European Union Referendum Bill

Lord Clarke of Nottingham Excerpts

Tuesday 16th June 2015 Commons Chamber

[Alex Salmond]

I was merely pointing out that there are a number of international examples. As I said, my hon. Friend the Member for Ochil and South Perthshire will go through some of those in some great detail. This is not unusual in matters of constitutional import.

There is no doubt that a constitutional referendum on whether the United Kingdom should be part of the European Union carries constitutional implications. It is not unusual internationally, even in a federal or confederal state, to have more than a simple majority on such matters, and also reference to the various component parts of that state. If that is the case for a confederal or federal state, surely it should be so much more the case for a United Kingdom of four component nations.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The right hon. Gentleman is being generous in giving way. Will he confirm my suspicion that his secret wish—the perfect result, from his point of view—is for Scotland to vote yes and England to vote no? Personally, I would regard that as a disaster. Does he agree that if Scotland voted to stay in the European Union and England voted to leave, the end of the United Kingdom would probably be quite imminent?

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[Sir William Cash]

I very much agree, and it may be of interest to Members, if they have not already noticed, that the Electoral Commission has examined not only the Bill but my amendments, and has stated:

“The Commission is therefore generally supportive of proposals to reinstate restrictions on the publication of promotional material by central and local government in the run-up to the poll.”

Even after Second Reading, the Electoral Commission—which is, after all, charged with these duties—has concluded it would be important to retain these restrictions. Some adjustments may need to be made in due course, but we should secure the status quo, then have the discussions, and then have the vote on Report. That would be the right way round.

[Mr Kenneth Clarke]

How far does my hon. Friend want to take this? In a general election, the whole government machinery closes down for four weeks and studies the potential future of alternative political masters and waits to see what the political policy of the new Government will be. In this case, however, the Government at the time of the referendum will be the Government for the next several years, and the Government, as a Government, will have been involved in producing the terms that are part of the referendum. Does my hon. Friend intend that no Minister can act as a Minister, as could be the case if we strictly applied purdah, or take advice for all those weeks on anything that might pertain to an issue in the referendum? Is the Prime Minister going to be prevented from expressing a view? Surely some compromise that is a modification of purdah is required—

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

Order. The right hon. and learned Gentleman has been here longer than most Members, and he should know that interventions must be short, especially if he wants to make a speech later.

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[The Temporary Chair (Sir Roger Gale)]

As the right hon. Gentleman knows, Ministers are responsible for making available their own documentation. It may be a courtesy, but it is not a matter for the Chair.

[Mr Kenneth Clarke]

I think I am fairly confident in saying that the starting point of this debate is that every Member of the House—from the Prime Minister and Ministers to the acting Leader of the Opposition and shadow Ministers to the most newly elected Back Bencher—agrees that if we are to have a referendum it must be perceived to be fair. The most balanced position possible must be taken vis à vis those who wish to advocate yes or no, for a variety of reasons, so that the public hear the broadest possible range of views and can make a reasonably objective judgment.

I have never known a referendum settle any question. It certainly has not settled questions of Scottish independence, elected mayors, proportional representation or AV, and does not seem to have settled the European question either. However, I think that those who believe that a referendum is a valuable way forward agree with me that we should bend over backwards to make sure that all those who feel strongly either way on this subject are treated as fairly as possible.

[Mr Steve Baker (Wycombe) (Con)]

Most of what my right hon. and learned Friend has just said could be applied to democracy itself, yet still we trouble ourselves with it.

[Mr Clarke]

Which is why I believe that the parliamentary system of democracy is so very good. A representative body of people elected from time to time have continuous responsibility for step-by-step decisions, and eventually they have to face the consequences of their decisions and can be removed. But we are already going wide of the amendments.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I am delighted to see that my hon. Friend the Member for Stone (Sir William Cash) is able to stand when he feels passionately on the subject. I am sympathetic to the problems he has had, and I am glad that he was able to speak from a sedentary position, which I had never seen before. I will finish making my point before I give way.

I hold my hon. Friend and those who agree with him in the highest possible regard. We in the Conservative party have to be careful that we do not repeat the folly of Harold Wilson and tear our party apart in the course of a referendum campaign. After quite a few decades of this battle, I continue to be on excellent personal terms with those of my hon. Friends with whom I disagree. It is best that we proceed by putting forward our respective views of the public interest. We must certainly not divide the strong purpose of the Government, who have been so recently elected with the support of the whole Conservative party.

[Sir William Cash]

Will my right hon. and learned Friend allow me?

[Mr Clarke]

Let me make a little more progress. I hope that my hon. Friend’s constraint will stop him leaping up too frequently; I will give way in due course.

I do not believe that there is any bad faith anywhere. Everyone wants those who campaign and the public to feel that the referendum has been conducted with absolute fairness. I am surprised, therefore, that, in these opening days of the European referendum process, so much passion is being excited by procedural issues. I will not describe them as footnotes, but, although they are important, none of them will make the faintest difference to the result on the day of the referendum. If we asked most of our masters—the public—whether purdah was followed properly during the campaign, they would not have the first idea what we were talking about. So my first plea is for a sense of proportion.

My plea to my right hon. Friend the Minister—I do not think I need to make it because I have seen the letter, which did not get to me either; I have just been shown it—is to live up to his undertakings. It is right to bend over backwards to reassure my right hon. and hon. Friends that there is no conspiracy, that they must not leap into paranoia, and that the intention is to hold a referendum in which the British public will be able to reach a view on balanced presentations. It seems to me that Ministers have started doing this straight away. I got the impression from the Second Reading debate that my right hon. Friends on the Front Bench were as surprised as I was at the sudden excitement about the rules in what should have been a fairly routine Bill paving the way for the referendum.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will give way in a moment.

The Prime Minister has announced that he will suspend the rules of collective responsibility and that members of the Government will be able to campaign on whichever side they choose. We now have the letter giving an undertaking that the Government will depart from section 129. People seem to think that there is something magic about 5 May 2016, so we will not hold the referendum on that date. I have sympathy with Ministers; they are being derided. The moment they make concessions to all these impassioned pleas, they suffer the fate of all Ministers and are immediately accused of a humiliating U-turn and held up for ridicule.

Some of my right hon. and hon. Friends and perhaps others in the Scottish National party are difficult to calm down and reassure. I ask them to accept, as I accept, that every effort is being and should be made to satisfy fears about the propriety of the campaigning period.

[Sir William Cash]

My right hon. and learned Friend’s rather Hush Puppy approach—saying that there is really nothing much that we need worry about, and that Parliament is far better at doing this than the people—seems somewhat dangerous and disrespectful of the voters. We have had a lot of referendums over the years. He says that purdah would not make a difference anyway. Does he think that the Electoral Commission is wrong when it says that disapplying section 125 of the 2000 Act would enable the Government to spend unlimited sums of money?

[Mr Clarke]

I once gave evidence to an inquiry chaired by Sir Nigel Wicks into the workings of the Electoral Commission, and my recommendation was that it should be abolished as a useless quango, but that is a wider issue.

Of course we have had referendums, but my hon. Friend has never accepted the result of any referendum if he disagreed with it—for the sound reason, for which I respect him, that he has strong personal principles and convictions. I took part in the referendum 40 years ago. No serious Member of Parliament on either side of the argument changed their beliefs one jot the day after the result of the poll was announced. Tony Benn, who was personally responsible for floating this innovation in British politics, was one of the first to start demanding that we left the European Community within a few weeks of the announcement of the result. The Labour party was committed to leaving the EU by the time we got to the 1983 election, having shed a high proportion of its members to the Social Democratic party. My hon. Friend the Member for Stone and I agree that we must not repeat the mistakes of the past.

[Sir William Cash]

Will my right hon. and learned Friend give way?

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[Mr Clarke]

Let me move on a little and perhaps reassure my hon. Friend. I am prepared to be persuaded that, despite my bewilderment that so much importance is being given to the procedure, we should bend over backwards to reassure my right hon. and hon. Friends that the Government are acting in good faith and will hold the campaign in a serious way. So I accept that 5 May 2016 is verboten—absolutely ruled out. It is a sacred day in the next two years on which it is not possible to put an additional question on the Scottish referendum—[Hon. Members: “European.”]—on membership of the European Union. So it has been decided not to hold it on 5 May.

I could not care less on which precise date the referendum is held, as long as it is held properly. I do not think that 5 May is a remotely important subject. I might have argued that it would have been a good idea to raise the turnout in our electoral process. There is an argument that if elections for various things are held on the same day, the turnout for some elections might go up from its current pathetic level. Apparently, however, it is thought that the poor electorate would be puzzled and confused—that they would vote in their local council election thinking that the Germans were playing a key role in the whole thing and that the questions would be too complicated and they would muddle up the documents.

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[Mr Nuttall]

The point is that Members of the same political party may well campaign on different sides of the referendum question while at the same time being on the same side for the local elections. That is the key reason we need to have them on separate days.

[Mr Clarke]

If, on the day of the referendum poll, a member of the electorate does not realise that different Members of both the Conservative and the Labour parties—at the very least—are campaigning on different sides of the campaign, I regret to say that we will all have failed, because that member of the public will have been singularly uninformed about the progress of about 20 years of debate, during which that has always been the case. But there we are: the issue of the date has been determined. The Government have given way and have been derided for doing so, and I will spend no more time on the subject.

The more serious point—although I do not think this is a serious problem—is the suggestion that the absolute statutory rigour of purdah should be applied to the Government as a whole acting as a Government throughout the final four weeks of the referendum campaign. I have already made this point during an intervention, but it is important.

People are suggesting that the whole Government machine should be switched off for those four weeks on a whole list of issues. They say it would be improper that any public body, the Government machinery or any Minister purporting to speak as a Minister should be allowed to engage in anything that might be designed to encourage voting in the referendum or to express a Government view on any issue that might be germane and regarded by people on either side of the argument as relevant to the outcome. I ask my hon. and right hon. Friends at least to pause—as I am personally prepared to do—until Report, which, as I have discovered from this mysterious message on Twitter, is when the Government will make proposals that might reassure people but that might fall short of the full rigour of the rather odd referendum legislation that we passed a few years ago. Obviously, that legislation did not exist when we last had a referendum on Europe, when the Government were deeply divided and very odd messages came out.

Given that everybody is going to concede to my hon. and right hon. Friends anything that can reasonably be seen to put any legitimate fears to rest and to reassure them that this is a sensible approach, we cannot ignore the risk that one might, rather oddly, be closing down the whole machinery of Government for some time. I have already cautioned against conspiracy theories and paranoia. We all know that individual members of the Government will go out and give their own personal views on one side or the other—they are allowed to do that.

[Sir Alan Duncan (Rutland and Melton) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

In a moment. Why on earth should a Minister not be allowed, as a Minister, to advocate that people might be encouraged to vote? As the hon. Member for Ilford South (Mike Gapes) rightly asked, would a Minister who goes to Brussels for a difficult meeting on an aspect of agricultural policy or of the research and development budget be told by his officials that they would melt away the moment he expressed a view on an issue that might have been raised by my hon. Friend the Member for Stone or me in the referendum campaign?

I think we have received genuine undertakings. Everybody wants a fair referendum, so let us not resort to the legalism of section 129—[Hon. Members: “Section 125!”] That shows my regard for legalisms, despite my being a lawyer: section 125 is very important! When we get to Report, let us take a considered look at what would happen if we threw the whole weight of the law at this issue and had one of Her Majesty’s judges adjudicating on whether the pronouncements of some Parliamentary Secretary in Brussels had broken the statutory injunctions and he should have been reduced to silence.

[Mr Richard Bacon (South Norfolk) (Con)]

May I say how much we are enjoying my right hon. and learned Friend’s speech? His casual wafting around of various sections, whether they are the right ones or not, reminds me of one of those lovely days when he said that he had not bothered to read the Maastricht treaty. Will he clarify something that seems to be a bit of a caricature? He says that the whole of Government would have to be closed down and that Ministers would not be able to engage in any business at all, but surely that could only possibly be true if the European Union was so involved in every nook and cranny of this country’s affairs that it could not possibly function without those relationships. Is not that the whole point?

[The Temporary Chair (Sir Roger Gale)]

Order. Before we proceed, in case there was any implied criticism, I have to say that, although the right hon. and learned Member for Rushcliffe (Mr Clarke) might be rambling around the European Union, this is a broad-ranging set of amendments. I have listened to him very carefully and he is, in fact, in order.

[Mr Clarke]

I hope I am not being too light-hearted, but this has been a long debate. I have already confessed that the issues have not engaged me as passionate issues of great principle to the same extent as they have engaged others. I was genuinely surprised to hear Eurosceptics take off and pronounce that there was a monstrous conspiracy in all the details. I am trying to reassure them that if there was any risk of a conspiracy, it could be laid to one side. I will treat the arguments with every due solemnity.

I am not saying that every Minister in the Department of Energy and Climate Change—although this might apply to them—or the Scotland Office would necessarily find that they could not do anything. It is not like during an election, when they would not be allowed to go into the office or take any decision of any kind, but the proposal could be very wide-embracing indeed. It is all very well for people to dismiss light-heartedly—though perhaps they are not speaking in the same tone as I am—the Prime Minister’s warnings that there would be a serious impact on the conduct of business, but I think that that is what would happen.

To repeat the point I made earlier: strict purdah stems from long before the statute was passed. It stems from the rules for a general election, and they are right. Once we get into the campaigning stage of a general election, the Minister is the Minister only if he or she is required to sign something that has to be signed. When an election comes, the party political Minister is prevented from taking any decisions. Nothing can be changed. The civil service goes into its totally non-political mode because the whole point of that election is to decide which political masters are going to return to the Department, so that eventually we again have a Government who are able to act.

What we are discussing is a referendum being held by a Government. It is part of the Government’s policy to hold the referendum. The Government have been negotiating a deal as part of their policy on reform to supplement the arguments in the referendum. The Government will continue to be the Government for the next three or four years and will have to live with the consequences of the referendum, so what is being argued is that these men and women and the civil servants who support them should all switch off for four weeks, stop having an opinion on these issues and, unlike my hon. Friend the Member for Stone and myself, the day after the election pretend that they now agree with the enlightened view of the electorate and that they are going ahead and taking all the decisions on whatever is now the position.

I am sure there is a balance to be struck. I would deplore it if the Government were to spend taxpayers’ money on sending out ridiculous pamphlets and so on. That would misfire. I expect the Government to be in favour of a yes vote. I will be campaigning for a yes vote. I do not want the Government to squander taxpayers’ money and plainly abusing their position by putting out material that I might not wholly agree with anyway. The electorate would react if it was obvious that the Government were resorting to using the machinery of government for campaigning. But the statute is too severe. I hope we will not all get carried away and that we will allow my right hon. and hon. Friends the chance to come back with a sensible compromise.

Let me move on. I am sure the Whips will be very happy, but I am taking rather longer than I intended. I am attracted by the Opposition amendments, although I am not going to support them, as I shall explain in a moment. The shadow Minister, with unusual naiveté, seems to believe in evidence-based politics. He obviously believes that the more rational information is produced objectively and placed before the public, the more certain one can be that the correct result will be arrived at.

But this is politics. This is the European issue. Nothing of that sort has intruded into the debate on the European Union for the past 30 or 40 years, and it will not do so now. The Government have tried to move in that direction. The Foreign Office carried out the most objective study of the division of powers—the division of competences, in the jargon—[Interruption.] Precisely. I hear colleagues behind me shouting out, “Whitewash!”, by which they mean that the study came to the wrong conclusion, in their opinion. Evidence-based politics was rejected the moment it emerged. It could not find that the balance of competences, as negotiated by successive Ministers of all political persuasions over the previous 40 years, contained anything that was to the disadvantage of the British public.

The reaction was not to try to challenge any of these arguments with any new facts, but to try to bury the document, which most members of the public were never allowed to hear about. I suspect that it has not been picked up—it is pretty voluminous stuff—by very many Members of this House, let alone people outside, but it is a noble aspiration.

I have one serious reservation about what the right hon. Member for Wolverhampton South East (Mr McFadden) proposes. He suggests that those pre-eminently independent bodies, the Bank of England and the Office for Budget Responsibility, should be, as it were, enjoined by this Bill to produce those reports, which is quite attractive. I have the highest regard for the Bank of England and the Office for Budget Responsibility. We should all vigorously continue to ensure that their independence is maintained in every possible way, but there is a danger of politicising them. The Bank gives its opinions all the time, as most central Banks do, about the outlook for the economy, the latest statistics and the way things are unfolding. Central bank governors become notorious for talking a kind of obscure, slightly ambiguous mandarin language. That is precisely to try to avoid getting themselves immersed, which the Bank and the OBR would do if they seemed to be leaping into something that is a partisan opinion or appears to be a position of strong partisan support for one question or another.

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[Mr McFadden]

Briefly, on the issue of the Bank of England, we know that it is preparing such a report anyway. The issue is whether people will see it or not.

[Mr Clarke]

Precisely. If I were the Governor of the Bank of England—some might say thank the Lord I am not, though it is quite an interesting job—I would not feel I wanted to publish such a document because I would suddenly find myself in the middle of the most emotional political debate going on in the country, and that is not where the Bank of England should be. On that serious ground, I think the amendments are interesting and I hope I discover what the views of the Bank of England are. They will probably be leaked, although central banks should not leak. I do not think we should enjoin the Bank to produce what would inevitably be ferociously controversial documents.

I conclude as I began. I find all these debates a little bewildering. I have not the slightest doubt that the British public will not allow this referendum to be run on any basis other than that of reasonably fair objectivity on both sides, and we should beware of making the mistake of slipping into the Bill rigidities which, if we are not careful, will start causing totally undesirable results when the reality of the referendum takes place.

[Hywel Williams (Arfon) (PC)]

I support amendment 16 and new clauses 3 and 4 in the name of my right hon. Friend the Member for Gordon (Alex Salmond) and other hon. Members.

I hope I can welcome some clarification from the Government later on the question of holding the referendum on the same day as the elections in Scotland and the elections for the Assemblies in Northern Ireland and Wales. An aspect that has not received much attention is that of the effects of the franchise. EU citizens have the right to vote in our general elections in Wales and in Scotland. The Government here in London propose to exclude them from the referendum. If the referendum and the election were held at the same time, one can picture the spectacle in Northern Ireland, Scotland and Wales when EU citizens turn up to vote, cast a vote and then are cast out. They are being prevented from voting on our future in the EU. That spectacle would cheer the hearts of despots throughout the world, from Moscow to Damascus to Pyongyang.

On the declaration of the results and the so-called quad lock, there are particular EU issues pertaining to Wales. I would say that these are national issues. On Second Reading I referred to the value that we as a multilingual society derive from membership of a multilingual and multicultural European Union. This may not figure as largely elsewhere in the UK as it does in Wales—it is a particular Welsh issue.

Wales is one of the poorest parts of Europe—it is at the same level as some former Soviet bloc countries—and we have derived much benefit from EU regional policy. Again, that is of national significance to Wales. We are also very dependent on EU agricultural support. There are other issues relating to manufacturing and demography, but I will not go into those now. All those factors might or might not decide the result in Wales—I cannot say whether they will—but they are legitimate national interests and should be respected as such.

We have a particular national interest. It might be different from the national interest of our neighbours. As the Government intend, their national interest will trump ours. I think that there are only two ways to go on the respect issue: either to respect or not to respect. The current proposals potentially will not respect, which is why we will support amendment 16.