Monday 10 September 2018
[Sir Roger Gale in the Chair]
Vote Leave Campaign: Electoral Law
I beg to move,
That this House has considered e-petition 223729 relating to rescinding Article 50 if the Vote Leave campaign broke electoral laws.
It is a pleasure to serve under your chairmanship, Sir Roger.
The petition raises an issue that is clearly timely, lively and of huge interest, because almost 200,000 people have signed it in less than three months, including more than 1,000 people from my constituency of Cambridge. I thought it likely that many hon. Members would wish to contribute to a debate on this issue. I thought that some might have spoken on the subject of the petition, some on related subjects and some to confirm pre-existing positions—I confess that I am no exception in that regard. I also suspect that a few people will wish to intervene and, as Mr Speaker would probably put it, “beetle away”. I entirely understand and I will be generous in taking interventions. However, to avoid my being knocked off course completely, I thought that I would first set out the ground I intend to cover and then hon. Members can judge for themselves where best to make their interventions.
May I say at the outset that the wording of the petition is admirably succinct and to the point, perhaps unlike some of our proceedings? It says what I suspect many people would assume is obvious. To paraphrase, it roughly says, “If someone cheats, then the result is invalid and it doesn’t count.” Because I did not like the result of the EU referendum, I obviously agree entirely, but unfortunately for me and for all those who feel the same, things are sadly a bit more complicated than that. It is those issues that I wish to explore initially. In passing, I will suggest that—sadly—cheating in elections or allegations of such are not new or rare. I will examine the mechanisms that we have to explore such charges, and the sanctions and punishments that may be incurred, and I will consider whether they are consistent across different types of elections and votes.
I will say a little about the particular circumstances surrounding the 2016 referendum campaign. I will then address the issue of article 50, and the views about the options that are potentially open to us. In passing, I will reflect on the complicated issues of consent within a democracy and the extent to which some of these judgments are legal issues, while some ultimately may be political issues.
I will conclude in a completely non-partisan way by saying, “Of course we were cheated, the whole thing has been a nonsense and we should stay in the European Union,” which I suspect is what the vast majority of those who signed the petition actually feel. I recognise, however, that there may be others in Westminster Hall today who feel differently. On a more serious note, I will try to offer a potential way forward to address what has undeniably been a distinctly fraught couple of years for our politics.
Let me start, however, at the beginning. Last week, I had the pleasure of joining the Lord Mayor of the City of London at an event in Cambridge. I was struck by his opening comments. He said that he is guided by three principles: the first principle is the rule of law; the second principle is the rule of law; and the third principle is the rule of law. Given that he was addressing a group of lawyers, that seemed like quite a smart opening. However, it strikes me that what the Lord Mayor said—that he is guided by the rule of law—is something that all of us in this place can probably agree on. We are here as lawmakers, and we respect the law even if we disagree with some of it and seek to change it.
The opening part of the petition, which queries whether any laws have been broken, should be relatively simple to consider. We have a mechanism that was established by Parliament to supervise electoral contests. The Electoral Commission has conducted an extensive investigation into the referendum and it has concluded that laws were indeed broken. Vote Leave funnelled nearly £700,000 to another campaign group, BeLeave, and did not declare that the two campaign groups were working together.
The precise details of what happened remain contested; others may wish to talk about that. I recognise that Vote Leave argues that the investigations have been politically motivated. However, the investigation has been made and the conclusions are very clear—indeed, they are stark. Vote Leave was referred to the police and those found guilty have been fined, which is the punishment available to the Electoral Commission under the law.
The Electoral Commission has commented that that punishment is, in its view, insufficient. I agree, as I suspect do the 200,000 petitioners; that is the force of the petition. However, that is the law as it stands at the moment, which makes the jump in the first sentence of the petition quite a leap: from if the law has been broken to nullifying the result. That may be what many of us would like the law to be, but I am afraid that it is not the way it is in this case—or is it? A recurring theme in this debate is that no-one is entirely sure.
There will be lawyers in this Chamber who will know far more than me, but one aspect of the legal debate begins with the status of the referendum itself. In the Supreme Court judgment made in December 2016, when the Government were being challenged on the need for parliamentary approval to trigger article 50, it was judged that the EU referendum was not legally binding but advisory, so logically it cannot be ordered to be rerun by a court. The decision about whether to go back to the public after a referendum is not a legal judgement; it is a political one. The decision lies with us.
I am grateful to the hon. Gentleman for introducing this very important debate. I speak as somebody whose constituency voted to remain; I myself also voted to remain. Can he address one point? He has mentioned, rightly, that in legal terms, the referendum was advisory and not legally binding. Therefore, the nexus between the triggering of article 50 and the referendum is weaker than if the referendum had been legally binding. Does that not weaken the case for the referendum result to be overturned or for article 50 to be rescinded, because Parliament is making an even more independent judgment than would otherwise have been the case?
I am grateful to the hon. Gentleman for his intervention. As I rather thought, almost immediately we start getting pulled into the legal arguments. His point is a reasonable one, but of course there are arguments back and forth, and many of these things remain to be tested in court, as is so often the case. However, he might make that case.
The point that I am making, and this is a theme that I will return to throughout my speech, is that the law is for the lawyers, but a lot of these judgments will ultimately be political judgments, which need to be made in this place. We can make a choice, on the basis of what we have seen in the referendum, as to whether or not we think the referendum should be run again—it is up to us to do so.
Does the hon. Gentleman agree that it is essential that we have clarity on where the law stands, particularly in relation to whether article 50 can be rescinded? I am not sure whether he is aware of a legal case—the Wightman case—that is going through the Scottish courts, which I am peripherally involved with. It seeks to get a case to the Court of Justice of the European Union for it to rule, once and for all, on whether article 50 can be rescinded, because we need that clarity in respect of other decisions that we have to make in this place.
I thank the right hon. Gentleman for his intervention and I very much agree; in fact, I will come on to that point a bit later. It is a very important point and, of course, it would have been helpful for all of us if the Government had pursued that option to make things clearer, so that we could all have made a sensible decision. However, another theme of my speech is the lack of clarity throughout the discussion of this subject, and I suspect that that will not change in the immediate future.
I do not intend to rehearse the arguments about the abuses that are alleged to have happened during the referendum campaign—in fact, in some cases abuses have been proven to have happened during the referendum campaign—but others may wish to do that. I will just note a couple of things from the excellent work by the Digital, Culture, Media and Sport Committee to uncover the extent of the wrongdoing committed by the Vote Leave campaign, which of course is the subject of the petition we are considering.
I cannot help but quote one reflection from the DCMS Committee’s report in relation to one of the key players:
“Mr Cummings’ contemptuous behaviour is unprecedented in the history of this Committee’s inquiries and underlines concerns about the difficulties of enforcing co-operation with Parliamentary scrutiny in the modern age.”
Beyond highlighting the lack of respect shown for the rules and procedures of this Parliament by Vote Leave, the Electoral Commission’s legal counsel stated that:
“Vote Leave has resisted our investigation from the start, including contesting our right as the statutory regulator to open the investigation. It has refused to cooperate, refused our requests to put forward a representative for interview, and forced us to use our legal powers to compel it to provide evidence.”
I congratulate my hon. Friend on his excellent opening speech. On the point about people attending Committees, does he agree that the social media element has an impact on the close scrutiny that we need, not just of ourselves as Members of Parliament, but of elections in general? Because it is so new, it adds confusion and layers of fake news, making it even more difficult for the average citizen or voter to get to the bottom of what the truth is.
I am grateful for my hon. Friend’s observation. I do not think anyone would dispute the layers of complexity and difficulty, and the greater difficulty presented by social media. For some of us who have been grappling with electoral law over many years, social media makes it a whole lot more difficult, and I suspect we all know that we will need to update our procedures to try to cope with the challenges that are posed.
For many of my constituents, this feels like an obvious point. There has been a breach of the law and there should be a way in which those who are responsible are held to account through our legal system. The fact that a general, local or European election or a local referendum would, in such a case, be voided in the High Court but that this referendum has not been seems nonsensical. I agree with the point my hon. Friend just made: that the rules, therefore, clearly need updating. Would my hon. Friend support me and others in calling for an inquiry, not just to understand the problems in the referendum, but to fix the rules for the future?
My hon. Friend jumps ahead a little, but entirely correctly, to my conclusions. Over the next few minutes, I will show some of the inconsistencies and the need to update our rules and laws, and I very much hope that the Minister will listen closely.
Returning to the Digital, Culture, Media and Sport Committee’s conclusion, that was an extraordinarily strong statement, which frankly should make anyone in any way associated with the Vote Leave campaign at least wince—they should, more properly, be deeply ashamed. I cannot help noting that the alleged point of the entire campaign was to bring control back to this Parliament—a Parliament it now treats with contempt and disdain. The sheer hypocrisy, as well as the appalling boorishness, that the campaign has exhibited takes the breath away. How dare it wave the Union Jack when it so disrespects basic British values? Millions and millions of people who voted to leave will also have been horrified by its behaviour. My hon. Friend the Member for Streatham (Chuka Umunna) put it succinctly when asking an urgent question on this matter in July:
“Who do these people think they are? They think they are above the law.”—[Official Report, 17 July 2018; Vol. 645, c. 227.]
Although this particular instance is controversial and unpleasant, and stinks of arrogance and an obnoxious disregard for our politics and our Parliament, over an issue that is extremely emotive for many of us, as well as highly significant for the country, it is important to remember that this is not the only occasion on which our politics has fallen short.
I have just made a pretty strong attack, so I will try to lighten the mood for a moment. In the interest of painting an accurate picture, I fully acknowledge that claims that ballots have been rigged or that electorates have been misled are hardly new or unusual. It was not just the notorious £350,000 claim on the side of the bus. [Interruption.] Million—sorry, not thousand. I have lost count of the number of constituencies I have arrived in and by-elections I have turned up to, where I have been puzzled and amused by the information being offered to the electorate by one side or another. Let me get my mea culpa in first. My party has made some interesting claims. I remember “Vote Labour or the fox gets it” dominating one parliamentary by-election. I remember Labour claiming that the Lib Dems were high on taxes and soft on drugs—that was one of my particular favourites, which I think was from Oldham and Saddleworth. In another by-election, possibly in Leicester, I remember being told that the contest was Mr Strong versus Mr Weak—neither of which candidates appeared on the ballot paper, as I recall. In general elections, the Conservatives have used the notorious double tax whammy and they have asked us, “Are you thinking what we’re thinking?”. Of course, whenever the Liberal Democrats are involved, it is always a two-horse race, whatever the facts might say.
Whether witty, making a reasonable point in a clever way or downright misleading, none of those statements actually broke the law, but Vote Leave did and it has been punished according to the law as it stands. However, the campaign also seriously misled the public. I and many others feel furious about the false promises that were made, but I reluctantly concede that this motley collection of attempts to at best divert and at worst mislead the electorate is, frankly, what electoral politics has always been: an unlovely struggle to achieve sometimes noble ends through too often distinctly tawdry means.
Sometimes, however, cheating does lead to a rerun. In Oldham East and Saddleworth, a by-election was triggered in November 2010 after the sitting MP, elected just months before, was reported guilty of “knowingly making false statements” about an opponent in the general election earlier in the year. After various court proceedings and an appeal, he was reaffirmed as guilty and conceded defeat. I was very sorry, because he was a Labour colleague. Interestingly, the electorate chose not to punish Labour at the ensuing by-election. There are more recent examples. In South Thanet, accusations of electoral fraud have been made that could have declared the election result in 2015 void due to overspending. The trial has been delayed. It is expected to happen in October and I therefore do not think it would be appropriate to say anything more about it.
Those who have signed the petition under consideration today may well ask: why are parliamentary election reports of wrongdoing treated so differently and so much more robustly than those relating to referendums? The answer, as I have hinted, is that electoral law is complicated, with different overlapping pieces of legislation that make it difficult to understand, even for those of us who have been struggling to work out what it means for many years. The important point here is that electoral law is different for national referendums.
In the case of a parliamentary election, there can be a challenge for one of three reasons: if there have been administrative failings that could have led to the wrong result; if a candidate is suspected of being disqualified from standing; or if there have been corrupt or illegal practices, including a candidate spending over the limit. Although there are financial limits on national spending by political parties and third-party campaigners during an election, there is no similar provision for declaring a general election result void because of overspending on the national scale. That makes the rules for referendums and parliamentary elections both complex and varied.
Does my hon. Friend agree that whether or not we have another referendum on our membership of the European Union, the probable involvement of the Russians indicates that democracy in this country is at risk and that whatever action we take in this House, we should try to ensure that it is motivated by our desire to defend democracy as well as the rule of law?
I very much agree with my hon. Friend and near neighbour. There are so many aspects of the matter that could be explored today, some of which I suspect others will choose to pursue.
Returning to the general proposition about how these issues should be dealt with, some look to the Venice Commission for guidance. The commission’s guidelines on constitutional referendums, to which the UK is a signatory, include:
“National rules on both public and private funding of political parties and election campaigns must be applicable to referendum campaigns... As in the case of elections, funding must be transparent, particularly when it comes to campaign accounts. In the event of a failure to abide by the statutory requirements, for instance if the cap on spending is exceeded by a significant margin, the vote must be annulled”.
However, as colleagues may agree, some of that, too, is open to interpretation. It does not give precise advice, and the key point, I am afraid, is that it is not legally binding on its signatories, although we have signed up to the spirit of it and it really ought to guide us in that way.
If one clear conclusion and recommendation comes out of this debate, it should be that the current rules are inconsistent, and certainly not clear to the general public. The law on referendums should be strengthened and made consistent, and I very much hope that the Minister addresses that in his contribution.
There is a further issue that goes beyond the strict application of the law. We do not have a written constitution. We do not have a contract between citizens—or subjects, but that is a debate for another day; let us call them electors—and those entrusted to make law and to govern. We have a very British understanding, and arguably it has probably served us pretty well. If a party is elected on a manifesto that it then contradicts in government by U-turning on key flagship policies, for instance, it can be reduced by the electorate from a party of government to one struggling to make up double figures in its number of MPs, as we have seen in recent times.
It is widely understood that we all respect the outcomes of elections, however disappointed we might be by the result. I speak from some experience, having lost many more elections than I have won. That respect, however, requires that everyone plays broadly by the rules. Despite the examples I somewhat grudgingly gave earlier, most of us accept that most of the time our system works. I am being generous, as many of us, particularly on my side of political spectrum, feel that the levels of hostility from national newspapers owned by people with vested interests have over many years made any contest far from fair, but I persist in thinking that the removal van outside Downing Street remains a powerful symbol of a democracy that still maintains public trust and consent. However—this goes to the heart of the issue raised by the petition—if that trust begins to be put in doubt, and significant numbers no longer feel the system is operating sufficiently fairly, then our democracy is at risk. What we do about that is a political judgment, not a legal judgment.
I thank the hon. Gentleman for giving way, and I apologise for the fact that I and possibly other Members will not be able to stay until the end of this debate; there is another debate about the European Union withdrawal agreement taking place in the Chamber shortly. Does he think it might be helpful to have an independent arbiter to assess the statements made during election campaigns? Politicians of all parties could voluntarily sign up to an understanding that if the UK Statistics Authority, for instance, came down against a particular statement—for example, the £350 million for the NHS—and said that it was untrue, those politicians would never restate that position.
I thank the right hon. Gentleman for making those points. I quite understand that there is another, more attractive option coming up soon in the other Chamber, and I will be in no way offended if he leaves. On his point about whether there can be an independent arbiter, I am slightly dubious. We are all sufficiently experienced, even in local contests, to know that that would be a difficult thing to set up. I would worry about it. We have all seen examples where all candidates are given an equal space in a booklet, and we have perhaps noted that that is not necessarily the bit that cuts through to the electorate in comparison with reporting from other sources. It is a difficult area, and I have some scepticism about his proposals, although there may be some value in exploring the checking of statistics.
My hon. Friend is generous in giving way to me for a second time. Does he agree that if there is a referendum and the Government of the day say that they will implement whatever the people decide, there should at least be a briefing in the Library of the House of Commons the day after the referendum goes one way or the other so that those of us who are rather surprised by the result know what the Government intend to do?
I thank my hon. Friend for her suggestion. I am just remembering some bleary-eyed politicians trying to recalibrate in the middle of the night, and I am wondering how quickly such a briefing note could be produced accurately. This is a theme of what I have been saying, but I am not sure that one can design legal systems to cope with all these things. In the end, these are political judgments, and we live in a democracy with a fair amount of hurly-burly and a free press, as there should be. We do not want our elections and decisions being bought by money and external states. That is the worry, and that is the difference from some of the problems we have had in the past.
I will make some progress and move on to the separate, but related question of article 50 and the ongoing debate as to whether it is rescindable. Lord Kerr was responsible for drafting article 50 as secretary-general to the European Convention in 2002-03 and is frequently quoted on this issue. Last year, he said that article 50 was revocable. That interpretation is supported by Jean-Claude Piris, former legal counsel to the European Council. Marie Demetriou QC, Jessica Simor QC and Tim Ward QC have written a joint legal opinion, which they have sent to the Prime Minister, in which they conclude that article 50 can be withdrawn before 29 March 2019 without the need to seek the agreement of the other EU member states. They also say that if that happened, the UK would retain its membership and privileges. The joint legal opinion notes that the wording in article 50 refers to a decision to notify an intention to withdraw. The QCs argue that an intention is not a binding commitment; it can be changed or withdrawn.
While legal arguments continue on the matter, in political terms the French Government have stated that they would welcome the UK staying in the EU on the current terms. EU Commission President Jean-Claude Juncker and Council President Donald Tusk have both said that Brexit is reversible. Lots of people have said lots of things over a period of time. When it comes down to it, I suspect that it is the political will of law- makers that counts here. However, it has been made very clear to us that we are welcome to stay, should we wish.
I have tried to present the petition in an even-handed and fair way, even though everyone already knows where I am going with my speech. In many people’s view, June 2016 was not a great example of a mature democracy working at its best. We know that in our system, referendums are used mainly by Prime Ministers who are in a fix, trapped by divisions within their own party. That was most certainly the case in 2016. Although I have not an ounce of sympathy for David Cameron, he must wonder every day how it came to this. In 2016, the country was hideously divided on the issue, but a decision was made. Two and a half years on, it looks as though we face another difficult decision: to accept whatever deal can finally be arrived at, or not. That is a different question from the one that was posed in 2016. I have argued this afternoon that the law around referendums should be changed to make them consistent with other electoral processes.
Almost 200,000 petitioners and many, many more in the country feel very strongly that the 2016 decision, close as it was, was sullied by actions that have been proven by the Electoral Commission to be unlawful. It may be Parliament’s responsibility or fault that the law is inconsistent, but many of the people we represent feel that the law has not provided adequate recompense for wrongdoings, and that is the force of the petition. That the law was broken is not in doubt, but alongside that, many believe that the campaign was grossly misleading. What was offered by Vote Leave and other leave campaigns is not what is being delivered, and as with parties that renege on their manifestos, the country will not forgive the political system and the politicians who allow this to happen.
The two strands—breaking spending limits and misleading people—are separate issues, but for many people the two are inextricably linked. Indeed, the right hon. Member for Mid Sussex (Sir Nicholas Soames), who is the grandson of Winston Churchill, told the House in the urgent question on this matter in July that
“one of the great glories of this sadly now diminished country was our electoral and democratic system…I say…that if we are to retain the integrity and the trust of the voting public, the whole damn thing needs to be blown and started all over again.”—[Official Report, 17 July 2018; Vol. 645, c. 228-229.]
The point is very well made. To maintain trust in our democracy, a political response is needed, and that political response is to ensure that justice is done and that we have a people’s vote.
The petition mentions article 10.3 of the Lisbon treaty, which states:
“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”
I do not want to leave the EU; I have been explicit on that point. I truly believe that the economic, social and political damage that leaving would do to our country—hitting the most vulnerable the hardest—could be mitigated by remaining in and reforming the EU. Tackling the underlying causes here at home is the way to truly bring back control to the people, not to the bankrollers of election campaigns, but while having the conversation about our future relationship with the European Union, it is worth reflecting again on article 10.3. It states:
“Decisions shall be taken as openly and as closely as possible to the citizen.”
That was not what happened in the EU referendum campaign, where electoral rules were broken, a limited franchise excluded those who would be most affected and the question allowed people to vote on what they did not want, but then said nothing about the kind of relationship that should be put in place. As many have said, as we slam the door shouting “We’re leaving”, we are unable to answer the obvious retort, “So where do you think you’re going to?”.
To help our fractured society to move back towards the higher ideals of genuine informed participation in democratic life, it is right to consider the experiences of the past two and a half years since the country went to the polls, as well as the poll itself, and to look at what was promised then and what is being delivered now. It is right to wonder whether we can do better. People have the right to know the price tag before they pay the bill. I am absolutely convinced we can do better. We all know so much more now than we did back in 2016. My solution to the conundrum raised by the 200,000 petitioners is simple. We have an opportunity not to revisit 2016—not to have a rerun, despite the wrongdoing—but to have a new vote on the issue that lies before us. It would be a people’s vote, which would give the people a genuine choice to decide on their future: whether to take the deal, whatever is negotiated, or to reject it and so stay in the European Union.
It is a pleasure to see you in the Chair, Sir Roger. I want to pay tribute to my long-standing friend, my hon. Friend the Member for Cambridge (Daniel Zeichner), for a sterling introduction to the debate on the petition. I am sure my colleagues will be pleased to know that my contribution will be brief: he said a lot of what I would have said. I also want to thank my 555 constituents in east Bristol who put their names to the petition.
I was one of the 122 MPs, 57 of them Labour, who voted against triggering article 50 in February last year. Every day that goes by vindicates in my mind that I was right to do so. The Government had no plan for Brexit then and have no realistic Brexit plan now. Triggering article 50 began the countdown to the biggest changes our country has faced in peacetime. It was an incredibly serious decision that should not have been taken lightly. Once the Prime Minister’s letter reached President Tusk’s desk in Brussels, it strictly limited the time for negotiations to two years.
The clock is ticking down, and it feels as though it is ticking down ever faster. Even with a coherent Brexit plan in place, it would be a challenging deadline to meet, but the Government were totally and utterly unprepared. They simply had not done their homework, which was painfully obvious when Ministers came before Select Committees such as the Environmental Audit Committee, on which I sit.
We conducted an inquiry into chemicals regulation post-Brexit. When the Minister came in front of us, it became clear that the Government were only just starting to ask the chemicals industry what Brexit would mean for it. This was after article 50 had been triggered. The conversations that needed to be had with industry, with important sectors and with the much derided experts had barely started, so triggering article 50 was reckless in the extreme. The Prime Minister was not doing it because Brussels insisted we move to a trigger, or in an attempt to unite our divided country after the difficult referendum campaign. She was doing it in a futile attempt to keep her warring Cabinet together. We can all see now how well that has been going.
There is little serious doubt that article 50 is revocable, although I know that was not envisaged when it was drafted. The president of the European Council, Donald Tusk, reiterated last year that no Brexit is still an option for the UK Government, and the author of article 50, Lord Kerr, has said that the UK can still opt to stay in the EU. He said,
“At any stage we can change our minds if we want to, and if we did we know that our partners would actually be very pleased indeed.”
Does the hon. Lady agree that if the Government want to be transparent and open, they should clearly state whether in their view article 50 is or is not revocable? As far as I am aware, the position they have adopted so far is, “The question is not being posed, so we are not going to answer it.” However, they should, and they should put it on the record.
I absolutely agree. We are discussing all the options available to us at the moment—from no deal to the option that some of us advocate: that we ought to think better and do all we can to try to stay in the EU. Clearly, looking at the legalities around article 50 is in everyone’s interest so that we know which options are still on the table and which are not.
Today’s debate is not really about the rights and wrongs of triggering article 50, although that is something that the petitioners put forward as part of their call. It is about Vote Leave’s illegal activities during the referendum. Although Vote Leave has been held to account, a fine of £60,000 is pitiful and no deterrent at all when we consider that so much was at stake during the referendum campaign and when the people involved are so wealthy and can easily access the funds needed to pay the fine.
I support the Electoral Commission’s call for greater fines to be levied on those who break the law in such a way and the call for a judge-led inquiry into the conduct of the referendum that my hon. Friend the Member for Bristol North West (Darren Jones) called for. My right hon. Friend the Member for Exeter (Mr Bradshaw) has led the way in investigating the Russian connections of Arron Banks’s Leave.EU campaign. I was glad to be a signatory of a letter he organised to the Metropolitan police and the National Crime Agency urging them to investigate the links between Vote Leave and Leave.EU.
It has been reported that Arron Banks met Russian officials multiple times—on one occasion it was reported that he had met them 11 times before the Brexit vote. There are reports now of an investigation by the National Crime Agency. We are seeing the destruction of our democracy by foreign funding, by fake news and by very wealthy individuals prepared to play fast and loose with our electoral law and get away with it with impunity.
I do not believe that such law breaking alone is reason to rescind article 50, if the intention in calling for article 50 to be revoked is to rerun the 2016 referendum campaign. Nor are the arguments put forward about a lack of information, or indeed the deluge of misleading information when voters made their choice in 2016, a valid reason to call for a rematch. Democracy is never perfect. We can never really second-guess why people voted the way they did. I would prefer not to turn the clock back and talk about rerunning the 2016 referendum, but I very much support the need to properly scrutinise any deal that the Government put forward, possibly with a people’s vote if the Government do not put forward a deal acceptable to Parliament.
Some of us spent the campaign warning that the Brexit process was much more complicated than some would have it. We have gone from being told that Brexit would be
“the easiest deal in human history”,
to the Prime Minister saying,
“it wouldn’t be the end of the world”
if we left with no deal. The promises have evaporated. As I said, I would rather not turn the clock back and look to scrap article 50, but we certainly need to hold to account the people responsible for illegal actions during the referendum campaign. They should not be allowed to get away with it with impunity, but the important thing now is to look at the deal—if it is possible to scrutinise it, given what an absolute mess it is at the moment. It is important to focus on the here and now and make sure that we either get the absolute best deal—a soft Brexit for this country—or we think again, extend or rescind article 50 and go back to the drawing board.
It is a pleasure to serve under your chairmanship today, Sir Roger. I am grateful to the hon. Member for Cambridge (Daniel Zeichner) for opening today’s debate on behalf of the Petitions Committee. With only 200 days until the UK is scheduled to leave the EU, time is clearly of the essence. I commend him for being so generous with his time and taking interventions today. We may have suffered in today’s debate because of the competing EU debate that is about to begin in the main Chamber. However, the Members who have spoken have covered just about every aspect that is salient to the issue. I am also grateful for the hon. Gentleman’s comprehensive presentation; there is much on which I agree with him. I am particularly grateful for his reminding us that the referendum was advisory and not legally binding. However, many of the decisions before us will be about political judgment.
Members have raised the point that adequate legal advice on whether article 50 can be rescinded would be extremely useful, especially in relation to future decisions that will have to be made. We will need to wait for the decision of the inner house of the Court of Session to see whether it tells us that.
We can be in no doubt that there have been illegal activities by Vote Leave. The Electoral Commission has determined that the electoral rules have been broken, and both Vote Leave and BeLeave have been fined and referred to the police. I do not wish to pontificate about what may or may not happen with regard to ongoing police investigations; that is for them to determine, and due process will take place. It is enough to acknowledge that it is right that the matter has been referred to the police. We must let the investigation take its due course.
I will, however, comment on how inadequate the powers of the Electoral Commission appear to be in relation to this matter. If we are to have confidence in the integrity, and outcome, of referendums and elections, transparency in the process is essential. It is particularly disappointing that Vote Leave displayed an arrogant and unco-operative stance, forcing the Electoral Commission to use its legal powers to compel it to provide evidence. It was bad enough that that attitude demonstrated that Vote Leave thought it was above the law, but that was compounded by the paltry level of fines imposed, totalling £61,000 against a multi-million pound campaign, which can be dismissed as the cost of doing business—almost with impunity.
With parliamentary constituencies, results can be declared void as a result of overspending by successful candidates but no such provision exists for overturning the referendum result; the only provision for challenging it was by judicial review within six weeks of the result. That is clearly unsatisfactory given that the Electoral Commission took almost 13 months to publish its report into the lead Vote Leave campaign funding and spending, although that is in no way a criticism of the Electoral Commission. The period needs to be significantly longer in future referendums, and could be further aided by a more transparent, real-time declaration of expenses and donations. That needs serious consideration by Ministers.
Vote Leave was not alone in being fined by the Electoral Commission; Leave.EU was also fined a total of £70,000 in May this year, and offences were also referred to the police. Once again, that highlighted the inadequacy of the range of fines available to the Electoral Commission. It would be fair to point out that several participants on the remain side of the referendum have also been fined, but in each case at significantly lower levels and, more significantly, without any individuals being referred to the police.
All that adds to the perception that the existing electoral laws are not fit for purpose. There has been talk of
“respecting the result of the referendum”,
to use the phrase in the Government’s response to the petitioners, but what exactly does that mean? In Scotland—a nation that we were constantly assured in the 2014 referendum was an equal partner in the Union—people voted overwhelmingly to remain, by 62% to 38%. Yet Scotland is being dragged out of the EU against our wishes—the peril of being part of an incorporating Union with a much larger partner. Clearly that example indicates that respecting the result of the referendum can be interpreted differently by different members of the UK.
What about respecting the process of the referendum to achieve a fair result? Surely that is more important. If the result was not fair, should it be respected? I argue that it should not be, and many reasons support that position—most importantly what will happen in future contests if campaigners can get away with breaking the rules. There must be full transparency to hold any of those who seek to influence or undermine our democracy to account.
That brings me to another dimension of the debate: dark money. BBC Spotlight Northern Ireland has revealed that the former vice chairman of the Conservative party in Scotland, now chair of the Constitutional Research Council, Richard Cook, was behind the Democratic Unionist party’s £435,000 donation during the EU referendum, and, to use BBC Spotlight Northern Ireland’s words, has
“a trail of involvement in illegal activity and foreign money”.
Donation rules in Northern Ireland mean that details about donations made before July 2017 remain hidden. It is worth noting that, in response to the BBC, the Electoral Commission continues to urge the UK Government to introduce legislation enabling the publishing of information on donations from January 2014. We need a full debate on the Scottish Conservative dark money, as we have seen only the tip of the dodgy donations iceberg. The Scottish National party has serious concerns regarding the dark money handled by the Scottish Tories in the 2016 referendum. We have called repeatedly on the Scottish Conservatives and the Prime Minister to reveal the full details of the transactions between the DUP and the Scottish Tory-linked CRC. They continue to refuse to do so. Perhaps the Minister will enlighten us on why the original source of that dark money is being kept a secret.
Our electoral laws must not be treated as an optional extra by campaigns. The £250 to £20,000 fines available to the Electoral Commission are simply inadequate. Fines should be unlimited or, at the very least, proportionate to the spending ability of the party or campaign group involved. We have to ask ourselves what level of electoral rule-breaking should invalidate this or any future referendum. The answer is not simple.
Given what we have heard, can we have confidence that the outcome of the EU referendum was secure? Overspending, the deliberate co-ordination of expenditure, dark money, possible foreign interference, fake news and potential misuse of online data, all of which played a part in the EU referendum and leave an unpalatable taste in the mouth, will lead many members of the public to conclude that the referendum was won by cheating. Much needs to be addressed to ensure public confidence in our democracy. Pressing on regardless fails to ensure that. Surely now is the time to stop the process of national self-harm and remain within the EU. Instead, we should concentrate on making our democratic systems fit for purpose in the modern digital age.
It is a pleasure, as ever, to be able to speak for the Opposition with you in the Chair, Sir Roger. I commend my hon. Friend the Member for Cambridge (Daniel Zeichner) on the way he opened the debate. At a time when much of the debate in this place on this issue lets us down, I thought he made a very balanced, informed and at times entertaining contribution, for which I am grateful.
Some 671 of my constituents signed the petition, many of whom probably campaigned alongside me to remain in the European Union. I have been in correspondence with a number of them on this issue. I understand the anger and frustration that they feel about cheating in the referendum—feelings that have been worsened by the deepening chaos of the Government’s handling of the negotiations and the growing risk of a disastrous no-deal Brexit. That, of course, has been anticipated with some excitement by the extremists of the European Research Group, although I note, as others may have, that the Secretary of State for International Trade confessed this morning in an article in The Times that he cannot promise that life will be “rosy” after Brexit—something of a contrast with the pledges made during the referendum.
Labour backed remain, and I campaigned relentlessly to stay in the European Union, but the majority did not agree. It was a painfully close vote, but it was a decision to leave. However, the closeness of the vote indicates that it was not a decision to rupture our relationship with the EU or to trash our economy. Had the Prime Minister said in July 2016, “We recognise the country is divided. We will leave, but remain close—staying in a customs union, staying close to the single market, and remaining members of the agencies and programmes we have built together over 45 years,” she would have had an overwhelming majority in this House, united the country so bitterly divided by David Cameron’s ill-conceived referendum, and avoided some of the anger and frustration behind today’s petition.
Instead, the Prime Minister set red line after red line—putting the interests of her warring party before those of the country, as my hon. Friend the Member for Bristol East (Kerry McCarthy) pointed out in relation to article 50. Incidentally, my hon. Friend was also right to highlight the tragedy of the Prime Minister now setting something better than the end of the world as the benchmark for her negotiations with the EU27.
As other hon. Members have said, as we speak a general debate has just started in the House on legislating for the withdrawal agreement, which will in itself unpick parts of the Bill that we spent a year debating and now forms the European Union (Withdrawal) Act 2018. Some 27 months after the referendum, and one month before the planned deadline for a deal—although that deadline is slipping—we are still no closer to knowing whether there will be a withdrawal agreement or, if there is, what will be in it.
Chequers seemed to mark a change of policy from the Prime Minister—too little, too late, but at least a direction. Yet barely a week later, the Government whipped intensively to defeat an amendment to the Trade Bill that endorsed the Chequers plan, and embraced European Research Group amendments to the Taxation (Cross-border Trade) Bill that were designed to torpedo it. It is clear that Chequers has no support in the House, in Brussels or even in the country. The most important negotiations this country has seen since the second world war are being led by the most dysfunctional Government any of us can remember.
Will the hon. Gentleman give way?
I am very grateful to the hon. Gentleman for giving way—
Order. Who the hon. Gentleman who has the Floor gives way to is entirely up to him, and it is not up to the Chair to seek to intervene in that process. However, as a general rule the Chair deprecates hon. Members choosing to come into the Chamber at or near the end of a debate.
Thank you, Sir Roger. I fully accept your guidance. I had another engagement that I could not get out of. Does the hon. Gentleman agree that the most reckless thing was the premature triggering of article 50? That is why I welcome this petition.
I take your point, Sir Roger. I think every aspect of the Government’s handling of the negotiations and the post-referendum process has been reckless, so I sympathise with the petitioners’ frustration. I now turn to the subject of the petition.
The Electoral Commission’s serious findings about Vote Leave have to be and are being fully investigated by the police. All those who are running the organisation or are associated with it at its heart should co-operate fully with the inquiry. As my hon. Friend the Member for Cambridge pointed out, they did not do so during the Electoral Commission’s investigation. I hope the Minister agrees that sitting and former Ministers who worked with Vote Leave during the referendum campaign must co-operate fully with the police investigation, and that their adherence with the ministerial code during their time working with Vote Leave should be the subject of a full investigation. I look forward to hearing his comments on those points.
It is vital that the investigation is allowed to take its course, and there must be the possibility of criminal charges. Trust in politics is low—a number of hon. Members made the point that fake news and disinformation pose a very real threat to our democracy—so we cannot brush aside dishonesty in our political system.
Article 50 has been triggered, beginning the two-year process of our withdrawal—my hon. Friend the Member for Cambridge spent some time talking about that. I recognise that there is discussion around the question, but I accept the view that, legally, it could be revoked if there were political consensus that it should be. However, we cannot revoke it on the basis of this petition. It is difficult to know exactly what influenced voters. The hon. Member for Linlithgow and East Falkirk (Martyn Day) said—I think I am quoting him rightly—that the referendum was won by cheating. Clearly there was cheating, but it is not clear that the referendum was won by it. We cannot be certain, and we cannot credibly say that overspending in the region of half a million pounds definitely swung the result one way or the other.
We need tough sanctions on those who break the law. The Electoral Commission is right to seek much larger fines and much greater retribution against those who bring our democratic system into disrepute, and there must be criminal prosecutions where appropriate. I understand why the petitioners feel it is nonsense—the hon. Member for Linlithgow and East Falkirk made this point—that the result should stand if there has been cheating. My hon. Friend the Member for Cambridge cited the example of the parliamentary election of Oldham East and Saddleworth that was overturned, but he also made the point that we have to be guided by the law. Although the law provides for that option in relation to parliamentary elections, it does not provide for it in relation to referendums. There is a case for having a much wider inquiry, but as it stands the case for overturning the referendum has not been made.
Far from strengthening our democracy, disregarding the vote simply on the basis of this issue risks further undermining trust in our political system. That is why the Opposition’s focus is on pressing the Government to reach out to the majority in the country, not the minority in their party, and to reach a deal in the country’s interest. The Opposition have ruled nothing out, but our focus is on ensuring that the divisions in the Conservative party do not lead us to crash out of the European Union without a deal in the autumn. If the deal does not meet our six tests on co-operation, the economy, migration, rights and protections, national security and the interests of the regions and nations, we will vote it down. The Prime Minister said she accepts those tests, but time is running out for her to meet them.
It is a huge pleasure to serve under your chairmanship, as ever, Sir Roger. Actually, I think this is the first time I have served under your chairmanship as a Minister. I hope I do not somehow incur the wrath that the hon. Member for Bath (Wera Hobhouse) faced. I will stay completely in order throughout the debate.
I thank the hon. Member for Cambridge (Daniel Zeichner) for opening the debate on behalf of the Petitions Committee. He said that he did so in an “even-handed” way—actually, he did, and he should be congratulated for that. I guess I should caveat that by saying that it was relatively even-handed, but it was a very good job well done, and I congratulate him on representing the views of the people who signed the petition.
I thank all hon. Members who participated in the debate. There is a decent number of them here, considering the competition in the main Chamber. There were interventions from my hon. Friend the Member for Hitchin and Harpenden (Bim Afolami) and the right hon. Member for Carshalton and Wallington (Tom Brake)—it is a shame he has left, because I was fascinated by his idea of an independent arbiter to stop incorrect statements. I thought it was odd for a Lib Dem politician to attempt to silence his own party’s election machine, but so be it.
There were also interventions from the hon. Members for Bristol North West (Darren Jones) and for Hornsey and Wood Green (Catherine West). In fact, she and I debated during the European referendum campaign in a room not too far from here. I would like to think that, had she been here now, she would at least agree that our debate was fairly well educated—certainly, the people in the audience were, and they informed the debate very well indeed—and very balanced. Good debates did happen during the referendum campaign, and I am sure many hon. Members in this Chamber participated in them on either side of the argument.
I thank the hon. Member for Bristol East (Kerry McCarthy), and I recognise her longstanding and very principled position on the matter of leaving the European Union. She is a passionate pro-European, and I respect her for that completely. When I was a Member of the European Parliament, I debated with lots of people in a similar position, and I never fell out with them once because I completely understood that they were sticking to principled positions. I just happened to disagree with their position. I very much welcome what she said about wishing to get a good deal for the country and scrutinising the deal when it comes before the House. I thank her for those words.
I thank the hon. Member for Linlithgow and East Falkirk (Martyn Day) for his contribution. He made some interesting points, which were probably more for Cabinet Office Ministers than for the Parliamentary Under-Secretary in the Department for Exiting the European Union, but I will pass them on. The hon. Member for Cambridge made similar points about the rules of referendums. I will ensure that those points are passed on so that he can be assured that they will be taken into account in any future debate on the rules of referendums.
I thank the official Opposition spokesman, the hon. Member for Sheffield Central (Paul Blomfield). I have known him for a long time—alas, slightly too long, really. I disagree with him too on much of what he said, but I know that he speaks from a principled position. He is passionate about this subject and I respect him for that.
I welcome the hon. Gentleman’s comments about how Chequers has moved the negotiations and this debate on. It will be interesting to see where his party—the Opposition—gets to in its debate on such matters. I tend to think that the majority of his constituents and mine are in a slightly different place from us. No matter how they voted, they just want this noisy debate to end and they want us to get on with the very detailed job of leaving the European Union in March next year.
A great deal of the passion that people feel about the referendum result was expressed by the hon. Member for Cambridge. I remember it distinctly. In many constituencies—the hon. Member for Ipswich (Sandy Martin) might recall this in his own—“pencilgate” caused a problem during the referendum. People were worried about marking their cross with a pencil because they thought that the Government might change how they voted. There was passion on both sides of the argument, and it would be foolish of us to ignore that passion.
I also thank all those who signed the petition. It was a good-sized petition, with 200,000 signatures, including nearly 300 people in my own constituency of Daventry. The petition calls for article 50 to be revoked if any electoral laws are found to have been broken during the 2016 referendum. It highlights two issues: the conduct of the referendum, and the revocation of our notice to withdraw from the European Union under article 50. I shall deal with each in turn.
I emphasise first that it is not acceptable for any organisation to breach electoral procedures, and it is regrettable that fines have been levied on multiple groups on both sides of the referendum campaign. Electoral law must be followed, and its breaches must be dealt with decisively. The Electoral Commission’s use of its sanctioning powers shows that it is doing that vital job. However, breaches did happen on both sides, I guess. A number of pro-remain organisations have also already been fined by the Electoral Commission for breaking referendum law, including the Liberal Democrats, Open Britain, Best for Our Future and a host of others. I understand, though, that that is not the nature of the petition.
The issue is rightly and effectively being dealt with through our legal system. It is being scrutinised through ongoing legal processes, even including challenges to the findings of the Electoral Commission. The police must consider whether there has been any breach of criminal law. There must be due process and a fair hearing, and an important constitutional principle is that politicians do not interfere with police investigations.
That said, the Government will be considering the wider implications of the issue, as well as recent reports on Government policy on referendums and elections. We will carefully review the Electoral Commission’s report on digital campaigning, the Information Commissioner’s recommendations on the use of data in politics and the results of the Digital, Culture, Media and Sport Committee inquiry into fake news, and we will take necessary action to strengthen our democracy further.
There is, however, no question that the UK Government will revoke our notification under article 50. Our clear policy is that we will not revoke article 50. The people of the United Kingdom gave a clear instruction, and the Government are committed to seeing that through. We will leave the European Union on 29 March next year.
Parliament voted overwhelmingly to put the question of the UK’s membership of the European Union to the British electorate. The simple question that was put to members of the public on 23 June 2016 asked:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
The result of the referendum was therefore a clear answer to a clear question, giving a clear directive to Government to withdraw from the European Union, which we respected through our notification under article 50.
The result reflected not only campaigning but considerable and prolonged debate, at national and parliamentary level, underpinned by a commitment from all major political parties to respect the outcome of the vote. Almost three quarters of the electorate took part in the referendum, resulting in 17,410,742 people voting to leave the European Union and 16,141,241 voting to remain. That is the largest number of votes cast for anything in UK electoral history. Parliament then overwhelmingly confirmed that result by voting with clear and convincing majorities in both Houses for the European Union (Notification of Withdrawal) Bill. Furthermore, at the last general election more than 80% of the public voted for parties committed to respecting the leave result.
The Government respect the views and wishes of the more than 198,000 people who signed the petition, but the instruction received from the wider public and their elected Parliament is one that cannot be ignored. The Government are clear that the British people have voted to leave the European Union and therefore that is what we shall do. The former Secretary of State for Exiting the European Union, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), noted early last year that
“the electorate voted for a Government to give them a referendum. Parliament voted to hold the referendum, the people voted in that referendum, and we are now honouring the result of that referendum, as we said we would.”—[Official Report, 31 January 2017; Vol. 620, c. 818.]
The Government have been and continue to be committed to delivering on the instruction given to us by the British people, working to overcome the challenges and to seize the opportunities that it brings to deliver an outcome that betters the lives of British people—whether they voted to leave or to remain. The British people must be able to trust in their Government both to effect their will and to deliver the best outcome for them. As the Prime Minister has said:
“This is about more than the decision to leave the EU; it is about whether the public can trust their politicians to put in place the decision they took.”
In upholding the directive to withdraw from the European Union, that is what the Government have done and will continue to do. We recognise that to do otherwise would be to undermine the decision of the British people, and that would be to disrespect the powerful democratic values of this country, this Government and this Parliament. The Government’s position remains clear: our notice under article 50 will not be withdrawn.
On behalf of the Petitions Committee I thank all Members who made contributions today. It has been a civilised debate.
The Minister reflected that the turnout in the Chamber was a decent one, but I have to say that I expected rather more Members—in fact, I expected a rank of Vote Leave supporters on the Government Benches to explain and defend their actions. I quite understand why they are not present: their actions were indefensible. What a pity that they are not here to defend themselves. I suspect that many of the petitioners will be profoundly disappointed—not by the number who are here, but by the number who are not, in particular on the Vote Leave side.
The Minister cannot, however, be held responsible for everything that happens in life. I shall reflect on some points in his response. I was mildly encouraged that the Government plan to look at the role of data and at strengthening the laws around referendums. Major lessons can be learned from all that went on. I was slightly disappointed that he did not take the opportunity to endorse the suggestion made by my hon. Friend the Member for Bristol North West (Darren Jones) of a judge-led inquiry into what went on, which might help us, but perhaps that is for another day.
In conclusion, the Government again made a strong statement that the issue will not be revisited, but I reflect gently on the strong statements made by the Prime Minister in the early months of 2017 that there was no chance of a general election. Perhaps she should again go for a walking holiday in Wales and return to give the country what it needs to get us off the hook of the crisis by delivering a people’s vote.
Question put and agreed to.
That this House has considered e-petition 223729 relating to rescinding Article 50 if the Vote Leave campaign broke electoral laws.