European Union Referendum Bill

Lord Clarke of Nottingham Excerpts

Monday 7th September 2015 Commons Chamber

[Mr Lidington]

In answer to my hon. Friend’s last point, if the House is dissatisfied with any regulation that the Government put before Parliament, it can reject the statutory instrument. In that case, the default position under the package that I am proposing to the House would be to revert to section 125 without the exemptions being made by regulation. There is, therefore, the safeguard that Parliament will have the final say.

I hope that my hon. Friend will listen when I address the concerns in more detail, but I say to him first that I have been present at a number of debates in the House when he has said that a legal opinion that he has received is of weight and importance. I think that the Government are entitled to take seriously the arguments that Treasury counsel have put to them.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I realise that I should not be interrupting the flow of people to whom the Government are only too anxious to make any concession that is demanded and who are obviously quite clear about what result they want from the referendum—indeed, they are rather more concerned about the result than the process—but will the Minister confirm that, whatever further concessions he is now making, it will still be possible for Ministers to give a clear and authoritative opinion on whether, according to the constitutional Government of the country, it is in the best interests of the United Kingdom in respect of its political future in the world and its economic prospects to be in or out of the European Union, and that little things like being allowed to take advice on the factual accuracy of what they are saying on behalf—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. [Interruption.] Order! The right hon. and learned Gentleman knows that interventions have to be short. We cannot have speeches at this stage. [Interruption.] I will make the decision. I am sure that the Minister will want to reply. If the right hon. and learned Gentleman needs to intervene again, he may do so, but we cannot have speeches or long interventions.

[Mr Clarke]

I do apologise, Mr Deputy Speaker, but I sense, looking around, that I am grossly outnumbered in the Conservative party, given my views, by a certain section of my hon. and right hon. colleagues. They wish to silence Ministers. I do realise that I—

[Mr Deputy Speaker]

Order. [Interruption.] Order. The right hon. and learned Gentleman will have to sit down for a moment. He is well known as the big beast and I am certain that he has never worried about the number of people around him who may not be on the same side.

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[Mr Lidington]

I will come to the detail of our proposal, because in doing so I hope to answer my hon. Friend’s points.

[Mr Kenneth Clarke]

rose—

[Mr Lidington]

I give way to my right hon. and learned Friend.

[Mr Clarke]

My right hon. Friend is so desperate to give way to everything put to him, I do not think I am his friend at all. In my opinion, he has already given away far too much. I quite understand why: the opportunism of the Opposition parties, which do not agree with the hard-line Eurosceptics in my party but which are determined to vote with our rebels to force this preposterous situation on us. Will he assure me that if, two weeks before the campaign ends, a decision is suddenly taken to finish health and safety or food safety regulations in some key area, because a judgment of the European Court has meant that hundreds will die or the horticulture industry will be wiped out, a Minister will be allowed, in these complex trade matters, on TTIP and so on, to consult officials and give some authoritative, clear description of what the decision or proposal actually means? I do not think that most of our right-wing newspapers would report what he would say based on factual advice, but could we leave open the possibility that he can at least consult experts on the negotiations before giving statements on behalf of the Government?

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I return to the point raised by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). This power by regulation could be used to clarify a possible de minimis common-sense use of official resources; it might be permissible for Ministers or others caught by section 125 as it currently stands to apply it. Depending on the phrasing of a regulation—if Parliament accepts it—it might cover fact checking by officials so that a Minister could respond in a ministerial capacity to a particular statement that had been made about the Government’s position. It would be for Parliament to say whether it was permitted or not; and on my reading of section 125, it is not currently permitted.

[Mr Kenneth Clarke]

My right hon. Friend seems very nervous about expressing an opinion on that, which would perhaps not be necessary if we had a more representative body listening to the debate than we happen to have in the Chamber at the moment with this selective group. The Government, who will be the Government at the start of the referendum and after it—[Interruption]—and during it, as the Foreign Secretary rightly says, should not have a period of four weeks during which they cannot check the factual accuracy of anything the Minister says on a controversial European subject. The Government will be unable to use the resources of the civil service to put out statements, including factual statements, on what propositions are correct, and they will be unable to use any Government resources to explain the merits or otherwise of what will be the Government’s position on a particular issue. We have not covered this problem; we have already gone—farcically—too far in neutralising the ability of the Government to give an authoritative opinion and explanation of the facts and the issues in the course of the campaign.

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[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.