[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:
‘(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 governministerial and official announcements, visits and publicity are made at least four months beforethe 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
(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. Theproposed subsections (4) and (5) would reinforce this role in respect of regulations made underthis section. Subsection (6) sets a time limit to ensure stable “purdah” arrangements are in placein 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 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.
“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 wants 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 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 want to deal with the point made by my hon. Friend 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.
That was not quite my point. It was: why change the scope of the subjects considered within purdah rather than dealing with the functions the Government might need to perform?
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 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 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 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 some 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.
If the vote on amendment 53 is successful and it is knocked out, there will be a vote on amendment 4. Does the right hon. Gentleman accept that the consequence of that would be to go back to the full purdah arrangements without any let or hindrance?
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, 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.
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 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 Mr Clarke and I really think he wants to go back to a 1975-style referendum where the Government is 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, 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-barrel 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, 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, 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
“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
“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. 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 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 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 falling 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. 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 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 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 on all sides.
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 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 on 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 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.
“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 Neil committee was established.
“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 Sir William Cash. Everything we say tonight is for the birds if the public detect 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 Neil 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 Neil committee and came forward with these purdah rules, which have worked extremely well. Labour should be proud of how they have worked. We have had several referendums. I am sitting next to my right hon. Friend 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
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 on 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 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—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, Mr Paterson, from whom we have just heard, is quoted in TheTimes today 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 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 legislation 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 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 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 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 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 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 Government 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 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 Mr Jenkin for the courtesy with which he put his arguments. As he was open enough to say in his letter to me of
“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 who 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 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 (
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 (
Manuscript amendmentmade 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.