord, Lord Giddens, mention at Second Reading—the peace that the arrangement has brought to our continent since its inception. I used to hear that a lot from senior Members of the House when I was first here. It is vitally important and I was so glad to hear the noble Lord, Lord Giddens, put it first.

The trouble is that if the Bill does not pass, for whatever reason, it gives the best propaganda yet to the view that we do not want to give the people a referendum because those of us who are in favour of the European Union think we would lose that referendum. The failure to grant a referendum fuels the second aspect of UKIP’s claims. I am very much in favour of the European Union, as I have said. I fear that if we take any action which causes the Bill to fail—particularly those of us who are in favour of the European Union—it will give people the best propaganda yet to say that the reason for refusal in the first issue is the fear of those who support the Union that the referendum will go against them. This has never been a real issue in elections to date because all the main parties have been agreed in relation to the European Union.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Mackay of Clashfern]

I thought it was the courtesy of this House to give the signatories to an amendment the right to speak first after it has been moved. Sadly, earlier in the debate, that system seemed to have been departed from, but I did not come forward quite as early as I might have done on that ground. Anyway, I am here now.

The ordinary, straightforward way to kill this Bill would be to refuse it a Second Reading in this House. But, having granted it a Second Reading, if the Bill is instead killed by the use of a procedure that is intended to improve it, that is a very powerful point that will affect the political debate on this issue until the next general election.

[Lord Hurd of Westwell (Con)]

My Lords, I am following my noble and learned friend’s argument with care. I do not understand, however, quite how those of us who are in favour of Britain remaining in the European Union might be damaged by the acceptance of something on the lines of the amendment. I cannot see why that would be the result of accepting the amendments before us, which simply give guidance and lay down how this House, at this time—the end of January—should give our view on how such a referendum could be phrased. I cannot see how the consequence that my noble and learned friend fears could derive from accepting something like this amendment.

[Lord Mackay of Clashfern]

That fear arises because of what we have been told by the Constitution Committee of this House: that if the Bill is amended it will probably not reach the statute book. That is a very important issue for me. I am sorry about it and, as the noble Lord, Lord Anderson of Swansea, said, it is not our fault; we did not take all this time to consider the Bill but it came to us at the beginning of December and we are trying to get on with it as quickly as possible. I am sorry to have spoken for so long.

[Baroness Boothroyd (CB)]

My Lords, of course it is right for the Constitution Committee to advise this House on what it believes is correct in relation to Private Members’ Bills. But if we amend the Bill in this House and it goes back to the House of Commons, it is certainly for the Government—as the people who determine the business, along with the usual channels—to determine what time should be given to these amendments in the House of Commons. Therefore, we can amend the Bill. That is our job if we wish to do so.

[Lord Mackay of Clashfern]

My Lords, I do not know whether that is an intervention. The trouble with that is that this is not a government Bill. We are in a situation of coalition and the other party in the coalition does not want this, so there is no question of the Government being able to arrange matters in the House of Commons. I defer, of course, to the noble Baroness’s knowledge of the procedure.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, it is very important that we clear this up. Of course, the noble Baroness, Lady Boothroyd, is absolutely right. The problem here is that the Government cannot do that because the Liberals are refusing to allow government time. So it is the case that if the Bill is amended, it will be lost.