European Union Referendum Bill

Lord Collins of Highbury Excerpts

Wednesday 4th November 2015 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, indeed I can. The amendment to which the noble Lord, Lord Tyler, refers is a matter of access to the register. I can give an assurance that we have taken full account of the advice provided by the Electoral Commission.

[Lord Collins of Highbury (Lab)]

The Minister was relatively explicit about this, but I have a question in relation to Amendment 49 and the operation of the requirement to check registers in Gibraltar. I hear what she said about this being passed through the appropriate parliamentary procedures in Gibraltar, but it is a bit unique that we have another Government doing something. Of course, compliance with donations will require political parties to check properly. I wanted to be absolutely certain that we will be properly advised as to when that approval is given.

[Baroness Anelay of St Johns]

My Lords, that is a very reasonable point to make. As I mentioned earlier, with regard to Amendment 49, it is a matter on which the Gibraltar Government will bring forward legislation —not only in respect of this but on the wider issues of Gibraltar being part of the referendum franchise. I will happily undertake to inform the noble Lord by letter when that legislation goes through, and I shall pop it to other noble Lords who have taken an interest.

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[Lord Forsyth of Drumlean (Con)]

My Lords, I will speak to Amendment 37 in my name and that of the noble Lord, Lord Blencathra, and also to say how much I support the amendment just proposed by the noble Lord. I think that this might be a first in consideration of this Bill, but I think that it is a very sensible proposal.

Amendment 37 is following the same theme, which is ensuring that there is fairness in the conduct of the campaign. I was rather shocked this morning to read Hansard from the other place, where Mr Chope asked the Deputy Leader of the House of Commons to,

“confirm that the real reason why three independently minded former Ministers are being purged”,

from the Parliamentary Assembly of the Council of Europe,

“is because we voted in favour of a free and fair EU referendum with a strict 28-day purdah period, as recommended by the Council of Europe’s Venice Commission and our Electoral Commission?”.—[Official Report, Commons, 3/11/15; col. 887.]

I do not want to get involved in that particular row, except to say that Christopher Chope, Sir Edward Leigh and Cheryl Gillan are three very distinguished former Ministers, and I am very shocked that they should be removed from the Council of Europe, and even more shocked that it should be suggested that that is the reason for their removal.

I emphasise this point because, whatever the outcome of the referendum, it is important that at the end of it people feel that the Government did not abuse their position—whatever their position turns out to be—and that the campaign was conducted in a fair and balanced way. This, presumably, is why we have the Political Parties, Elections and Referendums Act 2000.

My amendment seeks to remove from political parties their ability, which arises from the 2000 Act, to spend money on the campaign itself. I thought that the whole point of having an Electoral Commission—which, incidentally, costs half the cost of the entire Royal Family—was to ensure that we had fair and balanced conduct of elections and referenda. That is what I thought it was about. I thought the whole purpose in having a designated campaign on each side with limitations on their expenses was to ensure fairness. But what do I find? I find that the Government have brought into the Bill the ability of the political parties to spend money in addition to the designated campaigns. In the case of the designated “in” campaign, it can spend £7 million; in the case of the “out” campaign, it can spend £7 million. That is fair enough; but then on the inside, the Labour Party can spend £7 million; the Liberal Democrats can spend £3 million; the Greens can spend £700,000 and the CBI and other organisations can spend £700,000.

The Conservatives have said that they will remain neutral—and it is very considerably to the credit of the Conservative board that it took that decision.

[Lord Collins of Highbury]

Did I not hear the noble Lord say that he thinks the amendment proposed by the noble Lord, Lord Hannay, is fair and reasonable because it is not right that people game certain situations? Political parties have a right to campaign on issues that they feel united about and on which they have had support from the electorate. If there is a problem with the Conservative Party, I do not see why the noble Lord should take that view and extend it to other political parties.

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[Lord Collins of Highbury]

The noble Lord should not assert something that is not true.

[Lord Forsyth of Drumlean]

What is not true: that Jeremy Corbyn is not leader of the Labour Party or that Jeremy Corbyn was not in favour of leaving the European Union? I will give way to the noble Lord if he tells me which statement is not true.

[Lord Collins of Highbury]

The Labour Party’s policy is perfectly clear. The problem we have in this debate is that the Conservative Party does not have a clear policy. I do not see why the noble Lord should impose, through his amendment, his problems on to other political parties, including the Scottish nationalists and other major parties.

[Lord Forsyth of Drumlean]

The noble Lord is suffering from the disadvantage of not having listened to what I am going to say. Perhaps when I have said it, he might want to come back on that point. I am simply pointing out that all these political parties have the ability to spend money in addition to the designated campaigns. If you add that up as it is set out in the Bill, those who wish us to remain inside the European Union will be able to spend £25.5 million and those who wish us to leave, together with the political parties—because UKIP will be able to spend £4 million—will be able to spend £11 million. That seems to me to be a tad unbalanced.

As the noble Lord knows, all political parties have people with different views on this matter. That is why we need to have a designated campaign, so that people of all political parties and persuasions can join together and make their case, whatever it is. This Bill, which raises the limits, makes the position even more unfair. Before the Bill, under the rules set out under the 2000 Act, the “in” campaign could have spent £20 million and the “out” campaign £10 million: twice as much for those who wish to maintain the status quo. As a result of this Bill, the figures are £25.4 million and £11 million —2.3 times as much. That simply is not fair. At the end of the day, as we know from American elections and elsewhere, the ability to spend money can have a marked effect on the result. If the campaign to stay in is successful, the last thing we want is people arguing that the referendum result was bought, that it was unfair and that it was led by big business and big money. I am surprised that the Labour Party, of all parties, is seeking to defend this position.

[Lord Collins of Highbury]

It is tempting to come back by asking what happened in the 2015 general election. Who had the most money? Do we call that into question? Who paid for it? I know exactly how much the unions gave the Labour Party, and I know how that money was collected. The corporate hedge funds gave money to the Conservative Party and enabled it to outspend every other party. Does the noble Lord not feel that that was unfair?

[Lord Forsyth of Drumlean]

My Lords, I know the noble Lord has never stood for election, so perhaps he is unfamiliar with this, but we have strict rules governing how much the parties can spend in general election campaigns. They are designed to ensure that we have fairness. What I am complaining about is that the rules in the Bill give an unfair and disproportionate advantage, and that the amendment to the Political Parties, Elections and Referendums Act makes that even worse. That seems completely unfair, which is why I suggest that we reduce the figures that can be spent by the various political parties. In the 2000 Act, that is done as a percentage of the vote. Originally, it was £5 million if a party exceeded 30% of the vote, £4 million if it exceeded 20% but not 30%, £3 million if it got 10%, £2 million if it got 5% but not more than 10%, and £500,000 if it got not more than 5%. If we reduce all these numbers to zero, we will have a fair and balanced campaign, which is what my amendment seeks to do. I would have thought that everyone in this House would be in favour of that.

[Lord Collins of Highbury]

The point is that the Conservative Party, under the PPERA, is able to spend up to £7 million on the referendum if it chooses to, as a registered participant. If it decides not to register, why should its decision impact on other parties which have policies and desires to campaign for in this referendum? That sounds undemocratic.

[Lord Forsyth of Drumlean]

I agree with the noble Lord, which is why I want to make sure that all parties cannot spend any money at all, and that the people who can spend the money are the designated campaigners, so that there is a fair basis. I beg to move.

[Lord Lamont of Lerwick (Con)]

The amendment of the noble Lord, Lord Hannay, has a lot of logic. I was amused, however, when he referred to how difficult it is to understand legislation that refers back to previous legislation. Exactly—and that is what a lot of us complain about with the European Union. The noble Lord may remember that, when the constitutional treaty had to be ratified by national parliaments, no comprehensive single version was available. Everybody had to refer back to previous legislation. In the case of the Czech Republic, the relevant documents had not even been translated into the national language.

That said, I very much agree with the points the noble Lord made, and I support his amendment. I would, however, very much like to support my noble friend Lord Forsyth. I am somewhat bemused by the intervention from the noble Lord, Lord Collins, who does not seem to take on board that we are talking about funding: about limits laid down by Parliament on the funding of both sides of the referendum. What surprises me—this is the issue I would like my noble friend to address—is that the Government simply decided to consolidate the PPERA into this legislation and did not introduce their own. They have, after all, amended various parts of the PPERA; they do not have to accept what is written into it as if it were tablets of stone.

I followed the debate in the House of Commons, which touched on this issue. The Minister in the Commons said that it is a good thing—that this is the first time we have had such comprehensive and far-reaching limits. Okay, but if you have limits they ought to be fair to the two sides of the referendum. Otherwise, why have limits at all? Would it not be better to let both sides raise what money they can and spend it? It seems to me there is a fundamental flaw in the proposal. The whole point of referenda is to deal with issues that cut across political parties; that is partly why we have them. I very much doubt we would have referenda if there were not constitutional issues that cut across different political parties. It seems perverse to say, just because a political party in a general election some time ago got 30% of the vote, it is entitled to X amount of money; and another party, which came third the time before and second last time, is allowed Y proportion of money. Why?

[Lord Collins of Highbury]

My Lords—

[Lord Lamont of Lerwick]

I will give way in a minute. If you are going to impose limits on spending, let them be fair between the two sides. After all, the government grant is equal for each side, and the limit on what the designated organisations can do is equal, one with the other, so why bring in political parties? Why say that because the Conservative Party won 30-plus% of the vote it is allowed to spend £7 million, because the Labour Party scored about 30%, it is allowed to spend £7 million, because UKIP got above 10% of the vote it is allowed to spend £4 million and because the Liberals, scored somewhere around 10%, they are allowed to spend £3 million? Of course, as my noble friend Lord Forsyth said, when you add them all up—let us exclude the Conservative Party, because it has said it is not going to fund either side in the organisation—there is a huge inequity between the limit on one side and the limit on the other. I find it very difficult to understand how this can be justified. I do not see the necessity of it. It would have been extremely simple, if the Government insist on having a cap on spending in the campaign, to have it the same for both sides. The noble Lord wanted to intervene.

[Lord Collins of Highbury]

No, no.

[Lord Lamont of Lerwick]

I am glad that I have his agreement—or perhaps I have not, but we shall hear in a minute. The provision seems fundamentally flawed. I do not see why the Government just picked up that legislation and incorporated it into this. It seems not to make any sense whatever.

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[Lord Pearson of Rannoch]

My Lords, as we are in Committee, I do not think that the noble Lord, Lord Davies, can prevent me from saying what I wanted to say at the end of the first part of his recent peroration. I would just like to confirm that I was not complaining about UKIP’s possible position, and I would like to correct the record. Of the votes cast at the last general election, the Conservatives got 36.9%, the Labour Party got 30.4%, UKIP got 12.6%—not a mere 10%, as the noble Lord, Lord Lamont, suggested—and the Liberal Democrats got all of 7.9%. Those are the correct figures.

Turning to the present amendment of the noble Lord, Lord Davies, I have to disagree with him in his suggestion that there should be a statement from the Government, not only for the reasons just put forward by my noble friend Lord Stoddart, but also, more generally, because I do not think that the British people are going to be able to trust the Government’s statement on this referendum any more than they could on the last one. I will add another example to the deception that my noble friend Lord Stoddart mentioned as regards the last referendum. In 1975, the Labour Prime Minister, Harold Wilson, made a promise that if we voted to stay in the then Common Market,

“there would be no loss of essential national sovereignty”.

Of course, we all thought that he meant that there would be no loss of sovereignty whatever, because we all thought that all sovereignty was essential. However, in a somewhat subtle—to put it politely—way, he did not mean that at all. What he meant was that there would be no loss of any sovereignty that he thought was essential. Since then, the British people have discovered that we have lost most of the sovereignty that he promised we would retain. So I really do not think that we want a statement from the Government, as in this amendment, but it would be perfectly in order to have a statement from each side.

[Lord Collins of Highbury]

I just want to correct a figure. It has been mentioned several times that the Labour Party will have the ability to spend £7 million, but, of course, the figures on the popular vote are slightly adjusted because of the Labour and Co-op Members, where there are joint parties standing. Therefore, the figure for Labour, according to the Electoral Commission, is 29.3%, which would give it £5.5 million. According to this, UKIP would have the ability to spend £4 million. Am I to understand that the noble Lord is in favour of his party, UKIP, being limited to spending £10,000?

[Lord Pearson of Rannoch]

My Lords, my party would like to spend as much money on this campaign as it can. I was looking at the suggestion that we should have 12.6%’s worth, that being our share of the votes cast in the last election. Personally, I am in favour of that, of course.

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[Lord Tebbit]

The noble Lord is terribly attached to this precedent. It is only one precedent from one occasion ever. To suggest that we cannot change anything that was done then because that set the precedent is totally absurd. I am a Conservative, but even I would not suggest that what had been done once would always have to be done again and again in vaguely similar circumstances. It is quite improper.

[Lord Collins of Highbury]

Is the noble Lord suggesting that the Prime Minister, when he goes to negotiate on behalf of the United Kingdom, will say to the other Governments, “By the way, I’m only representing half my Government; the other half may have a different view”? How does he expect the Government to conclude negotiations?

[Lord Tebbit]

I am terribly sorry, but I am afraid that the noble Lord misunderstands it. When the Prime Minister negotiates he speaks for the Government as a whole, but his evaluation of whether the negotiation is sufficiently good for us to remain in the European Union is another matter.

There will be views and views within the Cabinet—we are pretty sure about that. It is highly likely, is it not? We would have to have a leaflet that said, “The position of the majority of the Cabinet”—or the majority of Ministers, perhaps. I do not know whether it would include PPSs and all sorts of other people. Perhaps we could add in the spads, I do not know. However, it would have to say that there are others who take a different view. It is total nonsense. It is the product of a mindset that wants to set the thing up to be biased in one direction time and time again. Lord knows that the Bill as drafted is bad enough, but it would be a darned sight worse if we were to accept the amendment from the noble Lord, Lord Davies.

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[Lord Wallace of Saltaire]

My Lords, I have some familiarity with the previous negotiations on political funding and whether there should be a state contribution. The discussions on whether there should be public support for political parties had indeed taken on board the issue of how many votes each party got in the previous election, so the principle might well be taken, but the issue of caps on expenditure is not really one for a referendum which, I think, the out camp fears it may lose. It is a wider issue.

[Lord Collins of Highbury]

My Lords, it has been an interesting debate. One of the problems with referenda is that they assume there are simply two sides to an argument, when actually there are often lots of different opinions and reasons why people may wish, in the case of the European Union, to stay in or to leave. The interesting thing in this debate is that we have heard that UKIP will wish to argue its case strongly as a political party. We have heard the Conservative Party saying no, we are not going to do that. In effect, the amendment from the noble Lord, Lord Forsyth, will limit UKIP to £10,000—it will not be able to spend more than that—while if, for example, Unite registered as a participant, it could spend £700,000, as could any other organisation or individual if they registered properly as a participant.

The real issue here is how we have a fair political debate: how we ensure that all the different views in favour of remaining or leaving are properly expressed. It is clear, as we have heard, that there is a problem among those who want to leave. They do not appear able to reconcile their differences and come together as one—perhaps because they have absolutely different views about why Britain should leave. The Conservative Party has clearly not been very keen to sit on platforms with UKIP to argue its case, and certainly individuals within the party have not been keen to join in. The idea that political parties should absent themselves from this campaign is purely ridiculous.

[Lord Forsyth of Drumlean]

The noble Lord keeps repeating this. Nobody is suggesting that political parties absent themselves. I am listening carefully to his argument. If you decide to have a cap on expenditure, it has to be fair to both sides. If the noble Lord is arguing that there should be no cap, that is an entirely different position. The Government’s position—arising from the 2000 Act—is that there should be a cap. Therefore, it is not that the political parties cannot participate, but that the vehicle through which they participate consists of the two campaigns. If the noble Lord is arguing that there should be no cap, I can see where he is coming from, but he seems to be arguing that there should be a cap and that the available expenditure should be unbalanced. That is ridiculous.

[Lord Collins of Highbury]

Actually, I am arguing that all participants in the referendum should properly account for what they raise and what they spend, and that that be recorded and sent to the Electoral Commission. That is what I am arguing for. We have heard in the debate that somehow you can create a level playing field by setting a cap on the total amount spent. What, then, is the noble Lord saying: that the “remain” campaign and the “leave” campaign agree beforehand exactly what they are going to spend and then say that is what they are going to do?

I know what caps do. I, too, have had a debate about political funding, and some dialogue with the Conservative Party about funding election campaigns. The caps on spending were important in trying to stop this continual outbidding of each other, but no political party has ever reached the cap that has been set in general elections. The Conservative Party has consistently outspent the Labour Party in general elections. There certainly has not been a level playing field. There is only one way to achieve a level playing field: by saying that £20 million from the government purse will be provided for this campaign and that it should be divided equally and then spent.

I do not, however, think that that is what noble Lords want. What noble Lords want is a fair and open debate. Political parties have an important role in that and the idea that you can cap the Labour Party’s spending to £10,000 on arguing its policy—and it does and will have a policy—is absolutely ridiculous. It is not right or fair to the democratic process. My opinion is not simply that of my party; it is also that of the Electoral Commission. The commission says, first, that, irrespective of the cap, there can be no certainty that there will be equal resources. This is a bit like a general election, where we have had caps on spending but there has been no level playing field in respect of the money that can be spent.

The other aspect of this is that everybody’s talking as if £7 million, and £5 million, is going to be available. Political parties, however, will have to raise the money. They will have to account for it. This is what all the amendments in the first group were about: transparency. The public will be more interested in transparency than the notional caps that the noble Lords opposite are talking about. People will certainly want to know who is funding the yes campaign, but they will also want to know who is funding the no campaign—who is behind it: perhaps the hedge funds or the businesses that simply see an interest in being outside.

All these things are important, but, as the Electoral Commission has said, the number of participants on each side should not be artificially limited by rules. We have seen that UKIP will want to play its part in the referendum campaign and to put its case, irrespective of whether it participates in a joint campaign. I know that the Labour Party will want to put its case strongly in respect of the social dimension to Europe and how Europe has defended workers’ rights. I do not think that the Prime Minister will necessarily wish to be part of that campaign. We will put our case, and the idea that you simply limit the Labour Party’s spending to £10,000 is not acceptable.

I strongly support the amendment from the noble Lord, Lord Hannay, not least because—this is the strongest case for it—when this was considered previously it was thought appropriate to put it in the Scottish referendum. If it was appropriate for Scotland, why is it unnecessary for this referendum? Clearly, it is.

Regarding my noble friend’s amendment—we raised this issue in Committee on Monday—the Government will come to a decision. They will need to report that decision to the people of this country. It is important that the Government’s decision is not mediated solely through these campaigns, which noble Lords opposite seem to think will have a clear view about the reasons for leaving or staying. It is really important that the Government communicate with the electorate, so they understand what the Government have negotiated and can come to a conclusion. The argument that it can be mediated only through a yes campaign or a no campaign is not acceptable. The Minister may not accept my noble friend’s amendment but I hope the Government will think seriously about how the conclusions of the negotiations are communicated properly to the electorate without being mediated through a third party.

[Lord Forsyth of Drumlean]

Can the noble Lord explain where he gets this £10,000 figure from?

[Lord Collins of Highbury]

If you are not a permitted participant in the referendum, under PPERA you are limited to £10,000. That amount is also recorded in the Electoral Commission’s briefing, and I know that the noble Lord is very keen to support the role of the Electoral Commission.

[Lord Forsyth of Drumlean]

I would have thought that,

“£500,000 in the case of a person or body falling within section 105(1)(b) but not designated under section 108”,

might apply.

[Lord Collins of Highbury]

Political parties are treated differently, as the Minister indicated at the outset. The fact is, they are different. They are covered, as she said, by separate elements of PPERA. If political parties do not register as participants in the referendum, they will be limited to spending £10,000. I do not have to answer for the Conservative Party but, in effect, by advocating this amendment noble Lords are saying to local Conservative associations, “You cannot use your office, your staff or your resources in this referendum campaign because if you exceed £10,000, the Conservative Party will be acting illegally”.

[Lord Lamont of Lerwick]

I have tried very hard to follow the noble Lord’s speech. I still do not understand the £10,000 figure, but going back a bit in his speech, he expressed himself as being strongly in favour of caps in general elections—fair enough. If we are to have caps in general elections, should they not be the same for all political parties?

[Lord Collins of Highbury]

I do not know that I strongly expressed my support for caps. I said I thought they had a function and a role. Actually, what the public demand of our political parties is greater transparency. The noble Lords opposite constantly refer to the trade union movement supporting the Labour Party. Every single penny of that money is properly accounted for under a range of legislation, including the trade union Acts that cover the establishment of political funds, but I am not so sure that is clear in the case of some company donations, the origins of which can be obscure and unclear. For me, the most important thing in funding is transparency.

I am a strong advocate of capping donations, which is far more effective than having a cap on spending. Caps on spending have not been particularly effective. As we have seen in every general election since PPERA was enacted, no political party has got anywhere near the spending cap. But capping donations—limiting how people might influence policy—is much more effective. When the Committee on Standards in Public Life held an inquiry into the funding of political parties, I argued that we should have a cap of £500 on political donations because members of the public would understand that amount. Most members of the public would find it incredibly difficult to raise £50,000, which was the amount suggested by the Conservative Party. Not many members of the public would be able to donate that amount. But if you had a cap of £500, most members of the public would say, “Yes, that is a reasonable amount”. But that is the debate: it is more effective to have caps on donations than on spending. No doubt we will return to that debate some other time.

[Lord Pearson of Rannoch]

My Lords, I think I heard the noble Lord say that he assumed UKIP would want to take part in the referendum campaign, and of course it will, but I should just confirm what my great leader Nigel Farage has said: he sees UKIP as an important but cohesive part of the eventual campaign to leave the European Union. That is where UKIP is on that one.

[Lord Collins of Highbury]

I am glad to hear that but at the moment it does not look as though there is a single campaign. If the Conservative Party and UKIP unite as one, so be it. The public will no doubt take account of that. But the business currently before this House is an amendment that says to UKIP, “If you register as a political party, you will limited to £10,000”. I am not sure that would cover Nigel Farage’s flights around the country, so I think he will be concerned about that.

[Lord Hamilton of Epsom]

On the question of the designated organisation for leaving, does the noble Lord not accept that there are members of the Labour Party who are members of this? It is not a Conservative organisation; it is completely cross-party.

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[Lord Collins of Highbury]

I have no doubt that individuals within political parties will wish to campaign one way or the other. I have absolutely no problem with that but I do have a problem with the idea that the Labour Party—like UKIP—is not entitled to have a policy or to be able to campaign on that policy and articulate its own message. I admire the Prime Minister. I admire his ability and I hope very much that he will use his extensive negotiating skills to achieve a settlement that will be in the best interests of this country. But that will not stop the Labour Party arguing its own view about Britain’s national interests, which will not be related solely to the reasons that the Prime Minister has. That is why it is really important that political parties have the right to campaign properly.

PPERA sets limits on what political parties can spend on a specific campaign. I am familiar with the requirements of PPERA. I am familiar with the quite onerous responsibilities of political parties, not least that they have to make sure that every single donation received is from a permitted donor; they have to double- check and cross-reference. Errors have been made in the past, I know. But we have to understand that this debate is about a cap on the ability of parties to campaign and that is why it is so important that we resist it.

As for all the questions about who has what, I am sure the Minister will clarify all the positions that I have set out. It is not for me to argue—this is a government Bill—but I am sure she will do so well.

[Baroness Anelay of St Johns]

My Lords, Amendment 34 in the name of the noble Lord, Lord Hannay, would allow the Electoral Commission to designate a lead campaigner for one side of the argument at this referendum without having to appoint one for the other. This would override the current rules that apply for designated lead organisations. These provide that the commission must designate a lead campaigner on each side, or not at all. The reason for this is clearly, as noble Lords have argued tonight, that in such matters there should be as fair a playing field as possible.

In the case of multiple applications for designation as a lead campaigner, the Electoral Commission must appoint for each side the applicant which represents “to the greatest extent” those campaigning for a particular outcome. This is intended to ensure the designation of organisations which represent the broad spread of opinion on each side. The benefits then available to the designated lead organisations ensure that each side of the argument has a fair opportunity to put its case to the wider voting public. Taken together, these provisions aim to ensure informed voting after a vibrant debate.

However, the rules for this referendum must also ensure that the referendum is run fairly and that we do not create any perception of bias. The principle that the Electoral Commission cannot designate on just one side is intended to support that objective. The benefits available to the designated lead organisations are significant. I am talking not about political parties per se—they may not end up being designated as lead organisations—but organisations designated by the Electoral Commission as lead organisations.

Allowing public funds to be used to create a distorted campaign with only one designated lead organisation would naturally raise public concern. This would clearly be the case where the commission receives applications from both sides but does not consider that those on one side meet the statutory tests. Under the amendment of the noble Lord, Lord Hannay, in this circumstance the arguments of the side that does not get appointed would not get a fair hearing. The administrative failings of those who failed to meet the statutory test should not invalidate the right of both sides to an equal opportunity to make their respective cases.

There is, of course, the view that this amendment may help avoid a circumstance where one side deliberately refuses to apply for designation to prevent the other side receiving its benefits. This could occur, for example, if one side lacks the funding to take advantage of the benefits, particularly the higher spending limits, or wishes to avoid debate on an issue of low public interest. I do not think any noble Lord is going to suggest that this case will be a matter be of low public interest. That is not going to be a feature of this referendum. Given the public interest in the referendum, a more cynical attempt to deprive the other side of the benefits of designation surely would be widely reported and deeply harmful to a campaigner’s own cause—it would be seen as being a cheat.

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[Baroness Anelay of St Johns]

My Lords, I think there is some confusion between the issue of a political party carrying out a campaign and a designated lead campaigner. If my noble friend is saying that there should be a level playing field with regard to the sums of money to be spent on each campaign, that would be saying that the designated lead campaigners, if they were not a political party, would have to have a total sum of not only what they spent but what every single other person in the country who agreed with them spent. I really do not think that that is what he is trying to achieve. I accept that my noble friend is trying to introduce a discussion about apparent unfairness in the funds available to political parties. I think that that is a debate for a wider issue as to what political party funding may comprise.

[Lord Collins of Highbury]

I am seeking explanation only because the Minister referred to the designated campaigns earlier. This debate seems to be solely about the ability to spend money, but other things come with being a designated campaigning group, not least the right to free mail and other access. Can the Minister explain that, so we understand the importance of it?

[Baroness Anelay of St Johns]

My Lords, I will jump to a little later in my speech and just say that the designated lead campaigners are entitled not only to the spending limit which has been the subject of this debate but to a grant from public funds of up to £600,000, free delivery of mailings to every household or every elector, eligibility to make referendum broadcasts and the use of public rooms. I hope that is helpful.

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[Baroness Anelay of St Johns]

My Lords, I do not think that the Committee would wish to contemplate even further legislation, but I can certainly contemplate further consideration on the basis of what the noble Lord has said. I have to say that I thought we had considered properly before today, but of course I always listen to the points made by the noble Lord and am prepared to do so before Report.

[Lord Collins of Highbury]

I have a question for the noble Lord about the potential risk. My understanding is that the risk is not simply gaming on the part of one side to deprive the other of funding. We constantly talk about funding when, actually, it is access to broadcast, access to free mail and all the other things that go with being a designated organisation. In evaluating the risk, does the noble Lord recognise a difficulty? Say, for example, there is no consensus among the leave campaign, so we end up with three, two or four organisations. Is the Electoral Commission, in those circumstances, permitted to decide on the merits of two or three, or does it have to say there is no lead designation?

[Lord Hannay of Chiswick]

I am not knowledgeable enough to answer the noble Lord’s question. I shall come to the Minister’s last intervention, which was helpful, in a minute, but I think she underestimates the range of possibilities.

Of course, our own Constitution Committee has raised the issue of gaming and that must be one risk, but I think there are other risks. One concerns whatever attempt the Electoral Commission makes to come to a conclusion about the designated organisation on the leave side. I do not think there will be any problem on the remain side—I cannot be certain about that, but I do not think there will be; it does not look as though there will be—but on the other side there is obviously the potential for a really serious problem. There are already two organisations, a third is said to be going to enter the fray, and if these organisations go on slugging it out and the Electoral Commission tries to adjudicate, the matter could then go to judicial review. The decision of the Electoral Commission could be appealed on judicial review. That would mean, as the present law is drafted, that the remain campaign would be deprived of all the advantages that exist for a designated organisation. That is pretty serious, frankly. What I feel is unreasonable about this is that, were this amendment accepted, none of that would happen.

I accept the noble Baroness’s offer to take this away and reflect further; she is always extremely fair in her dealings with the House. She has said she will go away and consider this further and that there will be further contacts with various noble Lords who have tabled amendments. We have a little time before Report, but I honestly think that the risk, even if it is a 1% risk, should be dealt with here and now. The case for that is pretty strong. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pearson of Rannoch]

I accept that; but if they knew they were going to lose the money if they spent it, they might be less inclined to spend it.

[Lord Collins of Highbury]

Of course, in the other place the Opposition resisted strongly the disapplication of purdah provisions and the other place agreed with that. Therefore, our position is quite clear. Obviously, however, Clause 6 was agreed to in the other place. I hear what the noble Lord, Lord Forsyth, is saying, but I am not sure that I quite understood his interpretation of the noble Baroness’s remarks. There is clear indication that there is no intention to lay regulations. There may be a risk, but we do not know: there are unforeseen circumstances. I am assuming that Clause 6 will be retained, and we would support that if it enables the Government to respond to something unforeseen. I assume that is what the noble Baroness is saying, and that is why we would support that. I am certainly sympathetic to the views expressed by the noble Lord, Lord Kerr.

[Lord Forsyth of Drumlean]

Before the noble Lord leaves that point, could he give one example of something that might justify making the regulations?

[Lord Collins of Highbury]

I fear I might sound like Donald Rumsfeld if I did—talking about the unknown unknowns and the known unknowns—and I will resist the temptation. I will leave it in the capable hands of the Minister to give those examples.

However, this group of amendments gives rise to some issues, including how we define the actions of Ministers and special advisers, and the question of acting in a personal capacity. I fear that all these things are incredibly difficult to prescribe, not least: when is a Minister not a Minister; when is a spad not a spad? What about when they are working at home at weekends? The situation is clear with matters such as having no government transport, or no paid facilities when campaigning.

[Lord Hamilton of Epsom]

The noble Lord asks, when is a spad not a spad? A special adviser is paid as a civil servant, so surely he should never get involved in matters such as a referendum.

[Lord Collins of Highbury]

The difficulty is in the name itself. A special political adviser is not like a civil servant, though they are governed by certain Civil Service rules. Let us talk about Ministers—when is a Minister not a Minister? Such things are very difficult to legislate on, so there are problems. When special advisers are members of political parties, they are often engaged in political discussions. It seems very difficult to legislate in this Bill about how we govern them.

A good point is being made about the question of EU institutions. The Electoral Commission, which the noble Lord, Lord Forsyth, has quoted, has said that although we cannot necessarily legislate about these things, we can ensure that there is clear guidance agreed between the parties. That is a good idea.

On Amendment 55, we would appreciate the Minister repeating her assurances that normal business can be conducted and that the requirements of Section 125 will not impinge on that. The noble Lord, Lord Forsyth, has quoted the Electoral Commission, which is satisfied that the Scottish and Welsh Governments and the Northern Ireland Executive are covered by the requirements of Section 125. However, the noble Lord made a very good point about regulations and sanctions. In fact, the perpetrators do not get fined—it is the victims who get fined and the taxpayers who pay for the offence. That is something we need to look into, but I am pretty certain that clauses in a Bill are not the appropriate way to do so. We have had debates recently about the Ministerial Code. Perhaps we could table another quick amendment to ensure that what is required of Ministers is clear. That could also apply to Civil Service codes. It is within the powers of the Government to act on what the noble Lord, Lord Forsyth, is seeking, without necessarily supporting his amendment.

[Baroness Anelay of St Johns]

My Lords, in my opening speech to this group of amendments I set out the Government’s position on Section 125 of PPERA and Clause 6 of the EU Referendum Bill. This is a complicated group of amendments, so I suggest that I take them sequentially as much as possible. I will further elucidate the position on Clause 6. In particular, the amendment tabled by the noble Lord, Lord Kerr of Kinlochard, has assisted the debate today and I am grateful to him—I know that it was his intention to facilitate a debate in the House in a constructive way.

Amendment 38, tabled in the name of my noble friend Lord Hamilton, relates to the involvement of Ministers, departments and local authorities in activities for referendum purposes in the 28 days before the referendum. I can assure my noble friend that his proposed amendment duplicates to a certain extent provisions already included in the Bill.

Section 125 of PPERA places restrictions on publicly funded bodies and persons from publishing certain material in relation to the referendum in the final 28 days of the campaign. The restrictions of this section will apply, in full, following an amendment made on Report in the other place, which was referred to by noble Lords. These restrictions will apply not only to Ministers, government departments and local authorities, but also to other publicly funded persons and bodies. The Government have consistently been clear that we will not undertake any campaigning activity during the 28-day restricted period.

In addition, Ministers and civil servants, including special advisers, are subject to purdah guidance which will be issued in advance of the restricted period. This guidance will reflect the statutory provisions. Special advisers are covered. In line with long-standing precedent and convention, this guidance will make it clear that Ministers and civil servants, including special advisers, will not undertake campaign-related activity during the 28-day period. I hope my noble friend will understand that we do not support his amendment as it specifically relates to special advisers. It is already there—it is dealt with by Section 125.

Ministers acting in their official capacity, advised by special advisers and other civil servants, will be prohibited from publishing certain material in relation to the referendum in the final 28 days of the campaign. A publication by a special adviser on behalf of a Minister would also be covered by the prohibition. The role of special advisers is set out in the special advisers’ code of conduct. This code includes clear provisions in respect of special advisers’ involvement in national political activity. They will be subject to the purdah guidance that will be issued to departments ahead of the 28-day restricted period. Any campaign activity that might be undertaken by special advisers must be in their own time, outside office hours and without the use of government resources. They cannot think they can do it while on annual leave; that does not work. If a special adviser wanted to campaign full time or publicly, they would first have to resign from their government post. It is right that special advisers are able to undertake other activity in their own time and without the use of official resources. My noble friend’s Amendment 38 would inhibit their ability to do so and we believe it would place unfair restrictions on this particular group. I hope my noble friend will understand that I do not support his Amendment 38.

My noble friend’s Amendment 39 relates to the role of the EU institutions. It seeks to prevent the EU institution donating to permitted participants or directly campaigning at the EU referendum. Turning first to the issue of donations, I understand my noble friend’s concerns. This is a debate about the UK’s membership of the EU, and we need sensible controls on who can spend money to influence the outcome. As we have already discussed on previous groups, PPERA provides controls on spending and on foreign funding of permitted participants. Broadly speaking, the list of those eligible to donate to permitted participants is the same as the list of permissible donors to political parties as set out in PPERA. However, we have extended the list to take account of the inclusion of Gibraltar in this referendum and to include the bodies that since the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act have been eligible to become third-party campaigners at elections. Significantly, this means that permitted participants cannot accept donations of more than £500 from anyone who is not a permissible donor. The list of permissible donors does not include the European institutions. My noble friend referred to the European Communities Act 1972, but the provisions of that Act have no bearing on this. I can assure my noble friend that it does not provide the European institutions with a get-out. Permitted participants cannot accept donations of more than £500 from the EU institutions. It is banned.

My noble friend’s amendment aims further to prevent the EU institutions, including the European Commission, campaigning at the referendum. I am sure my noble friend is aware that under the European Union Referendum Bill the EU institutions are not on the list of those eligible to register as a permitted participant. In relation to campaigning, the Bill does not place controls on the activities of the EU institutions directly, which I know is my noble friend’s concern. That is because our national legislation does not regulate behaviour outside our jurisdiction, but also because if the institutions are operating within our jurisdiction, they are afforded immunities and privileges under EU law. We recognise my noble friend’s concern, which is shared by others, but we believe that the best way to prevent the EU institutions influencing the outcome of the referendum is through a process of constructive dialogue. I can assure the Committee that Ministers are already deeply involved in just that.

I now turn to the amendments which relate to Clause 6. I shall again go sequentially for the moment and then deal with Clause 6 as a whole. I have already explained the history of what happened to Clause 6, so I shall not weary the Committee by doing it again. My noble friend Lord Hamilton has expressed further concern about the clause. He explained that Amendment 52 provides that the Government must obtain the consent of the Electoral Commission before making regulations under Clause 6. The clause as it stands requires Ministers to consult the Electoral Commission prior to making regulations. This is consistent with other provisions in electoral law that require the Electoral Commission to be consulted on proposed legislative changes. However, Ministers are not obliged to obtain the Electoral Commission’s agreement, and we do not think it is necessary to take a different approach for the EU referendum.

My noble friend Lord Hamilton tabled Amendment 54, which removes subsection (8), to ensure that we do not go back on our word that we will not reintroduce the exemption from purdah. As I understand it, he thinks that subsection (8) would give the Government the opportunity to reinstate the original exemption from purdah. I assure him that the way Clause 6 is drafted means that the subsection he is worried about would give powers to act only in matters not related to Section 125 or to matters of purdah. We do not intend to abolish purdah. Subsection (8) simply does not give the Government the power to do that.

My noble friend Lord Forsyth kindly indicated that he would not proceed with Amendment 53, so I hope he will allow me not to cover that now. He asked me for clarification on my statement at the beginning with regard to the proposals about Clause 6. I repeat that we do not plan to bring forward any regulations under the provisions of Clause 6. At the moment, we do not see the eventuality where we would wish to do so. We have considered this very carefully, and I will refer to that again when I refer to the amendment of the noble Lord, Lord Kerr. I shall subsume the two amendments.

Amendment 55, tabled by the noble Lord, Lord Kerr, seeks to ensure that normal government business, including business between the Government and the EU institutions, is not covered by the restrictions that will apply to the Government in the final 28 days. The noble Lord has given the Government the opportunity again to look very carefully at the estimate of the level of risk to government business. I can assure the Committee that the Government have been considering these matters very carefully since the consideration in the House of Commons at Third Reading earlier this autumn. We have considered this in great detail from that moment, we continue to do so and we listened to this House at Second Reading. The Government agree that there is a risk that Section 125 may give rise to legal challenge because it is so widely drawn. That is still our position. We tabled an amendment in the other place, which was not accepted, and we live with that decision by another place.