European Union Referendum Bill

Lord Hannay of Chiswick Excerpts

Wednesday 4th November 2015 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

34: Schedule 1, page 12, line 8, at end insert—
“Designation of organisation for only one of the possible outcomesSection 108 of the 2000 Act (assistance for designated organisations) has effect for the purposes of the referendum as if—
(a) at the end of subsection (2)(a), for “but” there were substituted “or”; and(b) for subsection (2)(b) there were substituted—“(b) may designate a permitted participant in relation to only one of the possible outcomes.””

[Lord Hannay of Chiswick (CB)]

My Lords, I rise to move this highly technical amendment. Other Members of the House may have as much difficulty as I do in understanding the precise wording. As very often is the case when we are working with reference to other bits of legislation, it is a bit abstruse. However, rather than subject the House to yet another lengthy dissertation from myself, I shall read from the Constitution Committee’s report on this point. The committee said that the 2000 Act,

“provides for a designated organisation to be appointed by the Electoral Commission as a lead campaign group for each side of the referendum debate. It does not allow the Electoral Commission to designate one organisation only; for there to be any designated organisations in a referendum campaign at least one from each side must apply … This arguably allows one side in a campaign to ‘game’ the system. If they are well funded but do not want the other campaign to receive the financial and other advantages of designation, then they simply fail to apply for designation. Notably, there was no designation in the Welsh referendum in 2011 because the Electoral Commission took the view that there were no lead campaigners that met the statutory test of adequately representing the ‘No’ side. The danger of gaming was also raised in the context of the Scottish independence referendum. The Scottish Independence Referendum Act 2013 attempted to overcome this potential problem by allowing for the designation of one side only, although in the end two campaigns did indeed apply for recognition … Whilst we consider it likely that there will indeed be applications for designation by each side, the House may wish to consider whether the Bill should be amended to avoid a situation where one side could, in effect, prevent the lead campaign group on the other side from being designated”—

and, of course, from getting funds.

My amendment simply uses the wording of the amendment in the Scottish Act, which the Government agreed to put into the Scottish Act; it is replicated here, I hope in the correct place and the correct way, to have exactly the same effect as took place in Scotland.

It will not have escaped your Lordships’ notice that it never had to be used in Scotland. That is the purpose of moving this amendment. If it is accepted by the Government and put on the face of the Bill, there will not be a problem, because the certainty that one side can get itself designated even if the other side does not, and can therefore be a recipient of funds, will mean that the other side has no interest whatever in gaming the system. So I hope that this can be discussed on a totally technical, non-political basis, because I think that the Bill will be improved by the inclusion of this provision—and once we have included it, we can just forget all about it.

[Lord Forsyth of Drumlean (Con)]

My Lords, I will speak to Amendment 37 in my name and that of the noble Lord, Lord Blencathra, and also to say how much I support the amendment just proposed by the noble Lord. I think that this might be a first in consideration of this Bill, but I think that it is a very sensible proposal.

Amendment 37 is following the same theme, which is ensuring that there is fairness in the conduct of the campaign. I was rather shocked this morning to read Hansard from the other place, where Mr Chope asked the Deputy Leader of the House of Commons to,

“confirm that the real reason why three independently minded former Ministers are being purged”,

from the Parliamentary Assembly of the Council of Europe,

“is because we voted in favour of a free and fair EU referendum with a strict 28-day purdah period, as recommended by the Council of Europe’s Venice Commission and our Electoral Commission?”.—[Official Report, Commons, 3/11/15; col. 887.]

I do not want to get involved in that particular row, except to say that Christopher Chope, Sir Edward Leigh and Cheryl Gillan are three very distinguished former Ministers, and I am very shocked that they should be removed from the Council of Europe, and even more shocked that it should be suggested that that is the reason for their removal.

I emphasise this point because, whatever the outcome of the referendum, it is important that at the end of it people feel that the Government did not abuse their position—whatever their position turns out to be—and that the campaign was conducted in a fair and balanced way. This, presumably, is why we have the Political Parties, Elections and Referendums Act 2000.

My amendment seeks to remove from political parties their ability, which arises from the 2000 Act, to spend money on the campaign itself. I thought that the whole point of having an Electoral Commission—which, incidentally, costs half the cost of the entire Royal Family—was to ensure that we had fair and balanced conduct of elections and referenda. That is what I thought it was about. I thought the whole purpose in having a designated campaign on each side with limitations on their expenses was to ensure fairness. But what do I find? I find that the Government have brought into the Bill the ability of the political parties to spend money in addition to the designated campaigns. In the case of the designated “in” campaign, it can spend £7 million; in the case of the “out” campaign, it can spend £7 million. That is fair enough; but then on the inside, the Labour Party can spend £7 million; the Liberal Democrats can spend £3 million; the Greens can spend £700,000 and the CBI and other organisations can spend £700,000.

The Conservatives have said that they will remain neutral—and it is very considerably to the credit of the Conservative board that it took that decision.

--- Later in debate ---

[Baroness Anelay of St Johns]

My Lords, Amendment 34 in the name of the noble Lord, Lord Hannay, would allow the Electoral Commission to designate a lead campaigner for one side of the argument at this referendum without having to appoint one for the other. This would override the current rules that apply for designated lead organisations. These provide that the commission must designate a lead campaigner on each side, or not at all. The reason for this is clearly, as noble Lords have argued tonight, that in such matters there should be as fair a playing field as possible.

In the case of multiple applications for designation as a lead campaigner, the Electoral Commission must appoint for each side the applicant which represents “to the greatest extent” those campaigning for a particular outcome. This is intended to ensure the designation of organisations which represent the broad spread of opinion on each side. The benefits then available to the designated lead organisations ensure that each side of the argument has a fair opportunity to put its case to the wider voting public. Taken together, these provisions aim to ensure informed voting after a vibrant debate.

However, the rules for this referendum must also ensure that the referendum is run fairly and that we do not create any perception of bias. The principle that the Electoral Commission cannot designate on just one side is intended to support that objective. The benefits available to the designated lead organisations are significant. I am talking not about political parties per se—they may not end up being designated as lead organisations—but organisations designated by the Electoral Commission as lead organisations.

Allowing public funds to be used to create a distorted campaign with only one designated lead organisation would naturally raise public concern. This would clearly be the case where the commission receives applications from both sides but does not consider that those on one side meet the statutory tests. Under the amendment of the noble Lord, Lord Hannay, in this circumstance the arguments of the side that does not get appointed would not get a fair hearing. The administrative failings of those who failed to meet the statutory test should not invalidate the right of both sides to an equal opportunity to make their respective cases.

There is, of course, the view that this amendment may help avoid a circumstance where one side deliberately refuses to apply for designation to prevent the other side receiving its benefits. This could occur, for example, if one side lacks the funding to take advantage of the benefits, particularly the higher spending limits, or wishes to avoid debate on an issue of low public interest. I do not think any noble Lord is going to suggest that this case will be a matter be of low public interest. That is not going to be a feature of this referendum. Given the public interest in the referendum, a more cynical attempt to deprive the other side of the benefits of designation surely would be widely reported and deeply harmful to a campaigner’s own cause—it would be seen as being a cheat.

[Lord Hannay of Chiswick]

The noble Baroness seems to have come to the end of a passage which contains no explanation of why the Government legislated in the case of Scotland to deal with this potential problem, and no recognition of the fact that by so legislating they ensured that there was no problem. All her suggestions that this might seem to be unfair will not come about if this amendment is accepted, because there will then be two designated organisations and no interest whatever in gaming.

[Baroness Anelay of St Johns]

My Lords, the noble Lord’s amendment does not achieve that. It allows for one-sided designation. The noble Lord referred to Scotland. That was a matter for the Scottish Government and the Scottish Parliament, not the UK Government. In respect of the Scottish referendum, the Electoral Commission commented that the approach of having one-sided designation possible was appropriate in the specific circumstances of the independence referendum to reduce the risk of,

“a tactical decision not to apply for designation”.

However, it says that in other circumstances that does not necessarily pertain. So we would certainly argue that having one-sided designation could unduly damage proper and fair treatment of the arguments that need to be put forward.

--- Later in debate ---

I urge the noble Lord, Lord Hannay, to withdraw his Amendment 34 and other noble Lords with amendments in this group not to move them when they are called.

[Lord Hannay of Chiswick]

The noble Baroness has not made a very persuasive case for me to withdraw my amendment. I am not referring to other amendments in the group. She has spoken, if I understand her rightly, as if Scotland were a faraway, foreign state with which we had nothing to do. When the legislation was passed to enact the referendum in Scotland it was felt that this provision needed to be put in to prevent any possibility of gaming. Our own Constitution Committee has warned the House—and that includes the Minister—that there is a risk of that here, and the Government appear not to wish to take any account of it.

When it is suggested that to put such a provision in would make the playing field less even, that is to ignore the fact that if there were gaming which resulted in there being no single designated organisation on one side, that would mean there would be no funds for the other side and there would be a level playing field: it would be nuclear winter. That would not be, I suggest, a satisfactory playing field on which to play, any more than nuclear winter is satisfactory. If we deprive an organisation that has properly designated itself of any possibility to get funds in the campaign, I do not think the Minister would think that that would be a very fair way to proceed. I do not quite know how we are to move forward on this.

[Baroness Anelay of St Johns]

May I intervene?

[Lord Hannay of Chiswick]

Yes, please.

[Baroness Anelay of St Johns]

I was trying not to force my way in, as I must sometimes do: I know that noble Lords have been lively today. I sought to point out earlier that the Government have evaluated the risk with regard to the referendum on the European Union, remain or leave, and put it in the category where we feel that there is enough public interest that there will be somebody who will apply—and not just one, perhaps more—to be considered as a designated lead campaigner. So that will not arise. Clearly, I did not make enough of an effort to explain it in full, but I hoped I had set out the dangers there would be if the Electoral Commission appointed only one lead campaigner and the voice of another could be stifled to the benefit of one.

[Lord Hannay of Chiswick]

The noble Baroness is ignoring a risk. It may not be a very high risk and if this amendment were accepted it would be a nil risk. She seems to be saying that the Government would prefer to run even a very small risk of this situation occurring than put a provision in the Bill which made it absolutely certain that it would not occur. I feel that that is a little unreasonable.

The noble Baroness will have noticed that my amendment has been supported on all sides of the Committee and both sides of the argument. Is she really unable to say two things? The first is that if the Government’s view on this prevails and the amendment is not accepted, she will give a commitment that if, sometime in the next few months, it becomes clear that there is not going to be a properly designated organisation on both sides, the Government will then legislate, in emergency legislation, to ensure that the other side will not be deprived of any funds. If she gave that undertaking, it would be very helpful. If she cannot give that undertaking, will she at least take this away and look at it a bit longer? We have a space between now and Report and I do not believe that this amendment is open to the suggestion of unfairness. As far as I know, nobody in Scotland complained.

[Baroness Anelay of St Johns]

My Lords, I do not think that the Committee would wish to contemplate even further legislation, but I can certainly contemplate further consideration on the basis of what the noble Lord has said. I have to say that I thought we had considered properly before today, but of course I always listen to the points made by the noble Lord and am prepared to do so before Report.

[Lord Collins of Highbury]

I have a question for the noble Lord about the potential risk. My understanding is that the risk is not simply gaming on the part of one side to deprive the other of funding. We constantly talk about funding when, actually, it is access to broadcast, access to free mail and all the other things that go with being a designated organisation. In evaluating the risk, does the noble Lord recognise a difficulty? Say, for example, there is no consensus among the leave campaign, so we end up with three, two or four organisations. Is the Electoral Commission, in those circumstances, permitted to decide on the merits of two or three, or does it have to say there is no lead designation?

[Lord Hannay of Chiswick]

I am not knowledgeable enough to answer the noble Lord’s question. I shall come to the Minister’s last intervention, which was helpful, in a minute, but I think she underestimates the range of possibilities.

Of course, our own Constitution Committee has raised the issue of gaming and that must be one risk, but I think there are other risks. One concerns whatever attempt the Electoral Commission makes to come to a conclusion about the designated organisation on the leave side. I do not think there will be any problem on the remain side—I cannot be certain about that, but I do not think there will be; it does not look as though there will be—but on the other side there is obviously the potential for a really serious problem. There are already two organisations, a third is said to be going to enter the fray, and if these organisations go on slugging it out and the Electoral Commission tries to adjudicate, the matter could then go to judicial review. The decision of the Electoral Commission could be appealed on judicial review. That would mean, as the present law is drafted, that the remain campaign would be deprived of all the advantages that exist for a designated organisation. That is pretty serious, frankly. What I feel is unreasonable about this is that, were this amendment accepted, none of that would happen.

I accept the noble Baroness’s offer to take this away and reflect further; she is always extremely fair in her dealings with the House. She has said she will go away and consider this further and that there will be further contacts with various noble Lords who have tabled amendments. We have a little time before Report, but I honestly think that the risk, even if it is a 1% risk, should be dealt with here and now. The case for that is pretty strong. Having said that, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.