European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 4th November 2015 Lords Chamber

[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.

[Lord Kerr of Kinlochard (CB)]

I want to lower the temperature with a deeply nerdy amendment, Amendment 55, which concerns purdah. I apologise for not following the noble Lord, Lord Pearson—

[Noble Lords]

Wrong group!

--- Later in debate ---

[Lord Spicer (Con)]

My Lords, I am very relieved that my noble friend Lord Hamilton did not say that his amendments were nonsense this time, because I support them. I do so because I am concerned about a situation where the prospectus being put to the country is not exactly false but uncertain—where, not necessarily through any fault of their own, the Government have reached an agreement which all sides think is fine but where there is an endemic structure within it that makes it unstable. I can best illustrate the situation by very briefly going through what I understand to be the four objectives of the Government in their negotiations.

The first objective is to stop the ever-closer union. One has to say that although all sides might be able to agree to that in words, there is the acquis communautaire —the acquis communautaire is endemic within the treaty. It is there to self-implode in this context, particularly as it has always supported the move towards a centralised Europe, the European Union, by the court.

The second objective is more competition. The European Union is a trade bloc. Trade blocs exist to protect themselves against foreign competition outside the trade bloc, otherwise there is no point in having a trade bloc in the first place. A trade bloc is and always will be anti-competitive.

The multicurrency objective—that we should be allowed to have lots of currencies—is next. When we were discussing the Maastricht treaty in the other place I always felt that an endemic feature of a single European Union is that there will eventually have to be a single currency. That is always put the other way round—that a single currency means that you will have to have a single Government—but the converse is also true: that to have a single union you will ultimately have to have, if the union is to mean anything at all, a single currency. The fourth objective is to deal with immigration. I cannot think of any union, market or trade bloc that does not ultimately have freedom of movement of the people within it.

I have to say that, through no fault of the Government’s own—the various countries may well establish an agreement in the negotiations—the agreement will be unstable for the reasons I have just given. We therefore need the kind of spending restrictions implied in my noble friend’s amendments.

[Lord Kerr of Kinlochard]

My Lords, I speak to Amendment 55, which stands in my name. It seems to me that the problem that we are facing comes from the very wide language of the PPERA, which clearly was not intended to deal with the problem that I am drawing attention to. No Minister or servant of the Crown can publish any information which deals with any of the issues raised by the question during the 28 days—and “publish” is defined very widely as making,

“available to the public at large, or any section of the public, in whatever form and by whatever means”.

My worry is whether that might prove obstructive to the conduct of government business in Brussels. Ministers will continue to go there, European Union committees and the Council will continue to meet, and the myriad working groups will continue their work. It seems to me that it would be possible to construe that everything said—such as a document or briefing note passed to Members of the European Parliament, a document sent to the Commission or a pleading before the court—could be said to be relevant to the issue of the question of the referendum and could be caught by this 28-day ban.

I am sure that that was nobody’s intention, and I quite understand why the Minister does not wish to go back and reopen the language that we are confronted with. I am sure that people such as Mr Bernard Jenkin, who spoke on the purdah issue in the Commons, had no intention of making it impossible for the Government to carry out their business in Brussels. These are honourable people making a completely different point.

I am puzzled by the noble Baroness saying that she is confident that the Government would have a sufficient defence if challenged during the 28-day period. I am concerned about that. It seems to me that a judicial review—a challenge in court—could be disruptive to business, even if that challenge was successfully resisted in court. It seems to me that the possibility of the challenge might be an inhibition on our people in Brussels who are working in the national interest, doing the job they are meant to do. I am therefore very puzzled by what I think I heard the noble Baroness say—that she did not envisage making any regulations on this issue. I do not know whether we can be sure. If I were the Permanent Representative, I would be very uncertain whether I would be able to do what I am paid to do with the threat of legal challenge.

I may be exaggerating the problem but it is certainly a real one. Mr Lidington, Minister of State in the Foreign Office, told the European Union Committee in evidence in July that Section 125 of the PPERA would make it,

“very difficult if not impossible for us to undertake a whole range of routine EU business in the four weeks leading up to the referendum date”.

I admit that Mr Lidington said that in the context of the presidency. The hypothetical question was: “Suppose that the referendum date and the 28 days fell within the second half of 2017, during the UK presidency of the EU”. He was talking about how very difficult if not impossible it would be to undertake a whole range of routine EU business as the presidency. However, it seems to me that if it would be difficult to advance and defend the EU interest, as the presidency is meant to do, it would be just as difficult to advance and defend the UK interest, which is the daily business of our representatives in Brussels.

[Lord Lamont of Lerwick]

I am listening very carefully to what the noble Lord is saying—and of course he has huge knowledge of this—but Section 125 refers to “promotional material”. That is what it talks about. It says that it specifically excludes material which is requested by a member of the public. If the Scotch Whisky Association or somebody wanted a particular copy of something that had been discussed, they would still be able to do that. What this prohibits is promotional material. Surely that is wholly right—that promotional material should not be allowed in this way.

[Lord Kerr of Kinlochard]

If the noble Lord is right, I am delighted. If the meaning of Section 125 of the PPERA is that only material of a particular kind defined as “promotional” is caught, my problem is much smaller; in fact; it disappears. But it seems to me that the language of the Act says that any Minister of the Crown, government department or local authority may not “publish”, which,

“means make available to the public at large, or any section of the public, in whatever form and by whatever means”—

for 28 days, any material bearing on the issue that is in the question. If that is to be the case, then for 28 days we are going to be saying, “Stop the world while we consider whether we want to get off”. I worry that the answer to that is to say, “Don’t be silly; we would defend ourselves in court”. The atmosphere might be quite febrile. There might be legal challenges brought. I think there would be a considerable inhibition on the public service doing its job.

I ask the Minister to look at my amendment, which would not require the making of any regulations. It would simply create a small carve-out, an exemption, for the normal business of the Government with the European Union, in and with the Council, with the Commission, with the Court and with the Parliament. It seems to me that that is much safer ground on which to rest than the thought of defending challenges in court. I am quite sure that when they drafted the PPERA nobody intended Section 125 to have effect on the pursuit of government interests and policies abroad. I am sure that that was not what they had in mind. I am sure that nobody in the other place, in the great debates that took place there over purdah, had it in mind to make it more difficult for the Government to defend the national interest in Brussels. I would argue for my amendment as the simplest way in which to deal with that problem.