European Union Referendum Bill

Edward Leigh Excerpts

Monday 7th September 2015 Commons Chamber

[Mr Lidington]

If my hon. Friend had received the legal advice that I have had, she might take a rather different view.

Many hon. Members have said that the purdah rules that apply during elections have worked well and I agree. Of course, those rules are based entirely on guidance and convention. They allow for common sense and involve no legal risk. Section 125 of the 2000 Act is very different, since it is a statutory restriction. Given that the EU referendum debate will, I think we would all accept, involve people on both sides of the argument with deep personal pockets and passionate views on the subject, the risk of legal challenges during the campaign is real. The Government are seeking, through the amendments, to manage that legal risk.

[Sir Edward Leigh (Gainsborough) (Con)]

With respect, I think that this is legalistic claptrap. I do not remember the Prime Minister being particularly constrained in arguing his case during the general election. What is important is that the process is considered to be fair. Why can we not just cut to the chase and accept amendment 4, which was tabled by the Opposition, under which we would have full purdah and do what we do in general elections, so that everybody thinks it is fair?

[Mr Lidington]

As I have just said to the House, what the Government can and cannot do in general elections is governed by guidance and convention, and not by statute, which brings the risk that a dispute could end up before the courts. The situation as regards the EU referendum is different, because there is law on the statute book, dating from 2000, so discretion and common sense cannot be applied in the way that is possible during elections, when we rely on guidance.

On amendment 53, we believe that section 125, as drafted in the 2000 Act, would create legal risk and uncertainty in what I might describe as ongoing normal EU business during the final weeks before the referendum. One of the problems with the original subsection 1(b) is the breadth of the wording that describes and defines the material that would be caught. It imposes a very wide-ranging prohibition on Government activity. It bans public bodies and persons

“whose expenses are defrayed wholly or mainly out of public funds”

from publishing material that

“deals with any of the issues raised by”

the referendum question.

Unlike the recent cases of the Scottish or alternative vote referendums, the subject matter of the EU referendum cannot simply be avoided in Government communications during the last 28 days. The subject of EU membership is broad. A Government statement in Brussels on an EU issue under negotiation could be said to be dealing with an issue raised by the question of our membership, and therefore be caught by the restrictions in section 125. Let me provide an example.

There are ongoing negotiations between the EU and the United States on the Transatlantic Trade and Investment Partnership. It is perfectly conceivable that, at some stage during the last month of our referendum campaign, those negotiations could reach a stage at which there would be a discussion between the institutions of the EU and member states of the EU. The British Government would have a view on the right outcome and might want to circulate papers to lobby, using the sort of materials that would be captured by the section 125 definition of publication. If the section remains unamended, my concern is that there is a risk that that will be challenged in court, because it could be said to be raised by the referendum campaign. It is certainly conceivable that one or other or both of the campaign organisations could pray in aid that particular issue as indicating why we should or should not remain a member of the EU. Once that happened, it would certainly be classed as raised by the referendum campaign.

--- Later in debate ---

[Mr Lidington]

What my hon. Friend describes would not be permitted under the amendment.

Let me give some examples of the types of business I believe would be caught under section 125. We often table minute statements during Council meetings, for example to set out the UK position on the limits of powers conferred on the EU under the treaty. They are an important point of reference to have on the record, and we make them public and publish them. We circulate papers to other Governments and to the institutions to advocate particular policy outcomes. We did that with some success recently in relation to the digital single market. If appropriate, we would want to do that with other EU business if it happened to fall within the final 28 days of the campaign.

[Sir Edward Leigh]

As a Minister I sat on Telecommunication Councils and it is incredibly detailed stuff. Surely we could wait 28 days to publish such material. That would be perfectly possible. I do not know what hack in the Foreign Office is writing the Minister’s speech, but the reality is that it just does not add up.

[Mr Lidington]

If a decision to attempt to reach a consensus at Council happens to be timed to fall within those 28 days—I do not think we can assume that all EU business is going to stop for the last 28 days of our campaign—then of course, in those circumstances, the Government would want to make representations, including circulating the type of paper I have described. European Court of Justice judgments are handed down and advocates-general opinions are presented in a timetable that is not within our gift or influence. Again, the Government not only often wish to comment on such matters but to guide British business and other interest groups on what those judgments or recommendations actually mean. For example, had the recent case on European Central Bank clearances gone against us, there would have been an extremely urgent need to write to notify City institutions on the implications of that judgment for them, to avoid a risk of instability in the markets.

--- Later in debate ---

[Patrick Grady]

That is quite an interesting proposition and it is certainly worth considering. We were told that Scotland should be leading, not leaving, the UK. If we are to have a respect agenda and a family of nations, perhaps that is the kind of thing that we should be considering. As I said earlier, it is precisely the principle that this Government want to introduce in their proposals for English votes for English laws. Therefore, legislation, which can always be revisited and amended in different ways, will be subject to a double majority in this House, but a fundamental, decisive and long-term principled decision on our membership of the European Union will be denied that opportunity of a double majority when we are trying to decide the future of the United Kingdom and its role in the modern world.

Like much of what we have tried to do in this House since being elected, the SNP has tabled amendments on the basis of what we were told during the independence referendum. We heard that Scotland was a valued member of the family of nations and that we should be leading the UK, not leaving the UK. But we now face the prospect of Scotland’s 16 and 17-year-olds and European Union citizens being denied a vote on this matter of vital importance. The date of the referendum is being chosen on a whim to suit the political expediencies of the Government rather than to allow a free and fair debate. Worst of all, Scotland’s citizens will be forced to leave the European Union even if they vote to stay in. That does not suggest a respect agenda. It might be that some of us see that as the kind of material change that requires a fresh evaluation of Scotland’s place in the United Kingdom.

The SNP has tabled clear and sensible amendments that are consistent with the points that we have made throughout the passage of this Bill. If the EU referendum is to be seen as free and fair, the rules must be clear and based on consensus. We do not have to look far to see what the gold standard of a referendum process should be. I hope that the Government will listen, but I fear that, as on so many issues, they will not.

[Sir Edward Leigh]

I wish to support my hon. Friend the Member for Stone (Sir William Cash) and his new clause 11, but the House will be relieved to hear that I shall do so rather more briefly. There is a quote by Sir Winston Churchill in the No Lobby, which says that he wanted to spend the first million years in heaven painting. As much as I love my hon. Friend, I fear that I might spend the first million years in purgatory listening to his speeches.

[Sir William Cash]

Shame. You might learn something.

[Sir Edward Leigh]

My hon. Friend has identified an important point. The Minister will remember that I made precisely this point in my amendment 53 in Committee, before our summer break.

Although there has been a lot of fire and emotion and a vote tonight about purdah, the question of spending by both sides is probably more important. Lord Lamont, the former Chancellor, has written a number of articles about it. It is incredibly important when we have the referendum that we get a sense of closure. At the end of this, whatever the result, people should feel that it has been broadly fair. Otherwise, we might reap the whirlwind. We should remember what happened after the Scottish referendum. If the yes campaign should win, we do not want to create a sense of unfairness for the other side.

I know that my hon. Friend the Minister has taken seriously the points I have put to him. In our earlier debates, the way he put it was that there should be a “broad equality” of forces, but we fear that that simply will not happen. Although there are sensible, firm and clear limits on how much public money will be available to the no and yes campaigns—say, £600,000 or something on each side—and that is completely fair, the party establishment of the main political parties, the Conservative party, the Labour party, the Liberal party, and the SNP, will almost certainly campaign to stay in Europe. Their ability to spend will be based on the votes that they got, with the Conservative party allowed to spend £5 million, the Labour party £4 million, the UK Independence party only £3 million—they will be the only people on the other side—and the Liberal Democrats £2 million. We could reach a situation in which the yes campaign is spending up to £17 million and the no campaign only £8 million.

That has already happened once before. In 1975, the no side was outspent 10:1, which simply cannot be fair. When I put those points to my hon. Friend the Minister in the past, he said that although he accepted that morally and logically there was force in my arguments, that was not in our tradition, as we do not have limits for general elections. I am sure that he will make the same argument again tonight. However, a general election is somewhat different. Separate political parties all have their own position that they are putting forward, rather than ganging up, in a sense, on one side of the argument. There is no sense of unfairness at the end of the process, or a sense that one important political point of view has been massively outspent by the other side.

Although I accept that the Minister will make those arguments, I hope he will feel that there is some sort of moral force in what we have said. For instance, the official yes side in the AV referendum spent £3.436 million and the official no side spent £2.995 million. There was a broad equality in what the yes campaign and no campaign were spending on the AV referendum, was there not? I think we all felt it was a fair referendum. The arguments were put, there was a clear decision and people accepted it. Surely we do not want to be in the situation that has arisen with so many other referendums in Europe, in which there is a sense that the political establishment—the European establishment—has a massive imbalance of resources on its side when it comes to spending. That creates a sense after the referendum that it has somehow been unfair.

Our sole UKIP Member is not present for this important debate, but we do not want to create a situation like the one that existed after the Scottish referendum, do we? There was suddenly a great surge in support for the SNP, and we would not want to recreate that position. [Hon. Members: “Why not?”] There will not be a surge in support for the SNP after this referendum; there might be a surge in support for somebody else, which SNP Members might not welcome.

I hope that when the Minister replies to the debate he will try to convince us that the Government do want a broad equality of resources during the campaign, so that we can feel that the yes and no campaigns have put their points of view fairly, that the public have listened to their arguments and that a fair decision has been made.