European Union Referendum Bill

Bernard Jenkin Excerpts

Monday 7th September 2015 Commons Chamber

[Mr Lidington]

In Committee, I promised to reflect on the concerns that were raised about the Government’s proposal to disapply, for the purposes of the EU referendum, section 125 of the Political Parties, Elections and Referendums Act 2000. The Government accept completely the importance of the referendum being conducted in a way that is both fair and seen to be fair by the partisans on both sides of the debate. In particular, that means that the conduct of both Ministers and civil servants must be beyond reproach. We are therefore bringing to the House today proposals that we believe provide the rigorous safeguards wanted by hon. Members on both sides of the House.

I reiterate what the Foreign Secretary and I have both said before, namely that the Government will not undertake activities during the final 28 days of the campaign that would be seen as the province of the lead campaign organisations. In particular, there should be no question of the Government undertaking any paid advertising or promotion, such as billboards, door drops, leafleting, or newspaper or digital advertising during that period.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

What is the exact meaning of what the Minister is saying? My letter to him on behalf of the Public Administration and Constitutional Affairs Committee in July made clear the Committee’s view that section 125 should remain unimpaired and that

“the Government should not be allowed to use the machinery of Government (i.e. the resources of the Government) for campaigning purposes during the purdah period, as is already implied in the Civil Service Code.”

Do the Government accept that position?

[Mr Lidington]

I was going to say that, having studied my hon. Friend’s letter and listened to the views expressed by him and many other hon. Members, we are bringing forward amendments that have three effects. First, we are proposing to reinstate section 125 of the 2000 Act and remove the blanket disapplication that is currently in the Bill. Secondly, we propose a narrow and limited exemption to permit the Government to carry out EU business as usual during the final 28 days of the campaign. Thirdly, we propose a power for exemptions to be made to the general prohibition in section 125, subject to an affirmative resolution being passed by both Houses.

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[Mr Lidington]

I do not want to trespass on matters that will come up in the second group of amendments, which we will debate later, but I am very confident that when we come to the end of the negotiations, the Prime Minister will want not only to make a firm recommendation, but to explain his reasoning to the public in full.

[Mr Jenkin]

I am somewhat astonished that the Government are raising the question of hon. Members somehow being caught by purdah provisions. It is an established legal principle that titles of sections are not used to determine construction in legal interpretation. The word “person”—here I take the advice of Speaker’s Counsel—is likely to mean “a legal person” and to be of a similar nature to “a body”. The Minister’s suggestion that this might constitute “individuals” betrays, I think, the poor legal advice he has been given.

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[Mr Jenkin]

First, I thank my right hon. Friend the Minister for generously accepting amendment (a) to new clause 10. That will provide a significant safeguard and reassurance, and it will provide stability in the referendum campaign. It means that regulations changing the rules will not be made halfway through the campaign, perhaps to suit the convenience of Ministers at a time when the temptation to avail themselves of that convenience might be considerable, given the big issues at stake in the referendum. I am grateful to members of my Committee, the Public Administration and Constitutional Affairs Committee, for supporting that amendment.

I am bound to say, however, that new clause 10 has been described as an open barn door for whatever changes to purdah the Government want to make. Given that they started from the position that they did not want to have purdah in statutory form at all, we are entitled to be a little suspicious about what kind of regulations they might bring forward. I appreciate that there is a safeguard, in that regulations will have to be approved by both Houses of Parliament, and the Committee will be vigilant in looking at those regulations.

I am grateful to my right hon. Friend the Minister, and to my right hon. Friend the Foreign Secretary, who is also listening, for the fact that the Government have accepted the principle that the Electoral Commission should be consulted and give a view in advance of any such regulations. That moves the Electoral Commission into a slightly new role, but it is not uncommon in other countries. In Ireland, for example, the equivalent of the Electoral Commission has a strong role in policing the purdah regime. I will come to that in a minute.

I also thank my right hon. Friend the Minister for Europe for being so scrupulously polite and confirming to all of us once again that his integrity is unimpeachable. I commend him for having brought the Bill a long way from where it was in June, when the Committee wrote to him after taking evidence from Lord Owen, from Jack Straw, from Peter Riddell, the director of the Institute for Government, from Lord Bew, the chair of the Committee on Standards in Public Life, from the Electoral Commission, from Sir Jeremy Heywood and from Ministers. The Government were, and still are, putting forward the view that section 125 of the 2000 Act is too wide-ranging, but that failed to convince almost all our witnesses. As the Minister will recall, we made it clear in our letter that the Committee’s unanimous view was that section 125 should be restored to the Bill, and that

“its intent should remain unimpaired by any amendment.”

I imagine that that remains the view of Committee members, particularly as I suspect most of them will support what is decided in the Division Lobbies later.

We have the Electoral Commission’s advice on the Government’s new proposals, which makes it clear that, like the rest of us, the commission has had very little time to consider them, although I thank my right hon. Friend the Minister for telephoning me while I was in Ireland last week and explaining what was intended. This is pretty complicated stuff, and to end up with 38 pages of amendments to debate in five or six hours is not the best advertisement for how we legislate in this House, but nevertheless there has been dialogue, and it has been good-natured. My colleagues and I do not relish disagreeing with our Government, so we very much appreciate the fact that the dialogue has been conducted in a good-natured way. I thank my right hon. Friend the Chief Whip for that.

The Electoral Commission’s advice states that it has not had sufficient time to fully consider the detailed implications of the Government’s proposals, but that the Government should explain in more detail

“how it would expect to use these powers”—

the powers under new clause 10. It states:

“Our view is that, if Parliament accepts this new clause, its use should be limited only to managing any potential restrictions on the conduct of ‘day-to-day’ EU business.”

The Electoral Commission also makes clear its support for the amendment to new clause 10, which my right hon. Friend the Minister has accepted. It states that any changes should be made

“well before the start of the restricted period of 28 days before polling day.”

I am grateful to him for accepting that.

Speaker’s Counsel has been mentioned. My right hon. Friend said that the TTIP negotiations might suddenly intrude on the last 28 days of campaigning, but Speaker’s Counsel has been clear on that point in emails today. He mentions provisions on EU business being conducted as normal, stating:

“I do not share the view that these are caught by s.125.”

It could not be clearer. He goes on:

“Commenting on EU business is not providing information about a referendum”—

that addresses the question of TTIP negotiations—

“neither is it ‘dealing with any of the issues raised by a referendum’…nor is it putting any arguments for and against any particular answer”.

He points out:

“Even if they were doing any of these things, then s.125(3)(d) expressly allows the issue of press notices (without any restriction as to their content).”

What do the Government need to be able to do that they will not be able to do? That has been singularly unexplained in the whole process.

[Mr Baker]

Does my hon. Friend agree that the fundamental problem is not a lack of faith in the Government but a lack of faith based on past EU referendums in other countries, where the conduct of Governments, and the EU in particular, has led to trust in the process being undermined? Is that not the fundamental problem?

[Mr Jenkin]

And indeed in our own country—it was the conduct of the Welsh referendum in 1997 that led the Committee on Standards in Public Life to bring forward its proposals for purdah, which the then Labour Government accepted and which the Labour party consistently supports today. Those arrangements were good enough for the north-east referendum, the alternative vote referendum and the most recent Welsh devolution referendum. Indeed, in the view of some Members, they were probably not strong enough in respect of the Scottish referendum last year.

As my right hon. Friend the Member for Wokingham (John Redwood) said, the purdah proposals were designed for a referendum on the euro, so the idea that the European Union was not considered when the arrangements were formulated is just not correct. Tony Blair’s Government introduced the 2000 Act in order that there could be a fair referendum on the euro, which was his ambition. If these arrangements were good enough for Tony Blair, why are they not good enough for our own Conservative Government?

A referendum should be a solemn and carefully regulated constitutional procedure, not a ploy or device to get a particular outcome and fix a political problem. Abuse of the referendum by less scrupulous Governments in the last century famously led Clement Attlee to describe referendums as

“a device of demagogues and dictators”.

Other countries, such as Sweden, Ireland and Switzerland, have much tougher purdah regimes. The Government’s proposals take us backwards, as we have heard from those who have participated in referendums, such as Nigel Smith, a well-known referendum expert who was chairman of the Scottish yes campaign. He has been appalled by the proposals, and he gave evidence to our Committee about them.

It has been suggested that the precedent for the forthcoming referendum should be 1975. I do not know whether Members have read the 1975 Cabinet minutes, but they show how the Government were set to run a parallel campaign to the yes campaign. That is not the precedent that we should follow in the last 28 days of campaigning. Indeed, the Foreign Secretary could bring forward a White Paper before the start of the 28-day period, just as the Scottish Executive brought forward a comprehensive White Paper about their proposals for Scottish independence, although it was lacking in detail and a little bit partisan—we had some comments to make about that. There is nothing to stop the Government bringing forward as much information as they want before the purdah period. Incidentally, the Electoral Commission thinks that 28 days is far too short for a purdah period and we are not debating that today. If the Government, with all the advantages that Governments have, cannot win the referendum just because they will be restricted for the last 28 days, what kind of referendum do we expect to have?

I listened to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) and I really think he wants to go back to a 1975-style referendum where the Government are used as an instrument of campaigning in what should be a fair fight. What is the point of having spending limits on the yes and no campaigns if Ministers can use the machinery of Government in an unrestricted way, which is what the abolition of purdah would mean?

[Mr Kenneth Clarke]

I have never known a referendum of any major consequence in which the losing side has not followed up its defeat by saying it has been cheated and that the electorate has just been misled. That has been said ever since the 1975 referendum, and the Scottish nationalists have said the same thing ever since the Scottish referendum. The Government have no intention of putting out publicity, as they have said. The basic proposition should be that the Government of the day, when putting out a statement of their policy or an explanation of their position on a particular proposal—such as whether or not we as members of the European Union should be party to a TTIP with the United States—should be entitled to use the civil service and their press office as a source of advice and checking the factual accuracy of what Ministers are saying on behalf of the Government. The alternative is preposterous: under my hon. Friend’s proposition, for three weeks there would be no Government.

[Mr Jenkin]

That is absolute nonsense. Even in a general election, Ministers can get advice from their Departments. Ministers also take advice during local government elections. If something happens that is unconnected with the referendum, Ministers will be able to take advice. I have heard it said that Ministers want to use their private offices to organise their speaking tours and to use their special advisers, who are paid for by the taxpayer, to campaign in the referendum. That is not an acceptable use of public money. What is the point of placing spending limits on the yes and no campaigns if the Government are going to avail themselves of all those advantages? My right hon. and learned Friend could persuade the Government to produce a White Paper to set out their case well in advance of the purdah period. That is an unimpeded advantage of which the Government can avail themselves. All we are saying is that there should be something of a level playing field in the last 28 days.

I regret that the Opposition accept new clause 10; nevertheless I am grateful that they support amendment (a) in order to create a framework for the creation of regulations. I am very unhappy with amendment 53. As the Opposition spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), made plain, to have amendment 53—which already adulterates section 125—without the scrutiny process of regulations and a specific debate about what Ministers actually want to exempt is a shot from a double-barreled shotgun against section 125 of the Political Parties, Elections and Referendums Act 2000. If the Government want to provide exemptions, they should introduce the amendments under regulations rather than under amendment 53.

The advantage of defeating amendment 53 is that we will be able to have amendment 4 instead. It was the unanimous view of the Public Administration and Constitutional Affairs Committee that section 125 and its effect on this referendum should be restored unimpeded. That would be the effect of amendment 4, but there may be some tidying up to do.

[Sir William Cash]

Does my hon. Friend accept that, while we may end up voting for amendment 4, amendment 78 is better, simply because it deals with the problems of the devolved territories? As I put it to the Opposition’s Front-Bench spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), even if we end up with amendment 4, the consequence will be that we will still be thrown back by new clause 10, which will leave it all to regulations. As far as I am concerned, that is highly unsatisfactory.

[Mr Jenkin]

Most of my Committee would certainly agree that this is making the best of a bad job. We will, however, make some progress today if we succeed in restoring section 125 under amendment 4, which the Opposition have pledged to put to a vote should amendment 53 be defeated. I therefore advise my colleagues, very reluctantly, to vote against amendment 53, because while I think the Government have conceded the principle that there should be purdah, they have not accepted the fact of how it will apply. If they want to amend the Bill again in the other place, it would be worth while having that discussion, rather than accepting amendment 53.

[Mrs Gillan]

May I thank my hon. Friend for all the work he and the Committee have done? Although I am a member of the Committee, I was not able to participate, but he knows my views on the subject. Given that the Government have conceded that their original plans were not acceptable, does he agree that the elegant solution would be for them to withdraw amendment 53 and allow amendment 4 to go through? Purdah would then be reinstated and the Government would have the flexibility, through the solutions provided by the Committee, to produce the regulations for this House to scrutinise. Would not that restore the general public’s confidence in the referendum process?

[Mr Jenkin]

I wholly agree with my right hon. Friend. In fact, I think that would reinforce the integrity with which the Government have approached the matter. They still have the option of amending the Bill again in the other place and bringing it back for discussion in this House, and of introducing regulations under new clause 10, so long as that happens at least four months before the date of the referendum. I am bound to say that there are plenty of options available to the Government. They do not need to divide the House on amendment 53.

[Mr Baker]

My hon. Friend may not be able to commit to this now, but does he think that the Committee he chairs would be prepared to scrutinise statutory instruments before they come to the House, so that the Government could have confidence that they enjoyed cross-party support before they came to the vote? We are well aware that they cannot be amended; they can only be voted down.

[Mr Jenkin]

I will certainly undertake to put that in front of my Committee. It depends on the Government: if they table amendments 35 minutes before the deadline and a recess period and are then determined to discuss them on the first day back, it makes it very difficult to scrutinise matters, as the Electoral Commission has attested. I invite my right hon. Friend the Minister for Europe to make sure that any regulations he introduces under new clause 10 are published in draft so that we can properly give them pre-legislative scrutiny, take proper advice on them and make objective recommendations to the House without being rushed or bounced into them.

One of the advantages of amendment (a), which my right hon. Friend has kindly accepted, is that the temptation to bounce the country into a referendum has been significantly reduced. If we are to have a sensible referendum debate, there has to be a proper period for discussion of the outcome of the Government’s negotiations and the merits or otherwise of remaining in or leaving the European Union. I am sure that was the Government’s ambition when they originally proposed the idea of a referendum. I look forward to hearing what the Minister has to say in winding up.

[Alex Salmond]

I wish to speak to amendment 11, tabled in my name and those of my hon. Friends.

The Chair of the Public Administration and Constitutional Affairs Committee, the hon. Member for Harwich and North Essex (Mr Jenkin), had my rapt attention and much of my agreement until he produced the remarkable argument that if purdah was good enough for Tony Blair, it should be good enough for the House now. I am afraid that the alliance of scepticism against the Government’s motives was dissolved as a result of that one phrase, that one single disastrous rhetorical flourish.

The hon. Gentleman made another point with which I disagreed, and I want to put this on record before I come to the points on which I agreed with him. He wandered into a period outside the purdah and asked whether at that point the Government had the right to publish a White Paper giving their point of view, backed as a democratically elected Government by the civil service. Of course they have the right to do that, but the House should be concerned about whether the restrictions should apply during the 28-day purdah period, or perhaps for a week longer were the Electoral Commission to have its way. I think that they should, and I shall illustrate that view with a cautionary and moral tale from the Scottish referendum.

The Scottish referendum was regulated not by the Political Parties, Elections and Referendums Act 2000—PPERA—but by the Scottish Independence Referendum Act 2013. The Act made provision for a statutory purdah period in Scotland during the 28 days leading up to the referendum. According to the explanatory notes, part 4 of the Act provided that,

“for the 28 day period ending with the date of the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the question to be voted on in the referendum, putting any arguments for or against a particular answer to the question to be voted on, or which is designed to encourage voting in the referendum.”

In other words, acting in their capacity as Ministers, they were not allowed to use the Government machine during the purdah period to advance the yes cause to which they were all committed. I must point out to those on the Government Front Bench today that nobody interpreted that to mean that this First Minister or any other Scottish Minister should not take part in the referendum campaign. The explanatory notes to the Act went on to state:

“However, this rule does not apply to information made available following a specific request; specified material published by or under the auspices of the Scottish Parliament Corporate Body; any information from the Electoral Commission, a designated organisation or the Chief Counting Officer or any other counting officer; or to any published information about how the poll is to be held.”

In a situation that was every bit as disputatious in regard to the arguments for and against, those measures in the Act were passed with hardly any dissent, rancour or suspicion of motives. It was accepted that that was the right thing to do. Perhaps the Government should have suggested something similar for this referendum, instead of doing whatever they were doing during the recess, unless they are seriously arguing that the constitution of this country involves a much simpler process for a European referendum. Had they done that, they would not now find themselves in this embarrassing position.

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[Mr Jenkin]

I think the right hon. Gentleman and I are in agreement about the role of civil servants—obeying the Government of the day but not carrying out instructions that would put their Ministers in breach of purdah. There should be something in the civil service code that makes it clear that the yes and no campaigns of a referendum are the equivalent of political parties in an election, but the code contains nothing about referendums. I have great sympathy with the point he is making about the enforcement of purdah, because the north-east referendum had exactly the same problem as he is describing; John Prescott announced new proposals in the last few days before the referendum and we could not get anybody in government interested—they said it was a matter for Ministers.

[Alex Salmond]

The Chair of the Select Committee cited Tony Blair approvingly, presumably to encourage Labour Members’ support, but attacked John Prescott to move them away. None the less, the hon. Gentleman makes a reasonable point.