Outcome of the European Union Referendum

Lord Hamilton of Epsom Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, it is a great pleasure to follow a Liberal Democrat, because they seem to be a little unhappy about the outcome of this referendum. Do I not remember a time when Liberal Democrats were in favour of referenda? Perhaps it is only referenda that go the right way as far as they are concerned.

The noble Baroness, Lady Boothroyd, made the point that Jeremy Corbyn is no Clem Attlee. All I would say is they share two things in common: they both have immaculate manners and both seem to want to nationalise everything that moves.

My noble friend Lord Ridley is very sad that he cannot be with us today; he is up in the north-east where, no doubt under his influence, the vote was 70:30, I think, in favour of leave. As we know, he knows an awful lot about the scientific community and he believes, as do I, that the EU has increasingly stifled innovation in digital, biotech and financial technology. He feels that it is very important that we are able to recruit experts from all round the world—the Americas, Asia and elsewhere—rather than have to accept less-qualified EU nationals, which we will be able to do if we get control under a points system of our immigration policy.

This has been a sad moment for my right honourable friend the Prime Minister—that his premiership, which I think has been very good, has ended in this rather sad way. I went back and read the Bloomberg speech given in January 2015, when he set out an extremely ambitious programme for reform in the EU. In one phrase in his speech he said that he would join others in looking for a new treaty. I do not know who the others were whom he was joining with. They would not have included President Hollande of France, who always made it quite clear that there was no question of having a new treaty for the simple reason that he would have to put it to a referendum in France and Madame Le Pen would beat him. I suspect that other countries, such as Holland and Denmark, did not want to do that because they have to have referenda on a new treaty. Therefore, I do not know what he was basing his very ambitious reform programme on, but if it depended, as it would seem, on a new treaty, it was not going to happen and is not going to happen now. One of the main problems is that there was not going to be any major reform from the EU. The result was that he came back eventually from the negotiation having set the bar extremely low. He had a serious problem when that renegotiation was met with derisive laughter from a very large number of people.

The other thing that always struck me as rather strange was that you would think, when you are going to hold a referendum on our membership of the EU, that you would look back on the last time it happened in 1975—agreed, he probably was not born then, but somebody must have been able to advise him. He would have found that Harold Wilson was in a very similar position to him: he had a divided party that he wanted to unite; he went off to renegotiate in Europe and came back waving a piece of paper with almost nothing written on it. And then what did he do? Harold Wilson said: “I believe that the United Kingdom should stay in the EEC”—as it was at the time—and then stood well back and let the others campaign for in or out. For some extraordinary reason, the Prime Minister decided not to do that and got totally involved, presumably on the assumption that he could win, and of course it all went wrong on him.

My role in Vote Leave was very low down the food chain. I found myself down in North Devon delivering leaflets; we did not even have enough people to canvass properly, so all we could do was deliver leaflets. At one house I called at, the bloke was just coming out and I said, as I did to many others: “Are you going to vote leave on Thursday?”. His response was: “No, certainly not, you racist”. I mumbled something about control of immigration, and he said: “Goodbye, racist.”. This raises an interesting question, to which I should very much like a response from the Minister when she winds up. Is hate crime extended to people who call old-age pensioners racist for delivering leaflets and asking them if they are going to vote leave on Thursday? Is that a hate crime? I did not bother the Devon and Cornwall Police with the matter, but it strikes me as slightly concerning, whichever way we look at it.

The real problem with this vote is that it was only to some degree about the EU. An awful lot of it was about globalisation and the fact that banks across the Western world are printing money, so everybody who happens to own assets get richer and the gap between rich and poor gets greater and greater. To a large degree, this vote was a protest from the have-nots against the haves. I wonder how many votes were won for the leave campaign by Sir Philip Green and his treatment of British Home Stores employees. We cannot continue to live with the enormous salaries being paid to people running international companies. It is creating a very sharp division in this country, which must be addressed by the next Government.

But whatever problems there are in this country, they are nothing like those of the EU today. There is a very sharp sign of extremism emerging across the continent. The established parties should hold referenda like we have, listen to what the people say and react to it. If they do not—let us take France, for instance, where they say a majority would like to pull out of the EU—if the socialist party and the conservative party say, “No, no, there is no way we can do that, as we must stay in the EU whatever happens”, the only option is to vote for the National Front. I hope that our example will be emulated across Europe and civilised conclusions will be reached as to what is the future.

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[Lord Hamilton of Epsom]

If this referendum is regarded as advisory and the decision is not implemented, what course have the British people got but to take to the streets?

[Lord Foulkes of Cumnock]

I am suggesting that the referendum is advisory, but the British Government should start working on the basis of its result, even though I think it is flawed. I would argue that we should then, for a whole range of reasons, give the British public the opportunity to think again. First, the proposal of the leave campaigners was sold on a false prospectus by that snake oil salesman Boris and barrow boy Farage. They have both gone AWOL. Where are they now? They are not coming forward to try to sort out the mess that they have created.

Secondly, already flaws and problems are beginning to arise. There is already a threatened break-up of the United Kingdom. On Scotland, Nicola Sturgeon is looking at the opportunity to take this referendum as a trigger. On Northern Ireland, think of the problems, with Sinn Fein already talking a united Ireland and the possibility of a border between northern and southern Ireland. On Gibraltar, Spain is talking about shared sovereignty, so no wonder Gibraltar is worried about the future.

Thirdly, the leavers—those who argued the case for leaving—have got no idea of what it involves. They have no idea of the way forward, which means that we have been sold a false prospectus. Some of my remain colleagues, for whom I have the greatest respect, having worked with them for a while, have thrown in the towel. They say, “We are where we are. We’ve got to accept it. We’d better make the best of it”. I think that that is a defeatist attitude. It does not do this place proud, and it does not do the other place proud either.

I have the greatest respect for a number of colleagues, such as the noble Lord, Lord Butler of Brockwell, my noble friends Lord Hain and Lady Andrews and the noble Lord, Lord Low of Dalston. As the noble Lord, Lord Heseltine, has said outside the House, although not here, once the terms are clear and the negotiations have taken place, we need to give the British people the opportunity to think again. That is not undemocratic or saying that we should forget or abandon the previous referendum, although I have criticised it. We are saying that we should work on the basis of that referendum, and once the terms become clearer, give the British public the opportunity of thinking again. It is our responsibility as parliamentarians—we have that responsibility—to work out how the British public can be given that opportunity, not to join the lemming-like rush into the abyss.

European Union

Lord Hamilton of Epsom Excerpts

Monday 4th July 2016 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, in a democracy the people negotiate with government when they express their view at the ballot box, which they have done. It is then the duty of the Government to take into account the security and interests of the whole of the British people when putting together proposals for negotiation. I suspect that we will have an opportunity in this Chamber further to discuss these matters. It will of course be a matter for the usual channels to determine how that happens, both within the Chamber and outside it in a more informal way.

[Lord Hamilton of Epsom (Con)]

My Lords, my noble friend indicated that informal talks can go on with the EU. Is she happy that that can happen without our triggering Article 50?

[Baroness Anelay of St Johns]

My Lords, my noble friend raises an important point. In any event we have discussions with the other 27 countries outside the European Council; that will not only happen but has already started. I hope that that will continue to ensure that our relationships are firm and good, which will help when we come to the formal negotiations.

EU: British Nationals Resident Overseas

Lord Hamilton of Epsom Excerpts

Tuesday 28th June 2016 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, I do not think that this House has ever taken action against noble Lords because of the country in which they live. That introduces a new prospect, but it would be a matter for the House and not for the Government.

[Lord Hamilton of Epsom (Con)]

My Lords, does there need to be any negotiation to protect the interests of either British people living in Europe or Europeans living in the United Kingdom? Surely they are protected by an international treaty as it stands today.

[Baroness Anelay of St Johns]

My Lords, although I know that my noble friend asked that question in very good spirit, I am afraid that I cannot give him the good news that he would like. There is the question of acquired rights, which is a very complex legal matter and not straightforward. We would need to rely upon negotiations to give certainty to those who do, after all, need and deserve it.

European Union: United Kingdom Membership

Lord Hamilton of Epsom Excerpts

Monday 23rd May 2016 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, of course, all noble Lords are able to take their own view on these matters; I like to go for information about the real, the how and the now. It is the case that the EU complements NATO’s high-intensity military activities with important long-term stabilisation and development work. I saw that at first hand on two separate visits I made last summer: one to Kosovo, where NATO is in position; and the other to Bosnia and Herzegovina, where I had the opportunity to meet the general in charge of the EUFOR Althea force and see the work which the EU can do which NATO does not and cannot.

[Lord Hamilton of Epsom (Con)]

My Lords, does my noble friend not accept that the real problem with any form of EU defence capability is that only three countries spend money on defence—Germany, France and the United Kingdom—and the Germans are pacifists?

[Baroness Anelay of St Johns]

My Lords, that is an interesting interpretation of NATO. It is certainly not one that I have seen coming out of the discussions in NATO, where there is support across the membership for ensuring that there is a strategic defence of western Europe. NATO has a proud and successful history.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Tuesday 1st December 2015 Lords Chamber

Moved by

[Lord Hamilton of Epsom]

2: Schedule 1, line 16, leave out “either”

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[Lord Hamilton of Epsom (Con)]

My Lords, in moving this amendment I will speak also to Amendment 3. I will withdraw Amendment 2 at the end of these proceedings. As my noble friend reminded us, the noble Lord, Lord Hannay, in a previous amendment, tried to prevent one side sabotaging the referendum by not applying for designation. The big problem with the noble Lord’s amendment was that this made it possible to end up with the designation of the “remain” campaign and not the “leave” campaign, which would have made things extremely uneven. Those of us who have come to know and love the noble Lord’s amendments are not too surprised by that.

The Government have gone to great lengths to try to address this problem. As my noble friend said a minute ago, this has been a very difficult balancing act indeed. Key to her amendment is new subsection (2A). There is no problem with new paragraph (a),

“no permitted participant makes an application to be designated under section 109 as representing those campaigning for that outcome”,

but there is a problem with new paragraph (b), which is why my original amendment advocated that it should be withdrawn. Since then, I have had conversations with my noble friend’s office and suggested that it might be better to put in a designation of frivolous and vexatious application. That would be a test of whether the application for designation was genuine.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Monday 23rd November 2015 Lords Chamber

[Lord Pearson of Rannoch (UKIP)]

My Lords, do I understand Mr Redwood’s position to be that, if we repeal the 1972 Act, all the other treaties that come after that Act—the Single European Act, Maastricht, Amsterdam, Nice and Lisbon—are all amendments to the original 1972 Act? If we repeal the 1972 Act, the other 27 member states may start getting difficult with us, but it is unlikely. We should be in the driving seat, not least because of the amount of money we give them, which of course we need not decide to axe overnight. We could say that if they behave themselves, we will taper the £20 billion a year we give them nice and slowly. Likewise, it is in their interests to go along with us and our free trade with them, the single market and all the rest of it, because we are their largest clients—as I said earlier. We have a certain amount of pressure with the non-EU free trade agreements, some of which have been organised entirely by the Commission and some by the European Commission and us in our sovereign right, as I am sure the noble Lord knows. It is a boggy area, but surely it depends on the political will of the Government of this country, and the political will of the Prime Minister.

Therefore I put it to the noble Lord that he is seeking to gaze into a crystal ball that is somewhat clouded. If the Prime Minister has negotiated a reform and comes back from Brussels with a piece of white paper saying “Reform in our time”, but the British people do not like it—if the British Prime Minister wants to stay in the European Union on those terms but the British people throw it out and vote against him—surely it is unlikely that he would survive as Prime Minister. Therefore, we would be dealing with a new Conservative Prime Minister, presumably somewhat less Europhile than the present one, and the whole ball game would change in the negotiations over Article 50, if we decided to go down the Article 50 route. Surely, though, we are in a position to say that we are not going to do that. Our position is so strong that we require our own free trade agreement. I do not want to follow the Norwegian/European Economic Area red herring anymore, because none of us has ever wanted to do that. How does the noble Lord react to that position, with a Prime Minister who has gone, a new Conservative leader who wants to get on with it, and a European Union that perhaps will not be as recalcitrant as the noble Lord hopes?

[Lord Hamilton of Epsom (Con)]

I am grateful to the noble Lord, Lord Green, for telling us that the noble Lord, Lord Kerr, drafted all this legislation. I think he should have declared an interest, because the last thing he will want to admit is that the EU is going to completely override everything that he drafted. When the eurozone was set up, I remember it was thought that there would be a big problem if Governments borrowed excessively and cumulative debt built up to very high levels of GDP, so limits were put in on how much Governments should borrow in the eurozone. The Germans found that too inconvenient, so they just overrode it. Then the French followed, and everybody else said, “If they are not going to follow the rules, why should we bother?”. So why are we obsessed with the legislative integrity of Article 50? It has never been tested; no one has ever left the EU. If we were to leave, it would be a unique situation. They would be losing their second biggest economy, and they would have to accommodate us.

Let us remember another thing that the noble Lord, Lord Kerr, omitted to tell us. This referendum will be advisory, not mandatory, and that is very significant.

[Lord Kerr of Kinlochard]

My Lords—

[Lord Hamilton of Epsom]

I shall give way in a moment. All we have to do in response to a leave vote is repeal the 1972 Act. After that we have to enter negotiations, and we can apply for Article 50 at the end of the negotiation.

[Lord Kerr of Kinlochard]

I think it is not for me, but for lawyers, to discuss what would ensue were we immediately to repeal the 1972 Act. I do not think it is a pretty picture, but it is not for me to depict it. On the noble Lord’s argument that we would have all these cards in our hand, I was trying to extend an olive branch to him earlier. There is a point that nobody would want us to go—that is correct. The Germans would want to go on selling cars, as the noble Lord, Lord Hamilton, reminds us almost daily.

My argument is that it might prove difficult to get 27 member states, many of which have a negative trade balance with us and not all of which are as friendly to us as our friends in Germany, to agree all the detail. The noble Lord, Lord Green, is right: the process could be prolonged and quite tricky, and the country should know before the referendum that that is the case.

[Lord Hamilton of Epsom]

We come back to the point that was made earlier by my noble friend Lord Lamont: all this is down to interpretation. There is no fixed thing that is going to happen, and we do not actually know how it will map out, but it seems highly likely that the EU will do everything it possibly can to accommodate us. The Germans are going to be very distressed if they lose all their exports to the UK, and I know they will be very much in the driving seat to ensure that the other members of the EU abide by some sensible agreement. I see no reason why there should not be a free trade treaty between us and the EU. I am not saying that it will happen tomorrow, but then for that matter that is true of all the EU trade treaties; they seem to be taking an interminable amount of time with China, India, Russia and practically every other country in the world.

[Lord Stoddart of Swindon (Ind Lab)]

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

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

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

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

[Lord Mackay of Clashfern (Con)]

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

[Lord Hamilton of Epsom]

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

[Lord Mackay of Clashfern]

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

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[Lord Davies of Stamford (Lab)]

My Lords, I rise to speak, not that I intended to do so, because although we have been going over the same ground this evening that we have gone over before, and although no doubt many of these points will be debated passionately during the referendum campaign, I had rather hoped that the effect of these debates would be to separate out a bit the wheat from the chaff in the arguments and that those arguments that were found to be obviously unviable would be dropped by the various parties before the referendum campaign started. Therefore we would have a function here of hoping to clarify some of the essential arguments before the public debate begins in earnest.

In that context, I am quite amazed and very disappointed that two grossly invalid arguments continue to be put forward by the Eurosceptic representatives in your Lordships’ House. I thought that we might have seen the end of them. Those two arguments are so irresponsible and illusory that it amazes me that men or women of the world can seriously want to take them any further, even on an electoral platform, where I know the same qualities of intellectual analysis are not always deployed as they are in other contexts in life.

The first argument is the suggestion that this country might simply walk away from an international treaty in breach of that treaty. We have a long tradition going back over centuries of respecting international agreements, and it would be quite extraordinary for us seriously to propose to do that. We all know that Article 50 of the treaty of accession has a precise procedure to be adopted in the event that a member state wishes to withdraw; therefore withdrawal was properly and reasonably discussed at the time we signed that treaty. There was no material non-disclosure of relevant information or anything of that kind. No one was under any illusion. We signed that treaty with open eyes. Now, 40 years later, or whatever it is, suddenly to turn round and say, “We’re tearing it up and walking away”, is extraordinary.

I am amazed that anybody thinks that this country should behave like that. I would have thought that even those who are not influenced by the element of principle in this matter, which seems very obvious, or who cannot estimate or appreciate the diplomatic value—the soft diplomacy and soft power value—of having the reputation we have had until now of being a nation that takes international agreements and international law seriously might at least from sheer cynical pragmatism have realised that the last and worst thing you want to do when you are about to engage in a difficult negotiation with a group of countries, with whom we would be having a difficult negotiation to try to restore some access to the single market with our former partners in the European Union, would be, on the eve of beginning such a complicated, difficult and important negotiation, to tear up a treaty that we had previously had with them.

[Lord Hamilton of Epsom]

Has the noble Lord not missed the point, which is that the key to all this is when you invoke Article 50? Do you do it at the beginning of the negotiations, when we have just voted to come out, or at the end, after two or three years?

[Lord Davies of Stamford]

My understanding is that from the very moment you initiate the process you invoke Article 50, which sets out the procedure to be followed. I have certainly read Article 50, and that is the way I read it. I do not think that any interpretation we have heard this evening, including from the noble and learned Lord, the former Lord Chancellor, is inconsistent with that reading. The fact is that we must act in good faith in these matters. If we do not act in good faith out of moral principle, we should do so out of sheer selfish pragmatism because we will need to get a deal with the people who account for about 50% of our exports in the event that we want to leave the present arrangements we have with them. The idea that we start off by breaking an international agreement solemnly entered into is quite extraordinary.

The second extraordinary thing—I have heard this argument before and I hope I will not hear it again, although I am sure I will; I expect that it will be in the Daily Mail every day during the campaign—is that because we have a balance of payments deficit with the rest of the European Union, we have more leverage on them in these negotiations than they have on us. That is complete nonsense. I dealt with this argument before, and I used an analogy, which no one quarrelled with at the time, to try to make clear that the fact of having a deficit or a surplus is neither here nor there. What is important is the proportion of one’s total exports and, behind that, the proportion of one’s GDP which is exposed in a negotiation of this kind and which could therefore be subject to something nasty happening to it, such as having tariffs imposed or no longer being able to be sold at the same favourable terms as competitors could offer the relevant customers. The proportion of exposure of gross domestic product, and the employment that goes with it, is important.

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[Lord Lamont of Lerwick]

My Lords, the noble Lord, Lord Wallace, has made some very interesting comments. I learnt two things. First, I understand now why migration was not included in the review of competences. He explained that that was because the word used was “population”, whereas had one asked the question about movement of labour or migration, perhaps it would have been different. Secondly, the noble Lord made quite a persuasive case, on one ground, for the necessity of migration and the inevitability of a degree of migration. I found it interesting that he was a regular watcher of Migration Watch. I was fascinated to hear that. But the arguments that the noble Lord put forward are the very things that would be considered in the Government’s publication if the amendments in the name of the noble Lord, Lord Green, were accepted.

I was somewhat neutral towards the amendment in the name of the noble Lord, Lord Green, because I have been trying to argue that all these reports that have been called for are the issues that ought to be debated during the referendum campaign. But everybody else has been coming forward and saying we ought to include this and that. When I look at the list compiled by the noble Lord, Lord Hannay, of things that ought to be considered in the publication, the one thing that is obviously missing is migration. Why did the noble Lord, Lord Hannay, not say that the publication ought to include migration?

I have been converted to the amendment in the name of the noble Lord, Lord Green, both by the noble Lord, Lord Wallace, and the noble Lord, Lord Hannay. I wish the noble Lord, Lord Hannay, were here to support it.

[Lord Hamilton of Epsom]

My Lords, I, too, would like to say some words in support of the noble Lord, Lord Green. He says that we have to level with the public on this and I think that is absolutely right. Net migration into this country last year was 330,000 people. That is a very large number of people. I totally accept that perhaps only half of them came from the EU but this is certainly something that we have to address.

I am particularly interested, as was the noble Lord, Lord Wallace, in Amendment 27. I would like to know from my noble friend the Minister exactly what the mechanics are with regard to people who have come from outside as part of this refugee crisis into somewhere such as France, who then apply for a French passport, which then enables them to come to the United Kingdom under the free movement of labour. Can she fill us in about how this process takes place? This is obviously an extremely worrying aspect of these migration flows. At the moment we are in a position to say that we are not members of Schengen and we can probably do something not to have to accept any of these people. But of course, if they are given European passports, that is rather a different story. Can she give us an insight into her understanding of this process?

[Lord Collins of Highbury (Lab)]

My Lords, we do not support the amendments tabled by the noble Lord, Lord Green, mainly because, as the noble Lord, Lord Lamont, said, they are highly speculative, impossible to calculate, unpredictable, and not based on factual information that the Government have. Confusing the free movement of labour with migration and simply putting everyone in together will not lead to a rational debate.

The free movement of labour has been an important component of the EU. Certainly, people have come here to work. Where they have not come here to work, the Government have been addressing those issues in terms of the benefits system, as the Labour Party has also committed to do.

I have no doubt that in the course of this referendum campaign, the noble Lords, Lord Green and Lord Willoughby de Broke, will repeat what they have said. They will make this issue part of the referendum campaign and I will take great pleasure in making sure that other voices are heard in that debate which challenge some of the assumptions about migration. But for the purposes of the EU referendum campaign, it is wrong to confuse the free movement of labour with migration, and it certainly is not capable of being subject to a rational report.

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[Lord Hamilton of Epsom]

My Lords, as far as I can see, the noble Baroness, Lady Morgan, has put her finger on a slight problem here. The Bill, as I understand it, allows some charities to become permitted participants and permissible donors. But at the same time, Charity Commission law basically says that charitable contributions should not be used for political purposes. I understand that Justice Hoffmann—now the noble and learned Lord, Lord Hoffmann—ruled in 1991 that:

“There is no doubt that campaigning, in the sense of seeking to influence public opinion on political matters, is not a charitable activity … it is not a proper object of the expenditure of charitable money”.

It seems that we have two conflicting judgments being made, one by the Bill and the other by charity law. It would be very helpful if my noble friend the Minister could cast a bit of light on this. Are we now saying that charities are to be allowed to involve themselves in campaigning, against the judgment of Justice Hoffmann? I am a little confused about where we stand on this.

[Lord Wigley (PC)]

My Lords, I am glad to have the opportunity to welcome the amendment put forward by the noble Baroness, Lady Morgan, because it touches on an area that could cause considerable confusion and difficulties to charities. I am involved with a number of them and have known some of the problems that have arisen in the context of elections. It is quite clearly not a question of campaigning in a party-political sense but, equally, charities have a viewpoint on changes that can affect their fundamental raison d’être. They need to be able to put forward information for people to consider without being seen as campaigning. That dimension is complicated by the difference in the legislation that exists in different parts of these islands.

This is clearly a probing amendment and I very much hope that the Minister will at least be able to come back at Third Reading on this matter, if not tonight. Before I sit down, I thank her very much indeed for the way in which she and her colleagues have handled the Committee and Report stages of the Bill, and the outcomes we have had from it.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Monday 23rd November 2015 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I back up what the noble Lord, Lord Hannay, said, with which I entirely agree. To make the noble Lord, Lord Pearson of Rannoch, happy, I should say that my receipt of a pension from the European Parliament is on my declaration of interests. As far as I know, I do not have to mention it every time we discuss the EU, as that would bore the House greatly.

I wish to amplify two of the points in Amendment 24C, in the name, principally, of the noble Lord, Lord Hannay. The Prime Minister said recently that the EU was essential—I cannot remember whether he said “essential”, but he at least meant that it was very important—to the UK’s national security. I think that is the first time he has made that very valid point. Therefore, it is important that the report the Government promise to publish in the very welcome amendment tabled by the noble Baroness, Lady Anelay, should cover the law enforcement, security and justice point because the public have a right to know what that consists of. For instance, the report should state that we are a full member of Europol and not stray into the domain covered by Amendment 25, in the name of the noble Lord, Lord Kerr, by implying that if we are not in the EU we will not be a full member of Europol, as Norway is not—it has a sort of observer status. The same applies to referring to Eurojust as a sort of club of prosecutors which makes sure that we catch, and can prosecute, these major criminals.

As the noble Lord, Lord Hannay, said, we have full membership of the European arrest warrant. We could even push for reform. I wish that Ministers, the Government and the Commission would take up the report that I wrote as one of my last acts in the European Parliament. This was about multilateral reform of the European arrest warrant. We could not do that simply as law takers outside the EU, even if we had some kind of other arrangement.

On proposed new paragraph (d) in Amendment 24C and the rights of UK citizens living in another country, a lot of work is being done here, to which the UK, being in the European Union, has a great deal to contribute. This work is about complementing the rights of free movement. We have maybe 2 million citizens living in the rest of the EU. We can take a leading part, with our strong civil as well as criminal legal traditions, in influencing the work on the mutual recognition of documents and of civil partnerships and marriages, including of course same-sex marriages, and on the rights that help our citizens in their daily lives in other EU countries.

It is important that our citizens understand the full implications of those EU measures, and the rights and obligations that arise under EU law enabling us to help defend our national security and ourselves against terrorism, to catch criminals and to help people taking advantage of free-movement rights through civil-law issues. I hope the Minister will say that the report will have some focus on these sectors of law enforcement, security and justice, including civil justice.

[Lord Hamilton of Epsom (Con)]

My Lords, I should like to speak to these three amendments.

My noble friend the Minister’s first amendment, Amendment 24A, makes the assumption that the Prime Minister will come back with a negotiated package from the EU. There is not a lot of evidence at the moment that that will happen. The Prime Minister has made it clear that if he cannot get any reforms of or agreement with the EU he will walk away. Is that offer no longer on the table? Are we now basically taking the position that, however hopeless the concessions that we get from the EU are, the Government will campaign to stay in whatever happens?

On Amendment 24B, I have many more concerns. It speaks of,

“information about rights, and obligations, that arise under European Union law as a result of the United Kingdom’s membership”.

This really encompasses a large part of UK citizens’ lives. Nick Clegg, from another place, said that 50% of our legislation originates in the EU. This is a very broad category, encompassing very many activities that happen in this country.

In proposed new subsection (1)(b) my noble friend’s amendment says,

“examples of countries that do not have membership of the European Union”.

Can she indicate which countries she will identify as being not part of the European Union, but which have a relationship with it? This is also an extremely broad category. Virtually every country in the world has some sort of relationship with the EU. I would be particularly interested to have a little bit more detail about the free-trade treaty between South Korea and the EU. My view has always been that if South Korea can have such a treaty, the United Kingdom can, too. I should like to know a lot more about that. Will we be told about it in this paper? In general terms, nobody can pretend that the information that will come out in the report suggested by Amendment 24B will be in any way impartial. But of course, when it comes to partiality, we have only to move on to Amendment 24C in the name of the noble Lord, Lord Hannay, to find a whole list of things that quite clearly the noble Lord thinks are going to give advantage to those people who want to stay in the EU.

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[Lord Hamilton of Epsom]

My Lords, before she leaves that point, does my noble friend accept that the EU has very few free trade treaties with other countries, so at least one of them should be listed so that we can know about the detail?

[Baroness Anelay of St Johns]

My Lords, I believe that we will select examples of countries that can best inform the people of this country about how they should cast their vote. We must not try to skew that. Clearly, it would be a balanced selection of countries. I would not like to define now what will be in the report because that would assume that I would be writing it—I will not be.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I raised this issue in Committee, but in the debate it was made pretty clear that my previous effort did not work because it had the effect of preventing political parties from spending any money at all. I do not want to repeat the arguments that we had in Committee, but what this is about is tackling the basic unfairness which the Bill creates for spending limits between the two camps—the leave and the stay camps. As the Bill is currently drafted, it will mean in practice that those who wish to campaign to stay in the European Union will have more than twice the funds to spend of those who wish to campaign to leave. Perhaps I am a bit naive, but I thought that the whole point of having expenditure limits was to ensure fairness so that no party, whichever side it is on, is able to outspend the other unfairly. Yet what the Bill does is to enshrine in legislation as an absolute fact the ability of the stay campaign to spend more than twice what the leave campaign can spend.

This arises because, although the Bill provides for equal expenditure for the two designated campaigns, the political parties are able to spend money at similar levels according to the share of the vote that they got at the last general election. I just do not understand why the amount that the political parties can spend on the referendum campaign should be related to the votes they got at the last general election. In the case of the Conservative Party, many of the people who voted Conservative will have wanted to leave the European Union. To be fair to the Conservative Party, it has decided that it will be neutral during the course of the campaign.

I suppose it could be argued that the Labour and Liberal Democrat parties have no money because they have been bankrupted by their efforts in the election campaign and therefore that this is not something to be too concerned about. But that does not stop people giving money to those parties in order to support the campaign that wishes to stay in the European Union. This seems to go to the heart of what these limits are about. My first question for the Minister is: if we cannot devise a way in which the limits ensure that both campaigns are treated fairly and are able to spend the same amount, what is the point of having the limits at all? Further, why should these limits be related to the vote at the last general election?

I noted that the Electoral Commission sent out a missive to us all suggesting that it could not support this amendment. I had a word on the telephone with the nice lady who sent out the press release and asked her to explain why the Electoral Commission was not concerned about the issue of fairness. She said that it was a matter for the political parties and not something that the commission could concern itself with. I asked her to send me a brief indicating what the position of the commission is on these issues, but I have to say that it has not come in time to discuss the amendment—which I suppose could be because the commission is short of resources. It does actually cost as much as half the cost of the Royal Family; it is a very expensive quango indeed, and I would have thought that it would have been able to find the resource to think of a way to ensure that there is fairness in the funding of these campaigns. Rather naively, I thought that the reason we are spending £25 million or £26 million of taxpayers’ money every year on the Electoral Commission is so that it can ensure that elections and referenda are fair. But apparently the commission cannot think of anything and it is not its job to do that, it is up to the Government.

At an earlier stage my noble friend said that it was quite difficult to make this work. I did not draft the legislation and I did not suggest the limits. I cannot for the life of me understand why we should have limits which have the perverse effect of creating a great unfairness. Earlier in our consideration of amendments today, my noble friend Lord Faulks made a really important point. He said that it was very important at the end of the day that everyone accepted the result of the referendum and that no one could cry unfairness. I do not know how, if it turns out that one side is able to spend two and a half times or 2.3 times as much as the other, it will be possible for the Government to avoid the accusation of unfairness.

Some people say, “Actually, how much you spend does not have much of an influence”—in which case, why have spending limits? The perverse effect of this legislation, as it stands, is that it will limit the amount that those of us who wish to leave the European Union can spend, simply because the political parties have taken a particular view. In the case of my own party, where the leadership has a particular view that seems to be towards staying in the European Union, the vast majority of the members would take the opposite view. It could be argued—I do not want to tread into the dangerous territory of suggesting that there is some kind of operation going on here—that the decision to make the Conservative Party neutral was to avoid the embarrassment of finding that the money which it could spend, some £7 million, might have gone to the leave campaign.

I know that my amendment may not be perfect. I know that the Electoral Commission cannot possibly take on this role because it does not have the resources even to explain why it cannot take on the role, or how it could ensure fairness if it did take it on. I think that my noble friend needs to think about this from the point of view of ensuring that we have a fair campaign and that we do not have all kinds of abuses happening. We can see, for example, that people might be tempted to fund the political parties that wish to stay as a way of getting round the limitations that are put on expenditure that would otherwise be available to the campaigns.

I apologise for raising the issue again, but I have produced a different amendment which approaches it in a different way. I am not as clever as my noble friend and I certainly do not have the resources of the Electoral Commission, so I cannot believe that between them they could not devise a way to ensure that we have a limit on expenditure that is fair to all parties. I beg to move.

[Lord Hamilton of Epsom (Con)]

I very much support my noble friend Lord Forsyth in his amendment. He mentions that, because we have this completely disparate allocation of funds, we may have a rather ridiculous situation. Let us suppose that a Conservative donor wants to donate towards staying in. He cannot donate to the Tory party because it is neutral and is not allocating funds in either direction, so he may end up giving funds to the rather bankrupt Liberal Democrats as a way of getting his funds into supporting the staying-in campaign.

The real problem with all this is that the results of the last election are completely immaterial. Why should somebody who is Labour vote to stay in? I can tell noble Lords that hosts of Labour supporters will vote to come out. Even some members of UKIP will vote to stay in. This will break in every direction. The Liberal Democrats are these fanatical pro-Europeans. Their supporters, who I know well down in the West Country, are not fanatical pro-Europeans. Many of them were extremely tempted to vote for UKIP in the last election. The reasons are: they are chapel, anti-establishment and do not terribly like the major parties either way round. The Liberal Democrats know that well but they have a leadership in the country that is completely unrepresentative of their members and voters all around.

This is the problem: all parties will break in different directions, so what on earth are we doing basing the financing of an in or an out campaign on the results of the last election? It is completely irrelevant because everybody will vote in different directions. They will be influenced by a lot of different factors. It is inconceivable how we could have dreamed up this extraordinary funding system, which allocates a lot more money to the “stay in” campaign than it does to those who want to pull out. We know the figures: £7 million for each— £7 million for the Labour Party because it seems to be pretending that all its members want to stay in. Then the Liberal Democrats get £3 million; the CBI and the SNP will allocate their funds for staying in. That comes to more than £11 million. What have we got on the other side? We have £7 million for the allocated body, then we have £4 million for UKIP, which makes £11 million, so you have £11 million against £18 million. This is supposed to be a fair, level playing field but the financing of it is completely skewed. Everyone will say that money was used to completely skew the result.

[Lord Forsyth of Drumlean]

It is £11 million to £18 million only because the Conservative Party is remaining neutral.

[Lord Hamilton of Epsom]

My noble friend is absolutely right. If the Conservative Party had decided to support the “staying in” campaign it would have been £25 million to £11 million, which is extraordinarily disproportionate in the circumstances.

I do not know what the thinking is behind this. I cannot understand where everybody is coming from. This is a referendum on whether we stay in the EU or whether we leave. It is nothing to do with how we all voted in the last election. How can the whole basis of financing be based on that? It is quite beyond me.

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, I support the amendment because it is absolutely necessary. I support it very much because I took part in the last referendum in 1975. The claim that those of us who wanted to come out at that stage have always been able to make—of course, some, like myself, remain of the opinion that we should come out as soon as possible—was that we were on the outside, outgunned in finance by £20 million to £1 million. That was why the in side was able to convince the people that they should remain—by money, not by any other means. In spite of that, 33% of the voting population voted to come out, so there is all to play for when we get to the referendum.

It is important that we get balance. The system that has just been outlined, where the funding is dependent on the votes cast in the last election, is absurd. What is even more absurd is that the Conservative Party, which would get about £9 million, I think, is not going to use it. I have never had much respect for the thinking of the Tory party, but this really takes the biscuit. We have a party led by a Prime Minister, who is negotiating with his partners in Europe and is apparently agreeing with his party that it should be outspent by the other parties. That seems absolutely crazy. I would have thought that the Tory party would be up in arms about it, sending in resolutions, demonstrating outside the headquarters and all that sort of thing so that we could have a bit of fairness.

So I agree with this amendment and for other reasons, too. In 1975 the Tory party campaigned to stay in Europe, as of course did the Liberals—I think they were called the Liberals then, not the Lib Dems—and big business. I well remember that Sir Donald Stokes, who later became Lord Stokes, wrote to all my former constituents in Swindon, because there was a BLMC factory there, warning them that if they voted to come out their jobs would be at stake. That, of course, was a lie because at that time we had a surplus in car exports to the continent. However, by 1975, we were in deficit. That deficit had grown to a huge figure of £69 billion overall per annum. My constituents were told not only by Sir Donald Stokes but by those running other big businesses in Swindon and elsewhere that coming out would harm their prospects. Of course, that is where the big money came from—big business.

It is essential that there should be fairness between the campaigns. The amendment of the noble Lord, Lord Forsyth, would ensure that that happens, or at least go a long way to do so. If it does not, once again we will hear the losing side say, “We were outgunned by the others on finance”. Therefore, I hope that the Government will accept the amendment. The Tory party may be able to exert influence over the Government by saying to them, “Look here, you have this opportunity. You really must take it so that there is a proper balance between the parties during the referendum”.

[Lord Willoughby de Broke (UKIP)]

My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. I declare my interests as a member of UKIP and a dedicated “outer”. I am not sure which members of UKIP the noble Lord, Lord Hamilton, thinks will vote to stay in. I hope he was not referring to my noble friend Lord Pearson. I assure the noble Lord that he definitely wants us to get out. I cannot imagine that a UKIP member would vote to stay in the EU.

Leaving that aside, on all the previous amendments the noble Lord, Lord Faulks, rightly made the point that this referendum needed to be seen to be fair. He has said that on several occasions today and in Committee. However, regardless of who wins or loses, the referendum will be seen to be manifestly unfair if one campaign, whether in or out, is preponderantly better financed than the other. I do not agree with the noble Lord, Lord Stoddart, who seemed to imply that just because an organisation has less money, it will lose. That is not necessarily the case at all. Even if we have a few pounds less than the “stay in” campaign, we will still win. However, it would be much nicer and better, and would be seen to be fairer, if the campaigns had equality of financing.

[Lord Hamilton of Epsom]

Surely the real problem is that if the “stay ins” win the referendum by a very narrow margin, and they are seen to have been financed much more heavily than those who want to leave, those who want to leave will cry foul and say that the others won because they had more money. Whether that does the trick at the end of the day is debatable, but the fact is that it would be used as a reason to say that the referendum was completely slanted in the direction of the people who wanted to stay in.

[Lord Willoughby de Broke]

The noble Lord is absolutely right. I do not disagree with him, but it reinforces the point of the amendment of the noble Lord, Lord Forsyth, that we need equality of financing, however that may be achieved. That is up to the Government, I hope, in spite of the Electoral Commission’s worst efforts. We do not seem to be getting anywhere with the Electoral Commission so the Government ought to take this amendment seriously and look at how they can reallocate the financing arrangements so that both the ins and the outs have the same amount of money to spend. It is not, as they say, rocket science. It is actually quite simple to do. That will eliminate the concerns that the noble Lord, Lord Hamilton, expressed, that either side may have cause for complaint at the end of the referendum. There has to be equality of financing so I very much support the noble Lord’s amendment.

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[Lord Collins of Highbury]

No, I would not because the Electoral Commission is trying to address quite a complex situation. A referendum is not a usual situation. Political activity in this country is predominantly, although not wholly, through political parties, and PPERA sets out all kinds of constraints and limitations on donations. It has created an environment of transparency, and spending limits.

My view is that spending limits are not particularly effective in establishing a level playing field, particularly when they are set so high and no one can ever reach them. That is why we have quite big imbalances in general elections. That is why the Conservative Party regularly outspends the Labour Party: it has at least 300 people who can give more than £50,000 a year to the party, which I suspect is why the party has in the past supported a cap of £50,000 on donations. Personally, I think the smaller the cap the fairer it becomes. You would then have to look at how to replace that money and what mechanisms to use to ensure that there is an allocation of public funds on a fair basis—hence, I suspect, why the Electoral Commission is using that methodology.

The fact is that spending limits are not the whole picture. What the Electoral Commission is trying to say to us is that the “remain” and “leave” campaigns are not the only participants. We are not going to silence everyone else in this referendum. We are not going to say to civil society, “You have no right to speak”, and we are certainly not going to say to UKIP, “By the way, you will have no right to spend money in this campaign unless it is through the official ‘leave’ campaign”. I do not think that it would tolerate that or accept it—I would not—but that would be the effect of the noble Lord’s amendment. We cannot be certain of what other people will be spending and we do not know the number of participants.

The rules should not be used to reduce the number of participants. That would be unfair and not democratic. I do not want to bang on too much about this, as I have given sufficient reasons why we will not be supporting this amendment, but it is clear that the amount of money available will not be determined by rules set out in the Bill. It will be determined by people donating and raising money. I do not think that even the Conservative Party, if it said that it would register, could put its hands on £20 million that easily. I certainly know that the Labour Party cannot put its hands on £9 million that easily. We have to understand that these are mechanisms to ensure transparency and accountability but they will not necessarily deliver fairness because the campaign is not designed that way.

[Lord Hamilton of Epsom]

The noble Lord says that the Labour Party cannot lay its hands on £9 million to fight the referendum. Why does he take this depressing view? Are there not a very large number of business people out there who are passionate to stay in the EU? They would be more than happy to finance the Labour Party, even if they are not Labour supporters. As long as the money goes into the “stay in” campaign, they would not care what label it comes under. Why is the noble Lord taking this despondent view that the Labour Party will not be able to raise the money?

[Lord Collins of Highbury]

I am not taking a despondent view. The Labour Party will no doubt raise a lot of money through a lot of individuals, as it does at every general election, and it will account for that. For me, the most important element of this referendum campaign is about who is donating—to have transparency on how much—not the idea that we should limit the campaign. This amendment would in effect limit the number of participants. I repeat the point about UKIP: if the “leave” campaign spends the limit laid out in this amendment, what is left for UKIP to spend? What if it has already spent it? Does it then have to hand all the money back?

The fact of the matter is that this campaign will be about a range of voices. The noble Lord, Lord Stoddart, talked about the 1975 campaign. I was a participant in that campaign and there were a lot of different voices in it. There were certainly voices that did not share the same platform; I think that will be true of this referendum campaign. The policy of the Labour Party and its views about the future of the European Union are not necessarily those of the Prime Minister and the Conservative Party. There will be different views and expressions of what they hope for the future, and we have to make sure that this referendum campaign is able to hear those different views. We should not have rules that limit it.

--- Later in debate ---

Moved by

[Lord Hamilton of Epsom]

13: Schedule 1, page 17, line 19, at end insert—
“Restrictions on campaigning by the EU institutionsFor the purposes of the referendum, the following is to be treated as inserted after section 119 of the 2000 Act—
“119A Restrictions on the EU institutions
(1) Notwithstanding the European Communities Act 1972, during the referendum period, an EU institution must not incur referendum expenses or do anything else for referendum purposes.
(2) Notwithstanding the European Communities Act 1972, a permitted participant must not accept a donation from an EU institution.
(3) In this section, “EU institution” has the same meaning as in Article 13(1) of the Treaty on European Union.
(4) In this section, “for referendum purposes” and “referendum expenses” have the same meaning as in section 111 of this Act.””

[Lord Hamilton of Epsom]

My Lords, I shall speak also to Amendment 18. Amendment 13 is to do with the EU Commission and the EU generally in terms of financing, by one means or another, this referendum. We were reassured in Committee that there are two reasons why we should not worry about this. The first was that an undertaking had been made by the EU Commission not to interfere in this referendum and the second was that John Penrose had said in another place that the EU is not so stupid as to get involved in a UK referendum.

I agree with him on one thing: the EU is not stupid. Just to give an idea of how much it is intending not to interfere, it has an EU task force to do with the UK referendum which is made up of six administrators and two assistants. In 2014, the EU spent €560 million on self-promotion. The reason why it is not stupid is because it has spent money before interfering in other people’s referenda with enormous success. It spent €1.5 million to persuade the Irish to vote for the Lisbon treaty and €3.8 million over three years to persuade Croatia that it was a good idea to join the EU.

If you judge the EU, and the EU Commission particularly, on what they do rather than on what they say, the answer is that they have moved into the former offices of the Conservative Party in Smith Square. I have no doubt that there is a very large number of people sitting there, and do we really imagine that they are going to be sitting on their hands doing nothing during a referendum on whether the United Kingdom should leave the EU saying “It’s nothing to do with us. We’re completely neutral on all this. We’re just going to sit here and answer emails and provide information where it is requested”? Come on—let us live in the real world. In Ireland it went so far as to spend a very large sum of money on issuing 1.1 million pamphlets to the Irish about why the EU was such a good idea. The problem with all this is that the EU has set itself up so that it can interfere in our referendum, and because of the total lack of democratic accountability—

[Baroness Smith of Newnham (LD)]

My Lords—

[Lord Hamilton of Epsom]

I will give way in a moment. We cannot actually stop the EU interfering in our referendum because it is written into its treaties that it is allowed to spill out information at will and there is nothing we can do to stop it.

[Baroness Smith of Newnham]

My Lords, I believe that the noble Lord, Lord Hamilton, may be conflating two different things. The first is the period of renegotiation that Her Majesty’s Government are undertaking at present and the second is the referendum. My understanding is that the task force is actually to deal with the renegotiation, which is at the request of the Government, not an initiative of the European Union, and therefore is not an interference in the referendum. I also believe that such interference would be misguided; it would not be right for the EU institutions to be involved.

[Lord Hamilton of Epsom]

At the end of the day, the EU thinks that it is free to issue information. Information can take many different forms, and I do not see that there is anything that can be done. The Minister has already said that we cannot actually stop the EU financing activities because they are all done in the name of information—and what is the difference between information and propaganda?

[Lord Liddle (Lab)]

Is the noble Lord a regular reader of the Daily Express and the Daily Mail? Does he think that they provide objective, truthful information about the European Union?

--- Later in debate ---

[Lord Hamilton of Epsom]

I have to say that that is an entirely different issue.

[Lord Liddle]

My Lords—

[Lord Hamilton of Epsom]

The noble Lord has intervened so let me answer his question. I think that the Daily Mail and the Daily Express have their own views, as do the Guardian and the Independent. We have a free press; it is up to them what they do. We are talking here about what the EU does to finance activities during this referendum.

[Lord Liddle]

My Lords, does the noble Lord believe it is wrong for the EU to provide factual information about what it does when in large sections of our press, which are foreign owned, lies are printed about the EU virtually every day?

[Lord Hamilton of Epsom]

As the noble Lord, Lord Liddle, will know well, factual information from the EU amounts to it advertising that it is spending inordinate amounts of money on different interest groups of one sort or another around the UK, as if this were all manna from heaven: “Gosh, you’re lucky, the EU has decided to spend some money on you”. What it does not bother to tell people is that it is their own money.

The great problem that Lord Joseph had when he was in the Thatcher Government was to persuade Ministers to talk not about “public money” that they were being so generous with, but about “taxpayers’ money”. He managed to hold that line for a time with the Conservative Cabinet, but quite quickly it drifted off and we got back to Ministers constantly talking about how incredibly generous they were being with “government money”, as if all this stuff came from heaven. Of course, half the government money that we have now is borrowed anyway. It is an absurd mentality to think that people can be generous with other people’s money and get credit for it. Why should they, when it is actually the money that they have taken off the people of this country? We must live in the real world.

Amendment 18 is about purdah. The problem with purdah, as we all know, is that the Government are arguing that they have to allow the normal functions of government to continue. Obviously that is quite justifiable, but the point of my amendment is to restrict what can be done with regard to purdah. To return once more to my noble friend Lord Forsyth’s argument that this has to be seen to be a fair referendum, our worry is that we should not, as we did in the Scottish referendum on independence, suddenly have an enormous initiative from the Government to try to swing the vote because the polls are going the wrong way. We do not want some great initiative from the EU saying how incredibly generous or wonderful it has been in order to try to swing the vote here.

[Lord Liddle]

I moved an amendment on this in Committee, partly in jest. If the noble Lord wants a fair referendum, why does he not persuade his friends in the Conservative newspapers to give equal space to people who are in favour of our membership and people who are against?

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[Lord Pearson of Rannoch (UKIP)]

My Lords—

[Lord Hamilton of Epsom]

I think that was for me. I am confused by the noble Lord, Lord Liddle, because he always produces these amendments in jest. I remember another one that said that the referendum should be delayed until 2019. That was tongue in cheek, was it not? The fact is that the Government do not control a free press in this country. You either have a free press or you do not, and if it is free it can take whatever line it wants to take. Perhaps we should be controlling the Guardian, with its attitudes to all this. This is absurd. We have a free press, which takes different sides on different things, and that is not a responsibility of the Government. Does the noble Lord want me to give way again? No, he does not.

[The Earl of Courtown (Con)]

I remind the House that before the dinner break I suggested that noble Lords should read page 151 of the Companion. I will repeat it, because obviously noble Lords have not been able to remember it:

“On report no member may speak more than once to an amendment, except the mover of the amendment in reply or a member who has obtained leave of the House, which may only be granted to: a member to explain himself in some material point of his speech, no new matter being introduced”.

[Lord Pearson of Rannoch]

My Lords—

[Lord Hamilton of Epsom]

I am very grateful to my noble friend for that; can I now give way to the noble Lord, Lord Pearson?

[Lord Pearson of Rannoch]

My Lords, I think this is the only time I have spoken on this amendment, and with the permission of the noble Lord, Lord Liddle, and your Lordships, I will do so. I would add the BBC to the list of media outlets that my noble friend has been good enough to name. I ask the noble Lord, Lord Liddle, whether he has read the News-watch website about the BBC’s behaviour in this matter and whether he hopes that the BBC—

[The Earl of Courtown]

Order. The noble Lord has not yet moved his amendment.

[Lord Hamilton of Epsom]

I am afraid that the noble Lord, Lord Pearson, has slightly confused things, because he was intervening on the intervention of the noble Lord, Lord Liddle, on me. Therefore this adds to the confusion. However, I do not think we will revert to talking about the free press and the fact that different newspapers have different views on things—I am not sure how productive that is. What we were talking about—or what I was talking about—was purdah and the fact that there is a concern, which I hope the Minister will address, that there will be some last-minute intervention, if the polls indicate that the country wants to pull out, to try to swing the vote with some bit of propaganda from the EU. Clearly, business has to continue to be done with the EU, but at the same time we do not want to see the whole referendum slewed by a last-minute intervention where the EU is being inordinately generous with other people’s money and doing something to try to swing the vote. That is what my Amendment 18 is about. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I certainly support my noble friend, but I will speak to Amendment 21 in this group, which is in my name. We have had a lot of discussion, and my noble friend Lord Hamilton has emphasised the importance of having rules on purdah. I have to say to the noble Lord, Lord Liddle, that he needs to distinguish the difference between public and private money. The Daily Mail and other newspapers are not spending taxpayers’ money, while the EU is. My noble friend is concerned that money that is provided by the taxpayer should not be used for a political purpose. That is a very important principle. I know that he is so enthusiastic about the European Union that he sometimes finds it difficult to see the distinction, but that is what we are talking about, and that is why we have these rules on purdah.

It was with some dismay and utter disbelief that I discovered that if people break these rules on purdah—the Scottish Government, the British Government or some other public agency—there is no sanction or penalty for doing so. It is true that people can seek judicial review at vast expense and then get a judgment after the event. I think it very unlikely that any court would say, “You’ve got to rerun the referendum because a public body spent money which was prohibited by purdah”. Therefore, with this amendment I am seeking to create some kind of sanction.

In Committee, I suggested that we bring back the old thing that applied in local government. Very spectacularly, Dame Shirley Porter ended up getting a bill for £20 million for having transgressed in terms of her abilities to operate under statute. I understand that that system of surcharging councillors has now disappeared. In Committee, I suggested a system of surcharging but it was dismissed on the grounds that it was inappropriate. My friends in the Electoral Commission said that it would be wrong to hold individuals to account. I do not really understand that. I think that if people are responsible for spending public money in a way that is ultra vires, they should be held responsible for it. If no one is responsible then no one is going to make sure that the rules are obeyed.

Having found that that suggestion did not find favour with my noble friend the Minister, I have had another go. This amendment suggests that we create a system where a fine is imposed on whoever is responsible and that it should be not less than the amount of taxpayers’ money which they have had cause to spend in breach of the purdah rules. This may not be the ideal solution, but in Committee my noble friend was kind enough to indicate that she recognised that there was a problem and she said that she would think about what could be done by way of a sanction. I am hopeful that she might consider Amendment 21 to be the answer to this problem but, if it is not, that she herself will have an answer. If there is no effective sanction, it rather begs the question: what is the point of having the rules on purdah if they can be breached?

I anticipate that somewhere in her file my noble friend will have a note saying that it would be very embarrassing for any public institution to breach the purdah rules and that it would be disadvantageous to it in the campaign. All I can say is that, having experienced the Scottish referendum campaign, I would not put much trust or hope in that limiting the kind of misuse of public funds which my noble friend Lord Hamilton has talked about.

[Lord Hamilton of Epsom]

Does my noble friend agree that, if it comes to the difference between winning a referendum and losing it, a bit of embarrassment can be lived with?

[Lord Forsyth of Drumlean]

I am sure that, like me, my noble friend would want always to strictly obey the law and the rules and that he would not be tempted to stray from the true path by the prospect of winning or losing. However, I am rather concerned that that might not be true of Governments. Individuals are not held responsible for the actions of Governments, which is why I am proposing this amendment.

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[Lord Hamilton of Epsom]

The EU intervened on the Lisbon treaty referendum in Ireland, and the Irish passed it. The EU intervened for three years on trying to get Croatia into the EU, and Croatia came into the EU. It intervened in those two cases very successfully. Why should it change its spots and not intervene in this one?

[Lord Collins of Highbury]

Precisely because of the point that I make: I suspect that such intervention will have completely the opposite effect, whereas in Ireland perhaps it even encouraged people. I do not think that that will be the case here. If there is seen to be interference, people will see it that way and will not be very happy.

I am grateful to the Minister for circulating the correspondence on this, including the commitment by the Commission. Obviously, it states that it will carry out its treaty obligations, but in no way will it be involved in anything that could be perceived as interference in a matter that is strictly for the British people and the British Government—I agree with the noble Lord, Lord Wallace, on that.

Turning to the amendment in the name of the noble Lord, Lord Forsyth, I think that there is a legitimate point here that needs to be properly addressed—he should not look so surprised that I agree with him; I suspect that we agree on a lot of things. The point is that we have an offence where the sanction is in a way paid by the victim, which does not make sense. The Electoral Commission does not agree with the formulation because it does not want to accept such a responsibility. In Committee, I referred to sanctions other than judicial review that could be considered in relation to individuals. In all walks of life, people are subject to such sanctions. In the case of public office and civil servants, there is the Ministerial Code and the Civil Service Code. I would be keen to hear from the noble Baroness whether she has given any thought since Committee to how we can have a regime where, if an offence is committed, the perpetrator pays the cost and not the victim.

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[Lord Hamilton of Epsom]

My noble friend has referred to constructive dialogue. Does she think that there was constructive dialogue between the Irish Government and the EU when they put out 1.1 million leaflets, at a cost of €139,000, during the Lisbon referendum? Presumably the Irish Government were quite happy that the leaflet should go out, but it upset the people who did not want to accept the Lisbon treaty.

[Baroness Anelay of St Johns]

My Lords, the Government would not be happy with any such move and the European Commission is clearly aware of that. We are not the Irish Government and this is a referendum on a different matter.

I understand and recognise the legitimate concerns about these matters and that is exactly why the Government are putting so much effort into trying to address them. It is not a matter of taking our eye off the ball: we will continue working on these issues.

My noble friend Lord Hamilton has tabled two amendments, Amendments 18 and 19, to Clause 6. The clause provides a power for the Minister to make regulations modifying Section 125 for the purposes of the EU referendum. However, I repeat the assurance that I made in Committee that the Government have no plans to use the regulation-making power under Clause 6. I tried to make that as clear as I could. I appreciate though that my noble friend seeks to limit the power so that Ministers can make regulations only where they have reasonable grounds to consider that regulations are necessary to secure the continuing function of the Government or the safety of the public or a section of the public.

This follows on from our discussion in Committee when noble Lords were trying to get me to posit the future—to look into a crystal ball and say, “This is what may happen”. The very nature of why Clause 6 was inserted in another place was because this would be something that people could not foretell. Not one voice in the other place was raised against Clause 6 going into the Bill. We ought to bear that in mind because, having given the undertaking that we have no plans, we cannot foresee the future. We have to have a care for the safety and security of this country and it would be unfortunate for this House to consider constraining the ability of the Government properly to be able to respond.

The reason, I suspect, why not a voice was raised in another place is that safeguards requested by the other place were put into the use of this power before the amendments were brought forward. These state that regulations would need to be made at least four months ahead of the poll following consultation with the Electoral Commission—and of course that would be subject to the affirmative resolution procedure in both Houses.

As I say, although there are no plans to use the power, there may be exceptional circumstances which would require the Government to lay regulations before Parliament on this issue. No doubt we would all be rather surprised if that were to happen, because, as I say, we have no plans to do so at the moment. However, a responsible Government should be able to keep the power available.

My noble friend also tabled an amendment to remove Clause 6(8) because he is worried that it might ensure that the Government cannot disapply the restrictions in Section 125 under the power in Clause 4. What I hope to be able to do is give my noble friend a reassurance that his concerns are misplaced in this respect. I can assure him that Clause 4(1)(c) as currently drafted simply would not allow the Government to disapply in regulations the restrictions in Section 125 for the EU referendum; we could not do it. Like Clause 6, it could be used to modify aspects of Section 125, although we do not have plans to do so. But we consider that Clause 6(8) is necessary for a rather technical reason. It ensures that the power to amend Section 125 in Clause 6 does not in any way call into question the general regulation-making power in Clause 4 to make modifications to PPERA for the purpose of the EU referendum. The general regulation-making power is essential for aspects of the published conduct rules; it is not about the purdah enshrined in Section 125, about which I know and understand why some noble Lords have concerns. In this case, it could be used if we identify other issues with the PPERA provisions. I can give my noble friend an assurance that, like Clause 6, the power in Clause 4 can be used only following consultation with the Electoral Commission and will of course be subject to the affirmative resolution procedure.

Finally, I come to the amendment tabled by my noble friend Lord Forsyth, proposing a penalty for a breach of Section 125. Interesting questions have been raised about the whole issue of how one holds people to account. My noble friend is seeking to impose a monetary penalty on a person who breaches the restrictions in Section 125. The Electoral Commission has no role in the enforcement of Section 125, and has said in its response that it is not clear how this significant change to its role and powers would work in practice. That is the issue; it is not what the commission was set up to do and it would change its role.

We believe that the current arrangements are appropriate and that they work. Those within the scope of Section 125 will be legally obliged to comply with it. Like other legal obligations on public authorities across the statute book, it can be enforced through judicial review. That is the purpose of judicial review: to ensure that public authorities comply with the law. I know that my noble friend has concerns that this may be a paper tiger, but he has been an admirable Secretary of State in difficult times. He will know how difficult it is for a Government to face judicial review; he will know about the inconvenience and the cost. I would expect that others would be mindful of that as well. Judicial review is something that this Government seek to avoid having to incur, and I am sure that other public bodies take the same approach.

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[Baroness Anelay of St Johns]

My Lords, this Government are not corrupt. This Government have strong leadership. This Government have given their word to work with all our colleagues across Europe to ensure that this referendum is as fair as it can be—and this Government will deliver. I hope that my noble friend will feel able to withdraw his amendment.

[Lord Hamilton of Epsom]

My Lords, the amendments I tabled by necessity were probing for the simple reason that we cannot stop the EU getting involved in our referendum. All we can rely on is the voluntary statements that it has made. We need to have an act of faith over this. We have to presuppose that if this referendum runs and it is getting very tight up to referendum day, and it is debatable whether the country will vote to stay in our pull out, somehow the EU will stand back and not do anything when it has the power to do it—to actually influence that final result.

Some people will believe that the EU will be totally honourable to its word on this. Others will say that it had such success in Denmark, Ireland and Croatia, so why should it not try it here? The great argument is that it will not do it because it would be counter- productive. I do not quite understand that argument. It was not counterproductive in Denmark. It was not counterproductive in Croatia. It was not counterproductive in Ireland. Why should it be counterproductive here?

But as I say, these are probing amendments. There is nothing the Government can do to constrain the EU. I suspect that the idea of the noble Lord, Lord Pearson, that we should fine it is out of order completely, so there is nothing that we can do in this Bill to stop the EU interfering. If it does not, in my opinion it will be a miracle. But I am happy to withdraw the amendment.

Amendment 13 withdrawn.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Flight]

My Lords, I campaigned in the 1975 referendum to stay in the Common Market. To criticise the precedent, I well remember that we thought we had been rather clever because we had the establishment onside and we had 2:1 of the brochures sent to people. The whole objective was to marginalise the campaign of those who were not in favour of staying in. It was, in essence, a scheme to rig the whole vote.

[Lord Hamilton of Epsom (Con)]

I very much agree with my noble friend Lord Flight. Just because Harold Wilson rigged the 1975 referendum so that my noble friend Lord Forsyth and I—and indeed my noble friend Lord Flight—were conned into supporting staying in the EU, is that a reason for rigging this one? That is the question we have to ask.

The House will have noticed Amendment 40 in my name. Even my closest friends advise me that this amendment is rubbish. All I say to my noble friend the Minister is that I will not press my amendment. She will not have to spend any time telling the House that my amendment is rubbish because I agree with that anyway.

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[Lord Wallace of Saltaire]

My Lords, I am well aware that the political definition of a level playing field is a field in which, when the ball is placed in the centre, it rolls naturally towards your opponent’s goal. That is one of the problems with trying to define a level playing field.

I am fascinated to hear so many Conservative Peers speaking in favour of an expenditure cap to ensure that one side in a campaign does not spend more than another. I look forward to the speeches that will come from those Benches the next time we discuss political party funding. Perhaps they will support a similar principle then. The Conservative Party spent a great deal more than any other party in the recent election. I do not recall any complaints from Conservatives on that—whatever position they take on the European Union—either then or since.

[Lord Hamilton of Epsom]

Is the noble Lord saying that the general election principle is unfair because one party can raise more money than another, and that this unfairness should continue in the referendum?

[Lord Wallace of Saltaire]

I am simply remarking that principles should apply across the field. I am strongly in favour of greater control over political parties’ spending, which the Conservative Party has resisted extremely strongly. I just remarked that we need to be a little more consistent than we were being.

I will make one other point relating to this group of amendments and to the next.

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[Lord Collins of Highbury]

I am glad to hear that but at the moment it does not look as though there is a single campaign. If the Conservative Party and UKIP unite as one, so be it. The public will no doubt take account of that. But the business currently before this House is an amendment that says to UKIP, “If you register as a political party, you will limited to £10,000”. I am not sure that would cover Nigel Farage’s flights around the country, so I think he will be concerned about that.

[Lord Hamilton of Epsom]

On the question of the designated organisation for leaving, does the noble Lord not accept that there are members of the Labour Party who are members of this? It is not a Conservative organisation; it is completely cross-party.

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[Lord Hamilton of Epsom]

My Lords, I shall speak to Amendments 38, 39, 52 and 54 in my name and that of others. Amendment 38 is designed to strengthen the controls on public money and resources during the purdah period. As my noble friend will know, Section 125 of the 2000 Act only prevents the Government publishing certain materials. It does not apply to general government activity during the final four weeks of the campaign, which remains regulated by constitutional convention, not by statute.

The amendment would prevent the Government campaigning and trying to promote a leave or remain vote in the purdah period, and restrict taxpayer-funded special advisers—who, we must remember, are civil servants and paid civil servants—from assisting in referendum campaigns during the purdah period.

Amendment 39 would prevent EU institutions incurring referendum expenses or doing anything to procure a remain vote during the referendum period. Both the Government and the Electoral Commission accepted that principle when similar amendments were tabled in another place. However, they claimed that the law was sufficient to prevent EU campaigning. That is mistaken. The law referred to is the European Communities Act 1972, which provides EU institutions with full authority to engage in activities authorised by EU law. The 1972 Act must be specifically disapplied for the EU institutions to be made subject to the same campaign controls as other foreign Governments.

Amendment 52 is a short amendment to do with the Electoral Commission. At the moment, the Bill advises that Ministers should “consult” the Electoral Commission. The amendment adds “and obtain the consent”, which is an important adjustment, because we must be bound by the Electoral Commission.

Amendment 54 would leave out subsection (8), which means that Section 4(1)(c) could enable the Government to abolish purdah together. I am sure that is not their intention in the Bill, and therefore I commend the amendments.

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[Lord Pearson of Rannoch]

The noble Lord referred to the notices that our masters in Brussels have required to be erected all over the countryside. I have an idea for the farmers in question. Alongside the notice that gives the great news that our masters in Brussels have given us so much money, they could put up a notice saying, “PS. Of course, for every pound they give us, we will have given them £2.66”—which I think is the present amount. Perhaps that would put those notices into perspective, because there is no such thing as European aid to this country, as I am sure all noble Lords will agree.

[Lord Hamilton of Epsom]

Does the noble Lord not agree, though, that if somebody did something as impudent as that, measures would be taken to take their grant away?

[Lord Pearson of Rannoch]

I do not think they would be in a position to do that. If farmers were forced to do that, it would be a very good thing for those of us who wish to leave the European Union.

On Amendment 61D, tabled by the noble Lord, Lord Forsyth, he worries about the provision not having enough teeth to ensure that the European Commission behaves itself—which, of course, I forecast it will not. One could add on Report a clause which says that any money the European Union does spend in this regard can be deducted from the £12.5 billion net that we are sending to Brussels at the moment. Perhaps we can get the money back that way.

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[Lord Collins of Highbury]

I fear I might sound like Donald Rumsfeld if I did—talking about the unknown unknowns and the known unknowns—and I will resist the temptation. I will leave it in the capable hands of the Minister to give those examples.

However, this group of amendments gives rise to some issues, including how we define the actions of Ministers and special advisers, and the question of acting in a personal capacity. I fear that all these things are incredibly difficult to prescribe, not least: when is a Minister not a Minister; when is a spad not a spad? What about when they are working at home at weekends? The situation is clear with matters such as having no government transport, or no paid facilities when campaigning.

[Lord Hamilton of Epsom]

The noble Lord asks, when is a spad not a spad? A special adviser is paid as a civil servant, so surely he should never get involved in matters such as a referendum.

European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Kerr of Kinlochard]

Actually, you are a member while the Article 50 negotiations are proceeding. You are a member of every council. Your MEPs do not leave the European Parliament, your judges do not leave the court and your Commissioners do not go home. The only difference is that in the Article 50 negotiations you do not have a vote on the position of the EU—the position that it has in its negotiation with you. That is all. You remain a member throughout the period of the Article 50 negotiations unless you decide unilaterally to go home. You do not have to do Article 50 at all. If you want you can just stop paying the bills, stop turning up at meeting and in due course it will be recognised that you have gone. It is not the case that once you invoke Article 50 you are no longer a member of the European Union.

[Lord Hamilton of Epsom (Con)]

Surely the key to the decision taken in the referendum is that it is advisory and not mandatory, so therefore it would not be necessary at once for the United Kingdom to apply for Article 50. We could merely carry on with the negotiations with absolutely nothing changing whatever.

[Lord Kerr of Kinlochard]

Technically, that is correct. It is advisory. But it seems to me that anybody who thinks that the Government could do other than act fairly quickly on the advice they had received from the entire country is in cloud-cuckoo-land. The noble Lords, Lord Forsyth and Lord Hamilton, are right in a sense in that our influence in the councils of the European Union would go into very rapid decline. We would still be there but we would not be listened to a great deal if we were heading for the exit door. That is certainly true. However, we would be members, and the idea—with all respect to the noble Lord, Lord Hamilton—that the Government might consider whether they were going to act on the advice of the country or going to try some form of new negotiation is nonsense. If the country votes to come out, we come out.