EU Referendum Rules

John Penrose Excerpts

Monday 5th September 2016 Westminster Hall

[John Penrose (Weston-super-Mare) (Con)]

As Constitutional Reform Minister at the time, I had responsibility for the detailed election rules set out in the European Union Referendum Act 2015. Since those rules would have included any provision for a super-majority of the kind that is suggested in the petition, it might help if I explain why we did not include such a super-majority in that Act, which was passed by Parliament last year.

There was not much discussion of super-majorities when Parliament debated the 2015 Act, but had that subject come up, I suspect that there would have been widespread opposition to it from campaigners on both sides of the debate. No matter what the issue at hand may be, a super-majority gives an in-built advantage to the status quo. It tilts the playing field deliberately in favour of no change. In other words, it would rightly have been seen as a pretty transparent attempt to give the remain campaign an enormous—and in the eyes of many, unfair—advantage. Leave supporters would have denounced it in ringing terms. Equally importantly, more thoughtful remain campaigners would probably have felt uncomfortable too.

[Peter Grant (Glenrothes) (SNP)]

The hon. Gentleman has made an interesting start. Does he agree that if both sides of the campaign are supposed to be balanced, it is irresponsible for anyone to deliver literature in the closing days of any referendum campaign strongly advising people, “If in doubt, vote for the status quo”? If people are in doubt, they should not vote.

[John Penrose]

My point was that had we set up a super-majority as the petition suggests, we would have tilted the rules unfairly in favour of the remain campaign. With a fair and level playing field, both sides are free to make their cases as strongly as they can and to rebut the other side’s case if they feel that it is wrong. The hon. Gentleman clearly feels that some of the points that were made were entirely incorrect, but the correct response was to argue against them and engage in democratic debate at the time, not to try to tilt the playing field towards one side or the other.

[Stephen Doughty]

The hon. Gentleman makes an interesting point about super-majorities, but they have been used in British constitutional history—they were used in the devolution referendums at the end of the 1970s—and are used in many other democracies. They are used in the United States, for example, for amendments to the constitution. Therein lies the problem. Does he agree that one of the clashes—it is why we are having this debate—was caused by the fact that the result was narrow? Many of us wish to respect that result, but at the same time my constituency, for example, voted by 60% to 40% to remain. We also have that situation in Scotland. That is why the public feel torn, and that is the difficulty that we are all dealing with.

[John Penrose]

I completely agree. The outcome, although definitive—there was an overall majority of well more than 1 million votes—was still uncomfortably narrow, and 48% of the population were on one side. Democratically, we therefore need to go through a healing process as an entire country to repair that damage, but wishing that it were otherwise will not change the historical fact of the result and the fact that the rules were as fair as Parliament could make them after extensive debate.

The referendum, with those rules, was intended to put the question of our EU membership to rest once and for all. If it had been an unfair referendum and the rules had been slanted in one direction or the other, it would have completely failed in that central aim. Far from drawing a line under the issue forever, we would have faced a “neverendum,” with both sides banging on about Europe for decades. I doubt that anyone could invent something more divisive, distracting or, frankly, soul-destroyingly boring if they tried.

[Tom Brake (Carshalton and Wallington) (LD)]

Will the hon. Gentleman give way?

[Mr David Lammy (Tottenham) (Lab)]

Will the hon. Gentleman give way?

[John Penrose]

What a choice. I will happily give way to the right hon. Member for Carshalton and Wallington (Tom Brake).

[Tom Brake]

I thank the hon. Gentleman. Does he think that the outcome of the referendum will ensure that people do not bang on about Europe for the next five or 10 years?

[John Penrose]

I will respond merely by saying that I hope that the period of banging on about Europe will be much shorter than it would be if we had more referendums about it in the future. I had thought that the right hon. Member for Tottenham (Mr Lammy) wanted to intervene—[Interruption.] Clearly there were two minds with but a single thought.

The danger of requiring a super-majority is that it would be seen as a coded attempt by disappointed pro-Europeans to rerun the original referendum because they did not like the result. I supported the remain campaign, but even I think that a rerun would be a huge mistake. Whichever side we were on at the time, I hope that all of us here are democrats first, last and always.

[James Cartlidge (South Suffolk) (Con)]

I campaigned on the remain side, and I must say that I was disappointed with the negativity on both sides. However, negative arguments are made in general election campaigns as well, and I do not believe anyone would think we should challenge a general election result because one side used negative arguments.

[John Penrose]

I completely agree. Every time either the Lib Dems or the Labour party win a local council by-election, I am convinced that everyone has taken leave of their senses, but as a democrat I respect the result and accept it. I am sure everyone here would do the same, no matter which side of a particular debate they are on.

[Tom Brake]

I wonder whether the hon. Gentleman would like to respond—perhaps this is not for this debate but for another—to the emails that we have all had from people who have called for an independent body to assess the claims made during the course of a referendum campaign. Would he support that?

[John Penrose]

I worry about such proposals, because they could create a vehicle for making vexatious claims during a campaign as a way of trying to smear the opposition, whether they were making legitimate or illegitimate comments. The whole point about democratic campaigning in any election, as we all know well, is that if someone says something that we regard as an egregious slur on us, or our party, or on reality—it does not matter—the answer is not to run to the lawyers but to get out there and explain to the voters why what has been said is entirely wrong.

The country has voted to leave the EU. Whether we in this room individually agree with it or not, the decision has been made. If we now decide that we will not leave after all, and that we will hold another referendum instead, the outrage at an out-of-touch political class, deaf to the desire of the people who elected them, will be absolutely shattering.

[Kwasi Kwarteng]

That is precisely the assumption that many remainers had, at least at the beginning—that they would somehow win the second referendum. All the evidence I see, certainly in my constituency, suggests that there would be a resounding defeat for the remainers if we were to go down that route.

[John Penrose]

At a time when, with isolated but notable exceptions in both the Scottish independence referendum and other votes around the country, we as a democracy are suffering from declining turnout and voter registration, we all need to ask ourselves why part of people’s reason for backing the leave campaign was the cry of frustration at our democracy. I can think of nothing more dangerous or corrosive than if we in this place were to say, “We are not listening”, stick our fingers in our ears and refuse to honour the decisive verdict that has been rendered unto us, whatever side we started on in the referendum campaign.

[Patrick Grady (Glasgow North) (SNP)]

Could not the remarks that the hon. Gentleman is making about the dreadful finality of the result equally have been made about the referendum in 1975 to go into the European Community?

[John Penrose]

I am not quite sure what the hon. Gentleman’s point is. What I am arguing is that we have a clear democratic decision, regardless of what the lawyers may say, and democratically we owe it to the people who sent us here to listen to what they said. That is a simple point, but I worry that some people who are understandably disappointed—I was on the same side as them—are trying to find ways and reasons to comfort themselves and ignore that decision. I do not think we can. If we try to ignore it, voters will rightly ask, “What part of the word ‘leave’ is so hard for you all to understand?”

We have been given our marching orders. Brexit must mean Brexit, and it is up to every red-blooded democrat, no matter which side they were on before the result was known, to accept the clear electoral verdict and pull together to deliver it as best we can.