[Relevant document: oral and written evidence to the Public Administration and Constitutional Affairs Committee, on EU Referendum Bill, part one: Purdah and impartiality, HC 319.]
Consideration of Bill, as amended in the Committee
New Clause 10
Power to modify section 125 of the 2000 Act
‘(1) In this section—
(a) “section 125” means section 125 of the 2000 Act (restriction on publication etc of promotional material by central and local government etc), as modified by paragraph 26 of Schedule 1, and
(b) “section 125(2)” means subsection (2) of section 125 (which prevents material to which section 125 applies from being published by or on behalf of certain persons and bodies during the 28 days ending with the date of the poll).
(2) The Minister may by regulations make provision modifying section 125, for the purposes of the referendum, so as to exclude from section 125(2) cases where—
(a) material is published—
(i) in a prescribed way, or
(ii) by a communication of a prescribed kind, and
(b) such other conditions as may be prescribed are met.
(3) The communications that may be prescribed under subsection (2)(a)(ii) include, in particular, oral communications and communications with the media.
(4) Before making any regulations under this section, the Minister must consult the Electoral Commission.
(5) Consultation carried out before the commencement of this section is as effective for the purposes of subsection (4) as consultation carried out after that commencement.
(6) In this section—
“prescribed” means prescribed by the regulations;
“publish” has the same meaning as in section 125.
(7) This section does not affect the generality of section 4(1)(c).’. —(Mr Lidington.)
This new clause enables the Minister, by regulations, to modify section 125 of the 2000 Act to exclude material published in a way, or by a kind of communication, specified in the regulations, subject to any conditions in the regulations. Any regulations will be subject to the affirmative resolution procedure.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Manuscript amendment (a) to Government new clause 10, after subsection 5 insert—
‘(5A) Any regulations under subsection (2) must be made not less than four months before the date of the referendum.’.
The purpose of the amendment is to ensure that the “purdah” arrangements that govern ministerial and official announcements, visits and publicity are made at least four months before the date of the referendum.
New clause 5—Restriction on publication etc. of promotional material by central and local government etc.—
‘(1) This section applies to any material which—
(a) provides general information about the referendum;
(b) deals with any of the issues raised by the question on which the referendum is being held;
(c) puts any arguments for or against the proposition that the United Kingdom should remain a member of the European Union; or
(d) is designed to encourage voting at the referendum.
(2) Subject to subsection (3), no material to which this section applies shall be published during the relevant period by or on behalf of—
(a) any Minister of the Crown, government department or local authority; or
(b) any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority.
(3) Subsection (2) does not apply to—
(a) material made available to persons in response to specific requests for information or to persons specifically seeking access to it;
(b) anything done by or on behalf of the Electoral Commission or a person or body designated under section 108 (designation of organisations to whom assistance is available) of the 2000 Act;
(c) the publication of information relating to the holding of the poll; or
(d) the issue of press notices;
and subsection (2)(b) shall not be taken as applying to the British Broadcasting Corporation or Sianel Pedwar Cymru.
(4) In this section—
(a) publish” means make available to the public at large, or any section of the public, in whatever form and by whatever means (and “publication” shall be construed accordingly);
(b) “the relevant period”, in relation to the referendum, means the period of 28 days ending with the date of the poll.’.
This new clause replicates section 125 of the Political Parties, Elections and Referendums Act 2000, and applies it directly to the EU Referendum. It is supplemented by New Clause 6 on Exemptions to prohibition on publication of promotional material by central and local government etc. (No.2). Amendment 4 removes from the Bill the disapplication of section 125 of the 2000 Act.
New clause 6—Exemptions to prohibition on publication of promotional material by central and local government etc. (No. 2)—
‘(1) For the purposes of the referendum the Secretary of State may, by regulations, specify materials that he or she intends or expects to publish in the relevant period to be exempted from the prohibitions on the publication of materials under section (Restriction on publication etc. of promotional material by central and local government etc.).
(2) Any materials listed in regulations made under this section will not be subject to the prohibitions on publication under section 125 of the 2000 Act.
(3) In this section “the relevant period”, in relation to the referendum, means the period of 28 days ending with the date of the poll.’.
This gender-neutral new clause permits the Government to specify material that they intend or expect to publish in the “purdah” period for the referendum that would be exempted from the prohibition on publication of promotional material contained in section 125 of the Political Parties, Elections and Referendums Act 2000, which Amendment 4 would apply to the EU Referendum. The material would have to be specified in regulations exercisable by statutory instrument, which under clause 6 of this bill must be laid before and approved by a resolution of each House of Parliament.
Amendment (a) to new clause 6, at end add—
‘(4) Before laying any regulations under subsection (1) the Government shall seek the advice of the Electoral Commission on the subject of the proposed regulation.
(5) Any advice given by the Electoral Commission under this section shall be published by the time the regulation is laid.
(6) Any regulations under subsection (1) must be made not less than four months before the date of the referendum.’.
The Electoral Commission gives advice to the Government about proposed referendums. The proposed subsections (4) and (5) would reinforce this role in respect of regulations made under this section. Subsection (6) sets a time limit to ensure stable “purdah” arrangements are in place in advance of the start of referendum campaign.
Amendment 11, in clause 10, page 5, line 28, at end insert—
‘(1A) (a) Section 1 will come into effect after a resolution has been passed by both Houses approving arrangements for a purdah period covering a period of five weeks before the referendum date.
(b) arrangements for a purdah period will include—
(i) restrictions on material that can be published by the government, public bodies and the EU institutions; and
(ii) measures to determine breaches of purdah and penalties for such a breach.’
The referendum provision of the Bill could only come into effect after arrangements for purdah had been approved by both Houses of Parliament.
Government amendment 53.
Amendment 78, in schedule 1, page 19, line 23, leave out paragraph 26 and insert—
‘26 (1) Section 125 of the 2000 Act (restriction of publication etc of promotional material by central and local government etc) applies in relation to the referendum during the referendum period with the following modification.
(2) Section 125 (2) (a) of the 2000 Act has effect for the purposes of the referendum as if, after “Crown”, there were inserted “including ministers in the Scottish Government, the Welsh Government, the Northern Ireland Executive and Her Majesty‘s Government of Gibraltar”.’
The purpose of the amendment is to apply the “purdah” arrangements that govern ministerial and official announcements, visits and publicity during general elections to the campaign period before the referendum.
Amendment 4, page 19, line 23, leave out paragraph 26.
The purpose of the amendment is to apply the “purdah” arrangements that govern ministerial and official announcements, visits and publicity during general elections to the campaign period before the referendum. The amendment should be read in conjunction with New Clause 5 (Restriction on publication etc of promotional material by central and local government etc) and New Clause 6 (Exemptions to prohibition on publication of promotional material by central and local government etc (No.2)).
In Committee, I promised to reflect on the concerns that were raised about the Government’s proposal to disapply, for the purposes of the EU referendum, section 125 of the Political Parties, Elections and Referendums Act 2000. The Government accept completely the importance of the referendum being conducted in a way that is both fair and seen to be fair by the partisans on both sides of the debate. In particular, that means that the conduct of both Ministers and civil servants must be beyond reproach. We are therefore bringing to the House today proposals that we believe provide the rigorous safeguards wanted by hon. Members on both sides of the House.
I reiterate what the Foreign Secretary and I have both said before, namely that the Government will not undertake activities during the final 28 days of the campaign that would be seen as the province of the lead campaign organisations. In particular, there should be no question of the Government undertaking any paid advertising or promotion, such as billboards, door drops, leafleting, or newspaper or digital advertising during that period.
What is the exact meaning of what the Minister is saying? My letter to him on behalf of the Public Administration and Constitutional Affairs Committee in July made clear the Committee’s view that section 125 should remain unimpaired and that
“the Government should not be allowed to use the machinery of Government (i.e. the resources of the Government) for campaigning purposes during the purdah period, as is already implied in the Civil Service Code.”
Do the Government accept that position?
I was going to say that, having studied my hon. Friend’s letter and listened to the views expressed by him and many other hon. Members, we are bringing forward amendments that have three effects. First, we are proposing to reinstate section 125 of the 2000 Act and remove the blanket disapplication that is currently in the Bill. Secondly, we propose a narrow and limited exemption to permit the Government to carry out EU business as usual during the final 28 days of the campaign. Thirdly, we propose a power for exemptions to be made to the general prohibition in section 125, subject to an affirmative resolution being passed by both Houses.
If I may finish this point, I will then give way.
In addition, those areas of Government activity that are permitted by Parliament will be subject to guidance from the Prime Minister to Ministers and from the Cabinet Secretary to civil servants based on the purdah guidance issued before previous referendum campaigns. The Cabinet Secretary said in evidence to the Public Administration and Constitutional Affairs Committee that civil servants would not under any circumstances be permitted to support Ministers in doing things that Ministers were prohibited by statute from taking part in.
Why is it necessary for the Government to make any amendment to section 125? The Electoral Commission has carried out statutory reviews of the referendums since 2004 and has not identified any significant concerns from the Government or any other party about the application of section 125. Why are the Government changing the playing field and insisting on modifications to something that has worked well and that they have used in the past?
We are bringing forward limited exemptions from section 125 because we believe—we have received firm legal advice on this—that if left completely unamended, it would pose genuine difficulties. I will go on to speak in some detail about this matter to respond to the concerns that my right hon. Friend and other colleagues have expressed. Before doing so, I give way to my hon. Friend the Member for Stone (Sir William Cash).
Of course my right hon. Friend has received legal advice, but legal advice can cut both ways. Indeed, Speaker’s Counsel has made it clear that he does not think there is much of a problem in respect of the issues the Minister has just been describing. Not only have the Electoral Commission and Speaker’s Counsel been clear on these points, but if regulations are introduced, they will come in by way of the affirmative procedure after the Bill has been enacted and there will be no opportunity to amend them, because regulations, being statutory instruments, can only be accepted or rejected in their entirety. Does my right hon. Friend not agree?
In answer to my hon. Friend’s last point, if the House is dissatisfied with any regulation that the Government put before Parliament, it can reject the statutory instrument. In that case, the default position under the package that I am proposing to the House would be to revert to section 125 without the exemptions being made by regulation. There is, therefore, the safeguard that Parliament will have the final say.
I hope that my hon. Friend will listen when I address the concerns in more detail, but I say to him first that I have been present at a number of debates in the House when he has said that a legal opinion that he has received is of weight and importance. I think that the Government are entitled to take seriously the arguments that Treasury counsel have put to them.
I realise that I should not be interrupting the flow of people to whom the Government are only too anxious to make any concession that is demanded and who are obviously quite clear about what result they want from the referendum—indeed, they are rather more concerned about the result than the process—but will the Minister confirm that, whatever further concessions he is now making, it will still be possible for Ministers to give a clear and authoritative opinion on whether, according to the constitutional Government of the country, it is in the best interests of the United Kingdom in respect of its political future in the world and its economic prospects to be in or out of the European Union, and that little things like being allowed to take advice on the factual accuracy of what they are saying on behalf—
Order. [Interruption.] Order! The right hon. and learned Gentleman knows that interventions have to be short. We cannot have speeches at this stage. [Interruption.] I will make the decision. I am sure that the Minister will want to reply. If the right hon. and learned Gentleman needs to intervene again, he may do so, but we cannot have speeches or long interventions.
Order. [Interruption.] Order. The right hon. and learned Gentleman will have to sit down for a moment. He is well known as the big beast and I am certain that he has never worried about the number of people around him who may not be on the same side.
The answer to my right hon. and learned Friend’s question is that the Government will, of course, express their view very clearly at the conclusion of the negotiations and make their recommendation to the country, giving their reasons for so doing. One aspect of the debate about which we have concerns is how the Government, who will have called the referendum and made a recommendation to the British people, should be able to express their view and answer questions in the final four weeks, as he described. The debate about so-called purdah and section 125 relates specifically to the final 28 days of the campaign.
Will my right hon. Friend comment briefly on the comments that were sent out at just gone half-past 12 today by Michael Carpenter, the Speaker’s Counsel, in which he said:
“I commented about all this in my earlier note to the Committee. Mr Lidington seems simply to repeat the unsound arguments advanced before.”
For those of us who have concerns, that is a very worrying statement from such learned counsel.
If my hon. Friend had received the legal advice that I have had, she might take a rather different view.
Many hon. Members have said that the purdah rules that apply during elections have worked well and I agree. Of course, those rules are based entirely on guidance and convention. They allow for common sense and involve no legal risk. Section 125 of the 2000 Act is very different, since it is a statutory restriction. Given that the EU referendum debate will, I think we would all accept, involve people on both sides of the argument with deep personal pockets and passionate views on the subject, the risk of legal challenges during the campaign is real. The Government are seeking, through the amendments, to manage that legal risk.
With respect, I think that this is legalistic claptrap. I do not remember the Prime Minister being particularly constrained in arguing his case during the general election. What is important is that the process is considered to be fair. Why can we not just cut to the chase and accept amendment 4, which was tabled by the Opposition, under which we would have full purdah and do what we do in general elections, so that everybody thinks it is fair?
As I have just said to the House, what the Government can and cannot do in general elections is governed by guidance and convention, and not by statute, which brings the risk that a dispute could end up before the courts. The situation as regards the EU referendum is different, because there is law on the statute book, dating from 2000, so discretion and common sense cannot be applied in the way that is possible during elections, when we rely on guidance.
On amendment 53, we believe that section 125, as drafted in the 2000 Act, would create legal risk and uncertainty in what I might describe as ongoing normal EU business during the final weeks before the referendum. One of the problems with the original subsection 1(b) is the breadth of the wording that describes and defines the material that would be caught. It imposes a very wide-ranging prohibition on Government activity. It bans public bodies and persons
“whose expenses are defrayed wholly or mainly out of public funds”
from publishing material that
“deals with any of the issues raised by”
the referendum question.
Unlike the recent cases of the Scottish or alternative vote referendums, the subject matter of the EU referendum cannot simply be avoided in Government communications during the last 28 days. The subject of EU membership is broad. A Government statement in Brussels on an EU issue under negotiation could be said to be dealing with an issue raised by the question of our membership, and therefore be caught by the restrictions in section 125. Let me provide an example.
There are ongoing negotiations between the EU and the United States on the Transatlantic Trade and Investment Partnership. It is perfectly conceivable that, at some stage during the last month of our referendum campaign, those negotiations could reach a stage at which there would be a discussion between the institutions of the EU and member states of the EU. The British Government would have a view on the right outcome and might want to circulate papers to lobby, using the sort of materials that would be captured by the section 125 definition of publication. If the section remains unamended, my concern is that there is a risk that that will be challenged in court, because it could be said to be raised by the referendum campaign. It is certainly conceivable that one or other or both of the campaign organisations could pray in aid that particular issue as indicating why we should or should not remain a member of the EU. Once that happened, it would certainly be classed as raised by the referendum campaign.
I am grateful to the Minister for giving way. He is, as usual, helpful in explaining his case. In reality, however, if that situation arose the discussions would not happen in the 28 days when this country was making up its mind whether it wanted to be part of the European Union. That just would not happen. The EU is very good at putting things off and the idea that that example is a reason for changing the law is fanciful.
My hon. Friend does not understand the extent to which we simply do not know. One member state can control the timing of items on the agenda. The timing depends on which particular illustration one is looking at, but the country holding the rotating presidency of the European Union will decide which items of business appear on the agenda of Council and COREPER meetings. The Commission will decide when to publish new proposals for, or amendments to, legislation. The European Parliament is a law unto itself. Its sessions will continue during our referendum campaign and the British Government are likely to want to circulate published material, under the terms of the 2000 Act, to try to influence decisions of MEPs in a way that favours our national interest.
Can I just get this right? The Minister’s case is that some nefarious other Government will seize the opportunity of the 28-day period to rush something through the European Union. If so, that will be the fastest bout of decision-making in the EU’s history!
I am saying that the European Union is a constant process of negotiation on a whole range of issues involving Ministers and officials from many different Departments. In the course of that work to champion our national interests, Ministers and their officials have to produce materials that I believe could be classed, under section 125, as published material and material the content of which would deal with an issue raised by the referendum question. As well as covering a wide range of content, the 2000 Act gives a very broad definition of the term “publish”. It defines it as making it
“available to the public at large, or any section of the public, in whatever form and by whatever means”.
That would therefore cover printed material and electronic communications.
May I give the Minister an example of what I fear? What I envisage is if, two weeks before the date of the referendum, the leave campaign is 10 points ahead in the poll—I hope it will be further ahead, but for argument’s sake let us just say it will be 10 points ahead—I am not sure that the Minister’s amendment will deal with the prospect of the Government, the European Commission and the German Chancellor all in a mad panic, like the clumsy intervention in the Scottish vow, standing up and saying, “We hear what you are saying and if you vote to stay in we promise to address some of these issues.” Will the Minister give a commitment now that the Government will not engage in that kind of activity?
What my hon. Friend describes would not be permitted under the amendment.
Let me give some examples of the types of business I believe would be caught under section 125. We often table minute statements during Council meetings, for example to set out the UK position on the limits of powers conferred on the EU under the treaty. They are an important point of reference to have on the record, and we make them public and publish them. We circulate papers to other Governments and to the institutions to advocate particular policy outcomes. We did that with some success recently in relation to the digital single market. If appropriate, we would want to do that with other EU business if it happened to fall within the final 28 days of the campaign.
As a Minister I sat on Telecommunication Councils and it is incredibly detailed stuff. Surely we could wait 28 days to publish such material. That would be perfectly possible. I do not know what hack in the Foreign Office is writing the Minister’s speech, but the reality is that it just does not add up.
If a decision to attempt to reach a consensus at Council happens to be timed to fall within those 28 days—I do not think we can assume that all EU business is going to stop for the last 28 days of our campaign—then of course, in those circumstances, the Government would want to make representations, including circulating the type of paper I have described. European Court of Justice judgments are handed down and advocates-general opinions are presented in a timetable that is not within our gift or influence. Again, the Government not only often wish to comment on such matters but to guide British business and other interest groups on what those judgments or recommendations actually mean. For example, had the recent case on European Central Bank clearances gone against us, there would have been an extremely urgent need to write to notify City institutions on the implications of that judgment for them, to avoid a risk of instability in the markets.
To clarify a point the Minister made earlier, can he assure the House that under his proposals we will not, in the run-up to the referendum, see something like the vow that came out just before the Scottish independence referendum? Will he rule out that kind of thing?
My right hon. Friend’s amendment 53 changes the scope of the subjects within purdah. I have listened carefully to his remarks, and he has explained very articulately the functions that might need to be carried out, but instead of moving amendment 53, could he not accept amendment 4, go back to normal purdah and introduce in statutory instruments exemptions relating to functions rather than subjects?
My right hon. Friend is so desperate to give way to everything put to him, I do not think I am his friend at all. In my opinion, he has already given away far too much. I quite understand why: the opportunism of the Opposition parties, which do not agree with the hard-line Eurosceptics in my party but which are determined to vote with our rebels to force this preposterous situation on us. Will he assure me that if, two weeks before the campaign ends, a decision is suddenly taken to finish health and safety or food safety regulations in some key area, because a judgment of the European Court has meant that hundreds will die or the horticulture industry will be wiped out, a Minister will be allowed, in these complex trade matters, on TTIP and so on, to consult officials and give some authoritative, clear description of what the decision or proposal actually means? I do not think that most of our right-wing newspapers would report what he would say based on factual advice, but could we leave open the possibility that he can at least consult experts on the negotiations before giving statements on behalf of the Government?
I want to make a suggestion and throw the Minister a lifeline he may wish to grasp. I think we all agree that both sides want to be sure that the referendum is fair, and I hope both sides agree that the Electoral Commission is independent, impartial and professional in organising referendums. New clause 10 is so drafted that the only duty on a Minister introducing regulations to make exemptions from purdah is that the commission is consulted. I suggest that we change “consult” to “seek the approval of” the commission.
I will come to new clause 10 in a few moments, after I have finished with amendment 53, because the arguments raised by the former are slightly different.
I want to deal with the point made by my hon. Friend the Member for Wycombe (Mr Baker). Amendment 53 reapplies section 125 for the purposes of the referendum, but with limited modifications to enable the Government to transact wider EU business without the legal risks I have described. The list of prohibitions in the amendment directly reproduces some of the things in section 125, such as the prohibition on the Government encouraging people to vote in the referendum—that is, I think, a word-for-word replication of what is in section 125. The key difference applies to section 125(1)(b), which we propose to rephrase by replacing the words that capture publications on any subject “raised by” the referendum campaign with words applying the prohibition to material that
“directly addresses the question of whether the United Kingdom should remain a member of the European Union”,
meaning, we believe, that ordinary, ongoing EU business would not be caught.
We have also proposed revisions to subsection (1)(c) that give additional safeguards to those worried about the Government or other public sector bodies misusing the exemption. If subsection (1)(c) were left in its current form, with the words
“puts any arguments for or against any particular answer”
to the question of our membership, it would create a lack of clarity over whether material would be prohibited if it did not argue explicitly for remaining or leaving but did set out a view of the consequences of remaining or leaving. We took the view that there should not be such a loophole. The amendment therefore provides that any material that either deals directly with the referendum question or sets out the consequences of remaining or leaving would be caught, but that a publication on normal EU business that did not touch on those issues or draw lessons about what it meant for the UK’s membership would be permitted.
My hon. Friend asked why we were proposing this alteration in an amendment to the Bill rather than in secondary legislation.
We wanted, if possible, to avoid language that relied on statements about the intention of a particular publication—to use the language in section 125—because once we get into questions about the intention of the publisher, we are almost inviting a legal challenge and wrangle over what was intended or not intended. I considered whether we ought to adopt the approach that I think lies behind my hon. Friend’s question and list exhaustively the types of publication that might be covered. The difficulty is that it is in the nature of EU business that it sometimes proceeds at a stately pace but sometimes rapidly and at short notice, and I felt that the Government needed the ability to respond and that a list purporting to be exhaustive would make it more difficult to manage the legal risks. To sum up, we thought that in managing the legal risks the most effective way to proceed was to balance them with a reinforced safeguard against the misuse of the limited exemption.
Does the Minister not recollect that since the late ’90s, when the legislation was first framed by the Labour Government, the Conservative party, first in opposition and then in government, has never once said that there was any problem with the legislation in all the referendums we have had? We accepted it in 2000 knowing that Labour wanted a referendum on the euro—it was really about the euro referendum we never had—and we never thought it was a problem.
The legislation is now 15 years old, and the more we have gone into its detail, the more I have come to the view that many of its provisions, including some we are not planning to amend, would benefit from a review simply to bring it up to date. For example, it was written in an age before the digital communications and social media that are now normal. We have considered this matter in detail and taken serious legal advice, and we believe that there are legal risks of the type I have described.
On new clause 10, on Second Reading, the Foreign Secretary and I argued that given that the referendum was being held on the basis of a clear Government commitment and that voters would be asked in effect whether they agreed or disagreed with a Government recommendation, following a Government-led renegotiation, it was reasonable for Ministers to be able, with restraint, to use ordinary Government communications channels and civil service support, including during the final 28 days of the campaign. However, it was clear from the debates at earlier stages and from my conversations with hon. Members on both sides of the House that there was widespread concern about the scope of any general exemption for Government communications.
Instead, new clause 10 provides a power to make regulations to exempt particular categories of publication from section 125. Any such regulation would need to be approved by an affirmative resolution in both Houses. We have also adopted the recommendation of the Political and Constitutional Affairs Committee that the Government should consult the Electoral Commission before any such regulation is made.
While I understand the constructive intention behind the suggestion made by the hon. Member for North Down (Lady Hermon), I think that at the end of the day the Government must be free to go to Parliament and ask whether it accepts or rejects a particular proposal. The safeguard here is that if Government new clause 10 is accepted tonight, both Houses will have the right to veto anything that the Government might bring forward under this new provision.
Let me explain the kind of things I have in mind. They include, for example, modernising the press notice exemption, which is already in section 125, to take account of digital media, by making it clear that it is permissible to link to a press notice from a website or a social media site; allowing the publication of a document on government.uk; or clarifying that material passed on to the print or broadcasting media would be acceptable. None of those things is clear at the moment. Let me repeat that we have no intention of legislating to allow the Government to do things such as mailshots, paid advertising or leafleting.
I return to the point raised by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). This power by regulation could be used to clarify a possible de minimis common-sense use of official resources; it might be permissible for Ministers or others caught by section 125 as it currently stands to apply it. Depending on the phrasing of a regulation—if Parliament accepts it—it might cover fact checking by officials so that a Minister could respond in a ministerial capacity to a particular statement that had been made about the Government’s position. It would be for Parliament to say whether it was permitted or not; and on my reading of section 125, it is not currently permitted.
My right hon. Friend seems very nervous about expressing an opinion on that, which would perhaps not be necessary if we had a more representative body listening to the debate than we happen to have in the Chamber at the moment with this selective group. The Government, who will be the Government at the start of the referendum and after it—[Interruption]—and during it, as the Foreign Secretary rightly says, should not have a period of four weeks during which they cannot check the factual accuracy of anything the Minister says on a controversial European subject. The Government will be unable to use the resources of the civil service to put out statements, including factual statements, on what propositions are correct, and they will be unable to use any Government resources to explain the merits or otherwise of what will be the Government’s position on a particular issue. We have not covered this problem; we have already gone—farcically—too far in neutralising the ability of the Government to give an authoritative opinion and explanation of the facts and the issues in the course of the campaign.
My right hon. and learned Friend puts his view forcefully. That was the case the Foreign Secretary and I put on Second Reading and in Committee, but widespread concern was expressed on both sides suggesting that we were asking for something that was too broad in scope. That is why we have come forward today with something that is, yes, a lot narrower than what was originally in the Bill.
I want to touch on a further point about new clause 10, and then I want to try to bring my remarks to a close, touching briefly on some of the other amendments, because other Members wish to speak.
There has been some debate about whether individuals, including elected representatives, are caught under section 125. We have not proposed to alter the wording in this respect. It states that no material can be published in the final 28 days, and makes it clear that this applies not only to the Government and local authorities, but to
“any other person or body whose expenses are defrayed wholly or mainly out of public funds or by any local authority.”
Let me be straight about this. Both the Foreign Secretary and I were rather taken aback when we received advice saying that there was a risk that elected representatives or anybody else in the public sector might be caught by the provision. A literal reading of that part of section 125 suggests that that might be the case. It is also true that this does not seem to have been a significant issue in previous referendums. It has not been tested in the courts and there is room for legal argument. It would be possible under the automating power to put that beyond any doubt.
To ensure that the electorate are properly informed so that they can take a decision on our future relationship with Europe on that basis rather than on an emotional basis, we need a proper cost-benefit analysis of the whole issue. It should not be applied just to immigration, which is the issue of today, but to how much the EU costs, how much we get out of it, how the regulations impact on businesses and jobs and so forth, so that the electorate can make an informed choice.
I do not want to trespass on matters that will come up in the second group of amendments, which we will debate later, but I am very confident that when we come to the end of the negotiations, the Prime Minister will want not only to make a firm recommendation, but to explain his reasoning to the public in full.
I am somewhat astonished that the Government are raising the question of hon. Members somehow being caught by purdah provisions. It is an established legal principle that titles of sections are not used to determine construction in legal interpretation. The word “person”—here I take the advice of Speaker’s Counsel—is likely to mean “a legal person” and to be of a similar nature to “a body”. The Minister’s suggestion that this might constitute “individuals” betrays, I think, the poor legal advice he has been given.
I am not arguing that there is legal certainty about this, but if my hon. Friend looks at the wording of the Act—this is not something invented by this Government—he will see that it refers to
“any other person or body”,
thus distinguishing between the two concepts. I am saying that this would need further discussion and legal analysis, but that if we came to the view that there was any sort of risk to individuals, there should be a power to make it possible to remedy the problem.
Is my right hon. Friend prepared to accept manuscript amendment (a)? Why does he not bring before us a draft of the regulations that he proposes? That is common practice in the legislative context, and Committees are often allowed to look at the draft regulations, but we do not have them before us.
It would be premature to bring forward draft regulations before the Bill has completed its progress through this House and before it has even started in the House of Lords. The provisions in amendment 53 include a duty on the Government, following the Select Committee’s advice, to consult the Electoral Commission about anything we might want to bring forward under this measure. Then, of course, those have to be laid before Parliament in the usual way, be debated and be approved or not approved in the same way as any secondary legislation.
I am going to make some progress. At the end of the day, it is for Parliament to decide whether or not it is satisfied.
I leave it to Opposition Members to speak to their own amendments. I thought that there was not a huge difference between what they had proposed in new clause 6 and what the Government are proposing, but there are some technical difficulties over issues such as what is meant by the term “materials”, and not least over the fact that the Opposition amendments would permit exemptions from section 125 only for material to be published by the Government. There would, for example, be no provision for any kind of exemption for the devolved Administrations.
I just wanted to finish off this interesting discussion about what MPs can do. It is complete nonsense that MPs could not join in a referendum. We all know that MPs join in referendum campaigns, and in local election and by-election campaigns, and that they do so as politicians. They are, quite rightly, not allowed any MP expenses—they must not abuse this place—but, as politicians, they can intervene, under the existing law.
During general election campaigns, we are not Members of Parliament. Parliament has been dissolved, and we act as individuals, putting ourselves forward as candidates. In the case of local or European parliamentary elections, Independent Parliamentary Standards Authority rules apply to how our expenses may be spent. However, there is no statutory prohibition of the kind that is embodied in section 125. Let me say again to my right hon. Friend that it is the words of section 125 that give rise to this concern.
Let me now address amendment (a), tabled by the Chairman of the Select Committee. It suggests that there should be a period of four months between Parliament’s agreeing to any statutory instrument and the date of the referendum. I can see the case for that. It would provide an assurance that the Government would not try to rush through secondary legislation, and it would ensure that Parliament had ample time to consider the matter for it to be on the statute book before the referendum campaign, in its most ardent stages, got under way. However, I felt that the difficulty was that it would introduce a rigidity into the timing that was unwelcome—[Interruption.] Let me finish. We do not know exactly what might happen during the period that we are considering. If something were to come up and there was a consensus in Parliament that a change, a narrow exemption, was needed, we would be unable to introduce it at a later stage if we accepted the minimum period of four months that my hon. Friend has proposed.
Having thought long and hard about the matter and discussed it with colleagues, I have concluded that, largely in the interests of trying to secure as great a consensus as possible, we will accept amendment (a). As I have said, I think that a firm time limit of that type has drawbacks, but, in the interests of bridge-building—and paying due respect to the recommendation of a cross-party Select Committee—I am prepared to accept the amendment on the Government’s behalf.
I thank the Minister for outlining the Government’s approach—at some length.
Since the Bill’s publication, there has been a great deal of debate about the purdah provisions, and specifically about the proposal in paragraph 26 of schedule 1 to strike out the purdah regime set out in the Political Parties, Elections and Referendums Act 2000. There has been a great deal of comment about the Government’s motivations. The accusation has been made that they want to load the dice, and to set up a regime for the conduct of the referendum that would stack the odds in favour of one side, or would allow Ministers to abuse the power of their positions.
Having watched the debate unfold, not just this evening but since the Bill’s publication, I suspect that, from the Government’s point of view, this may be something of an accidental fight. This has the feel of a Bill that was drawn up quickly on the back of the election result, with some advice adopted about what purdah might or might not mean, but without that advice being explored and tested as intensely as it might have been in other circumstances. It looks as though the self-imposed imperative of moving immediately after the Queen’s Speech may have taken over from the task of bottoming the Bill out.
I am not sure whether, when Ministers drew up the Bill, they expected the purdah provision to generate this amount of heat. I rather suspect that they did not, but having included the provision in the Bill, they have had to justify it. As we have heard from the Minister this evening, their justification has been twofold. The first justification is that section 125 of the 2000 Act is so widely drawn that it would paralyse much of the Government’s work on the EU referendum, in a way that would not be the case with a referendum on another subject. The second is that the Government want to take a view, express that view, and, in some way, use Government resources—such as civil servants, special advisers or Government websites—to do so.
We listened carefully to the arguments advanced on Second Reading and in Committee. Our proposals are set out in new clauses 5 and 6, and in amendment 4. Taken collectively, those proposals would leave the purdah regime in place, but there would also be a mechanism for seeking exceptions to it through regulations that would have to be approved by Parliament. That would have several effects. It would put Parliament in the driving seat when it came to deciding whether the Government had a case for exceptions to purdah and testing some of the arguments that the Minister has just set out; it would act as a safeguard against the suggestion that the referendum was being run in an unfair way, if Parliament were tasked with approving the regulations; and, as I have said, it would provide a mechanism for testing the proposition that “business as usual” Government announcements—for example, responses to urgent situations or important decisions made at the European Council— would inadvertently be caught by the purdah regime. We believe that this approach—reinstating purdah, but allowing a mechanism via regulations for exceptions to it—is a sensible way to proceed.
Our intention in all these amendments was to reinstate purdah as set out in section 125, but to set out the mechanism in regulations. If those regulations need to cover the devolved Administrations, they can of course do that.
The Government’s response to the issues raised is set out in new clause 10 and amendment 53, and I would like to spend a few minutes on those. Government new clause 10 accepts our argument about having an exceptions-to-purdah mechanism through regulations approved by Parliament. Indeed, as the Minister set out, there is a great deal of overlap between Government new clause 10 and our new clause 6, but Government new clause 10 has the added dimension of the requirement to consult the Electoral Commission, something asked for by the Public Administration Committee in the correspondence from July. We believe this is a sensible addition and therefore have no objection to new clause 10; nor do we object to the amendment, which the Government have accepted, tabled by the hon. Member for Harwich and North Essex (Mr Jenkin) about the timescale for this.
However, as with much of this debate, amendments and new clauses need to be seen in conjunction with other amendments, in this case Government amendment 53, which makes alterations to the definition of purdah. We do not believe the Government have made a convincing case for those alterations. It is unclear whether the amendment is intended to deal with the business-as-usual issues that the Government have spoken of as being a particular problem, or whether it goes much further in the alteration of the purdah regime. Perhaps more importantly, given the wide redrawing of the purdah rules in this amendment, if it is passed it is not clear whether there will be any need at all for the kind of exceptions regime set out in new clauses 10 and 6. We feel that would give the Government too much scope to act without further parliamentary debate and approval, and we will therefore not support Government amendment 53. To complete the picture of our attitude on these amendments, I should say that we intend to press our amendment 4 to a vote. We will support Government new clause 10, we will oppose amendment 53, and we will support our amendment 4.
Our concern is that, instead of reinstating purdah and then having an exceptions regime, the Government propose to both have an exceptions regime and change the definition of purdah in such a way that there might not even be a need for an exceptions regime.
In the end, the various amendments and new clauses tabled set out three possible ways to deal with this issue. The first is simply to reinstate the purdah regime with no exceptions or modifications—the route perhaps favoured by some in this House. The second way is to reinstate the purdah regime but have a mechanism for exceptions that are subject to the approval of the House through regulations. That is the approach we have set out, and that the Government have, we acknowledge, moved a considerable way towards with the tabling of new clause 10. The third option, which is the one the Government seem to want to pursue, is both to water down the definition of purdah and have an exceptions regime; that is the combined effect of new clause 10 and amendment 53. We believe that the second approach—to have purdah, with exceptions where there is the approval of this House—is the right one.
That would be the case if we did not have new clause 10; yes, amendment 4 would reinstate the full purdah regime, but new clause 10 allows the Government to come forward with regulations dealing with the points the Minister has made about the need for exceptions to this. In that regard, new clause 10 has a lot in common with Opposition new clause 6.
I am confused by the right hon. Gentleman’s response to the former leader of the Scottish National party, the right hon. Member for Gordon (Alex Salmond)—for whom I have enormous regard on these parliamentary occasions—in relation to the devolved Administrations. Opposition new clause 6 states:
“For the purposes of the referendum the Secretary of State may, by regulations, specify materials that he or she intends or expects to publish in the relevant period”.
It clearly does not apply to the Northern Ireland Executive or the Scottish Parliament, and that could not be extended by regulations; it would have to be extended in this Bill, but that is not in this amendment, and I could not possibly vote for it.
As I have said, there is a great deal of overlap between new clause 6 and new clause 10. As I indicated, our voting position is that we will support using new clause 10 to deal with these issues because there is so much overlap between it and our new clause 6. We will oppose Government amendment 53, and we will support our amendment 4.
The right hon. Member for Gordon (Alex Salmond) made a very sensible point on the differences between my amendment 78 and amendment 4, because mine takes account of this issue, as the right hon. Gentleman conceded by saying it could be dealt with subsequently with regulations in relation to Scotland, Wales, Northern Ireland and Gibraltar. I cannot understand why the Opposition cannot take that on board.
The hon. Gentleman is entitled to speak to these issues later in the debate, if he decides to move his amendment 78.
Many other Members will also want to speak in this debate. However, for all the heat generated by this issue of purdah, we should not mistake it as being more important than the issues of substance that this referendum is about. The Bill before us by definition focuses on the rules of the referendum, and there has been a great deal of heat about that, but the arguments about our future place in the EU and the world are a lot more important, and when our debates here are done we should focus on those, rather than the process and the rules and regulations surrounding the poll.
It is important that the referendum be conducted fairly. The objections to the Government position have been made because people want to ensure that it is conducted fairly. While we want change in the purdah regime, we should not be drawn into one process argument after another, which always sets this up as being an unfair referendum process. As I said at the beginning, the Government have probably got themselves into a fight that they did not entirely intend to get into. Some of the suggestions as to what is caught by section 125 make it look too widely drawn. The approach that we have set out is to reinstate the purdah regime, but allow the Government to bring forward regulations to deal with the problems that the Minister set out. That is a sensible way forward that would neither give too much latitude nor ignore the issues that have been raised in today’s debate.
First, I thank my right hon. Friend the Minister for generously accepting amendment (a) to new clause 10. That will provide a significant safeguard and reassurance, and it will provide stability in the referendum campaign. It means that regulations changing the rules will not be made halfway through the campaign, perhaps to suit the convenience of Ministers at a time when the temptation to avail themselves of that convenience might be considerable, given the big issues at stake in the referendum. I am grateful to members of my Committee, the Public Administration and Constitutional Affairs Committee, for supporting that amendment.
I am bound to say, however, that new clause 10 has been described as an open barn door for whatever changes to purdah the Government want to make. Given that they started from the position that they did not want to have purdah in statutory form at all, we are entitled to be a little suspicious about what kind of regulations they might bring forward. I appreciate that there is a safeguard, in that regulations will have to be approved by both Houses of Parliament, and the Committee will be vigilant in looking at those regulations.
I am grateful to my right hon. Friend the Minister, and to my right hon. Friend the Foreign Secretary, who is also listening, for the fact that the Government have accepted the principle that the Electoral Commission should be consulted and give a view in advance of any such regulations. That moves the Electoral Commission into a slightly new role, but it is not uncommon in other countries. In Ireland, for example, the equivalent of the Electoral Commission has a strong role in policing the purdah regime. I will come to that in a minute.
I also thank my right hon. Friend the Minister for Europe for being so scrupulously polite and confirming to all of us once again that his integrity is unimpeachable. I commend him for having brought the Bill a long way from where it was in June, when the Committee wrote to him after taking evidence from Lord Owen, from Jack Straw, from Peter Riddell, the director of the Institute for Government, from Lord Bew, the chair of the Committee on Standards in Public Life, from the Electoral Commission, from Sir Jeremy Heywood and from Ministers. The Government were, and still are, putting forward the view that section 125 of the 2000 Act is too wide-ranging, but that failed to convince almost all our witnesses. As the Minister will recall, we made it clear in our letter that the Committee’s unanimous view was that section 125 should be restored to the Bill, and that
“its intent should remain unimpaired by any amendment.”
I imagine that that remains the view of Committee members, particularly as I suspect most of them will support what is decided in the Division Lobbies later.
We have the Electoral Commission’s advice on the Government’s new proposals, which makes it clear that, like the rest of us, the commission has had very little time to consider them, although I thank my right hon. Friend the Minister for telephoning me while I was in Ireland last week and explaining what was intended. This is pretty complicated stuff, and to end up with 38 pages of amendments to debate in five or six hours is not the best advertisement for how we legislate in this House, but nevertheless there has been dialogue, and it has been good-natured. My colleagues and I do not relish disagreeing with our Government, so we very much appreciate the fact that the dialogue has been conducted in a good-natured way. I thank my right hon. Friend the Chief Whip for that.
The Electoral Commission’s advice states that it has not had sufficient time to fully consider the detailed implications of the Government’s proposals, but that the Government should explain in more detail
“how it would expect to use these powers”—
the powers under new clause 10. It states:
“Our view is that, if Parliament accepts this new clause, its use should be limited only to managing any potential restrictions on the conduct of ‘day-to-day’ EU business.”
The Electoral Commission also makes clear its support for the amendment to new clause 10, which my right hon. Friend the Minister has accepted. It states that any changes should be made
“well before the start of the restricted period of 28 days before polling day.”
I am grateful to him for accepting that.
Speaker’s Counsel has been mentioned. My right hon. Friend said that the TTIP negotiations might suddenly intrude on the last 28 days of campaigning, but Speaker’s Counsel has been clear on that point in emails today. He mentions provisions on EU business being conducted as normal, stating:
“I do not share the view that these are caught by s.125.”
It could not be clearer. He goes on:
“Commenting on EU business is not providing information about a referendum”—
that addresses the question of TTIP negotiations—
“neither is it ‘dealing with any of the issues raised by a referendum’…nor is it putting any arguments for and against any particular answer”.
He points out:
“Even if they were doing any of these things, then s.125(3)(d) expressly allows the issue of press notices (without any restriction as to their content).”
What do the Government need to be able to do that they will not be able to do? That has been singularly unexplained in the whole process.
Does my hon. Friend agree that the fundamental problem is not a lack of faith in the Government but a lack of faith based on past EU referendums in other countries, where the conduct of Governments, and the EU in particular, has led to trust in the process being undermined? Is that not the fundamental problem?
And indeed in our own country—it was the conduct of the Welsh referendum in 1997 that led the Committee on Standards in Public Life to bring forward its proposals for purdah, which the then Labour Government accepted and which the Labour party consistently supports today. Those arrangements were good enough for the north-east referendum, the alternative vote referendum and the most recent Welsh devolution referendum. Indeed, in the view of some Members, they were probably not strong enough in respect of the Scottish referendum last year.
As my right hon. Friend the Member for Wokingham (John Redwood) said, the purdah proposals were designed for a referendum on the euro, so the idea that the European Union was not considered when the arrangements were formulated is just not correct. Tony Blair’s Government introduced the 2000 Act in order that there could be a fair referendum on the euro, which was his ambition. If these arrangements were good enough for Tony Blair, why are they not good enough for our own Conservative Government?
A referendum should be a solemn and carefully regulated constitutional procedure, not a ploy or device to get a particular outcome and fix a political problem. Abuse of the referendum by less scrupulous Governments in the last century famously led Clement Attlee to describe referendums as
“a device of demagogues and dictators”.
Other countries, such as Sweden, Ireland and Switzerland, have much tougher purdah regimes. The Government’s proposals take us backwards, as we have heard from those who have participated in referendums, such as Nigel Smith, a well-known referendum expert who was chairman of the Scottish yes campaign. He has been appalled by the proposals, and he gave evidence to our Committee about them.
It has been suggested that the precedent for the forthcoming referendum should be 1975. I do not know whether Members have read the 1975 Cabinet minutes, but they show how the Government were set to run a parallel campaign to the yes campaign. That is not the precedent that we should follow in the last 28 days of campaigning. Indeed, the Foreign Secretary could bring forward a White Paper before the start of the 28-day period, just as the Scottish Executive brought forward a comprehensive White Paper about their proposals for Scottish independence, although it was lacking in detail and a little bit partisan—we had some comments to make about that. There is nothing to stop the Government bringing forward as much information as they want before the purdah period. Incidentally, the Electoral Commission thinks that 28 days is far too short for a purdah period and we are not debating that today. If the Government, with all the advantages that Governments have, cannot win the referendum just because they will be restricted for the last 28 days, what kind of referendum do we expect to have?
I listened to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) and I really think he wants to go back to a 1975-style referendum where the Government are used as an instrument of campaigning in what should be a fair fight. What is the point of having spending limits on the yes and no campaigns if Ministers can use the machinery of Government in an unrestricted way, which is what the abolition of purdah would mean?
I have never known a referendum of any major consequence in which the losing side has not followed up its defeat by saying it has been cheated and that the electorate has just been misled. That has been said ever since the 1975 referendum, and the Scottish nationalists have said the same thing ever since the Scottish referendum. The Government have no intention of putting out publicity, as they have said. The basic proposition should be that the Government of the day, when putting out a statement of their policy or an explanation of their position on a particular proposal—such as whether or not we as members of the European Union should be party to a TTIP with the United States—should be entitled to use the civil service and their press office as a source of advice and checking the factual accuracy of what Ministers are saying on behalf of the Government. The alternative is preposterous: under my hon. Friend’s proposition, for three weeks there would be no Government.
That is absolute nonsense. Even in a general election, Ministers can get advice from their Departments. Ministers also take advice during local government elections. If something happens that is unconnected with the referendum, Ministers will be able to take advice. I have heard it said that Ministers want to use their private offices to organise their speaking tours and to use their special advisers, who are paid for by the taxpayer, to campaign in the referendum. That is not an acceptable use of public money. What is the point of placing spending limits on the yes and no campaigns if the Government are going to avail themselves of all those advantages? My right hon. and learned Friend could persuade the Government to produce a White Paper to set out their case well in advance of the purdah period. That is an unimpeded advantage of which the Government can avail themselves. All we are saying is that there should be something of a level playing field in the last 28 days.
I regret that the Opposition accept new clause 10; nevertheless I am grateful that they support amendment (a) in order to create a framework for the creation of regulations. I am very unhappy with amendment 53. As the Opposition spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), made plain, to have amendment 53—which already adulterates section 125—without the scrutiny process of regulations and a specific debate about what Ministers actually want to exempt is a shot from a double-barreled shotgun against section 125 of the Political Parties, Elections and Referendums Act 2000. If the Government want to provide exemptions, they should introduce the amendments under regulations rather than under amendment 53.
The advantage of defeating amendment 53 is that we will be able to have amendment 4 instead. It was the unanimous view of the Public Administration and Constitutional Affairs Committee that section 125 and its effect on this referendum should be restored unimpeded. That would be the effect of amendment 4, but there may be some tidying up to do.
Does my hon. Friend accept that, while we may end up voting for amendment 4, amendment 78 is better, simply because it deals with the problems of the devolved territories? As I put it to the Opposition’s Front-Bench spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), even if we end up with amendment 4, the consequence will be that we will still be thrown back by new clause 10, which will leave it all to regulations. As far as I am concerned, that is highly unsatisfactory.
Most of my Committee would certainly agree that this is making the best of a bad job. We will, however, make some progress today if we succeed in restoring section 125 under amendment 4, which the Opposition have pledged to put to a vote should amendment 53 be defeated. I therefore advise my colleagues, very reluctantly, to vote against amendment 53, because while I think the Government have conceded the principle that there should be purdah, they have not accepted the fact of how it will apply. If they want to amend the Bill again in the other place, it would be worth while having that discussion, rather than accepting amendment 53.
May I thank my hon. Friend for all the work he and the Committee have done? Although I am a member of the Committee, I was not able to participate, but he knows my views on the subject. Given that the Government have conceded that their original plans were not acceptable, does he agree that the elegant solution would be for them to withdraw amendment 53 and allow amendment 4 to go through? Purdah would then be reinstated and the Government would have the flexibility, through the solutions provided by the Committee, to produce the regulations for this House to scrutinise. Would not that restore the general public’s confidence in the referendum process?
I wholly agree with my right hon. Friend. In fact, I think that would reinforce the integrity with which the Government have approached the matter. They still have the option of amending the Bill again in the other place and bringing it back for discussion in this House, and of introducing regulations under new clause 10, so long as that happens at least four months before the date of the referendum. I am bound to say that there are plenty of options available to the Government. They do not need to divide the House on amendment 53.
My hon. Friend may not be able to commit to this now, but does he think that the Committee he chairs would be prepared to scrutinise statutory instruments before they come to the House, so that the Government could have confidence that they enjoyed cross-party support before they came to the vote? We are well aware that they cannot be amended; they can only be voted down.
I will certainly undertake to put that in front of my Committee. It depends on the Government: if they table amendments 35 minutes before the deadline and a recess period and are then determined to discuss them on the first day back, it makes it very difficult to scrutinise matters, as the Electoral Commission has attested. I invite my right hon. Friend the Minister for Europe to make sure that any regulations he introduces under new clause 10 are published in draft so that we can properly give them pre-legislative scrutiny, take proper advice on them and make objective recommendations to the House without being rushed or bounced into them.
One of the advantages of amendment (a), which my right hon. Friend has kindly accepted, is that the temptation to bounce the country into a referendum has been significantly reduced. If we are to have a sensible referendum debate, there has to be a proper period for discussion of the outcome of the Government’s negotiations and the merits or otherwise of remaining in or leaving the European Union. I am sure that was the Government’s ambition when they originally proposed the idea of a referendum. I look forward to hearing what the Minister has to say in winding up.
I wish to speak to amendment 11, tabled in my name and those of my hon. Friends.
The Chair of the Public Administration and Constitutional Affairs Committee, the hon. Member for Harwich and North Essex (Mr Jenkin), had my rapt attention and much of my agreement until he produced the remarkable argument that if purdah was good enough for Tony Blair, it should be good enough for the House now. I am afraid that the alliance of scepticism against the Government’s motives was dissolved as a result of that one phrase, that one single disastrous rhetorical flourish.
The hon. Gentleman made another point with which I disagreed, and I want to put this on record before I come to the points on which I agreed with him. He wandered into a period outside the purdah and asked whether at that point the Government had the right to publish a White Paper giving their point of view, backed as a democratically elected Government by the civil service. Of course they have the right to do that, but the House should be concerned about whether the restrictions should apply during the 28-day purdah period, or perhaps for a week longer were the Electoral Commission to have its way. I think that they should, and I shall illustrate that view with a cautionary and moral tale from the Scottish referendum.
The Scottish referendum was regulated not by the Political Parties, Elections and Referendums Act 2000—PPERA—but by the Scottish Independence Referendum Act 2013. The Act made provision for a statutory purdah period in Scotland during the 28 days leading up to the referendum. According to the explanatory notes, part 4 of the Act provided that,
“for the 28 day period ending with the date of the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the question to be voted on in the referendum, putting any arguments for or against a particular answer to the question to be voted on, or which is designed to encourage voting in the referendum.”
In other words, acting in their capacity as Ministers, they were not allowed to use the Government machine during the purdah period to advance the yes cause to which they were all committed. I must point out to those on the Government Front Bench today that nobody interpreted that to mean that this First Minister or any other Scottish Minister should not take part in the referendum campaign. The explanatory notes to the Act went on to state:
“However, this rule does not apply to information made available following a specific request; specified material published by or under the auspices of the Scottish Parliament Corporate Body; any information from the Electoral Commission, a designated organisation or the Chief Counting Officer or any other counting officer; or to any published information about how the poll is to be held.”
In a situation that was every bit as disputatious in regard to the arguments for and against, those measures in the Act were passed with hardly any dissent, rancour or suspicion of motives. It was accepted that that was the right thing to do. Perhaps the Government should have suggested something similar for this referendum, instead of doing whatever they were doing during the recess, unless they are seriously arguing that the constitution of this country involves a much simpler process for a European referendum. Had they done that, they would not now find themselves in this embarrassing position.
Does the right hon. Gentleman recall that the EU dimension of the Scottish referendum was pretty hot? I seem to remember President Barroso and others making statements about the single currency, for example. I speak now as the Chairman of the European Scrutiny Committee. Does the right hon. Gentleman agree that the arguments about the EU business that have been put forward by the Government are rather specious, given that the EU dimension of the Scottish referendum was really very volatile?
Yes, indeed it was, but we are discussing the 28-day purdah period at the moment. It has been suggested to me by a knowledgeable European that President Barroso, as he then was, harboured ambitions to be the Secretary-General of NATO and was hoping for support from Ministers—perhaps not those in the Chamber tonight, but those who are none the less not too far from us. Who knows why President Barroso made those interventions, but they were not made during the 28-day purdah period.
The cautionary aspect of this tale is that that purdah period, enacted in legislation, bound the Scottish Government and their agencies and public bodies in Scotland but it did not bind the United Kingdom Government. The UK Government were bound not by statute but by the Edinburgh agreement of 15 October 2012. That was what we used to call a gentleman’s agreement; it had no statutory basis. Paragraph 29 of that agreement stated:
“The Scottish Government will set out details of restricted behaviour for Scottish Ministers and devolved public bodies in the Referendum Bill to be introduced into the Scottish Parliament. These details will be based on the restrictions set out in PPERA. The UK Government has committed to act according to the same PPERA-based rules during the 28-day period.”
Now, I do not think that they did that. I do not think that most reasonable Members of this House believe that that is what was done. I will give two examples from among the many that I could use.
The first is, I admit, arguable, but it has already been raised on the Conservative Back Benches. It relates to the production of the vow when there were 10 days of campaigning left. The vow was described by the Chancellor of the Exchequer on “The Andrew Marr Show” on 7 September 2014 in this way:
“You will see in the next few days a plan of action to give more powers to Scotland, more tax powers, more spending powers, more powers over the welfare state.”
One of the arguments in favour of purdah is that the arguments should be laid out and set before the campaign period, and that during the campaign the politicians can debate them and the people can participate in the debate—as they did in huge numbers in Scotland—and make up their minds. It is not meant to be a period during which politicians can say, “Here’s a fresh initiative that we forgot to mention earlier.”
A comparison could be made with the European referendum if, for example, what used to be called the no side were to take the lead, unexpectedly perhaps, with 10 days to go and the German Chancellor or the President of the Republic of France were to suspend Question Time in the Bundestag or the National Assembly, get on a plane and rush across to say that the Prime Minister’s renegotiations of our position had suddenly found more favour with them than had previously been the case.
I accept that this point is arguable. Others could argue that the vow was not really a Government announcement from the Chancellor of the Exchequer, and that he was just speaking off his own bat as a politician. I am not sure that that is a good argument, but it is certainly a cautionary tale.
I always enjoy hearing what the right hon. Gentleman has to say, because he speaks so well and is very persuasive. I should like to put on record that I share his view that the vow made during the independence referendum was completely unacceptable. It was a panic measure that was clearly introduced by the Government, and I envisage exactly the same thing happening in an EU referendum, given the same circumstances.
I welcome the hon. Gentleman’s intervention. I would have welcomed it even more if he had made it exactly a year ago. I could then have publicised his scepticism about his Government’s motives.
The second example that I shall give the House is, in my view, beyond argument. The purdah period is meant to cover not only Government Ministers but civil servants. Their involvement is arguably defensible throughout the run-up to a referendum. I disagree with the Select Committee on this point; I believe that civil servants should be able to act on behalf of the elected Government of the day. However, during the purdah period, they are not meant to take a position on the matter that has been put in front of the people. I want to make a point about the referendum unit in Her Majesty’s Treasury, which was described by the permanent secretary to the Treasury earlier this year as a “Unionist institution”. The clue is in the name: Her Majesty’s Treasury. This ignores the fact that the monarchy in its present state was formed a century before the treaty of Union, which was under debate. The referendum unit in the Treasury continued its activities throughout the referendum campaign.
I have an email here showing the briefing from Treasury sources that was going on a week before the referendum. The email was sent to the BBC by a civil servant in the referendum unit of Her Majesty’s Treasury—that Unionist institution—and it was designed to influence the conduct of the referendum, one week before the vote. That seems to be a glaring example of what would have been a breach of the purdah regulations, had they been placed in statute rather than simply in the terms of the Edinburgh agreement.
That is why I turn to our amendment 11. The Minister told us earlier that he did not want to be in a position where legal challenges were flying here, there and everywhere, as that would be an impossible position for the Government to be in. The way to avoid that is not by dismissing the regulations, but by having a system for enforcing the regulations—one that does not rely on injunctions, interdicts or legal cases, but one within the regulations that is properly respected. The hon. Member for North Down (Lady Hermon) made the point in an earlier intervention about the Electoral Commission. The way to avoid a recurrence of what happened in the Scottish referendum and to dispel the notion that the Government over these past four months have been trying to pull a fast one on purdah, which is the overwhelming view across this Chamber at this moment, is by having an enforcement mechanism within the regulations on purdah. That could be done via the Electoral Commission, as the hon. Lady suggested, or via a committee of Privy Counsellors—ever since I became one I have become much friendlier to the idea of a committee of Privy Counsellors. There needs to be some respected body to which possible breaches of purdah can be reported, and these can be investigated and then enforced.
I think the right hon. Gentleman and I are in agreement about the role of civil servants—obeying the Government of the day but not carrying out instructions that would put their Ministers in breach of purdah. There should be something in the civil service code that makes it clear that the yes and no campaigns of a referendum are the equivalent of political parties in an election, but the code contains nothing about referendums. I have great sympathy with the point he is making about the enforcement of purdah, because the north-east referendum had exactly the same problem as he is describing; John Prescott announced new proposals in the last few days before the referendum and we could not get anybody in government interested—they said it was a matter for Ministers.
Does the right hon. Gentleman consider that the bar is so low for a breach, as he puts it, of purdah that even talking on “The Andrew Marr Show” about proposals amounts to such a breach? Is that not a contraindication to the other aspect of his argument and other arguments that have been heard in this Chamber today, in that Ministers and MPs can talk about matters without things being a breach of purdah?
That question was some time in the gestation, and I had moved on from what I described as the “arguable” case of the vow. The vow was not a single appearance on “The Andrew Marr Show”, and I used the quote from that show just to demonstrate to the House that the vow was presented as a new initiative, something different, a last-minute offer. The argument about whether the vow breached purdah has been made well by the hon. Member for Shipley (Philip Davies) and the analogy in a European referendum would be a re-presentation. Presumably, the idea in the European referendum is meant to be that the Prime Minister renegotiates this country’s relationships with the EU and then presents that to the people for consideration of whether they want to be in or out on that basis. The equivalent idea here, therefore, would be that he finishes that renegotiation but things are going badly in the campaign and so there is a further renegotiation and re-presentation. I certainly do not believe that is within the spirit of a purdah regulation, although people might argue that it meets the letter of it.
I accept that that point is debatable—I am pretty clear which side I am on—but there is no debate whatsoever about the behaviour of officials in Her Majesty’s Treasury in the referendum unit who were actively briefing and intervening during the campaign. The reason that was allowed to happen is that, as the Chair of the Select Committee said, the civil service code does not specify referendums in the way that it does elections and there was no statutory basis for the enforcement of purdah in the UK Government as there was for the Scottish Government.
In the light of the interesting argument and the factual information that the right hon. Gentleman is giving the House, I wondered whether he had had an opportunity to discuss these matters with the Opposition and what the outcome of those discussions might be as to whether they would support the kind of enforcement arrangements he has in mind.
I have had some chats through informal channels, but I was hoping that the hon. Gentleman’s warm reception to my point might convince those in all parts of the House that there was something sensible in not just talking about purdah but actually having an organised enforcement mechanism and putting in place my amendment’s suggestion of
“measures to determine breaches of purdah and penalties for such a breach”.
As I say, I am open to the suggestion from the hon. Member for North Down about involving the Electoral Commission or about its involving a committee of Privy Counsellors—just so long as there is an enforcement mechanism. The evidence from last year, when there was no statutory basis or enforcement mechanism, was that there are people who will drive a coach and horses through a purdah period.
I am pro-European to my fingertips. I am more pro-European than I suspect most Conservative Members will ever be and certainly more than the Prime Minister will ever be, but I want to see this referendum conducted on a fair and proper basis. That includes a purdah period and, when it has been agreed, everybody sticking by the rules and there being an enforcement mechanism to make sure that they do so.
I would just like to take up the point that the right hon. Gentleman ended on. For all the reasons that I gave in Committee, when I put the case for going back to section 125 in its complete integrity, in order to have fairness it is essential that we have something by which people abide. A lot of this debate tends, from time to time, to move between what the Conservative party says or what Labour, the Liberal Democrats or the Scottish National party say. First, it was decided that we were going to have a European Union referendum Bill, and now the Electoral Commission has changed the nature of the question, with the consent of the Government. The question now is, “Do you, the voters of this country, want to remain in or do you want to leave?” This has cut completely across all political parties. Therefore, although this debate is taking place in this Chamber, the nature of this debate involving the Conservatives, Labour and the SNP must not be allowed to distort the fact that this is a vote about the real future of the individual people of this country. It is about the voters deciding for the first time since 1975 whether they are going to stay in what I regard now as a dysfunctional European Union—the immigration issue has recently made that even more obvious—or whether we are going to continue to argue that we should leave, because we can make that case. That is to come and the bottom line is that this Bill is not about “Conservative versus Labour”; it should be about the positions adopted across the Floor of the House. I know for a fact that many Labour Back Benchers agree with those who share my view on the Conservative Back Benches—and there are some on the Front Benches, too. It may well turn out that we will need to address the question later of whether or not Ministers should be allowed to participate on either side of the debate in the national interest.
I was particularly taken by and interested in the recent article the Minister wrote on “ConservativeHome”, in which he rather gave the game away. He and I have been discussing this since 1990, when he was special adviser to no less than the Foreign Secretary and other people in No. 10 were desk officers for the Government position at that time under John Major. Let me read what he said right at the end of his article, because I want to concentrate on the reasons for purdah. We have heard so many arguments in relation to the process. I have made my position quite clear, which is that amendment 78 is more comprehensive than amendment 4. Let me bypass that argument for the moment in the interests of trying to achieve the best result, but without prejudice to coming back to the matter at a later date.
In the final paragraph, the Europe Minister said:
“Ultimately, this is about the EU’s effectiveness as a whole. We want”—
whoever we may be—
“a dynamic, competitive, outwardly focused Europe, delivering prosperity and security for all of the people in the EU, not just for those in Britain.”
Actually, that is not what this debate on the referendum will be about. Elements of the argument will demonstrate that there are certain advantages in having a degree of alliance and co-operation in Europe, which I am in favour of, but not on the basis of the status quo of the treaties, or of the tweaking of negotiations that do not make any substantial difference to the basis on which those treaties are conducted. That is why I have firmly concluded that we must leave the European Union. I have just come back from Luxembourg—[Interruption.] The Foreign Secretary can ask me any question from the Dispatch Box. I have just come back from Luxembourg where the national chairmen of a whole raft of EU committees were debating questions relating to migration. I can only say that the trend of the arguments was not at all in line with many of the things that we in this House would have expected had those arguments been put forward by our own Ministers.
Basically, I am cynical, to say the least, about the outcome of this debate. The trouble is that we are being invited to cut across the fact, as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) has said, that there have been four referendums without any legal problems. Furthermore, the Electoral Commission has backed amendment 78—it did not mention amendment 4 because it knows that my amendment deals with the devolved territories as well—and we have Speaker’s Counsel on our side. We are told by the Minister that, as far as he is concerned, there are a number of legal opinions, including from two leading counsels, that have indicated that there could be legal problems. Well, that is not what the Speaker’s Counsel says. His advice relating to the Political and Constitutional Reform Committee is on the website for anyone to see. He has reinforced his view in the light of the remarks made by the Europe Minister on “ConservativeHome”. I expressly sent the Speaker’s Counsel a copy of that article and asked him whether he would revise his legal view. He is very distinguished and was the legal adviser to the European Scrutiny Committee for many years. He has also been involved in the legal service of the European Commission. He knows what he is talking about, and I take these other legal opinions that we are being offered with a pinch of salt.
Finally, I say to the Foreign Secretary, who is chuntering quite a lot—I say that with great respect because I rather like him—that if those opinions are so important, let us see them. Let us see the basis on which the advice was given, and we will hear the same old arguments that we heard about the Iraq opinion. At the end of the day, however, we did get the Iraq opinion. This issue may not be quite so momentous, but none the less to fall back on the old canard that we should not publish opinions is not actually an answer to the questions that we are asking. We want to know the basis on which the advice was given.
I just do not believe that the Government’s arguments add up. A lack of trust has been generated, which goes deep into the past—right the way back to the White Paper of 1971 when we were promised that we would have a veto, which has now been overridden. We have not been given a referendum since 1975, and it is essential that we have a fair referendum that people can trust. I fear that the outcome of the vote this evening will be that new clause 10 goes through, perhaps with an amendment that might make a marginal difference. A vote against amendment 53 will simply allow a vote on amendment 4, which takes us back to a kind of purdah, but not the complete purdah that I and I think the British people want under amendment 78. We are the representatives of the people, which is why I wish to speak so candidly on this matter.
At the end of this debate, we will be left with a concession on section 125, but we will not have real purdah. I have already spelled out the reasons why real purdah is necessary. The right hon. Member for Gordon (Alex Salmond) also indicated that the purdah in the Scottish referendum had been vitiated by the activities of the Government. That makes the point in its entirety. He has called for an enforcement arrangement, but we do not know what the Labour party will do about that. Will it go through the Lobby with the right hon. Gentleman? I do not know. Perhaps he does not know either.
I have argued consistently and as hard as I can for real purdah because I want the people of this country to have a fair referendum. I want them to know that when they have made their decision, it has not been unfairly or unduly influenced by statements made through the civil service or its agencies, or through the European Union or by the provision of its money, which we will come on to later. As I have set out in amendment 78, I want complete purdah. I may find that, because of circumstances, I have to vote for amendment 4, but I want purdah with no ifs and no buts. Ultimately, when the regulations come out after the Bill is enacted, we will come to regret the arrangements that come from new clause 10, amended slightly, and amendment 4. We will face a kind of qualified purdah, which will not satisfy the test of fairness that I really believe this country deserves.
It is a pleasure to follow the hon. Member for Stone (Sir William Cash) and to be a member of the European Scrutiny Committee. Basically, I agree with him that it would have been a lot better to have had no tampering with section 125, and that we should have left it as it was and abided by the legislation that was enacted all those years ago.
I want to speak strongly in support of what the hon. Member for Harwich and North Essex (Mr Jenkin) said. He chose his words carefully and wisely. I was pleased to be a member of his Select Committee, to participate in the discussions and to listen to the advice that we were given. I have signed his amendment (a), and I am pleased that the Government have accepted it. I am also pleased that our Front-Bench team is going along with the attempts to modify the Government’s position. As I have said, it would have been much better to have had none of this debate and to have accepted the legislation as it was. I had a slight qualm about one thing that the hon. Member for Harwich and North Essex said, and that is that my enthusiasm for Tony Blair is rather more muted than his. I will say no more than that.
It is important that somebody from the Labour Back Benches says a few words in support of the shift that has taken place in the Government. It seems to be supported by all sides even though it does not go as far as I would like. That is very important, because, whichever way this referendum goes, if there is a sense that it is not fair, it will devalue the whole result. I am of a certain age and I remember well the 1975 referendum, in which I participated strongly, as I have mentioned before. I was the chair of the “Vote no” committee in Luton and the agent for the “Vote no” position in Bedfordshire at the time, so I know what happened very well. It was unfair, and the resources piled into the yes side compared with the puny resources on the no side were unbelievable. That was a travesty of democracy. When we are voting on fundamental constitutional positions, it is important that referendums are regarded as fair by all sides.
The right hon. and learned Member for Rushcliffe (Mr Clarke), who is no longer in his place, implied that no one takes referendums seriously and that after the result whoever loses always thinks that they have been treated unfairly. I do not think that is true. Some years ago, referendums on the European constitution took place abroad. The political establishments in France and Holland put massive resources into ensuring that there was a yes vote, but on both occasions there was a no vote. I do not think that they thought that the result was unfair, even though the big resources were on the losing side. They had to come up with another way of dealing with the matter and, of course, they introduced very similar constitutional changes into the European Union.
It is important that we ensure that the purdah period is seen to be fair, that no cheating takes place and that the Government cannot use their resources to pour in propaganda on their own side, whatever that might be. One assumes that the Government will come back and say that they have made a wonderful deal in the European Union and that we should all vote in favour of it. If that is the case, we want to have a fair debate that is seen to be fair by all sides.
Like the hon. Member for Stone, I have deep reservations about the European Union. We have constant talk about Europe, and I have to say over and again that this is about not Europe but the European Union, which is a political structure imposed on some of the countries of Europe. Europe is a wonderful place that I love dearly. I am very Eurocentric: I go there for my holidays, I drink European wine, and I love European culture, history, language—everything. But it is Europe I love, not the European Union.
I agree with my hon. Friend’s line of argument. It would have been better had section 125 been left in its entirety. I take a more optimistic view than some Members. The benefit of this debate is that it has exposed the Government trying to do something underhand. That debate has been had and now, during the referendum, they will have not only to follow the rules but to be seen to be following the rules of purdah. This debate has almost certainly ensured a much fairer referendum campaign.
I broadly agree with my hon. Friend. The debate has largely cleared the air and I look forward to a much fairer referendum than might have taken place if we had not had it or these changes.
Before I conclude, I should apologise for not being in the Chamber for the beginning of the Minister’s speech. I heard the meat of it and the important points that he made, however.
It is a great pleasure to follow the hon. Member for Luton North (Kelvin Hopkins) and I agree with pretty much every word he said.
I find it extraordinary that we are having this debate. We are discussing something that is part of our national politics. We have had a long-standing convention that Ministers can act and speak as Ministers and then move into a different mode and act as politicians. The most graphic example I can give is for Members go to the Government website and look at the transcript of the Bloomberg speech and then go to the New Statesman’s website. On the Government website, certain political phrases are excised. That is absolutely normal in our political discourse, certainly in general elections.
The Cabinet Secretary himself, referring to the last general election, wrote on the civil service blog:
“For this election, purdah begins today. Of course, the country—and the public services that we deliver—can’t just stop for the election. The UK Government retains the responsibility to govern and Ministers remain in charge of their departments. Civil servants will keep delivering government business, and if any crisis needed urgent action then we would tackle it in the normal way.”
We know that that works perfectly well in general elections. I remember going to help one of our Ministers. She had been to a ministerial event with her red box in the morning and she came back and was acting as a politician. It works fine and we have a long-standing tradition of doing that during general elections.
We did not have purdah in referendums, as was shown spectacularly in the first Welsh referendum. I was involved, as there was a complete cleanout of Tory MPs in Wales. I was the nearest thing, because my bottom gate is 50 yards from the Welsh border. The Tory party was flat on its back at the time and the Labour party behaved in the most amazing manner. There was even an aeroplane that flew along the south coast of Wales with a large banner fluttering along behind it reading “Vote yes, support Blair”. That was where we were with referendums, so it was quite right that the Neill committee was established.
It is worth remembering the comment made by Professor Vernon Bogdanor, which I mentioned earlier. He taught the Prime Minister a little something. He said that
“one purpose of a referendum…is to secure legitimacy for decisions where Parliament alone can not secure that legitimacy. For that legitimacy to be secured, the losers have to feel that the fight was fairly conducted.”
That point has not been made tonight, apart from by my hon. Friend the Member for Stone (Sir William Cash). Everything we say tonight is for the birds if the public smell a rat. If the public detect that the referendum has been rigged to help one side, they will not feel that it is legitimate or that the debates are straight. Whatever the result, many of them will not accept it.
There is an incredibly important point here. Purdah was not set up lightly. It was set up after long debates and I remember clearly that Labour’s interpretation of the Neill committee’s recommendations was that it should be 28 days. Those of us in the Conservative Opposition at the time were very unhappy with that. We had wild, radical Jacobins who are now in the Lords, such as Lord Fowler, Lord MacGregor and Lord Mackay of Ardbrecknish—not crazies, or crazy radicals—who argued consistently and steadily for more than 28 days, and we pushed that. I remind the House of those debates, in which those of us in the Conservative party reluctantly accepted 28 days.
I find it strange that those on the Labour Front Bench are not proud, as they should be, of introducing purdah. After the horrors of the first Welsh referendum, they took note, listened to the Neill committee and came forward with these purdah rules, which have worked extremely well. Labour should be proud of how the rules have worked. We have had several referendums. I am sitting next to my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), who was Secretary of State during the most recent Welsh referendum. I am totally unaware of any problem relating to purdah in any of those referendums so I am afraid that I doubt the Government on this.
My right hon. Friend is absolutely right. The referendum was conducted on 3 March 2011. As Secretary of State at the time, I remained neutral, because I wanted the Welsh people to have confidence in the outcome, and that is what happened. There was a good result in favour of the Welsh Assembly Government having primary legislative powers, and there was no problem whatsoever with the period of purdah, either at UK Government level or at Welsh Government level.
I am grateful to my right hon. Friend for that helpful intervention. I would like the Minister to try to cite a single example of purdah rules infringing the ability of the Minister with responsibilities in the areas affected by those referendums to act effectively.
I do not have much time, but I want to mention one interesting organisation, the European Commission for Democracy through Law, which is better known as the Venice Commission. It is the Council of Europe’s advisory body on constitutional matters. My interpretation of its guidelines on referendums is that they seem to be breached by the current UK Government’s stance on purdah. I would be very interested to hear my right hon. Friend the Minister’s comments on that. To help his team, the guidelines to which I am referring are the “Guidelines for Constitutional Referendums at National Level”, which state that
“public authorities (national, regional and local) must not influence the outcome of the vote by excessive, one-sided campaigning.”
In 2005 the commission published “Referendums in Europe: An Analysis of the Legal Rules in European States”, which noted approvingly that countries such as Ireland, Portugal and Latvia have strict provisions for electoral neutrality. Even the Russian Federation has neutrality rules. It would be interesting to know where we feature in that regard. Also, have the Government looked at the most recent code of practice on referendums from 2007, which makes it very clear that respect for equality of opportunity is crucial for referendums and elections?
The most recent endorsements of the proposals are in amendment 4 and in amendment 78, which was tabled by my hon. Friend the Member for Stone, and which I have signed. It is worth noting that the Electoral Commission has stated:
“We have not identified problems with the workability of section 125 of PPERA applying to governments at previous referendums, and so we think that it should be workable in relation to this referendum.”
I am afraid that everything I see this evening will be a mess. The only really clean solution is to go back to purdah, as outlined in the debates when we reluctantly agreed 28 days, and we can do that with amendment 78. I would like to hear what the Minister’s legal advice is. The Speaker’s Counsel—this has been mentioned twice, but I will mention it a third time—has said clearly that making statements on European Councils and putting them in press releases is allowed because they do not infringe section 125. Let me just put that on the record. Section 125 refers to material that
“(a) provides general information about a referendum…
(b) deals with any of the issues raised by any question on which such a referendum is being held;
(c) puts any arguments for or against any particular answer to any such question”.
As a layman, I just do not see how a Minister going to a Council, putting that into a statement and then repeating it in a press release can infringe section 125. I would really like the Minister to put the legal advice he has received in the Library.
I will bring my remarks to a swift conclusion. I do not like new clause 10. We will have to trust the Government to produce a list of exemptions. It is entirely black and white; we either accept or we reject. It would have been much better if the Government had put those exemptions in an amendment, as they have done with amendment 53. Why not consider the other exemptions in a full debate such as this, rather than a take-it-or-leave-it statutory instrument? I am convinced that the only real solution is to go back to the proper purdah that we thrashed out previously, which worked in previous referendums.
Does my right hon. Friend have some sympathy with the amendment tabled by the right hon. Member for Gordon (Alex Salmond) on the enforcement of purdah, because we are getting into a bit of a mess on this, as my right hon. Friend has said? If there was some means of enforcing the purdah that is left, we might have at least some leverage over what happens later.
That is certainly worth looking at, but what we really need is a return to proper purdah and we want section 125, so we would like the House to support amendment 78, which covers the devolved parts of the United Kingdom. That is the best solution. I think that what we are looking at is a botch. I think that it will end up looking like new clause 10, and possibly like amendment 4, but that is better than where we were last time.
I thank the Minister for the respectful way in which he has listened to the debate, but I would be grateful if he answered the points I have made. I repeat them again. What are the instances in previous referendums when purdah stopped normal Government functioning? Where are we with clarity regarding the Venice Commission? Please can these horrific legal statements, which have put such a spook under the Government, be placed in the Library? For myself, I will seek a return to pure purdah.
The rules relating to purdah in elections ensure a fair and proper process during elections and referendums. In fact, the Cabinet Office’s general election guidance, issued just before this year’s general election, states that elections
“have a number of implications for the work of Departments and civil servants. These arise from the special character of Government business during an Election campaign, and from the need to maintain, and be seen to maintain, the impartiality of the Civil Service, and to avoid any criticism of an inappropriate use of official resources.”
The Scottish National party believes that the referendum on the UK’s membership of the European Union—arguably our most vital and strategic international relationship—should set the gold standard for fairness and impartiality. The Government’s original proposals fall far short of that standard—indeed, they will undermine public and parliamentary confidence in the process. That is why they are now—eventually—being opposed by Members on both sides of the House.
The Government’s latest back-pedalling exercise, otherwise known as new clause 10, still fails to live up to the highest standard of impartial conduct, and specifically fails to introduce any mechanism properly to enforce the purdah regulations it proposes. Amendment 11, standing in my name and those of my colleagues, fills that gap. The Minister’s own former Government colleague, the right hon. Member for North Shropshire (Mr Paterson), from whom we have just heard, is quoted in The Times today as saying:
“All we’re asking is that this debate is open and fair, and we adhere to the current rules on purdah”.
“You cannot have sneaky little tricks to try and rattle the thing through… It is just going to dirty the whole process and the losers may well consider it to be illegitimate if it has not been done fairly.”
Many voters in Scotland remember the sophistry deployed by the previous Government during the referendum campaign on Scottish independence. Despite the Conservatives and Liberal Democrats signing up to the Edinburgh agreement, the agreement was blatantly ignored following the no campaign’s last-gasp panic in the face of judgment by voters in Scotland. My right hon. Friend the Member for Gordon (Alex Salmond) mentioned the vow, and we will continue to mention the vow until it is implemented in full, but eleventh-hour initiatives such as the vow, and using the referendum unit in the Treasury to orchestrate a scaremongering campaign by pressurising banks and other companies, were clear breaches of the agreement on the part of the UK Government. Understandably, MPs on both sides of the argument do not want to see a repeat in the Euro-poll. If only they had spoken up last year. That is why I call on the House to support the SNP amendment, which will introduce an enforcement mechanism against breaches of purdah covering both Ministers and civil servants.
As on so many issues, rather than provide strong leadership, the Prime Minister has botched this business at every possible step. That may lead some of us to believe that his heart is not in it and he was somehow bounced into making the commitment against his own free will. First, he backed down on asserting collective Cabinet responsibility on a vital national issue. Then, he caved in on the timing of the poll, after his attempt to hold it on the same day as the Scottish elections faced parliamentary defeat before the summer recess. Last week, he was overturned by the Electoral Commission on the referendum question itself. And in the past few days, we have seen the Government retreat on their original attempt to influence the campaign by using Ministers and civil servants during what should be a strict purdah period. Our amendment will keep the campaign fair and honest and provide the means to enforce good intentions, and I recommend it to the House.
I congratulate the Minister on using the summer recess very well in bringing back this Bill in a different form. The fact that legislation was put together in haste before the recess can only be put down to the manifesto commitment to the referendum. We now have back, at least so far, section 125 of PPERA in some form.
This afternoon, I am not going to speak about the good or ills of the European Union; that is for a future debate. I can appreciate the concerns that led the Minister to try to alter the usual section 125 terms, given the nature of the tentacles of the EU’s involvement in vast tracts of just about every aspect of UK Government, although he is probably over-concerned about this.
My right hon. Friend the Member for North Shropshire (Mr Paterson) put it very well when he said that legitimacy is the most important thing, in that whatever the outcome of the referendum, the losers, no matter which side they are on, must be able to say to themselves and to the world at large, “We did our best; we lost—but it was fair.” That is the position we need to be in with this European referendum, because it may not happen again for the next 40 years. I was interested to hear my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) talk about the problems of the 1975 referendum. I was obviously too young to take part in that, but it was, by all accounts, something of a shambles. For the Welsh referendum in 1997, the Neill Committee came up with the precursor ideas to what became the PPERA that we know today.
In all legislation, simplicity is best. While PPERA is far from simple, the purdah rules in section 125 are rules that we know. They are tried and tested, and they have served us in quite a number of referendums. We do not live just by legislation in this country, but by convention, a degree of case law, decent behaviour and knowing what is right. We have an enlarged Electoral Commission. Some might say that it is a somewhat bloated bureaucracy, but it has earned a high degree of respect. We have the ministerial and civil service codes. Also, the media have changed. It was said earlier that “The Andrew Marr Show” breaks various stories. We now accept that all these are just the new ways of doing things. Purdah has not been broken; we know how things are and know that normal business continues throughout elections and referendums. We know fairness when we see it, hear it and feel it.
As was described earlier, the PPERA legislation was put together in anticipation of a euro referendum, when the same concerns that have been aired by the Minister would have been known by the then Labour Government. Legislation does not always do all that it should, but PPERA served us well through the alternative vote referendum. Had there not been local elections in 2011, many people would not even have known that that referendum was on. No aspect of that was important to the day-to-day basis of normal government, unlike the Scotland referendum. PPERA has served for new forms of election as well, including the police and crime commissioner elections. We have all appreciated that government continues. The EU will continue to go through its machinations whether there is a UK referendum or not.
Conservative Members may not always be in government; I doubt it, much as I hope that we will. Changing now legislation—PPERA—that has served us well for some 15 years would be a dangerous step for the future. I urge the Government to accept that amendment 53 merely muddies the waters of that legislation. I would prefer amendment 4 or, even better, amendment 78 as a far more elegant means of having a free and fair referendum that has legitimacy, and after which the losers will be able to say, “We lost, but it was free and it was fair.”
It might be helpful to return to the origin of this problem: some people, including many Conservative Members, are concerned about tipping the scales using taxpayers’ funds. If this place is for anything, it is about Members choosing to restrain power through the law, and that is what we are seeking to do tonight. Ministers might be tempted to take steps at the last moment to help influence the result, so we want to ensure that they are appropriately restrained in the usual way through normal purdah rules, or as close to them as we can get.
The matter may seem very technical, but the crucial point is that the European Union is positively anti-democratic. That can be seen in the Lisbon treaty, and some Opposition Members have complained about it in relation to Greece. One can see why the European Union is like that, because it was forged in one of the western world’s greatest failures of democracy, but this is not the moment to digress on such points.
The problem is not this Government. The problem is that an establishment right across Europe believes that the way to peace in Europe is through a federation that this country, even on the Government’s policy position, does not want to be part of. Yet that is the direction of travel in the Lisbon treaty, and that is what politicians on the other side of the English channel are quite clear is the direction of travel for Europe. We are not in the euro, thank goodness; that is possibly one saving grace that has brought us to this point.
I accept the Minister for Europe’s good faith, and have listened carefully to what he said. Crucially, however, I do not accept that the establishment—the great panoply of institutions and individuals—will necessarily share his views. I do not accept that the Government should redefine the scope of purdah. We have a little problem to resolve tonight through normal parliamentary channels, and a solution has heaved into view. There is cross-party agreement that the Government should have an exemption regime through statutory instruments, under which they can, with four months’ notice, bring forward the specific exemptions necessary to conduct their business. I have great faith that if the Public Administration and Constitutional Affairs Committee, chaired by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), were given the opportunity to scrutinise such statutory instruments, everyone could be confident that the Government’s individual and specific exemptions were appropriate to the campaign.
Contra to the right hon. Member for Gordon (Alex Salmond), I want to be able to say at the end of the referendum that it was free and fair. If I find myself on the wrong side, I would like to be able to say that I accepted the result, and then take appropriate steps. I do not want to be left in a position where I am able legitimately to complain about the referendum’s fairness.
I therefore urge the Government not to move amendment 53, but instead to accept amendment 4 and then bring forward the statutory instruments necessary in relation to European institutions, and to allow my hon. Friend’s Committee the opportunity to scrutinise each of those instruments. We could all have confidence and faith in such a system. Narrowing the scope of the subjects considered to be within purdah would leave us, in the context of the long history of the EU, concerned that there is too much wriggle room. That is what we need to shut down. I hope that the Government will not move amendment 53 and will accept amendment 4.
It is a privilege to follow my hon. Friend the Member for Wycombe (Mr Baker). I want to use the two or three minutes available to me to discuss the crux of the matter, to which several colleagues have referred. It boils down to the fact that the Government are honouring a commitment to hold a referendum on our membership of the European Union, which has been the cause célèbre, requirement and demand of many for generations. I am sure that Conservative Members will agree that the Government should be commended for including that as a manifesto commitment, and for undertaking to have the referendum. That is the crux of the matter.
I support the Government on this issue this evening because not only are we giving a generation of British voters, who have been denied previously, the chance to have a say in such a referendum, but we are actually putting historical injustices right and are allowing a referendum to take place. To hear the Scottish National party preaching about fairness earlier was a bit galling, when the no voters in the referendum on Scottish independence last year felt quite intimidated at times.
In lifting the purdah provisions, we must bear it in mind that section 125 would stop the Government publishing material on any issue raised by the referendum question. The restriction would be unworkable because it is so broad that it would prevent publication in relation to any issue raised by the referendum. It could therefore prevent Ministers from conducting the ordinary day-to-day business of the United Kingdom’s dealings with the European Union. We have to bear in mind the broad scope of the section.
Mention has been made in the debate of different lawyers giving different legal opinions. If I may say so as a barrister, it is quite easy to find lawyers who disagree with each other in good faith. It does not necessarily mean that they are right or wrong. The Government expect to have a view.
Sorry, I am running out of time, so I will not give way.
The Government should have a view, and it should not be expected that the Government of the day will be silent on these issues. The Government should expect to take a position and will want to make a recommendation. Under section 125, purdah would be unnecessarily restrictive.
I am conscious of the time and want to give my right hon. Friend the Minister the opportunity to sum up, but I want to make one more point. The European Commission and foreign Governments cannot be permissible donors under our law, so they would not be entitled to contribute. The fear that has been expressed by some hon. Members is therefore misguided, because the rules are already such that their fear will not be realised. I support the Government’s measures and thank the House for its attention.
Everybody who has spoken has agreed that there should not be untrammelled freedom for the Government or other public bodies to campaign during the final 28 days before the referendum. Nobody has argued for that; rather, the argument has been about how best to define the scope of restrictions on such activity and the precise form that they should take. It has been about the extent to which the rules should be set by Act, secondary legislation or guidance. I emphasise again that so far as the Government are permitted to act by whatever Parliament eventually decides, those permitted actions will be subject to guidance.
I am grateful to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) for the courtesy with which he put his arguments. As he was open enough to say in his letter to me of 21 July, a number of witnesses to his inquiry suggested
“that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge”.
It is therefore not as if the Government have been completely on their own in saying that there are serious questions that ought to be addressed by a limited and carefully defined exemption from the section 125 arrangements.
We could have chosen to make the changes that we are offering in Government amendment 53 by way of secondary legislation, using the regulation-making power that we propose in new clause 10. We chose to table an amendment to the Bill because it offers greater clarity and certainty to Ministers and their officials, who will have to go off to Brussels and Strasbourg and argue the case for this country’s interests and circulate documents—to publish things in the terms defined by section 125—and they do not want to be looking over their shoulder trying to second-guess whether they might end up with a legal challenge. Primary legislation is just a stronger guarantee than secondary legislation.
We also felt that that greater certainty and clarity should apply to the assurance given in the same Government amendment that any such exemption could not be misused by the Government to pray in aid a piece of ongoing routine EU business to suggest that a particular outcome to the referendum—a case for leaving or remaining—was somehow validated by that publication on the ongoing business. Yes, that could have been done by statutory instrument, but we came to the House with this proposal precisely because we felt that not only the exemption but, critically, the safeguard would be better assured by means of primary legislation.
My right hon. Friend the Member for North Shropshire (Mr Paterson) asked me about the Venice Commission. The commission’s code of good practice in respect of referendums states that, contrary to the case of elections, it is not necessary to prohibit completely intervention by the authorities in support of, or against, the proposal submitted to a referendum. The Venice Commission goes on to say that public authorities must not influence the outcome of the vote by excessive, one-sided campaigning. That is exactly the sort of balance that the Government have sought to embody in the proposed legislation and in the amendments we are presenting today.
I believe that the package is balanced and fair. It will ensure a referendum that is fair, and seen by all sides to be fair, and in which the whole country can have confidence.
Two and a half hours having elapsed since the commencement of proceedings on consideration, the debate was interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.
Question agreed to.
New clause 10 accordingly read a Second time.
The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Manuscript amendment made to new clause 10: (a), after subsection 5 insert—
‘(5A) Any regulations under subsection (2) must be made not less than four months before the date of the referendum.’.— (Mr Jenkin.)
The purpose of the amendment is to ensure that the “purdah” arrangements that govern ministerial and official announcements, visits and publicity are made at least four months before the date of the referendum.
New Clause 10, as amended, added to the Bill.
Amendment proposed: 11, page 5, line 28, at end insert—
“(1A) (a) Section 1 will come into effect after a resolution has been passed by both Houses approving arrangements for a purdah period covering a period of five weeks before the referendum date.
(b) arrangements for a purdah period will include—
(i) restrictions on material that can be published by the government, public bodies and the EU institutions; and
(ii) measures to determine breaches of purdah and penalties for such a breach.”—(Alex Salmond.)
The referendum provision of the Bill could only come into effect after arrangements for purdah had been approved by both Houses of Parliament.
Question put, That the amendment be made.
Campaigning and Financial Controls
Amendment proposed: 53, page 19, line 23, leave out paragraph 26 and insert—
“26 (1) Section 125 of the 2000 Act (restriction on publication etc of promotional material by central and local government etc) has effect for the purposes of the referendum with the following modifications (which clarify the effect of certain provisions of that section and apply it to public bodies in Gibraltar).
(2) Subsection (1) has effect for the purposes of the referendum as if for paragraphs (a) to (d) there were substituted—
“(a) provides general information about the referendum,
(b) directly addresses the question of whether the United Kingdom should remain a member of the European Union or leave the European Union (however that question is worded in the material),
(c) contains any statement or claim that—
(i) a particular outcome in the referendum, or
(ii) the United Kingdom’s remaining a member of the European Union or leaving the European Union,
would have particular consequences or might have such consequences, or
(d) is designed to encourage voting in the referendum.”
(3) Subsection (2) has effect for those purposes as if after paragraph (a) there were inserted—
“(aa) the Government of Gibraltar or any Gibraltar government department; or”.
(4) Subsection (3) has effect for those purposes as if—
(a) for paragraph (b) there were substituted—
“(b) anything done by or on behalf of the Electoral Commission or a permitted participant designated under section 108 (designation of permitted participants to whom assistance is available);”, and
(b) after “Sianel Pedwar Cymru” there were inserted “or the Gibraltar Broadcasting Corporation”.
(5) Subsection (4) has effect for those purposes as if after paragraph (a) there were inserted—
“(aa) “the referendum” means the referendum under section1 of the European Union Referendum Act 2015;”.
(6) For the purposes of the referendum the following subsection is to be treated as inserted after subsection (4)—
(5) A reference in this section to expenses being defrayed wholly or mainly out of public funds includes those expenses being defrayed wholly or mainly by means of—
(a) payments out of—
(i) the Gibraltar consolidated fund; or
(ii) monies voted by the Gibraltar Parliament; or
(b) payments by the Government of Gibraltar or any Gibraltar government department.””— (Mr Lidington.)
This amendment applies section 125 of the 2000 Act with modifications which: clarify that the prohibition relates to material which is directly relevant to the referendum; apply section 125 to Gibraltar; and add an express reference to the Electoral Commission as a body to which the section does not apply.
Amendment made: 4, page 19, line 23, leave out paragraph 26.—(Mr McFadden.)
The purpose of the amendment is to apply the “purdah” arrangements that govern ministerial and official announcements, visits and publicity during general elections to the campaign period before the referendum. The amendment should be read in conjunction with New Clause 5 (Restriction on publication etc of promotional material by central and local government etc) and New Clause 6 (Exemptions to prohibition on publication of promotional material by central and local government etc (No.2)).
entitlement to vote in the referendum
With this it will be convenient to discuss the following:
Amendment 17, page 2, line 2, at end insert—
“and persons who would be so entitled except for the fact that they will be aged 16 or 17 on the date on which the referendum is to be held.”
This amendment would entitle British citizens, qualifying Commonwealth citizens and citizens of the Republic of Ireland aged 16 and 17 to vote in the referendum.
Government amendment 24.
Amendment 18, page 2, line 13, after “Commonwealth citizens”, insert—
“or citizens of the Republic of Ireland”.
Amendment 19, page 2, line 16, at end insert—
“and persons who would be so entitled except for the fact that they will be aged 16 or 17 on the date on which the referendum is to be held.”
This amendment would entitle Commonwealth citizens aged 16 and 17 who would be entitled to vote in Gibraltar for elections to the European Parliament to vote in the referendum.
Amendment 7, page 2, line 16, at end insert—
“(d) the persons who on the date of the referendum would be entitled to vote in a European parliamentary election by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the European Union other than Commonwealth and Republic of Ireland citizens).”
This amendment would extend the franchise to EU nationals who would be entitled to vote in EU parliamentary elections in the UK.
Amendment 8, page 2, line 16, at end insert—
‘(1A) In subsection 1(a), “persons” include individuals who are aged 16 or 17 and would otherwise meet the conditions to be entitled to vote as electors in a parliamentary election.”
This amendment would extend the franchise to 16 and 17-year-olds.
Amendment 9, page 2, line 20, at end insert—
(a) In subsection 1(a) “a parliamentary election” includes elections to the Scottish Parliament,
(b) a person resident in England, Wales, Northern Ireland or Gibraltar who, if resident in Scotland, met the conditions for inclusion in the electoral register for Scottish elections, will be entitled to vote in the referendum.”
This amendment would extend the vote to 16 and 17-years-olds and EU nationals.
Amendment 10, page 2, line 20, at end insert—
‘(3) In subsection 1(a) “a parliamentary election” includes elections to the Scottish Parliament.”
This amendment would extend the vote to 16 and 17 years olds and EU nationals in Scotland.
Amendment 21, page 2, line 20, at end add—
‘(3) Notwithstanding the provisions of the Representation of the People Act 1983, as amended, or of any other statute, a British citizen resident overseas in a country within the European Union will be eligible—
(a) to register to vote, and
(b) to vote in the referendum,
irrespective of the length of time that the citizen has been resident overseas.”
This amendment is intended to allow British citizens resident in other EU countries to vote in the referendum.
New clause 1—Impartiality of broadcasters—
‘(1) Notwithstanding any enactment or legal instrument, before the start of the referendum period the Secretary of State shall by regulations make provision to ensure the impartiality of broadcasters during the referendum period.
(2) Regulations made under this section must include provision for the appointment by the Secretary of State of a referendum broadcasting adjudicator.
(3) Regulations made under this section must require the referendum broadcasting adjudicator
(a) to draw up and publish guidance applicable to the referendum to ensure the impartiality of broadcasters during the referendum period, notwithstanding any relevant guidance currently in force or in draft; and
(b) to make arrangements by which any allegations of breach of the guidance on impartiality can be referred to and determined by the adjudicator and where an allegation, in the adjudicator’s view, is vexatious or frivolous to dismiss the allegation.
(4) Guidance published under subsection (3)(a) shall apply to—
(a) the holder of a licence under the Broadcasting Act 1990 or 1996 and
(b) the British Broadcasting Corporation.
(5) Regulations made under this section shall require the referendum broadcasting adjudicator within one day of receipt of an allegation that a broadcaster has breached the guidance on impartiality to determine whether the guidance has been breached and publish its determination and, where a breach has taken place, to require the broadcaster to remedy the breach within one day.
(6) Regulations made under this section are to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.”
The intention of this amendment is to ensure impartiality of television and radio broadcasters during the referendum campaign and to allow for swift adjudication where an allegation of bias is made.
New clause 11—Limit of the expenditure of registered political parties—
‘(1) Notwithstanding Schedule 14 of the 2000 Act and any other enactment, for the purposes of the referendum there will be a cumulative limit on the expenditure which political parties registered under Part II of the 2000 Act can spend cumulatively on campaigning during the referendum.
(2) For the purpose of subsection (1) the cumulative limit is £14,000,000.
(3) Each political party’s share of the cumulative limit shall be determined in proportion to its share of the total votes cast at the general election that took place on 7 May 2015.
(4) On the basis set out at subsection (3) the Electoral Commission shall calculate and notify each political party of its share of the cumulative limit.
(5) No registered political party shall spend any money in respect of the referendum campaign until the notification required at subsection (4) has been issued.
(6) Each political party is responsible for its own expenditure and must not breach the limit notified by the Electoral Commission in respect of its own expenditure.”
The purpose of this amendment is to impose an expenditure limit on the cumulative total amount that political parties can spend during the referendum campaign.
Amendment 5, in clause 1, page 1, line 9, at end insert—
“or a date within three months before or after May 5.”
This would ensure the referendum vote could not be held on a day three months before or after the date of the Scottish, Welsh and Northern Irish elections.
Government amendment 12.
Amendment 6, page 1, line 9, at end insert—
“(c) must not be the same day as local government elections in England, Scotland, Wales or Northern Ireland.”
This amendment would ensure the referendum vote could not be held on the same day as local government elections.
Amendment 15, page 1, line 9, at end insert—
“(c) must not coincide with local or mayoral elections planned for 4 May 2017.”
This amendment would rule out holding the referendum on the same day as the 2017 local elections.
Government amendment 23.
Amendment 13, page 1, line 11, at end insert—
“or leave the European Union?”
Amendment 14, page 1, leave out line 14 and insert—
“A ddylai’r Deyrnas Unedig bara i fod yn aelod o’r Undeb Ewropeaidd neu adael yr Undeb Ewropeaidd?”
Amendment 16, page 1, line 14, at end insert—
‘(6) At least 10 weeks before the date on which the referendum is to be held the Government shall publish a White Paper outlining the terms of any renegotiation between the United Kingdom and the European Union and the consequences for the United Kingdom of leaving the European Union.”
This amendment requires the Government to produce a white paper on the results of the Government’s renegotiation with the EU and the consequences for Britain of leaving the EU.
Government amendments 25 to 28.
Amendment 3, in clause 6, page 3, line 40, at end insert—
‘(5) Regulations made under this Act or the 2000 Act in respect of the referendum must be made and come into force not less than six months before the start of the referendum period.”
The purpose of the amendment is to ensure the legislative framework for the referendum is clear at least six months before it is required to be implemented or complied with.
Government amendments 29 and 30.
Amendment 1, in schedule 1, page 6, line 6, after second “period”, insert—
“of not less than 16 weeks”
The purpose of the amendment is to ensure that the referendum period lasts for at least 16 weeks.
Government amendments 31 to 43.
Amendment 22, page 12, line 23, at end insert—
‘(3) Notwithstanding the European Communities Act 1972, an EU institution (within the meaning of article 13(1) of the Treaty on European Union) may not incur referendum expenses during the referendum period.”
This amendment would prevent the EU institutions, including the Commission, from direct campaigning in the referendum, whether under the guise of EU law or otherwise.
Government amendments 44 to 46.
Amendment 2, page 13, line 11, at end add—
‘(6) For the purposes of paragraph 6 of Schedule 15 of the 2000 Act a permitted participant must not accept a relevant donation, irrespective of whether or not it meets the requirements of the 2000 Act and this Act, if the donation is funded directly or indirectly in whole or part from moneys, resources or support disbursed or allocated by or at the direction of the European Commission, its agencies or any related European institution to the donor or via other parties to the donor.”
The purpose of the amendment is to ensure that no funds or support provided directly or indirectly by European Union bodies have a bearing on the outcome of the referendum.
Amendment (a) to amendment 2, after “(6)” insert
“Notwithstanding the European Communities Act 1972,”.
This amendment would ensure that amendment 2 takes effect as intended. It would make clear a permitted participant could not accept donations paid by EU institutions under the authority of EU law.
Government amendments 47 to 52 and 54 to 77.
Just as we in the Labour party have, for better or worse, widened our franchise, so the widest possible franchise should be involved in the referendum, which is likely to be held next year. The Government have proposed that the referendum should not have the same franchise as there was for the Scottish referendum, which was the local government franchise, but should simply have the parliamentary franchise. They propose restricting the franchise to those who vote in parliamentary elections and not including some people who vote in local government elections and in European Parliament elections, some people who can vote in the London mayoral election next year and some who were eligible to vote in the Scottish referendum in 2014.
Is it not the case that in many constituencies across the country, including mine, a large number of people will not be allowed to vote in the European referendum simply because they are Europeans, even though they pay their taxes, their children go to school in the area and they see themselves as Londoners?
That is exactly the point addressed in amendment 20. People can vote in a European Parliament election if they are a citizen of any of the 27 other European Union countries and are resident in the UK. If the Government get their way, people who are paying taxes in this country and living in this country, perhaps having done so for decades, with children who were born in this country, and who are perhaps married to British citizens but who happen to retain the nationality they had when they came here from Italy, Germany, France or one of many other countries, will not be able to vote in the referendum which will affect their status and that of their family in the UK.
I am grateful to the hon. Gentleman for reminding me of that. We discussed this issue in Committee on 18 June, when exactly that point was made. Two million EU citizens are living in this country and many of them will not be able to vote in the referendum which will directly affect their future, although if they are from the Republic of Ireland, Cyprus or Malta, they will be able to vote. A Greek Cypriot will be able to vote in the referendum but a Greek person from one of the many islands in the archipelago around Athens will not be able to. We face the absurd situation of a discrimination that affects the livelihoods and future prosperity of those people.
I do not want to delay the House much longer, but let me briefly refer to my other proposal, amendment 21.
That is absolutely right. Just as there are more than 2 million EU citizens living in the UK, more than 2 million British citizens are living in other EU countries. Some of them will have registered to vote as overseas voters under the existing law, which allows people who have been abroad for up to 15 years to vote in parliamentary elections. Some thousands of people do that, but the bulk of them do not. British people who have been living in Portugal, Spain, Germany, Cyprus, Greece or France for more than 15 years are not going to be eligible to vote in a referendum that could seriously damage their prospects of being allowed to stay in those countries and have rights there, should the British people vote in the referendum that we leave the EU. Many overseas voters are incensed about that. There is an organisation called Labour International with which I am associated, and a similar organisation for the Conservatives. I know that those voters have been sending communications for months saying that this is a democratic outrage, that the Government will damage their future and that they will have no say on their position.
Ironically, the Conservative party said in its election manifesto that it was going to get rid of the 15-year rule, yet the Conservative Government—they cannot even blame the Liberal Democrats for this—are introducing legislation in effect to disfranchise many British people who will no longer have a say in their future within the European Union. That is undemocratic. It is outrageous that British people’s futures will be affected. As the right hon. Member for Carshalton and Wallington (Tom Brake) said, if we leave the European Union, there will be two groups of people who will be particularly badly affected. I am talking about EU citizens living in the UK who may have British-born children, and British citizens living in other European Union countries.
Given the shortage of time, I shall not say any more on this. I will be supporting my Front-Bench team on widening the franchise to 16 and 17-year-olds. Although I have raised these issues, I know that neither the Government nor, unfortunately, those on my own Benches will support my position. In order to save time, I shall not press my amendment to a vote.
I rise to speak to amendments 5, 6, 7, 8, 9 and 10 in my name and that of my hon. Friends. We want to see the gold standard of the independence referendum applied to the European referendum. I hope that Members of the Official Opposition will vote with us tonight. Earlier we voted together and defeated the Government. That is what can be achieved when we stretch across and vote together. I hope that we shall be doing that later tonight.
One area that might help us to achieve that gold standard is votes for 16 and 17- year-olds, which is proposed in amendment 8. I know that we have discussed this matter before and I am glad that we will be able to vote on it tonight. There are benefits to involving young people at an early stage in the political process. Let us not forget that when we have a European Union referendum, those aged 16 and 17 will have to live with the consequences of that decision for a whole lot longer than many Members of this House. Let us consider some of the comments made by Members about the positive aspects of including 16 and 17-year-olds in the vote.
We will also consider amendment 7. I was grateful to the hon. Member for Ilford South (Mike Gapes) for his excellent contribution on votes for EU nationals. He talked about how Cypriots and Maltese can vote but not those of other nationalities. I mentioned the position of Christian Allard, the Member of the Scottish Parliament, who will not be able to vote. We should also consider the big contributions that EU nationals have made to all our constituencies. I am talking about the people from Poland, Ireland, Italy and from elsewhere in Europe.
The independence referendum had a significant impact, and I pay tribute to the people who campaigned for a yes vote, as well as to those who campaigned for a no vote. The turnout of 85% was extraordinary, as was the democratic journey that we made. I hope that Members from across the Chamber will learn the lessons from the independence referendum when it comes to voting this evening.
I also wish to touch briefly on the issue of double majority. We have been told that we are in a partnership of equals in the United Kingdom. If we are, why should it be the case that Scotland—or indeed England, Wales or Northern Ireland—can be dragged out of the European Union against its will?
Does my hon. Friend agree that it is regrettable that our new clause 3 has not been selected, as there is a certain irony in a Government that want to introduce a double majority in this House on English votes for English laws but do not want that principle to apply to the much more fundamental question of our membership of the European Union?
My hon. Friend makes an excellent point about the double majority and why we brought it up.
Let me make a point about amendment 5. I am glad that the Government have acceded to some of our demands, so that we will not see a vote on the first Thursday of 2016 or the first Thursday of 2017. We welcome those concessions, which have been among a few so far. If we are going to have the referendum, however, we want a proper political debate. We do not want it to be rushed just before the crucial elections to the Scottish Parliament, the Welsh Assembly or local government. That is why we propose in amendment 5 to have a three-month period on either side of them to protect the referendum debate.
To sum up, let me touch on the debate to come. It is disappointing as we reach the final stages of debating the Bill that we still do not have more details about the Government’s proposed renegotiation. I am not sure when we will see those details, as we have a Government who have for the past five and a bit years been adept at losing friends and influence throughout the European Union. I do not see that changing any time soon.
There is no one on the SNP Benches who does not think that the European Union could do with a bit of reform, but that reform should be a two-way process. That was set out by First Minister Nicola Sturgeon to the European Policy Centre on 2 June. I encourage all Members to read that speech. As well as considering areas for reform in which powers can be returned to the member states or, indeed, to the devolved Administrations, let us consider areas in which we could work more closely together, such as energy or climate change.
I want to finish on a serious point. We talked today about the refugee crisis, and that is certainly an area in which we could be working more closely with our European partners, as was well debated today. I sense that when the Government moved forward today they were moving a little behind other European partners, not least those in the Vatican. It was in July 2013 that Pope Francis said:
“We have lost a sense of brotherly responsibility…we have forgotten how to cry.”
We are now seeing action, almost two years on. We are late to this, and sometimes we need to learn from our European partners and to work more closely with them. I hope that even those on the Government Benches will accept that that is something we have to do.
Our amendments would strengthen the Bill and would strengthen the debate we could have during the referendum period.
I rise to speak on the issues of the independence of broadcasting and campaign funding covered by two of the new clauses. It is most important that we should have a fair referendum and I think that the House has made a wise decision this evening to further that aim. I hope that the nation’s leading broadcaster, the BBC, will enter into the spirit of wanting that fair campaign and will study and understand where those who wish to stay in and those who wish to leave are coming from. It needs to learn that in the run-up to the referendum campaign proper as well as in the campaign itself. My hon. Friend the Member for Stone (Sir William Cash) has tabled a suitable new clause to try to ensure that that happens and I hope that the Minister will share our wishes and might have something to say on this point.
I notice that in recent months it has been absolutely statutory for practically every business person being interviewed on business subjects and subjects of great interest to consumers and taxpayers to be asked for their view of whether their business would be ruined if we left the European Union. The question is always a leading question and they are treated as somewhat guilty or suspect if they do not immediately say yes, of course, their business would be ruined if we were to leave the European Union.
It would be far too dangerous for me to speculate on that without more factual information at my disposal. My hon. Friend is being slightly mischievous. I could not possibly agree with him and call into question how people are invited to BBC interviews. However, it is interesting that the one argument that the campaign to stay in the EU seems to have—that leaving the EU would be bad for business and jobs would be lost—has become a constant refrain in all BBC interviews.
The BBC seems devastatingly disappointed when a lot of businesses take the opposite view. It was fascinating to hear the wonderful interview with Nissan last week. The whole House will welcome the great news that Nissan has a very big investment programme for the United Kingdom’s biggest car plant, which will carry it through the next five years and beyond with a new model. When the BBC tried to threaten that investment by asking, “Wouldn’t you cancel it if the British people voted to come out of the EU?”, Nissan said, “No, of course we wouldn’t.” It is about the excellence of the workforce, the excellence of the product and access to an extremely good market here. It is in no way conditional upon how people in Britain exercise their democratic rights.
It is that spirit—the spirit of Nissan—that I hope the BBC will wish to adopt when contemplating such interviews in future. I hope that it will understand that most business interviews over the next few months should not be about the politics of the EU; they should be about whether the company is doing well—creating jobs, making profits and investing them wisely. If the business is misbehaving, then by all means the interview should be about the allegations.
Who does the right hon. Gentleman think is behind this sinister conspiracy at the BBC? Is it the director general or some other individual in a senior position, or are other forces directing the BBC in such a way that he believes there is a conspiracy to keep Britain in the European Union?
I never said that there is a conspiracy, and I have not suggested that there is one figure in the BBC who holds that view; I think that most people in the BBC hold that view, and I think that it is quite spontaneous. I think that in some cases they are not even aware that they are doing it. I note that many Members, including on the Opposition Benches, are nodding their heads wisely. They, too, have heard such interviews. It now seems almost a statutory requirement in what should be interviews on general business subjects to regard those people as having a unique insight into our future in the European Union, ascribing to them supernatural powers that apparently the millions of other voters in the country do not share, asking them to dictate the future. I think that the referendum is a democratic process and that everyone’s vote is of equal weight and value. It is a conversation for the whole country. I am not against business people joining in, because I am a democrat, and they have voices; I just think that it is a bit odd that our leading broadcaster wants to turn every business interview into a political interview.
I am charitable to the BBC and do not think that it sets out to be biased in its coverage. The problem—I am not entirely sure how my right hon. Friend will tackle this point—is that it sets out to talk only to people from the same metropolitan set, and they all have the same opinions. The people in the BBC need to get out more and discover that across the country there are opinions different from those of that narrow band of people. How does he think they can address that? It is not conscious bias; they just need to get out more.
My hon. Friend make his comments in his own inimitable way. That is not quite what I was trying to say, or how I was going to say it, but this is a free country and it is wonderful to hear him contribute to the debate.
I am just trying, in the brief few moments that you have kindly allowed me, Mr Speaker, to extend the conversation from this great Chamber to the BBC and to say to it, “We all want you to be part of this big family conversation in the run-up to the referendum, but you have a unique responsibility, because you are charged with independence, fairness and balance. We trust that you will be especially careful, because many people have very passionate views on both sides of the argument, and that always creates more tensions and difficulties for broadcasters.”
I am curious to know whether the right hon. Gentleman was as acutely aware of that bias among business leaders during the Scottish referendum campaign, when they were wheeled out repeatedly as part of “Project Fear” to hone their skills, which we will doubtless see much of in the coming months. I just cannot remember him being so outraged at the time. Perhaps he could confirm that.
If the hon. Gentleman cares to check johnredwoodsdiary.com, my blog, he will see that I wrote on that very subject during the Scottish campaign ahead of the referendum and made very similar points to the ones I am making now about the role of business, where it can help and where it cannot. He will be disappointed to learn that I believe in being consistent. It has been one of my problems in politics, trying to be consistent, and if one seeks to combine consistency with being right, it can be absolutely devastating. I must now teach myself humility and realise that no one can always be right; we just have to carry on the conversation as best we can.
That would be appropriate if they were doing a package on attitudes towards Europe, for example; or it would be appropriate during the referendum campaign to have business voices as well as political voices and others—but not in every interview that is meant to be about a business subject. BBC reporters do not choose to do that every time a social worker is on to talk about a social work case, or some local government worker is on. They do not immediately ask, “What would happen to your job if we left the EU?” There is something quite odd about it. Very often, the business matters that are being discussed have nothing to do with foreign trade. Nor do I understand why the right hon. Gentleman and some others wish to mislead and threaten the British people into thinking that our trade would be at risk, because clearly it would not be at risk. All of us wish to trade with Europe and be friends with Europe, but some of us wish to have a relationship with people in the European Union that allows their euro to evolve into the political union that they want without dragging Britain in and losing our democracy in the process.
I am getting more confused, because now the right hon. Gentleman is drawing a parallel between the impact that coming out of the EU would have on a business and the impact on a social worker. Perhaps he would like to explain in what way the UK coming out of the EU would have an impact on a social worker.
Of course coming out of the EU will have an impact on the conduct of the public sector in Britain, as well as on the private sector. It will change who makes the laws and how the budgets are run, for example. If we did not have to send £11 billion a year to the EU to be spent elsewhere, we would have more scope to have better social work and tax cuts in the United Kingdom. I think that would be extremely good news. Why are public service workers not asked whether they would rather see some of that money spent on their preferred public service than sent to be spent elsewhere in the European Union? That line of questioning would be just as interesting as the one trotted out each time for business people: “Will your business come to an end if the British people dare to vote for democracy?”
Is not the point that the BBC tries to show that every business wants to remain in the European Union, when the fact is that many businesses want to leave the EU? The BBC always seems to be able to find businesses that want to stay in, but never seems to be able to look at the website of Business for Britain, which has more than 1,000 businesses that are quite happy to be outside the European Union.
That is a good point. The other constitutional point I would make about businesses is that in an entrepreneurial business where the entrepreneur-owner-manager owns 51% or more of the shares, of course they speak for business, so if they say, “I want to stay in,” or, “I want us to pull out,” that is not only their view but the view of the whole business. I can understand that and it is very interesting, but quite often the people being interviewed are executives with very few shares in very large companies, who have not cleared their view through a shareholder meeting or some other constitutional process. The BBC wishes to give the impression that that is the view of all the members of the company, whereas in fact it is just the opinion of an executive. It is interesting, and the executive may be quite powerful, but he does not necessarily speak for the company, and that is never stressed in the exchanges.
Does my right hon. Friend accept that, quite often, what is interesting is which questions are not asked, as well as those that are asked and the people who are put on? For example, some of us have for a long time been making the argument, based on House of Commons Library statistics, that we run a deficit with the other 27 member states of about £62 billion, whereas the Germans run a surplus with the other 27 member states of about the same amount or more. Why does that sort of argument never get aired or heard?
I am being tempted into byways on the substance of the debate in the forthcoming referendum, but my hon. Friend is absolutely right. We would like to hear more questioning of our deficit and a reminder that we are the customers more than the producers; it is the other way round for the Germans. It is unusual for the customers to be in a weak position and the producers in a strong position.
We should remember that we are the customer country in the European Union and that the customer used always to be right. Perhaps we should have rather more care taken over our attitudes because we are the customer, as a heavy net contributor to the European Union, and we would like to hear more questions about what are the other possibilities. What could we do with the money if we were not paying it in? What would happen to our trade deficit were we no longer inside the Union? The answer is that we would still have a big trade deficit with the European Union because trade would continue on exactly the same basis as it has so far throughout our partial membership. Of course, we are not in Schengen and not in the euro, so we are already in a different position.
I and many others want us to have a good relationship with the European Union, but to recognise that it is now driven by the euro. Britain is not about to join the euro, and therefore does not want or need the political union. I am very pleased that our Prime Minister is trying to sort out a new relationship. That had to done. Any sensible person, wherever they are on the spectrum of European-ness or pro-EU-ness, should see that this is a crucial moment in the future of the European Union where we need to sort out our relationships, so that we do not impede the EU but it does not make too many decisions on our behalf that the British people do not welcome or want.
On funding, to make sure that we have a campaign that is fair and perceived to be fair, we need to avoid the European Union itself spending any money or putting forward any propaganda during the campaign period. We also need to make sure that the spending limits on the political parties and the two main campaign teams are fair. I have no problem if one side raises more money than the other within the limits and is able to use it—that is the advantage of being more popular and that is the system we use. However, it is also fair to have some overall limit, as the Government are proposing. We need to be careful that the cumulative limits between different political parties and actors on one side do not become disproportionate, with the other side limited in the amount it can raise so that the thing is out of balance.
I would like my hon. Friend the Minister to say a little more about how the two sides might line up. I would not want to find that the “leave” campaign, for example, did not have lots of political parties adding to its funding, and obviously did not have the European Union adding to it, and was then limited too much as a formal campaign. It would not be perceived as fair if one side was spending three times as much as the other under legal rules, and the other side was constrained. I hope that he will consider that and realise that we need a fair system so that people think it is a good result.
This is a very broad debate, covering a number of issues. I want to set out our views on the amendments that we have tabled.
Amendment 17 and associated amendments 18 and 19 deal with the ability of 16 and 17-year-olds to vote in the referendum. I do not propose to go over all the territory covered in Committee about 16 and 17-year-olds having the vote, but I want to make one or two specific points about why it is important for this referendum.
The referendum will be a major constitutional decision that will have a bearing on Britain’s future for decades to come. None of us expects it to be a regular event like local elections, elections to Assemblies, or elections to this House. It has been 40 years since the last such referendum and such a vote on our constitutional future is a once-in-a-generation decision. The result will affect every young person in the UK for decades to come. At the moment, British citizens have the right to live, work and study in any EU member state. One of the main motivations—if not the main motivation—for those seeking to leave the European Union is to end the principle of free movement of people and to impose stricter controls on immigration. In the context of our leaving and restrictions coming into play, it is hard to see how such a move would not be reciprocated towards our own citizens and their ability to live, work and study in the remaining European Union. The rights, opportunities and freedoms of young people for decades to come are very much on the ballot paper in this referendum.
The right hon. Gentleman seems to be arguing that 16 and 17-year-olds should have a vote because the referendum will impact on young people for decades to come. It will presumably also have a massive impact on my 12 and 10-year-old sons. By the same logic, he will be arguing that they should have a vote, too. Why should the vote be extended just to 16 and 17-year-olds? He seems to be arguing for complete nonsense.
The argument has the benefit of not only principle, but recent experience. While I do not share the view of every member of the Scottish National party about all the virtues of last year’s referendum, extending the vote to 16 and 17-year-olds worked well. No one on either side of the debate in that referendum would argue that 16 and 17-year-olds did not understand the issues, engage in the debate and carry out their vote, whether for yes or for no, in a responsible manner. For those reasons, we believe that the vote in this referendum should be extended to 16 and 17-year-olds, and that there are specific reasons for doing so on such a long-term constitutional decision such as this which go above and beyond the general debate about the voting age.
Does the right hon. Gentleman agree with me and the leader of his party in Scotland that we also benefited from EU nationals having the vote in the independence referendum? It was a benefit then and could be a great benefit in this referendum as well.
I want to deal with that issue and the comments of the hon. Gentleman and my hon. Friend the Member for Ilford South (Mike Gapes). The contribution made to this country by EU citizens is not disputed by me or any Opposition Front Bencher. What my hon. Friend said about that positive contribution and people paying taxes is absolutely true. It is also true of the many British people living and working in other EU member states. I completely agree with him that the argument is not about contribution, value, rewinding the clock or any of the other general points. The issue is about precedents in other referendums concerning such matters in other countries. We looked at the precedents and every referendum we found regarding accession to the European Union, joining the single currency or European treaty change was restricted to citizens of the relevant member state. That does not mean that they think that citizens of other countries living in that state do not make a contribution or pay taxes and are not valuable citizens, but that precedent has been set time after time when countries make significant decisions about their own future.
The hon. Member for Ilford South (Mike Gapes) failed to enunciate any specific undertakings, responsibilities or rights for voters elsewhere in the European Union who are British citizens. Can the shadow Minister share with the House any specific rights that would be circumscribed or removed as a result of a decision by the United Kingdom to leave the European Union?
I do not think that is clear at all. It is very uncertain what the rights of British people living in other member states would be in the event of the UK leaving the European Union. The hon. Gentleman raises an important question, which is one of many. I do not want to get sidetracked into the arguments for in and out tonight because I want to concentrate on the amendments. I do not think that anyone can say with confidence that there would be no effects on those citizens in the event of Britain leaving the European Union.
My right hon. Friend referred to precedents. Is it not the fact that in our elections and presumably in the referendum that took place in 1975, citizens of other countries who are not British citizens have participated, because we allow Commonwealth citizens, such as the citizens of Malta and Cyprus, and citizens of the Republic of Ireland to participate? There are problems with a definition that relates only to citizens of this country. I accept that there is a parliamentary franchise, which is the position that the Government have taken and something that my right hon. Friend will no doubt remind me of, but the position is messy and not straightforward.
My good and hon. Friend anticipates my reply. He is right that history comes into play here, and not always in a linear manner. The thing that unites citizens of the Republic of Ireland and the other examples he mentioned is that they are part of the parliamentary franchise. He is right to say that it is not strictly about citizenship, but about who can vote to elect a national Parliament.
It remains the case that throughout the European Union when countries have had referendums of this type they have not extended the vote to citizens of other countries. It is important to state that, because too often the debate becomes about the value of the contribution of those citizens to the UK. That is not in dispute at all. The issue is having consistency in how we take decisions on our nation’s future.
The exchanges that took place on broadcasting impartiality showed the dangers of those proposals. We should allow broadcasters to do their job. The Opposition do not favour the appointment of a broadcasting referee. I do not think that the finest moment in the Scottish referendum was the mass demonstration outside the headquarters of the BBC in Glasgow, calling for the head of the political editor. I hope that we do not see that in this referendum. I am therefore not in favour of proposals that seek to set up some kind of referee to go through BBC news bulletins and second-guess who should and should not be interviewed. We should allow our broadcasters to do their job.
The right hon. Gentleman is clearly referring to my new clause. He ought to take into account the fact that that the Secretary of State, in correspondence with the chairman of the BBC Trust and Ofcom—the right hon. Gentleman may or may not have seen it—has quite a lot to say about the necessity of improving the manner and process of adjudication. I will deal with that in a moment.
I am slightly confused by what the right hon. Gentleman is saying. He seems to be saying that there should be no adjudicator of the BBC’s impartiality. There already is one: it is called the BBC Trust. Is he saying that the BBC Trust should be abolished and that nobody should oversee the BBC’s output? He said that there should be no referee, but there is a referee. Is he saying that that should no longer be the case and that there should be a free-for-all at the BBC?
Since the right hon. Gentleman has raised the issue of intimidation twice, is he aware that the father of the chapel at BBC Scotland said that far from being intimidated by the protesters, the main intimidation broadcasters felt was in fact from the Better Together campaign? The father of the chapel has no dog in the fight, as I am sure the right hon. Gentleman knows.
I will just say that if the hon. Gentleman takes a sense of pride from the demonstration that took place in Glasgow, he is entitled to his view, but that is certainly not something I would feel. I do not think it was the finest moment in that referendum campaign.
On the date of the referendum, we have said all along that it should not be held when other important elections are taking place. In Committee, the House accepted a Government amendment ruling out the date of the elections due in May 2016. Our amendment 15 would also rule out holding it on the date of the elections due on 4 May 2017. I am glad to see that the Foreign Secretary has added his name to amendment 12, which would have the same effect.
Government amendment 23 deals with the new question wording put forward last week by the Electoral Commission. The Opposition respect the work of the Electoral Commission. Its job is to examine referendum questions and to comment on them. We therefore accept the change it suggests, but may I ask the Minister a couple of questions? Has he asked the Electoral Commission why it was appropriate to approve the question “Should Scotland be an independent country?” on a yes/no basis without an alternative statement about remaining part of the United Kingdom being deemed necessary? Has he asked why a yes/no question was approved for the referendum on the alternative vote a few years ago, but is not deemed appropriate this time? Does he know if this decision should be considered a one-off for this referendum, or whether we should expect all future referendums to be a choice between two alternative statements, rather than yes/no in answer to a proposition, as has often been the case in the past? As I said, we accept the new wording, but would like to know more about the reasons behind it and the contrast in the approach taken with other recent referendums.
Amendment 16 calls for a White Paper to be published outlining the terms of any renegotiation settlement the Prime Minister has reached and the consequences for the UK of leaving the European Union. We believe this is important because the referendum needs to examine not only our current relationship with the EU but what leaving might mean for the UK. This, too, was touched on in Committee. The Minister for Europe indicated at that point that the Government might produce a White Paper. May I press him on this tonight? Has further thought gone into that, and can he tell the House definitively that that will be the case? This is important, because voters deserve as much information as possible about what the decision on Britain’s future means. This will in the end be a choice between two futures and there should be information about both of them. Our amendment states that such a White Paper should be published at least 10 weeks before the poll, well away from any of the discussions about purdah, which applies to the final 28 days of the referendum period. We are not calling for Government information to be sent to every household, or for this to be a last-minute intervention. We are saying that at least 10 weeks from the poll it will be important to have a proper view on remaining and leaving. What does anyone advocating leaving have to fear from the consequences of doing so being set out in a White Paper?
This section of the amendment paper contains many other amendments, a lot of them dealing with technical points about registration, reporting and other issues, but the amendments on 16 and 17-year-olds, the White Paper and my other comments touch on the issues that we believe we should focus on in the period available to us.
I begin by referring particularly to my amendment on the impartiality of broadcasters. It will be observed that I have not confined my remarks exclusively to the BBC. I am aware, having been on the Broadcasting Bill in the 1990s, that the broadcasters have different regimes: the BBC has a royal charter and the other broadcasters are regulated by statute. I introduced an amendment to the second of the two Broadcasting Bills to ensure impartiality that was accepted by the now Baroness Bottomley when she was Secretary of State. Impartiality is a fundamental necessity in relation to the function of broadcasters. Given that £3.7 billion—I think—of the BBC’s total annual income of over £5 billion comes from the taxpayer, I think the taxpayer has an absolute right to be certain that there is no manoeuvring and completely unbiased reporting and comment.
I was deeply disturbed, as Chairman of the European Scrutiny Committee, when I set up an inquiry into the BBC’s handling of European issues, against a background that I will explain in a moment, when the right hon. Lord Patten, then BBC Chairman, refused three times to appear before the Committee. I had effectively to require him to do so through the aegis of the Liaison Committee, which unanimously supported my proposal. I had exactly the same experience with Lord Hall, who also refused three times. I again had to use the aegis of the Liaison Committee to ensure he appeared, which eventually he did. On the other hand, Rona Fairhead, who is now the Chairman of the BBC Trust and who did not have the protection of being a Member of the House of Lords, did appear. The correspondence, which is set out in our report, is interesting to read. Whatever the excuses given, both Lord Hall and Lord Patten, as Members of the House of Lords, were in a position to refuse a summons from a Select Committee. This seemed completely extraordinary, and eventually, through the good offices of the then Chairman of the Liaison Committee and others, both of them did eventually acquiesce, although Lord Patten subsequently resigned because of ill health. The bottom line is that it was a very serious situation.
It has been claimed in evidence to us, which I am now slightly paraphrasing, that the BBC is effectively completely independent. This is simply not the case. First, it has to report to Parliament. Secondly, its representatives ought to appear in front of Select Committees. I have to say that they do appear before the Public Accounts Committee and the Culture, Media and Sport Committee, but I am talking about the European dimension, which is my main concern and which is relevant to the conduct of the Bill, and to how the taxpayer will be affected if there is not complete impartiality
The late Hugo Young, whom I knew extremely well, wrote a book called “This Blessed Plot”. I knew him since we were about 10 years old. We both lived in Sheffield and more or less grew up together in our respective ways. We were not very close friends, but knew one another well enough. He went to Oxford as I did: he went to Balliol, I went to Lincoln. We used to speak to each other. He went on to become one of the most celebrated journalists in our time.
I do not know what to say. That is true. I did not know it was going to be written. In a discussion over lunch during the Maastricht period, I heard Hugo Young, one of the greatest journalists of his generation, say “Bill, you’ve got The Daily Telegraph, The Times, the Daily Express and the Daily Mail; we’ve got the BBC.” I thought that was pretty revealing. The bottom line is that there is a serious concern here, although I believe it is now potentially capable of being remedied.
The BBC remains the most important source of news for the country. An Ofcom survey in 2013 noted that 34% of those who consume news named BBC 1 as the most important news source to them. According to Ofcom’s calculations, the BBC has the highest share of each of the platforms on which it has a presence— 56% on television, 64% on radio and 27% on the internet. As reflected in the conclusions of the European Scrutiny Committee report, after evidence was taken from wide sources, 58% of the public look to the BBC for the news they trust. This is very important, and we need to be certain about the degrees of impartiality maintained during the referendum campaign—not only for taxpayers and licence payers, but for voters, 58% of whom, as I say, look to the BBC for the news they trust. It is a hugely important issue.
Correspondence published recently by the Secretary of State for Culture, Media and Sport, following the report of the European Scrutiny Committee, is also important. I sent a copy to him as well as to the Prime Minister and others. The Secretary of State wrote to the chairman of the BBC Trust, which has the responsibility for enforcing BBC standards. He said that the corporation’s coverage of Europe had not been “faultless” in the past. A committee had been set up—in 2005, I believe—called the Wilson committee, which was extremely critical of the manner in which the BBC covered European issues. I was not surprised when I discovered from another source—I hope I am right in quoting it—that when it comes to newspapers, people in the BBC tend to come from what might be called The Guardian stable. The figures on that were interesting.
The Secretary of State went on to say that
“complaints about the BBC’s referendum coverage should be adjudicated on within 24 hours”
—which is what my amendment says—
“amid fears ‘partial’ treatment”,
as he put it,
“could mislead voters.”
We know that the Department for Culture, Media and Sport has looked at the European Scrutiny Committee’s report, in which we were very critical. It was a unanimous, all-party report, which did not present just one side of the equation; many Committee members who were on the left of the party agreed with our conclusions.
I am quoting from a report that was published only a few days ago in The Daily Telegraph, but I have the full correspondence, which has been made available through the Secretary of State and is, I believe, on the DCMS website. The Secretary of State said to the trust that, although he was not going to accept my amendment as such,
“I am sure that you will agree that the coverage of this referendum by our broadcasters must be beyond reproach.”
That is absolutely axiomatic. As I said during an earlier debate this afternoon, this is not a debate about Conservatives versus Labour, SNP, Liberal Democrats and others. It is about the question “Do you want to remain in the European Union, or do you want to leave?” That is a national issue. The BBC’s charter must guarantee that it will conduct a proper and fair analysis, ask the right questions, and carry out the research properly. It must also guarantee that the BBC will ask the right people on to the programmes, and ensure that they are given an opportunity to answer the questions properly.
My hon. Friend rather glossed over the Wilson report, but it is important for us to remind people what Lord Wilson said. He said:
“While we have found no evidence of deliberate bias in BBC coverage of EU matters, we have found that there is a widespread perception that it suffers from certain forms of cultural and unintentional bias…The problem is complex. In essence it seems to be the result of a combination of factors including an institutional mindset”
and a lack of knowledge about the European Union. He also said:
“The BBC needs to take more care in the selection of interviewees.”
Does my hon. Friend agree that all the problems that Lord Wilson identified about the BBC coverage, whose existence the BBC itself accepted, are still there today?
There is a case, which my right hon. Friend the Member for Wokingham (John Redwood) touched on earlier, relating to the business news. In its report, our Committee referred to the business section which comes on at about six o’clock in the morning, and to what I hope will not continue to be a stream of people putting forward the pro-EU case. Given that the charter itself is under review and a consultation period is in operation, we look to the Secretary of State to ensure that the opportunity is taken to address this question as part of the review, and that includes addressing the question of public purposes.
The basis on which a chartered body operates is by reference to the objects of the charter, and those public purposes do not specifically include the impartial delivery of commentaries and news. The question of the charter is linked to the guidelines, and the guidelines are rather like a statutory instrument: they must have regard to what the charter says. On the other hand, the charter itself should specifically ensure that in its wording impartiality is an absolute.
There have been suggestions, of course, that the BBC has been in receipt of money from the EU. My hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who is not in his seat at the moment—he usually is—put that question to Mr Harding, and we were hoping we would get further information on the matter. We have, however, invited Lord Hall to return and he will be coming back to see the Committee quite soon. He has accepted the invitation this time—he has not been required to appear—and we are looking forward to getting an answer to that question, and many others.
Perhaps when Lord Hall does appear, we might put a point to him about choosing interviewees, which is just as relevant in respect of businesses. We might suggest that when the BBC is seeking an anti-European Union viewpoint, it should not always go to members of UKIP, because there are members and supporters of all parties—not just the Conservative party, but the Labour party, too—whose views it could, and should, be seeking.
The hon. Member for Luton North (Kelvin Hopkins) and other Labour Members on my Committee put that very question to the witnesses—Lord Hall and Mr Harding in particular, as well as Rona Fairhead—because it is essential that all sides of the arguments are heard. As I have said repeatedly in this debate, this is not a party political issue in the sense that it is not Conservative versus Labour. The very fact that the referendum has been set up and the question is “Do you want to remain in or leave?” means that it is a national issue and therefore all the broadcasting authorities, including the BBC, must have regard to the fact that we are passing over in this Bill the entire conduct of the referendum. That means it must be conducted not on a party political basis, but on yes versus no and on the question: “Do you want to remain in or do you want to leave?” Therefore there must be impartiality. We do not just want a Eurosceptic view. Some might think, “I would want that, wouldn’t I?” but actually, no; it must be done on an impartial basis.
It is rather strange that the BBC was somewhat dismissive of News-watch, an organisation that runs a comprehensive analysis of all news programmes—who goes on, what questions are asked and the whole conduct of the BBC output. I am afraid that it seems to me that the BBC was somewhat dismissive of that, to say the least. I believe from what I have heard that the BBC does not in fact have its own monitoring system. If it does not have its own monitoring system, how is anybody to know whether or not it has been impartial, because that is like looking for a needle in a haystack? We do not have the facilities to be able to conduct the analysis for ourselves, but the BBC has £5 billion and I would have thought that was the least it could do.
May I ask the hon. Gentleman the same question I asked earlier—although I might of course have overlooked his comments on this on billcash.com? Does he now regret the fact that the Conservative party acted as a cheerleader for bias during the Scottish independence referendum, and does he accept that that set something of a precedent for one-sided BBC coverage in referendums?
I do not blog so I am not in a position to answer the hon. Gentleman’s question. All I can say is that I would deplore any bias whether in the Scottish referendum or the European referendum, or indeed in just normal current affairs.
To return to my point, there is the facility for this if the BBC steps up to the mark and does in full what the Wilson committee report recommended and, more than that, what is in line with what the Secretary of State is now proposing. This is a hugely important question given that according to the BBC 53% of the British people depend on it for the news they trust.
Would the hon. Gentleman accept, however, that apparently with the sole exception of the right hon. Member for Wokingham (John Redwood), there was broadcast silence from Conservative Members when there were dramatic examples of corporation bias during the Scottish referendum coverage? With all due respect, I never heard the hon. Member for Stone (Sir William Cash) utter a cheep in complaint about that, which makes us feel a trifle cynical about his motivation. One feels that it might just be about Europe rather than bias.
I do not want in any way to sound as though I am drawing on the fact that I have been in the House for 30 years, but with great respect, the hon. Gentleman ought to know that I am not known for dodging issues or not taking a serious point seriously. If I did not say anything at the time, I do not regard that as a fault on my part, but if he is right about how the BBC dealt with the issue, I deplore it. I think that is all I can say on that subject for the moment.
The BBC recently published an annual report that was rather critical of the fact that Select Committees ask questions about the BBC’s performance on so-called editorial independence. I am not denying that it is important that the BBC should have a degree of independence in order to be impartial, but I think I have made the case that there has not been the complete impartiality that we believe the BBC should deliver to the British public. That is perhaps the result of the lack of a monitoring system, or perhaps because of a certain cultural bias of the kind that my hon. Friend the Member for Shipley (Philip Davies) mentioned, and we can see it in the evidence that we have accumulated in the European Scrutiny Committee and in the reports of News-watch.
What I read in a recent article by Rona Fairhead, the chairman of the BBC Trust, was peculiarly unsatisfactory. She stated in that article, published in the past week or two, that
“the BBC needs to be driven by evidence and fact, not by prejudice”.
However, in addition to what the annual report had said, she effectively stated that the BBC should not be subjected to Committee questions in the way that it is. I can only assume that she meant the European Scrutiny Committee, but perhaps she meant the Culture, Media and Sport Committee as well—my hon. Friend the Member for Shipley asks some tough questions when people from the BBC appear in front of that Committee. Rona Fairhead stated:
“Research carried out for the trust”—
on what basis I do not know—
“shows clearly that the public see a need for independent scrutiny and regulation, but they want this done by a separate body representing licence fee payers, not by politicians.”
However, we have overarching responsibility for the accountability of Ministers, and of the BBC, which has to appear in front of the Public Accounts Committee and so on. Rona Fairhead’s article continued:
“That independence has needed defending over decades, not just from governments but also from parliament, with a growing tendency in recent years for select committees to question BBC executives about detailed editorial decisions.”
That is quite an extraordinary statement.
We took evidence and legal advice, and the bottom line is that the BBC does not have complete, unfettered independence, editorial or otherwise. It has to comply with the charter. We make it clear in our report that we expect the impartiality requirements that are embedded in the framework agreement and other documents to be complied with in the light of what the charter states. The first port of call is what the charter says and unfortunately we felt, very strongly and unanimously, that the BBC had fallen short. We look to it to remedy that. I have referred to the correspondence on 15 and 18 June between the BBC Trust, Ofcom and the Secretary of State. I do not have the time to go into its recommendations in detail, but there seems to be recognition that something has to be improved.
Does my hon. Friend agree that the BBC Trust is not good enough to regulate and monitor the BBC’s coverage, because not only does it regulate the BBC, but it is a cheerleader for it as well? That means that it is not in the best position to be an independent monitor of the BBC’s output, and the BBC Trust chairman’s rather snooty view of politicians having any say in what goes on is undermined by the fact that she herself is appointed by the Secretary of State for Culture, Media and Sport.
From what I have observed from press reports and elsewhere, she appears to have accepted that the BBC Trust is in need of significant reform. The general thrust is that the BBC Trust is bust. Basically, there will have to be a new system, and that is what the correspondence to which I have referred indicates.
Former BBC commentator and employee Robin Aitken’s book, “Can We Trust the BBC?”, covers many matters related to the European Union. I also recommend Peter Shore’s book, “Separate Ways”, the introduction of which contains some extremely pertinent views of the BBC as being deeply biased on EU matters, going back to meetings in the Connaught, alleged connections with the CIA and other similar issues.
News-watch has demonstrated the truth that
“in crucial respects, the BBC has not provided the Committee clear evidence that its EU-related output is properly balanced, informative and wide-ranging across all its platforms—or that the Corporation has raised its game in the ways urged by the Wilson report.”
I have given many of the reasons for that, and more will have to come out in our next inquiry.
What would the adjudicator’s role be vis-à-vis the BBC Trust? Would the adjudicator have primacy over it? Would the trust’s power to make a ruling on the issue of bias be removed, or would the two compete with each other, giving perhaps contradictory rulings?
New clause 1 states:
“Notwithstanding any enactment or legal instrument”,
so that would affect the Broadcasting Acts and the charter. Under my proposals, the Secretary of State would make provision by regulations
“to ensure the impartiality of broadcasters during the referendum period.”
There would also be a requirement for
“the appointment by the Secretary of State of a referendum broadcasting adjudicator”,
who would be completely separate. In effect, during the referendum period, the adjudicator’s arrangements would take the place of those of existing broadcasting authorities and the BBC. I do not dispute the fact that the Government do not want to go down that route, but it has emerged from the correspondence between the Secretary of State, Ofcom and the BBC Trust that serious discussions are taking place to make sure that the BBC and broadcasting authorities generally are properly impartial during the referendum campaign. There are those who do not think that there is a problem, but there are many who think there is, and that it needs to be rectified.
Even if the Government do not accept my amendment, the elements that I have described will need to be addressed in the charter review. The problem is that it is highly possible, if not probable, that the conclusions of the charter review will emerge after the referendum. It is therefore a matter of urgency that we sort this matter out in the run-up to the referendum, and before the charter review is completed. We shall look into this in the European Scrutiny Committee proceedings, to which we have invited Lord Hall, and we will continue to look into it because we believe that it could have a significant bearing on the outcome of the referendum if the situation is not remedied. If, on the other hand, the matter is taken seriously by the BBC and the broadcasting authorities, we will be able to find a solution in the framework of the existing legislation. This is a really serious matter.
I will not spend too much time on the other amendments, except to say that I think I will get an interesting response from the Minister to my amendment 1, which proposes a referendum period of not less than 16 weeks. I shall therefore not dwell on that one. We have to have a proper length of time for the referendum, so that the arguments can be properly put and understood on all sides.
New clause 11 deals with the limit on the expenditure of registered political parties. We have taken advice on this, because it is a matter of grave concern that the political parties, three of which are known to be pro-EU in the broadest sense, might find that they had too much money at their disposal, or at any rate have what we think is too much money if we look at this from the point of view of those who wish to leave. We have proposed a cumulative limit of £14 million. We have also proposed:
“Each political party’s share of the cumulative limit shall be determined in proportion to its share of the total votes cast at the general election that took place on 7 May 2015.”
The new clause also proposes that
“the Electoral Commission shall calculate and notify each political party of its share of the cumulative limit.”
For practical purposes, I look to the Minister to give me his view on that one.
In addition, I have tabled amendment 3, which states:
“Regulations made under this Act or the 2000 Act in respect of the referendum must be made and come into force not less than six months before the start of the referendum period.”
We discussed some aspects of that in the debate on the previous group of amendments. A further amendment relates to the question of permitted participants and the European Union. I should add that quite a lot of my amendments have been endorsed by the Electoral Commission. The Minister can no doubt refer to that body as he goes through the amendments. This is not just a matter of Back Benchers coming forward with proposals; I have been in discussion with the Electoral Commission on many matters, including my amendment 78, which we covered in the previous debate. The commission endorsed that amendment, but unfortunately it was not accepted by the Labour party.
A significant number of Members have signed my amendment 2, which proposes that
“a permitted participant must not accept a relevant donation, irrespective of whether or not it meets the requirements of the 2000 Act and this Act, if the donation is funded directly or indirectly in whole or part from moneys, resources or support disbursed or allocated by or at the direction of the European Commission, its agencies or any related European institution to the donor or via other parties to the donor.”
The object is to ensure that no funds come from the European Union for the purposes of promoting pro-European arguments, including, obviously, the yes vote. It is an important amendment, and my hon. Friend the Member for Wycombe (Mr Baker) has sensibly suggested that we add the words
“Notwithstanding the European Communities Act 1972”,
just to make sure we do not slip up by finding that there is some law in the European Union that would contradict our proposals.
I shall speak relatively briefly to the SNP amendments put forward by my hon. Friend the Member for North East Fife (Stephen Gethins). As he said, the rules, regulations and conduct of the Scottish independence referendum represent a gold standard for referendums and political engagement more generally.
When the EU referendum does reach the streets and town halls of the UK, Members in this Chamber might be in for a bit of a surprise about people’s willingness to engage in that debate. Key to that political engagement is the right of 16 and 17-year-olds not only to vote but to participate in the debate. They galvanised and energised the debate on the independence referendum. Their generation will have to live with the consequences of this vote for longer than any of us, so it is only right that they should be included. The Scottish Parliament has just enfranchised 16 and 17-year-olds with the vote. As a result, a 16-year-old in my constituency faces being able to vote in the Scottish Parliament elections in 2016 and in the local government elections in 2017 but being denied the right to vote in the EU referendum, which will fall at some point between or shortly after those elections.
That leads us to the question of timing, where the Government seem to have been scrambling to keep up with the demand for clarity. At the last stage they had to confirm that the referendum would not clash with the Scottish Parliament or Welsh Assembly elections, and now they are introducing amendments to say that it will not clash with local elections specifically planned for 4 May 2017. The SNP amendment asks for a clear three months on either side. There are good reasons for that, not least the amendment that has just been passed on purdah, because of course a purdah period will also apply to the Scottish Parliament elections. Perhaps the Minister can advise us on what will apply in advance of local government and London mayoral elections, but either way we are looking at having two purdah periods in a relatively short time, depending on the date the Government choose. That can be avoided by accepting the SNP amendment and giving ourselves those three months clear on either side before another election takes place.
There are additional benefits to having that clear run-up to the date of the referendum. I saw major benefits in holding the Scottish independence referendum in September, not least because it gave us a good long period of campaigning during the glorious summer for which Scotland is renowned and which it experiences every year but experienced particularly last year during the Commonwealth games. That led literally to engagement on the streets, with stalls, petitions and conversations that would not have happened if the referendum had come in May. But the precise month is less relevant to this than the length of time available; no matter the exact date, what was crucial was the good period of time available for a free and full debate.
Allowing three months on either side of the referendum gives it the respect and the place that it is due in our national discourse. I think some Members on the Labour Benches have been surprised to see so many people filing out town halls because of an election. Such a thing is no surprise to us in Scotland who have seen a democratic reawakening and an engagement with the political process that was brought about by our independence referendum. We have the opportunity now to do the same thing. It does not matter what we believe in or how we vote in the referendum. Like my right hon. Friend the Member for Gordon (Alex Salmond), I am pro-European to my fingertips, and I look forward to shedding light on the positive case for remaining in the European Union. No matter what side we support in the EU referendum, we should allow that space and time to be made available.