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Lord Bassam of Brighton: My Lords, if the noble Lord, Lord Mackay, has not already written a book, he has one in him perhaps entitled, "Great Constitutional Debates in which I have been involved". I shall not offer to be his publisher. I am not sure that it is a book which would sell widely. However, I am sure it would be interesting to read. Perhaps when I have a few idle moments I shall go back to those great debates on the Scotland Bill and read what the noble Lord had to say about constitutions, referendums, and so forth.

As noble Lords know, we have debated this matter before, certainly in Committee. At that point I set out our case against having a threshold. I made the point that on some occasions thresholds may be appropriate, and on others, they might not. Noble Lords reminded your Lordships' House that we have had two referendums in relatively recent political history in which such a threshold was, indeed, imposed. In one case that led to frustration of the will of those who had involved themselves in referendums. In the other the outcome was perhaps more satisfactory and proper.

However, the Government's position is clear and simple. It is that we should consider matters on a case-by-case basis. Both noble Lords who have spoken in this short debate have said that they do not approve of referendums. Given that they come from that starting point, it is to their great credit that they have decided that we should, at least in their view and from their perspective, seek to improve the way in which referendums work. I congratulate them on that.

However, the argument we put in Committee is the one which we believe we should sustain throughout these debates; that is, that we should leave things much as they are. For those reasons, I urge noble Lords to withdraw their amendments. Parliament can make a decision on matters relating to thresholds when it decides to make use of the referendum route to resolve an important constitutional issue. I believe that is the way in which we should proceed. It is the way we have proceeded in the past and I suspect that it is the way we shall proceed in future.

Lord Norton of Louth: My Lords, some people are morning people and some are night people. I suspect that the bad news for your Lordships is that I am both. However, I recognise that not everyone is in that position. I recognise the lateness of the hour, so I shall not respond at great length.

I suspect that it will come as no surprise to the Minister to hear that I am not persuaded by the response to the argument. I had already anticipated his points and put them forward in what I said. However, I acknowledge the lateness of the hour and that this is not perhaps the best time or environment in which to push the matter at this stage. However, like my noble friend Lord Campbell of Alloway, I may wish to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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12.45 a.m.

Clause 102 [Permitted participants]:

Lord Mackay of Ardbrecknish moved Amendment No.172:

    Page 75, line 3, leave out ("resident in the United Kingdom or").

The noble Lord said: My Lords, this amendment and Amendment No. 183 are quite simple. They are probes arising from the rather unsatisfactory position in which we left the Bill in Committee. Amendment No. 172 refers to Clause 102, and any resident in the United Kingdom who is a permitted partcipant in a referendum.

We do not disagree with what is said in the Bill, but we are saying that only people on the electoral register can donate to political parties. Yet in this clause the Government say that any person resident in the United Kingdom will be able to campaign in a referendum. Presumably, that includes foreign nationals. So we could have foreign nationals, not on the electoral register and therefore not eligible to give donations, still campaigning in a referendum on any of the number of issues that might be run in such a referendum. If they are not on the electoral register, they are presumably not permanently resident in the UK anyway because it is remarkably easy to get onto if they come from certain parts of the world. I believe that at the last count there were over 80 countries involved. If they come here they can get onto our register.

I wonder how "resident" is to be defined. Does it mean "ordinarily resident" which is a precise test well-known in law and a higher test, or does it just mean someone who has popped over and rented an hotel room? I do not believe it would be right if someone could just pop over to this country, rent an hotel room and them become a permitted participant in a referendum. I believe that the Government need some internal consistency in the Bill about these matters.

I fully accept that there are probably technical deficencies in Amendment No. 183 so that could cut the Minister's speech somewhat. What I am trying to do here is to address what I might call the Paris and Berlin situation. What is there to stop an individual resident in a foreign country spending millions of pounds in, say, UK newspaper advertisements in favour of one side in a referendum campaign? The Minister did not answer this point, but a person could not be caught by the rules. Would not that make a mockery of the spending controls? Can we have a provision in the Bill which will stop that or would that contravene the ECHR and the free movement of capital?

Frankly, if we cannot, and if I am right in saying that someone could do what I have suggested, then does it not make a mockery of the spending restrictions and referendums? Not only could they spend money on advertising and campaigning, but an individual or organisation could mail into the UK from abroad, as Sir James Goldsmith did in the 1997 campaign with his referendum video. What is there to stop that? Not only could a foreigner do that, but a UK citizen going abroad could exploit that loophole.

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If there is nothing to stop them, then tomorrow the Minister will be in some difficulty arguing that the caps on referendum spending are anything other than just a total waste of time because anyone wishing to get round them will be able to do so in the way I have outlined. I hope that the noble Lord can persuade me that the propositions I am putting to him are wrong and that the Bill would prevent them. I beg to move.

Lord Bassam of Brighton: My Lords, the case for Amendment No. 172 is that it ought not to be possible for a person to be a permitted participant if he cannot be a donor. In the Government's view there need not and should not be an exact parallel.

First, it should be open to a foreigner resident in the UK, whether or not he is registered to vote, to participate in a referendum campaign. In human rights language, there is no sufficient justification for preventing him from doing so. Secondly, a British person resident here who, for whatever reason, dropped off the electoral register ought nevertheless to be able to participate in a referendum campaign. The person may have lost interest in party politics but nevertheless wants to make a mark on a special issue about which he or she feels passionately.

One might say that everyone eligible to register ought to do so, if only to keep up their right to participate in a referendum that might come along. Or it might be said that rolling registration would allow such a person to get on to the register in time to be accepted as a permitted participant. But we feel that that is pushing logic too far.

Clause 102 does a good job. Amendment No. 172 complicates the picture without adding anything of value and therefore the amendment should not be accepted.

Lord Mackay of Ardbrecknish: My Lords, I believe the noble Lord is about to leave that amendment. Is he saying that, if we have a referendum on any issue, somebody from abroad could deliberately come over here to take part in the referendum and that would be sufficient to describe him or her as a "resident"? Is that what the Minister is saying?

Lord Bassam of Brighton: My Lords, I suspect that may well end up being the case. I can see a situation in which an American resident might live here with no registration to vote in place but nevertheless participate in a campaign. But the answer is that "residence" means "residence", not a visit. That may not entirely satisfy the noble Lord, Lord Mackay. He may feel that "residence" could be easily attained. Nevertheless, that issue is worth thinking about.

Lord Mackay of Ardbrecknish: My Lords, I am sorry to intervene again. The Minister was moderately helpful with the aid of people about whom we had better not speak. But what does that mean? If somebody comes from the United States at the beginning of a referendum and lives in a hotel room, will he or she be considered resident? If they took a flat for the duration, would they be considered resident?

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If I can give the noble Lord some advice, he would be on firmer ground if he redefined it as, "the normal legal description of 'ordinarily resident'". But he may need to take advice on that. Without trying terribly hard, I am afraid I have exposed quite a problem here.

Lord Bassam of Brighton: My Lords, the noble Lord is good at exposing problems. I congratulate him on that. I was going to go on to say with regard to Amendment No. 183 that the noble Lord is in danger of becoming an ace loophole spotter, a sort of green ink merchant of the loophole territory.

Our view on Amendment No. 183 is that we are not persuaded that the issue raised by the noble Lord is one to become excited about or that it is practical to do much about it. If the scenario has any reality--the example I have been given is that the Conservative Party might want to encourage participation in a referendum on the euro by British people who have lived abroad too long to keep up registration--we can live with that. In any event, it is not practicable for the electoral commission to crawl about the country looking for people who are spending less than £10,000. The purpose of limits on referendum expenditure is to prevent people from exerting undue influence simply by reason of their great wealth. The purpose of the cut-off point is to point up the people whose contribution to a campaign is really noticeable.

To summarise, on both amendments the noble Lord may have a point of sorts. But we do not believe that the abuse will be that great a problem in the way the noble Lord envisages.

I shall take away his point about reflecting on the meaning of the word "residence" and no doubt someone will come forward with a more satisfactory definition for the purposes of the Bill. I am grateful to the noble Lord for his interest in the matter but he would be wise to withdraw the amendment.

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