European Union Referendum Bill

Lord Hamilton of Epsom Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I raised this issue in Committee, but in the debate it was made pretty clear that my previous effort did not work because it had the effect of preventing political parties from spending any money at all. I do not want to repeat the arguments that we had in Committee, but what this is about is tackling the basic unfairness which the Bill creates for spending limits between the two camps—the leave and the stay camps. As the Bill is currently drafted, it will mean in practice that those who wish to campaign to stay in the European Union will have more than twice the funds to spend of those who wish to campaign to leave. Perhaps I am a bit naive, but I thought that the whole point of having expenditure limits was to ensure fairness so that no party, whichever side it is on, is able to outspend the other unfairly. Yet what the Bill does is to enshrine in legislation as an absolute fact the ability of the stay campaign to spend more than twice what the leave campaign can spend.

This arises because, although the Bill provides for equal expenditure for the two designated campaigns, the political parties are able to spend money at similar levels according to the share of the vote that they got at the last general election. I just do not understand why the amount that the political parties can spend on the referendum campaign should be related to the votes they got at the last general election. In the case of the Conservative Party, many of the people who voted Conservative will have wanted to leave the European Union. To be fair to the Conservative Party, it has decided that it will be neutral during the course of the campaign.

I suppose it could be argued that the Labour and Liberal Democrat parties have no money because they have been bankrupted by their efforts in the election campaign and therefore that this is not something to be too concerned about. But that does not stop people giving money to those parties in order to support the campaign that wishes to stay in the European Union. This seems to go to the heart of what these limits are about. My first question for the Minister is: if we cannot devise a way in which the limits ensure that both campaigns are treated fairly and are able to spend the same amount, what is the point of having the limits at all? Further, why should these limits be related to the vote at the last general election?

I noted that the Electoral Commission sent out a missive to us all suggesting that it could not support this amendment. I had a word on the telephone with the nice lady who sent out the press release and asked her to explain why the Electoral Commission was not concerned about the issue of fairness. She said that it was a matter for the political parties and not something that the commission could concern itself with. I asked her to send me a brief indicating what the position of the commission is on these issues, but I have to say that it has not come in time to discuss the amendment—which I suppose could be because the commission is short of resources. It does actually cost as much as half the cost of the Royal Family; it is a very expensive quango indeed, and I would have thought that it would have been able to find the resource to think of a way to ensure that there is fairness in the funding of these campaigns. Rather naively, I thought that the reason we are spending £25 million or £26 million of taxpayers’ money every year on the Electoral Commission is so that it can ensure that elections and referenda are fair. But apparently the commission cannot think of anything and it is not its job to do that, it is up to the Government.

At an earlier stage my noble friend said that it was quite difficult to make this work. I did not draft the legislation and I did not suggest the limits. I cannot for the life of me understand why we should have limits which have the perverse effect of creating a great unfairness. Earlier in our consideration of amendments today, my noble friend Lord Faulks made a really important point. He said that it was very important at the end of the day that everyone accepted the result of the referendum and that no one could cry unfairness. I do not know how, if it turns out that one side is able to spend two and a half times or 2.3 times as much as the other, it will be possible for the Government to avoid the accusation of unfairness.

Some people say, “Actually, how much you spend does not have much of an influence”—in which case, why have spending limits? The perverse effect of this legislation, as it stands, is that it will limit the amount that those of us who wish to leave the European Union can spend, simply because the political parties have taken a particular view. In the case of my own party, where the leadership has a particular view that seems to be towards staying in the European Union, the vast majority of the members would take the opposite view. It could be argued—I do not want to tread into the dangerous territory of suggesting that there is some kind of operation going on here—that the decision to make the Conservative Party neutral was to avoid the embarrassment of finding that the money which it could spend, some £7 million, might have gone to the leave campaign.

I know that my amendment may not be perfect. I know that the Electoral Commission cannot possibly take on this role because it does not have the resources even to explain why it cannot take on the role, or how it could ensure fairness if it did take it on. I think that my noble friend needs to think about this from the point of view of ensuring that we have a fair campaign and that we do not have all kinds of abuses happening. We can see, for example, that people might be tempted to fund the political parties that wish to stay as a way of getting round the limitations that are put on expenditure that would otherwise be available to the campaigns.

I apologise for raising the issue again, but I have produced a different amendment which approaches it in a different way. I am not as clever as my noble friend and I certainly do not have the resources of the Electoral Commission, so I cannot believe that between them they could not devise a way to ensure that we have a limit on expenditure that is fair to all parties. I beg to move.

[Lord Hamilton of Epsom (Con)]

I very much support my noble friend Lord Forsyth in his amendment. He mentions that, because we have this completely disparate allocation of funds, we may have a rather ridiculous situation. Let us suppose that a Conservative donor wants to donate towards staying in. He cannot donate to the Tory party because it is neutral and is not allocating funds in either direction, so he may end up giving funds to the rather bankrupt Liberal Democrats as a way of getting his funds into supporting the staying-in campaign.

The real problem with all this is that the results of the last election are completely immaterial. Why should somebody who is Labour vote to stay in? I can tell noble Lords that hosts of Labour supporters will vote to come out. Even some members of UKIP will vote to stay in. This will break in every direction. The Liberal Democrats are these fanatical pro-Europeans. Their supporters, who I know well down in the West Country, are not fanatical pro-Europeans. Many of them were extremely tempted to vote for UKIP in the last election. The reasons are: they are chapel, anti-establishment and do not terribly like the major parties either way round. The Liberal Democrats know that well but they have a leadership in the country that is completely unrepresentative of their members and voters all around.

This is the problem: all parties will break in different directions, so what on earth are we doing basing the financing of an in or an out campaign on the results of the last election? It is completely irrelevant because everybody will vote in different directions. They will be influenced by a lot of different factors. It is inconceivable how we could have dreamed up this extraordinary funding system, which allocates a lot more money to the “stay in” campaign than it does to those who want to pull out. We know the figures: £7 million for each— £7 million for the Labour Party because it seems to be pretending that all its members want to stay in. Then the Liberal Democrats get £3 million; the CBI and the SNP will allocate their funds for staying in. That comes to more than £11 million. What have we got on the other side? We have £7 million for the allocated body, then we have £4 million for UKIP, which makes £11 million, so you have £11 million against £18 million. This is supposed to be a fair, level playing field but the financing of it is completely skewed. Everyone will say that money was used to completely skew the result.

[Lord Forsyth of Drumlean]

It is £11 million to £18 million only because the Conservative Party is remaining neutral.

[Lord Hamilton of Epsom]

My noble friend is absolutely right. If the Conservative Party had decided to support the “staying in” campaign it would have been £25 million to £11 million, which is extraordinarily disproportionate in the circumstances.

I do not know what the thinking is behind this. I cannot understand where everybody is coming from. This is a referendum on whether we stay in the EU or whether we leave. It is nothing to do with how we all voted in the last election. How can the whole basis of financing be based on that? It is quite beyond me.

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, I support the amendment because it is absolutely necessary. I support it very much because I took part in the last referendum in 1975. The claim that those of us who wanted to come out at that stage have always been able to make—of course, some, like myself, remain of the opinion that we should come out as soon as possible—was that we were on the outside, outgunned in finance by £20 million to £1 million. That was why the in side was able to convince the people that they should remain—by money, not by any other means. In spite of that, 33% of the voting population voted to come out, so there is all to play for when we get to the referendum.

It is important that we get balance. The system that has just been outlined, where the funding is dependent on the votes cast in the last election, is absurd. What is even more absurd is that the Conservative Party, which would get about £9 million, I think, is not going to use it. I have never had much respect for the thinking of the Tory party, but this really takes the biscuit. We have a party led by a Prime Minister, who is negotiating with his partners in Europe and is apparently agreeing with his party that it should be outspent by the other parties. That seems absolutely crazy. I would have thought that the Tory party would be up in arms about it, sending in resolutions, demonstrating outside the headquarters and all that sort of thing so that we could have a bit of fairness.

So I agree with this amendment and for other reasons, too. In 1975 the Tory party campaigned to stay in Europe, as of course did the Liberals—I think they were called the Liberals then, not the Lib Dems—and big business. I well remember that Sir Donald Stokes, who later became Lord Stokes, wrote to all my former constituents in Swindon, because there was a BLMC factory there, warning them that if they voted to come out their jobs would be at stake. That, of course, was a lie because at that time we had a surplus in car exports to the continent. However, by 1975, we were in deficit. That deficit had grown to a huge figure of £69 billion overall per annum. My constituents were told not only by Sir Donald Stokes but by those running other big businesses in Swindon and elsewhere that coming out would harm their prospects. Of course, that is where the big money came from—big business.

It is essential that there should be fairness between the campaigns. The amendment of the noble Lord, Lord Forsyth, would ensure that that happens, or at least go a long way to do so. If it does not, once again we will hear the losing side say, “We were outgunned by the others on finance”. Therefore, I hope that the Government will accept the amendment. The Tory party may be able to exert influence over the Government by saying to them, “Look here, you have this opportunity. You really must take it so that there is a proper balance between the parties during the referendum”.

[Lord Willoughby de Broke (UKIP)]

My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. I declare my interests as a member of UKIP and a dedicated “outer”. I am not sure which members of UKIP the noble Lord, Lord Hamilton, thinks will vote to stay in. I hope he was not referring to my noble friend Lord Pearson. I assure the noble Lord that he definitely wants us to get out. I cannot imagine that a UKIP member would vote to stay in the EU.

Leaving that aside, on all the previous amendments the noble Lord, Lord Faulks, rightly made the point that this referendum needed to be seen to be fair. He has said that on several occasions today and in Committee. However, regardless of who wins or loses, the referendum will be seen to be manifestly unfair if one campaign, whether in or out, is preponderantly better financed than the other. I do not agree with the noble Lord, Lord Stoddart, who seemed to imply that just because an organisation has less money, it will lose. That is not necessarily the case at all. Even if we have a few pounds less than the “stay in” campaign, we will still win. However, it would be much nicer and better, and would be seen to be fairer, if the campaigns had equality of financing.

[Lord Hamilton of Epsom]

Surely the real problem is that if the “stay ins” win the referendum by a very narrow margin, and they are seen to have been financed much more heavily than those who want to leave, those who want to leave will cry foul and say that the others won because they had more money. Whether that does the trick at the end of the day is debatable, but the fact is that it would be used as a reason to say that the referendum was completely slanted in the direction of the people who wanted to stay in.

[Lord Willoughby de Broke]

The noble Lord is absolutely right. I do not disagree with him, but it reinforces the point of the amendment of the noble Lord, Lord Forsyth, that we need equality of financing, however that may be achieved. That is up to the Government, I hope, in spite of the Electoral Commission’s worst efforts. We do not seem to be getting anywhere with the Electoral Commission so the Government ought to take this amendment seriously and look at how they can reallocate the financing arrangements so that both the ins and the outs have the same amount of money to spend. It is not, as they say, rocket science. It is actually quite simple to do. That will eliminate the concerns that the noble Lord, Lord Hamilton, expressed, that either side may have cause for complaint at the end of the referendum. There has to be equality of financing so I very much support the noble Lord’s amendment.

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[Lord Collins of Highbury]

No, I would not because the Electoral Commission is trying to address quite a complex situation. A referendum is not a usual situation. Political activity in this country is predominantly, although not wholly, through political parties, and PPERA sets out all kinds of constraints and limitations on donations. It has created an environment of transparency, and spending limits.

My view is that spending limits are not particularly effective in establishing a level playing field, particularly when they are set so high and no one can ever reach them. That is why we have quite big imbalances in general elections. That is why the Conservative Party regularly outspends the Labour Party: it has at least 300 people who can give more than £50,000 a year to the party, which I suspect is why the party has in the past supported a cap of £50,000 on donations. Personally, I think the smaller the cap the fairer it becomes. You would then have to look at how to replace that money and what mechanisms to use to ensure that there is an allocation of public funds on a fair basis—hence, I suspect, why the Electoral Commission is using that methodology.

The fact is that spending limits are not the whole picture. What the Electoral Commission is trying to say to us is that the “remain” and “leave” campaigns are not the only participants. We are not going to silence everyone else in this referendum. We are not going to say to civil society, “You have no right to speak”, and we are certainly not going to say to UKIP, “By the way, you will have no right to spend money in this campaign unless it is through the official ‘leave’ campaign”. I do not think that it would tolerate that or accept it—I would not—but that would be the effect of the noble Lord’s amendment. We cannot be certain of what other people will be spending and we do not know the number of participants.

The rules should not be used to reduce the number of participants. That would be unfair and not democratic. I do not want to bang on too much about this, as I have given sufficient reasons why we will not be supporting this amendment, but it is clear that the amount of money available will not be determined by rules set out in the Bill. It will be determined by people donating and raising money. I do not think that even the Conservative Party, if it said that it would register, could put its hands on £20 million that easily. I certainly know that the Labour Party cannot put its hands on £9 million that easily. We have to understand that these are mechanisms to ensure transparency and accountability but they will not necessarily deliver fairness because the campaign is not designed that way.

[Lord Hamilton of Epsom]

The noble Lord says that the Labour Party cannot lay its hands on £9 million to fight the referendum. Why does he take this depressing view? Are there not a very large number of business people out there who are passionate to stay in the EU? They would be more than happy to finance the Labour Party, even if they are not Labour supporters. As long as the money goes into the “stay in” campaign, they would not care what label it comes under. Why is the noble Lord taking this despondent view that the Labour Party will not be able to raise the money?

[Lord Collins of Highbury]

I am not taking a despondent view. The Labour Party will no doubt raise a lot of money through a lot of individuals, as it does at every general election, and it will account for that. For me, the most important element of this referendum campaign is about who is donating—to have transparency on how much—not the idea that we should limit the campaign. This amendment would in effect limit the number of participants. I repeat the point about UKIP: if the “leave” campaign spends the limit laid out in this amendment, what is left for UKIP to spend? What if it has already spent it? Does it then have to hand all the money back?

The fact of the matter is that this campaign will be about a range of voices. The noble Lord, Lord Stoddart, talked about the 1975 campaign. I was a participant in that campaign and there were a lot of different voices in it. There were certainly voices that did not share the same platform; I think that will be true of this referendum campaign. The policy of the Labour Party and its views about the future of the European Union are not necessarily those of the Prime Minister and the Conservative Party. There will be different views and expressions of what they hope for the future, and we have to make sure that this referendum campaign is able to hear those different views. We should not have rules that limit it.

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Moved by

[Lord Hamilton of Epsom]

13: Schedule 1, page 17, line 19, at end insert—
“Restrictions on campaigning by the EU institutionsFor the purposes of the referendum, the following is to be treated as inserted after section 119 of the 2000 Act—
“119A Restrictions on the EU institutions
(1) Notwithstanding the European Communities Act 1972, during the referendum period, an EU institution must not incur referendum expenses or do anything else for referendum purposes.
(2) Notwithstanding the European Communities Act 1972, a permitted participant must not accept a donation from an EU institution.
(3) In this section, “EU institution” has the same meaning as in Article 13(1) of the Treaty on European Union.
(4) In this section, “for referendum purposes” and “referendum expenses” have the same meaning as in section 111 of this Act.””

[Lord Hamilton of Epsom]

My Lords, I shall speak also to Amendment 18. Amendment 13 is to do with the EU Commission and the EU generally in terms of financing, by one means or another, this referendum. We were reassured in Committee that there are two reasons why we should not worry about this. The first was that an undertaking had been made by the EU Commission not to interfere in this referendum and the second was that John Penrose had said in another place that the EU is not so stupid as to get involved in a UK referendum.

I agree with him on one thing: the EU is not stupid. Just to give an idea of how much it is intending not to interfere, it has an EU task force to do with the UK referendum which is made up of six administrators and two assistants. In 2014, the EU spent €560 million on self-promotion. The reason why it is not stupid is because it has spent money before interfering in other people’s referenda with enormous success. It spent €1.5 million to persuade the Irish to vote for the Lisbon treaty and €3.8 million over three years to persuade Croatia that it was a good idea to join the EU.

If you judge the EU, and the EU Commission particularly, on what they do rather than on what they say, the answer is that they have moved into the former offices of the Conservative Party in Smith Square. I have no doubt that there is a very large number of people sitting there, and do we really imagine that they are going to be sitting on their hands doing nothing during a referendum on whether the United Kingdom should leave the EU saying “It’s nothing to do with us. We’re completely neutral on all this. We’re just going to sit here and answer emails and provide information where it is requested”? Come on—let us live in the real world. In Ireland it went so far as to spend a very large sum of money on issuing 1.1 million pamphlets to the Irish about why the EU was such a good idea. The problem with all this is that the EU has set itself up so that it can interfere in our referendum, and because of the total lack of democratic accountability—

[Baroness Smith of Newnham (LD)]

My Lords—

[Lord Hamilton of Epsom]

I will give way in a moment. We cannot actually stop the EU interfering in our referendum because it is written into its treaties that it is allowed to spill out information at will and there is nothing we can do to stop it.

[Baroness Smith of Newnham]

My Lords, I believe that the noble Lord, Lord Hamilton, may be conflating two different things. The first is the period of renegotiation that Her Majesty’s Government are undertaking at present and the second is the referendum. My understanding is that the task force is actually to deal with the renegotiation, which is at the request of the Government, not an initiative of the European Union, and therefore is not an interference in the referendum. I also believe that such interference would be misguided; it would not be right for the EU institutions to be involved.

[Lord Hamilton of Epsom]

At the end of the day, the EU thinks that it is free to issue information. Information can take many different forms, and I do not see that there is anything that can be done. The Minister has already said that we cannot actually stop the EU financing activities because they are all done in the name of information—and what is the difference between information and propaganda?

[Lord Liddle (Lab)]

Is the noble Lord a regular reader of the Daily Express and the Daily Mail? Does he think that they provide objective, truthful information about the European Union?

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[Lord Hamilton of Epsom]

I have to say that that is an entirely different issue.

[Lord Liddle]

My Lords—

[Lord Hamilton of Epsom]

The noble Lord has intervened so let me answer his question. I think that the Daily Mail and the Daily Express have their own views, as do the Guardian and the Independent. We have a free press; it is up to them what they do. We are talking here about what the EU does to finance activities during this referendum.

[Lord Liddle]

My Lords, does the noble Lord believe it is wrong for the EU to provide factual information about what it does when in large sections of our press, which are foreign owned, lies are printed about the EU virtually every day?

[Lord Hamilton of Epsom]

As the noble Lord, Lord Liddle, will know well, factual information from the EU amounts to it advertising that it is spending inordinate amounts of money on different interest groups of one sort or another around the UK, as if this were all manna from heaven: “Gosh, you’re lucky, the EU has decided to spend some money on you”. What it does not bother to tell people is that it is their own money.

The great problem that Lord Joseph had when he was in the Thatcher Government was to persuade Ministers to talk not about “public money” that they were being so generous with, but about “taxpayers’ money”. He managed to hold that line for a time with the Conservative Cabinet, but quite quickly it drifted off and we got back to Ministers constantly talking about how incredibly generous they were being with “government money”, as if all this stuff came from heaven. Of course, half the government money that we have now is borrowed anyway. It is an absurd mentality to think that people can be generous with other people’s money and get credit for it. Why should they, when it is actually the money that they have taken off the people of this country? We must live in the real world.

Amendment 18 is about purdah. The problem with purdah, as we all know, is that the Government are arguing that they have to allow the normal functions of government to continue. Obviously that is quite justifiable, but the point of my amendment is to restrict what can be done with regard to purdah. To return once more to my noble friend Lord Forsyth’s argument that this has to be seen to be a fair referendum, our worry is that we should not, as we did in the Scottish referendum on independence, suddenly have an enormous initiative from the Government to try to swing the vote because the polls are going the wrong way. We do not want some great initiative from the EU saying how incredibly generous or wonderful it has been in order to try to swing the vote here.

[Lord Liddle]

I moved an amendment on this in Committee, partly in jest. If the noble Lord wants a fair referendum, why does he not persuade his friends in the Conservative newspapers to give equal space to people who are in favour of our membership and people who are against?

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[Lord Pearson of Rannoch (UKIP)]

My Lords—

[Lord Hamilton of Epsom]

I think that was for me. I am confused by the noble Lord, Lord Liddle, because he always produces these amendments in jest. I remember another one that said that the referendum should be delayed until 2019. That was tongue in cheek, was it not? The fact is that the Government do not control a free press in this country. You either have a free press or you do not, and if it is free it can take whatever line it wants to take. Perhaps we should be controlling the Guardian, with its attitudes to all this. This is absurd. We have a free press, which takes different sides on different things, and that is not a responsibility of the Government. Does the noble Lord want me to give way again? No, he does not.

[The Earl of Courtown (Con)]

I remind the House that before the dinner break I suggested that noble Lords should read page 151 of the Companion. I will repeat it, because obviously noble Lords have not been able to remember it:

“On report no member may speak more than once to an amendment, except the mover of the amendment in reply or a member who has obtained leave of the House, which may only be granted to: a member to explain himself in some material point of his speech, no new matter being introduced”.

[Lord Pearson of Rannoch]

My Lords—

[Lord Hamilton of Epsom]

I am very grateful to my noble friend for that; can I now give way to the noble Lord, Lord Pearson?

[Lord Pearson of Rannoch]

My Lords, I think this is the only time I have spoken on this amendment, and with the permission of the noble Lord, Lord Liddle, and your Lordships, I will do so. I would add the BBC to the list of media outlets that my noble friend has been good enough to name. I ask the noble Lord, Lord Liddle, whether he has read the News-watch website about the BBC’s behaviour in this matter and whether he hopes that the BBC—

[The Earl of Courtown]

Order. The noble Lord has not yet moved his amendment.

[Lord Hamilton of Epsom]

I am afraid that the noble Lord, Lord Pearson, has slightly confused things, because he was intervening on the intervention of the noble Lord, Lord Liddle, on me. Therefore this adds to the confusion. However, I do not think we will revert to talking about the free press and the fact that different newspapers have different views on things—I am not sure how productive that is. What we were talking about—or what I was talking about—was purdah and the fact that there is a concern, which I hope the Minister will address, that there will be some last-minute intervention, if the polls indicate that the country wants to pull out, to try to swing the vote with some bit of propaganda from the EU. Clearly, business has to continue to be done with the EU, but at the same time we do not want to see the whole referendum slewed by a last-minute intervention where the EU is being inordinately generous with other people’s money and doing something to try to swing the vote. That is what my Amendment 18 is about. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I certainly support my noble friend, but I will speak to Amendment 21 in this group, which is in my name. We have had a lot of discussion, and my noble friend Lord Hamilton has emphasised the importance of having rules on purdah. I have to say to the noble Lord, Lord Liddle, that he needs to distinguish the difference between public and private money. The Daily Mail and other newspapers are not spending taxpayers’ money, while the EU is. My noble friend is concerned that money that is provided by the taxpayer should not be used for a political purpose. That is a very important principle. I know that he is so enthusiastic about the European Union that he sometimes finds it difficult to see the distinction, but that is what we are talking about, and that is why we have these rules on purdah.

It was with some dismay and utter disbelief that I discovered that if people break these rules on purdah—the Scottish Government, the British Government or some other public agency—there is no sanction or penalty for doing so. It is true that people can seek judicial review at vast expense and then get a judgment after the event. I think it very unlikely that any court would say, “You’ve got to rerun the referendum because a public body spent money which was prohibited by purdah”. Therefore, with this amendment I am seeking to create some kind of sanction.

In Committee, I suggested that we bring back the old thing that applied in local government. Very spectacularly, Dame Shirley Porter ended up getting a bill for £20 million for having transgressed in terms of her abilities to operate under statute. I understand that that system of surcharging councillors has now disappeared. In Committee, I suggested a system of surcharging but it was dismissed on the grounds that it was inappropriate. My friends in the Electoral Commission said that it would be wrong to hold individuals to account. I do not really understand that. I think that if people are responsible for spending public money in a way that is ultra vires, they should be held responsible for it. If no one is responsible then no one is going to make sure that the rules are obeyed.

Having found that that suggestion did not find favour with my noble friend the Minister, I have had another go. This amendment suggests that we create a system where a fine is imposed on whoever is responsible and that it should be not less than the amount of taxpayers’ money which they have had cause to spend in breach of the purdah rules. This may not be the ideal solution, but in Committee my noble friend was kind enough to indicate that she recognised that there was a problem and she said that she would think about what could be done by way of a sanction. I am hopeful that she might consider Amendment 21 to be the answer to this problem but, if it is not, that she herself will have an answer. If there is no effective sanction, it rather begs the question: what is the point of having the rules on purdah if they can be breached?

I anticipate that somewhere in her file my noble friend will have a note saying that it would be very embarrassing for any public institution to breach the purdah rules and that it would be disadvantageous to it in the campaign. All I can say is that, having experienced the Scottish referendum campaign, I would not put much trust or hope in that limiting the kind of misuse of public funds which my noble friend Lord Hamilton has talked about.

[Lord Hamilton of Epsom]

Does my noble friend agree that, if it comes to the difference between winning a referendum and losing it, a bit of embarrassment can be lived with?

[Lord Forsyth of Drumlean]

I am sure that, like me, my noble friend would want always to strictly obey the law and the rules and that he would not be tempted to stray from the true path by the prospect of winning or losing. However, I am rather concerned that that might not be true of Governments. Individuals are not held responsible for the actions of Governments, which is why I am proposing this amendment.

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[Lord Hamilton of Epsom]

The EU intervened on the Lisbon treaty referendum in Ireland, and the Irish passed it. The EU intervened for three years on trying to get Croatia into the EU, and Croatia came into the EU. It intervened in those two cases very successfully. Why should it change its spots and not intervene in this one?

[Lord Collins of Highbury]

Precisely because of the point that I make: I suspect that such intervention will have completely the opposite effect, whereas in Ireland perhaps it even encouraged people. I do not think that that will be the case here. If there is seen to be interference, people will see it that way and will not be very happy.

I am grateful to the Minister for circulating the correspondence on this, including the commitment by the Commission. Obviously, it states that it will carry out its treaty obligations, but in no way will it be involved in anything that could be perceived as interference in a matter that is strictly for the British people and the British Government—I agree with the noble Lord, Lord Wallace, on that.

Turning to the amendment in the name of the noble Lord, Lord Forsyth, I think that there is a legitimate point here that needs to be properly addressed—he should not look so surprised that I agree with him; I suspect that we agree on a lot of things. The point is that we have an offence where the sanction is in a way paid by the victim, which does not make sense. The Electoral Commission does not agree with the formulation because it does not want to accept such a responsibility. In Committee, I referred to sanctions other than judicial review that could be considered in relation to individuals. In all walks of life, people are subject to such sanctions. In the case of public office and civil servants, there is the Ministerial Code and the Civil Service Code. I would be keen to hear from the noble Baroness whether she has given any thought since Committee to how we can have a regime where, if an offence is committed, the perpetrator pays the cost and not the victim.

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[Lord Hamilton of Epsom]

My noble friend has referred to constructive dialogue. Does she think that there was constructive dialogue between the Irish Government and the EU when they put out 1.1 million leaflets, at a cost of €139,000, during the Lisbon referendum? Presumably the Irish Government were quite happy that the leaflet should go out, but it upset the people who did not want to accept the Lisbon treaty.

[Baroness Anelay of St Johns]

My Lords, the Government would not be happy with any such move and the European Commission is clearly aware of that. We are not the Irish Government and this is a referendum on a different matter.

I understand and recognise the legitimate concerns about these matters and that is exactly why the Government are putting so much effort into trying to address them. It is not a matter of taking our eye off the ball: we will continue working on these issues.

My noble friend Lord Hamilton has tabled two amendments, Amendments 18 and 19, to Clause 6. The clause provides a power for the Minister to make regulations modifying Section 125 for the purposes of the EU referendum. However, I repeat the assurance that I made in Committee that the Government have no plans to use the regulation-making power under Clause 6. I tried to make that as clear as I could. I appreciate though that my noble friend seeks to limit the power so that Ministers can make regulations only where they have reasonable grounds to consider that regulations are necessary to secure the continuing function of the Government or the safety of the public or a section of the public.

This follows on from our discussion in Committee when noble Lords were trying to get me to posit the future—to look into a crystal ball and say, “This is what may happen”. The very nature of why Clause 6 was inserted in another place was because this would be something that people could not foretell. Not one voice in the other place was raised against Clause 6 going into the Bill. We ought to bear that in mind because, having given the undertaking that we have no plans, we cannot foresee the future. We have to have a care for the safety and security of this country and it would be unfortunate for this House to consider constraining the ability of the Government properly to be able to respond.

The reason, I suspect, why not a voice was raised in another place is that safeguards requested by the other place were put into the use of this power before the amendments were brought forward. These state that regulations would need to be made at least four months ahead of the poll following consultation with the Electoral Commission—and of course that would be subject to the affirmative resolution procedure in both Houses.

As I say, although there are no plans to use the power, there may be exceptional circumstances which would require the Government to lay regulations before Parliament on this issue. No doubt we would all be rather surprised if that were to happen, because, as I say, we have no plans to do so at the moment. However, a responsible Government should be able to keep the power available.

My noble friend also tabled an amendment to remove Clause 6(8) because he is worried that it might ensure that the Government cannot disapply the restrictions in Section 125 under the power in Clause 4. What I hope to be able to do is give my noble friend a reassurance that his concerns are misplaced in this respect. I can assure him that Clause 4(1)(c) as currently drafted simply would not allow the Government to disapply in regulations the restrictions in Section 125 for the EU referendum; we could not do it. Like Clause 6, it could be used to modify aspects of Section 125, although we do not have plans to do so. But we consider that Clause 6(8) is necessary for a rather technical reason. It ensures that the power to amend Section 125 in Clause 6 does not in any way call into question the general regulation-making power in Clause 4 to make modifications to PPERA for the purpose of the EU referendum. The general regulation-making power is essential for aspects of the published conduct rules; it is not about the purdah enshrined in Section 125, about which I know and understand why some noble Lords have concerns. In this case, it could be used if we identify other issues with the PPERA provisions. I can give my noble friend an assurance that, like Clause 6, the power in Clause 4 can be used only following consultation with the Electoral Commission and will of course be subject to the affirmative resolution procedure.

Finally, I come to the amendment tabled by my noble friend Lord Forsyth, proposing a penalty for a breach of Section 125. Interesting questions have been raised about the whole issue of how one holds people to account. My noble friend is seeking to impose a monetary penalty on a person who breaches the restrictions in Section 125. The Electoral Commission has no role in the enforcement of Section 125, and has said in its response that it is not clear how this significant change to its role and powers would work in practice. That is the issue; it is not what the commission was set up to do and it would change its role.

We believe that the current arrangements are appropriate and that they work. Those within the scope of Section 125 will be legally obliged to comply with it. Like other legal obligations on public authorities across the statute book, it can be enforced through judicial review. That is the purpose of judicial review: to ensure that public authorities comply with the law. I know that my noble friend has concerns that this may be a paper tiger, but he has been an admirable Secretary of State in difficult times. He will know how difficult it is for a Government to face judicial review; he will know about the inconvenience and the cost. I would expect that others would be mindful of that as well. Judicial review is something that this Government seek to avoid having to incur, and I am sure that other public bodies take the same approach.

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[Baroness Anelay of St Johns]

My Lords, this Government are not corrupt. This Government have strong leadership. This Government have given their word to work with all our colleagues across Europe to ensure that this referendum is as fair as it can be—and this Government will deliver. I hope that my noble friend will feel able to withdraw his amendment.

[Lord Hamilton of Epsom]

My Lords, the amendments I tabled by necessity were probing for the simple reason that we cannot stop the EU getting involved in our referendum. All we can rely on is the voluntary statements that it has made. We need to have an act of faith over this. We have to presuppose that if this referendum runs and it is getting very tight up to referendum day, and it is debatable whether the country will vote to stay in our pull out, somehow the EU will stand back and not do anything when it has the power to do it—to actually influence that final result.

Some people will believe that the EU will be totally honourable to its word on this. Others will say that it had such success in Denmark, Ireland and Croatia, so why should it not try it here? The great argument is that it will not do it because it would be counter- productive. I do not quite understand that argument. It was not counterproductive in Denmark. It was not counterproductive in Croatia. It was not counterproductive in Ireland. Why should it be counterproductive here?

But as I say, these are probing amendments. There is nothing the Government can do to constrain the EU. I suspect that the idea of the noble Lord, Lord Pearson, that we should fine it is out of order completely, so there is nothing that we can do in this Bill to stop the EU interfering. If it does not, in my opinion it will be a miracle. But I am happy to withdraw the amendment.

Amendment 13 withdrawn.