Vote Leave Campaign: Electoral Law

Catherine West Excerpts

Monday 10th September 2018 Westminster Hall

[Catherine West (Hornsey and Wood Green) (Lab)]

I congratulate my hon. Friend on his excellent opening speech. On the point about people attending Committees, does he agree that the social media element has an impact on the close scrutiny that we need, not just of ourselves as Members of Parliament, but of elections in general? Because it is so new, it adds confusion and layers of fake news, making it even more difficult for the average citizen or voter to get to the bottom of what the truth is.

[Daniel Zeichner]

I am grateful for my hon. Friend’s observation. I do not think anyone would dispute the layers of complexity and difficulty, and the greater difficulty presented by social media. For some of us who have been grappling with electoral law over many years, social media makes it a whole lot more difficult, and I suspect we all know that we will need to update our procedures to try to cope with the challenges that are posed.

--- Later in debate ---

[Daniel Zeichner]

I thank the right hon. Gentleman for making those points. I quite understand that there is another, more attractive option coming up soon in the other Chamber, and I will be in no way offended if he leaves. On his point about whether there can be an independent arbiter, I am slightly dubious. We are all sufficiently experienced, even in local contests, to know that that would be a difficult thing to set up. I would worry about it. We have all seen examples where all candidates are given an equal space in a booklet, and we have perhaps noted that that is not necessarily the bit that cuts through to the electorate in comparison with reporting from other sources. It is a difficult area, and I have some scepticism about his proposals, although there may be some value in exploring the checking of statistics.

[Catherine West]

My hon. Friend is generous in giving way to me for a second time. Does he agree that if there is a referendum and the Government of the day say that they will implement whatever the people decide, there should at least be a briefing in the Library of the House of Commons the day after the referendum goes one way or the other so that those of us who are rather surprised by the result know what the Government intend to do?

[Daniel Zeichner]

I thank my hon. Friend for her suggestion. I am just remembering some bleary-eyed politicians trying to recalibrate in the middle of the night, and I am wondering how quickly such a briefing note could be produced accurately. This is a theme of what I have been saying, but I am not sure that one can design legal systems to cope with all these things. In the end, these are political judgments, and we live in a democracy with a fair amount of hurly-burly and a free press, as there should be. We do not want our elections and decisions being bought by money and external states. That is the worry, and that is the difference from some of the problems we have had in the past.

I will make some progress and move on to the separate but related question of article 50 and the ongoing debate as to whether it is rescindable. Lord Kerr was responsible for drafting article 50 as secretary-general to the European Convention in 2002-03 and is frequently quoted on this issue. Last year, he said that article 50 was revocable. That interpretation is supported by Jean-Claude Piris, former legal counsel to the European Council. Marie Demetriou QC, Jessica Simor QC and Tim Ward QC have written a joint legal opinion, which they have sent to the Prime Minister, in which they conclude that article 50 can be withdrawn before 29 March 2019 without the need to seek the agreement of the other EU member states. They also say that if that happened, the UK would retain its membership and privileges. The joint legal opinion notes that the wording in article 50 refers to a decision to notify an intention to withdraw. The QCs argue that an intention is not a binding commitment; it can be changed or withdrawn.

While legal arguments continue on the matter, in political terms the French Government have stated that they would welcome the UK staying in the EU on the current terms. EU Commission President Jean-Claude Juncker and Council President Donald Tusk have both said that Brexit is reversible. Lots of people have said lots of things over a period of time. When it comes down to it, I suspect that it is the political will of law- makers that counts here. However, it has been made very clear to us that we are welcome to stay, should we wish.

I have tried to present the petition in an even-handed and fair way, even though everyone already knows where I am going with my speech. In many people’s view, June 2016 was not a great example of a mature democracy working at its best. We know that in our system, referendums are used mainly by Prime Ministers who are in a fix, trapped by divisions within their own party. That was most certainly the case in 2016. Although I have not an ounce of sympathy for David Cameron, he must wonder every day how it came to this. In 2016, the country was hideously divided on the issue, but a decision was made. Two and a half years on, it looks as though we face another difficult decision: to accept whatever deal can finally be arrived at, or not. That is a different question from the one that was posed in 2016. I have argued this afternoon that the law around referendums should be changed to make them consistent with other electoral processes.

Almost 200,000 petitioners and many, many more in the country feel very strongly that the 2016 decision, close as it was, was sullied by actions that have been proven by the Electoral Commission to be unlawful. It may be Parliament’s responsibility or fault that the law is inconsistent, but many of the people we represent feel that the law has not provided adequate recompense for wrongdoings, and that is the force of the petition. That the law was broken is not in doubt, but alongside that, many believe that the campaign was grossly misleading. What was offered by Vote Leave and other leave campaigns is not what is being delivered, and as with parties that renege on their manifestos, the country will not forgive the political system and the politicians who allow this to happen.

The two strands—breaking spending limits and misleading people—are separate issues, but for many people the two are inextricably linked. Indeed, the right hon. Member for Mid Sussex (Sir Nicholas Soames), who is the grandson of Winston Churchill, told the House in the urgent question on this matter in July that

“one of the great glories of this sadly now diminished country was our electoral and democratic system…I say…that if we are to retain the integrity and the trust of the voting public, the whole damn thing needs to be blown and started all over again.”—[Official Report, 17 July 2018; Vol. 645, c. 228-229.]

The point is very well made. To maintain trust in our democracy, a political response is needed, and that political response is to ensure that justice is done and that we have a people’s vote.

The petition mentions article 10.3 of the Lisbon treaty, which states:

“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”

I do not want to leave the EU; I have been explicit on that point. I truly believe that the economic, social and political damage that leaving would do to our country—hitting the most vulnerable the hardest—could be mitigated by remaining in and reforming the EU. Tackling the underlying causes here at home is the way to truly bring back control to the people, not to the bankrollers of election campaigns, but while having the conversation about our future relationship with the European Union, it is worth reflecting again on article 10.3. It states:

“Decisions shall be taken as openly and as closely as possible to the citizen.”

That was not what happened in the EU referendum campaign, where electoral rules were broken, a limited franchise excluded those who would be most affected and the question allowed people to vote on what they did not want, but then said nothing about the kind of relationship that should be put in place. As many have said, as we slam the door shouting “We’re leaving”, we are unable to answer the obvious retort, “So where do you think you’re going to?”.

To help our fractured society to move back towards the higher ideals of genuine informed participation in democratic life, it is right to consider the experiences of the past two and a half years since the country went to the polls, as well as the poll itself, and to look at what was promised then and what is being delivered now. It is right to wonder whether we can do better. People have the right to know the price tag before they pay the bill. I am absolutely convinced we can do better. We all know so much more now than we did back in 2016. My solution to the conundrum raised by the 200,000 petitioners is simple. We have an opportunity not to revisit 2016—not to have a rerun, despite the wrongdoing—but to have a new vote on the issue that lies before us. It would be a people’s vote, which would give the people a genuine choice to decide on their future: whether to take the deal, whatever is negotiated, or to reject it and so stay in the European Union.