European Union Referendum Bill

Alex Salmond Excerpts

Monday 7th September 2015 Commons Chamber

[Mr Lidington]

My hon. Friend does not understand the extent to which we simply do not know. One member state can control the timing of items on the agenda. The timing depends on which particular illustration one is looking at, but the country holding the rotating presidency of the European Union will decide which items of business appear on the agenda of Council and COREPER meetings. The Commission will decide when to publish new proposals for, or amendments to, legislation. The European Parliament is a law unto itself. Its sessions will continue during our referendum campaign and the British Government are likely to want to circulate published material, under the terms of the 2000 Act, to try to influence decisions of MEPs in a way that favours our national interest.

[Alex Salmond (Gordon) (SNP)]

Can I just get this right? The Minister’s case is that some nefarious other Government will seize the opportunity of the 28-day period to rush something through the European Union. If so, that will be the fastest bout of decision-making in the EU’s history!

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[Mr Pat McFadden (Wolverhampton South East) (Lab)]

I thank the Minister for outlining the Government’s approach—at some length.

Since the Bill’s publication, there has been a great deal of debate about the purdah provisions, and specifically about the proposal in paragraph 26 of schedule 1 to strike out the purdah regime set out in the Political Parties, Elections and Referendums Act 2000. There has been a great deal of comment about the Government’s motivations. The accusation has been made that they want to load the dice, and to set up a regime for the conduct of the referendum that would stack the odds in favour of one side, or would allow Ministers to abuse the power of their positions.

Having watched the debate unfold, not just this evening but since the Bill’s publication, I suspect that, from the Government’s point of view, this may be something of an accidental fight. This has the feel of a Bill that was drawn up quickly on the back of the election result, with some advice adopted about what purdah might or might not mean, but without that advice being explored and tested as intensely as it might have been in other circumstances. It looks as though the self-imposed imperative of moving immediately after the Queen’s Speech may have taken over from the task of bottoming the Bill out.

I am not sure whether, when Ministers drew up the Bill, they expected the purdah provision to generate this amount of heat. I rather suspect that they did not, but having included the provision in the Bill, they have had to justify it. As we have heard from the Minister this evening, their justification has been twofold. The first justification is that section 125 of the 2000 Act is so widely drawn that it would paralyse much of the Government’s work on the EU referendum, in a way that would not be the case with a referendum on another subject. The second is that the Government want to take a view, express that view, and, in some way, use Government resources—such as civil servants, special advisers or Government websites—to do so.

We listened carefully to the arguments advanced on Second Reading and in Committee. Our proposals are set out in new clauses 5 and 6, and in amendment 4. Taken collectively, those proposals would leave the purdah regime in place, but there would also be a mechanism for seeking exceptions to it through regulations that would have to be approved by Parliament. That would have several effects. It would put Parliament in the driving seat when it came to deciding whether the Government had a case for exceptions to purdah and testing some of the arguments that the Minister has just set out; it would act as a safeguard against the suggestion that the referendum was being run in an unfair way, if Parliament were tasked with approving the regulations; and, as I have said, it would provide a mechanism for testing the proposition that “business as usual” Government announcements—for example, responses to urgent situations or important decisions made at the European Council— would inadvertently be caught by the purdah regime. We believe that this approach—reinstating purdah, but allowing a mechanism via regulations for exceptions to it—is a sensible way to proceed.

[Alex Salmond]

The Minister suggested that the Opposition had forgotten the devolved Administrations in their amendments and new clauses. Will the right hon. Gentleman answer that point?

[Mr McFadden]

Our intention in all these amendments was to reinstate purdah as set out in section 125, but to set out the mechanism in regulations. If those regulations need to cover the devolved Administrations, they can of course do that.

The Government’s response to the issues raised is set out in new clause 10 and amendment 53, and I would like to spend a few minutes on those. Government new clause 10 accepts our argument about having an exceptions-to-purdah mechanism through regulations approved by Parliament. Indeed, as the Minister set out, there is a great deal of overlap between Government new clause 10 and our new clause 6, but Government new clause 10 has the added dimension of the requirement to consult the Electoral Commission, something asked for by the Public Administration Committee in the correspondence from July. We believe this is a sensible addition and therefore have no objection to new clause 10; nor do we object to the amendment, which the Government have accepted, tabled by the hon. Member for Harwich and North Essex (Mr Jenkin) about the timescale for this.

However, as with much of this debate, amendments and new clauses need to be seen in conjunction with other amendments, in this case Government amendment 53, which makes alterations to the definition of purdah. We do not believe the Government have made a convincing case for those alterations. It is unclear whether the amendment is intended to deal with the business-as-usual issues that the Government have spoken of as being a particular problem, or whether it goes much further in the alteration of the purdah regime. Perhaps more importantly, given the wide redrawing of the purdah rules in this amendment, if it is passed it is not clear whether there will be any need at all for the kind of exceptions regime set out in new clauses 10 and 6. We feel that would give the Government too much scope to act without further parliamentary debate and approval, and we will therefore not support Government amendment 53. To complete the picture of our attitude on these amendments, I should say that we intend to press our amendment 4 to a vote. We will support Government new clause 10, we will oppose amendment 53, and we will support our amendment 4.

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[Mr Jenkin]

I will certainly undertake to put that in front of my Committee. It depends on the Government: if they table amendments 35 minutes before the deadline and a recess period and are then determined to discuss them on the first day back, it makes it very difficult to scrutinise matters, as the Electoral Commission has attested. I invite my right hon. Friend the Minister for Europe to make sure that any regulations he introduces under new clause 10 are published in draft so that we can properly give them pre-legislative scrutiny, take proper advice on them and make objective recommendations to the House without being rushed or bounced into them.

One of the advantages of amendment (a), which my right hon. Friend has kindly accepted, is that the temptation to bounce the country into a referendum has been significantly reduced. If we are to have a sensible referendum debate, there has to be a proper period for discussion of the outcome of the Government’s negotiations and the merits or otherwise of remaining in or leaving the European Union. I am sure that was the Government’s ambition when they originally proposed the idea of a referendum. I look forward to hearing what the Minister has to say in winding up.

[Alex Salmond]

I wish to speak to amendment 11, tabled in my name and those of my hon. Friends.

The Chair of the Public Administration and Constitutional Affairs Committee, the hon. Member for Harwich and North Essex (Mr Jenkin), had my rapt attention and much of my agreement until he produced the remarkable argument that if purdah was good enough for Tony Blair, it should be good enough for the House now. I am afraid that the alliance of scepticism against the Government’s motives was dissolved as a result of that one phrase, that one single disastrous rhetorical flourish.

The hon. Gentleman made another point with which I disagreed, and I want to put this on record before I come to the points on which I agreed with him. He wandered into a period outside the purdah and asked whether at that point the Government had the right to publish a White Paper giving their point of view, backed as a democratically elected Government by the civil service. Of course they have the right to do that, but the House should be concerned about whether the restrictions should apply during the 28-day purdah period, or perhaps for a week longer were the Electoral Commission to have its way. I think that they should, and I shall illustrate that view with a cautionary and moral tale from the Scottish referendum.

The Scottish referendum was regulated not by the Political Parties, Elections and Referendums Act 2000—PPERA—but by the Scottish Independence Referendum Act 2013. The Act made provision for a statutory purdah period in Scotland during the 28 days leading up to the referendum. According to the explanatory notes, part 4 of the Act provided that,

“for the 28 day period ending with the date of the referendum, the Scottish Ministers and certain public authorities in Scotland cannot publish any material providing general information about the referendum, dealing with issues raised by the question to be voted on in the referendum, putting any arguments for or against a particular answer to the question to be voted on, or which is designed to encourage voting in the referendum.”

In other words, acting in their capacity as Ministers, they were not allowed to use the Government machine during the purdah period to advance the yes cause to which they were all committed. I must point out to those on the Government Front Bench today that nobody interpreted that to mean that this First Minister or any other Scottish Minister should not take part in the referendum campaign. The explanatory notes to the Act went on to state:

“However, this rule does not apply to information made available following a specific request; specified material published by or under the auspices of the Scottish Parliament Corporate Body; any information from the Electoral Commission, a designated organisation or the Chief Counting Officer or any other counting officer; or to any published information about how the poll is to be held.”

In a situation that was every bit as disputatious in regard to the arguments for and against, those measures in the Act were passed with hardly any dissent, rancour or suspicion of motives. It was accepted that that was the right thing to do. Perhaps the Government should have suggested something similar for this referendum, instead of doing whatever they were doing during the recess, unless they are seriously arguing that the constitution of this country involves a much simpler process for a European referendum. Had they done that, they would not now find themselves in this embarrassing position.

[Sir William Cash]

Does the right hon. Gentleman recall that the EU dimension of the Scottish referendum was pretty hot? I seem to remember President Barroso and others making statements about the single currency, for example. I speak now as the Chairman of the European Scrutiny Committee. Does the right hon. Gentleman agree that the arguments about the EU business that have been put forward by the Government are rather specious, given that the EU dimension of the Scottish referendum was really very volatile?

[Alex Salmond]

Yes, indeed it was, but we are discussing the 28-day purdah period at the moment. It has been suggested to me by a knowledgeable European that President Barroso, as he then was, harboured ambitions to be the Secretary-General of NATO and was hoping for support from Ministers—perhaps not those in the Chamber tonight, but those who are none the less not too far from us. Who knows why President Barroso made those interventions, but they were not made during the 28-day purdah period.

The cautionary aspect of this tale is that that purdah period, enacted in legislation, bound the Scottish Government and their agencies and public bodies in Scotland but it did not bind the United Kingdom Government. The UK Government were bound not by statute but by the Edinburgh agreement of 15 October 2012. That was what we used to call a gentleman’s agreement; it had no statutory basis. Paragraph 29 of that agreement stated:

“The Scottish Government will set out details of restricted behaviour for Scottish Ministers and devolved public bodies in the Referendum Bill to be introduced into the Scottish Parliament. These details will be based on the restrictions set out in PPERA. The UK Government has committed to act according to the same PPERA-based rules during the 28-day period.”

Now, I do not think that they did that. I do not think that most reasonable Members of this House believe that that is what was done. I will give two examples from among the many that I could use.

The first is, I admit, arguable, but it has already been raised on the Conservative Back Benches. It relates to the production of the vow when there were 10 days of campaigning left. The vow was described by the Chancellor of the Exchequer on “The Andrew Marr Show” on 7 September 2014 in this way:

“You will see in the next few days a plan of action to give more powers to Scotland, more tax powers, more spending powers, more powers over the welfare state.”

One of the arguments in favour of purdah is that the arguments should be laid out and set before the campaign period, and that during the campaign the politicians can debate them and the people can participate in the debate—as they did in huge numbers in Scotland—and make up their minds. It is not meant to be a period during which politicians can say, “Here’s a fresh initiative that we forgot to mention earlier.”

A comparison could be made with the European referendum if, for example, what used to be called the no side were to take the lead, unexpectedly perhaps, with 10 days to go and the German Chancellor or the President of the Republic of France were to suspend Question Time in the Bundestag or the National Assembly, get on a plane and rush across to say that the Prime Minister’s renegotiations of our position had suddenly found more favour with them than had previously been the case.

I accept that this point is arguable. Others could argue that the vow was not really a Government announcement from the Chancellor of the Exchequer, and that he was just speaking off his own bat as a politician. I am not sure that that is a good argument, but it is certainly a cautionary tale.

[Philip Davies]

I always enjoy hearing what the right hon. Gentleman has to say, because he speaks so well and is very persuasive. I should like to put on record that I share his view that the vow made during the independence referendum was completely unacceptable. It was a panic measure that was clearly introduced by the Government, and I envisage exactly the same thing happening in an EU referendum, given the same circumstances.

[Alex Salmond]

I welcome the hon. Gentleman’s intervention. I would have welcomed it even more if he had made it exactly a year ago. I could then have publicised his scepticism about his Government’s motives.

The second example that I shall give the House is, in my view, beyond argument. The purdah period is meant to cover not only Government Ministers but civil servants. Their involvement is arguably defensible throughout the run-up to a referendum. I disagree with the Select Committee on this point; I believe that civil servants should be able to act on behalf of the elected Government of the day. However, during the purdah period, they are not meant to take a position on the matter that has been put in front of the people. I want to make a point about the referendum unit in Her Majesty’s Treasury, which was described by the permanent secretary to the Treasury earlier this year as a “Unionist institution”. The clue is in the name: Her Majesty’s Treasury. This ignores the fact that the monarchy in its present state was formed a century before the treaty of Union, which was under debate. The referendum unit in the Treasury continued its activities throughout the referendum campaign.

I have an email here showing the briefing from Treasury sources that was going on a week before the referendum. The email was sent to the BBC by a civil servant in the referendum unit of Her Majesty’s Treasury—that Unionist institution—and it was designed to influence the conduct of the referendum, one week before the vote. That seems to be a glaring example of what would have been a breach of the purdah regulations, had they been placed in statute rather than simply in the terms of the Edinburgh agreement.

That is why I turn to our amendment 11. The Minister told us earlier that he did not want to be in a position where legal challenges were flying here, there and everywhere, as that would be an impossible position for the Government to be in. The way to avoid that is not by dismissing the regulations, but by having a system for enforcing the regulations—one that does not rely on injunctions, interdicts or legal cases, but one within the regulations that is properly respected. The hon. Member for North Down (Lady Hermon) made the point in an earlier intervention about the Electoral Commission. The way to avoid a recurrence of what happened in the Scottish referendum and to dispel the notion that the Government over these past four months have been trying to pull a fast one on purdah, which is the overwhelming view across this Chamber at this moment, is by having an enforcement mechanism within the regulations on purdah. That could be done via the Electoral Commission, as the hon. Lady suggested, or via a committee of Privy Counsellors—ever since I became one I have become much friendlier to the idea of a committee of Privy Counsellors. There needs to be some respected body to which possible breaches of purdah can be reported, and these can be investigated and then enforced.

[Mr Jenkin]

I think the right hon. Gentleman and I are in agreement about the role of civil servants—obeying the Government of the day but not carrying out instructions that would put their Ministers in breach of purdah. There should be something in the civil service code that makes it clear that the yes and no campaigns of a referendum are the equivalent of political parties in an election, but the code contains nothing about referendums. I have great sympathy with the point he is making about the enforcement of purdah, because the north-east referendum had exactly the same problem as he is describing; John Prescott announced new proposals in the last few days before the referendum and we could not get anybody in government interested—they said it was a matter for Ministers.

[Alex Salmond]

The Chair of the Select Committee cited Tony Blair approvingly, presumably to encourage Labour Members’ support, but attacked John Prescott to move them away. None the less, the hon. Gentleman makes a reasonable point.

[Michael Ellis (Northampton North) (Con)]

Does the right hon. Gentleman consider that the bar is so low for a breach, as he puts it, of purdah that even talking on “The Andrew Marr Show” about proposals amounts to such a breach? Is that not a contraindication to the other aspect of his argument and other arguments that have been heard in this Chamber today, in that Ministers and MPs can talk about matters without things being a breach of purdah?

[Alex Salmond]

That question was some time in the gestation, and I had moved on from what I described as the “arguable” case of the vow. The vow was not a single appearance on “The Andrew Marr Show”, and I used the quote from that show just to demonstrate to the House that the vow was presented as a new initiative, something different, a last-minute offer. The argument about whether the vow breached purdah has been made well by the hon. Member for Shipley (Philip Davies) and the analogy in a European referendum would be a re-presentation. Presumably, the idea in the European referendum is meant to be that the Prime Minister renegotiates this country’s relationships with the EU and then presents that to the people for consideration of whether they want to be in or out on that basis. The equivalent idea here, therefore, would be that he finishes that renegotiation but things are going badly in the campaign and so there is a further renegotiation and re-presentation. I certainly do not believe that is within the spirit of a purdah regulation, although people might argue that it meets the letter of it.

I accept that that point is debatable—I am pretty clear which side I am on—but there is no debate whatsoever about the behaviour of officials in Her Majesty’s Treasury in the referendum unit who were actively briefing and intervening during the campaign. The reason that was allowed to happen is that, as the Chair of the Select Committee said, the civil service code does not specify referendums in the way that it does elections and there was no statutory basis for the enforcement of purdah in the UK Government as there was for the Scottish Government.

[Sir William Cash]

In the light of the interesting argument and the factual information that the right hon. Gentleman is giving the House, I wondered whether he had had an opportunity to discuss these matters with the Opposition and what the outcome of those discussions might be as to whether they would support the kind of enforcement arrangements he has in mind.

[Alex Salmond]

I have had some chats through informal channels, but I was hoping that the hon. Gentleman’s warm reception to my point might convince those in all parts of the House that there was something sensible in not just talking about purdah but actually having an organised enforcement mechanism and putting in place my amendment’s suggestion of

“measures to determine breaches of purdah and penalties for such a breach”.

As I say, I am open to the suggestion from the hon. Member for North Down about involving the Electoral Commission or about its involving a committee of Privy Counsellors—just so long as there is an enforcement mechanism. The evidence from last year, when there was no statutory basis or enforcement mechanism, was that there are people who will drive a coach and horses through a purdah period.

I am pro-European to my fingertips. I am more pro-European than I suspect most Conservative Members will ever be and certainly more than the Prime Minister will ever be, but I want to see this referendum conducted on a fair and proper basis. That includes a purdah period and, when it has been agreed, everybody sticking by the rules and there being an enforcement mechanism to make sure that they do so.

[Sir William Cash]

I would just like to take up the point that the right hon. Gentleman ended on. For all the reasons that I gave in Committee, when I put the case for going back to section 125 in its complete integrity, in order to have fairness it is essential that we have something by which people abide. A lot of this debate tends, from time to time, to move between what the Conservative party says or what Labour, the Liberal Democrats or the Scottish National party say. First, it was decided that we were going to have a European Union referendum Bill, and now the Electoral Commission has changed the nature of the question, with the consent of the Government. The question now is, “Do you, the voters of this country, want to remain in or do you want to leave?” This has cut completely across all political parties. Therefore, although this debate is taking place in this Chamber, the nature of this debate involving the Conservatives, Labour and the SNP must not be allowed to distort the fact that this is a vote about the real future of the individual people of this country. It is about the voters deciding for the first time since 1975 whether they are going to stay in what I regard now as a dysfunctional European Union—the immigration issue has recently made that even more obvious—or whether we are going to continue to argue that we should leave, because we can make that case. That is to come and the bottom line is that this Bill is not about “Conservative versus Labour”; it should be about the positions adopted across the Floor of the House. I know for a fact that many Labour Back Benchers agree with those who share my view on the Conservative Back Benches—and there are some on the Front Benches, too. It may well turn out that we will need to address the question later of whether or not Ministers should be allowed to participate on either side of the debate in the national interest.

I was particularly taken by and interested in the recent article the Minister wrote on “ConservativeHome”, in which he rather gave the game away. He and I have been discussing this since 1990, when he was special adviser to no less than the Foreign Secretary and other people in No. 10 were desk officers for the Government position at that time under John Major. Let me read what he said right at the end of his article, because I want to concentrate on the reasons for purdah. We have heard so many arguments in relation to the process. I have made my position quite clear, which is that amendment 78 is more comprehensive than amendment 4. Let me bypass that argument for the moment in the interests of trying to achieve the best result, but without prejudice to coming back to the matter at a later date.

In the final paragraph, the Europe Minister said:

“Ultimately, this is about the EU’s effectiveness as a whole. We want”—

whoever we may be—

“a dynamic, competitive, outwardly focused Europe, delivering prosperity and security for all of the people in the EU, not just for those in Britain.”

Actually, that is not what this debate on the referendum will be about. Elements of the argument will demonstrate that there are certain advantages in having a degree of alliance and co-operation in Europe, which I am in favour of, but not on the basis of the status quo of the treaties, or of the tweaking of negotiations that do not make any substantial difference to the basis on which those treaties are conducted. That is why I have firmly concluded that we must leave the European Union. I have just come back from Luxembourg—[Interruption.] The Foreign Secretary can ask me any question from the Dispatch Box. I have just come back from Luxembourg where the national chairmen of a whole raft of EU committees were debating questions relating to migration. I can only say that the trend of the arguments was not at all in line with many of the things that we in this House would have expected had those arguments been put forward by our own Ministers.

Basically, I am cynical, to say the least, about the outcome of this debate. The trouble is that we are being invited to cut across the fact, as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) has said, that there have been four referendums without any legal problems. Furthermore, the Electoral Commission has backed amendment 78—it did not mention amendment 4 because it knows that my amendment deals with the devolved territories as well—and we have Speaker’s Counsel on our side. We are told by the Minister that, as far as he is concerned, there are a number of legal opinions, including from two leading counsels, that have indicated that there could be legal problems. Well, that is not what the Speaker’s Counsel says. His advice relating to the Political and Constitutional Reform Committee is on the website for anyone to see. He has reinforced his view in the light of the remarks made by the Europe Minister on “ConservativeHome”. I expressly sent the Speaker’s Counsel a copy of that article and asked him whether he would revise his legal view. He is very distinguished and was the legal adviser to the European Scrutiny Committee for many years. He has also been involved in the legal service of the European Commission. He knows what he is talking about, and I take these other legal opinions that we are being offered with a pinch of salt.

Finally, I say to the Foreign Secretary, who is chuntering quite a lot—I say that with great respect because I rather like him—that if those opinions are so important, let us see them. Let us see the basis on which the advice was given, and we will hear the same old arguments that we heard about the Iraq opinion. At the end of the day, however, we did get the Iraq opinion. This issue may not be quite so momentous, but none the less to fall back on the old canard that we should not publish opinions is not actually an answer to the questions that we are asking. We want to know the basis on which the advice was given.

I just do not believe that the Government’s arguments add up. A lack of trust has been generated, which goes deep into the past—right the way back to the White Paper of 1971 when we were promised that we would have a veto, which has now been overridden. We have not been given a referendum since 1975, and it is essential that we have a fair referendum that people can trust. I fear that the outcome of the vote this evening will be that new clause 10 goes through, perhaps with an amendment that might make a marginal difference. A vote against amendment 53 will simply allow a vote on amendment 4, which takes us back to a kind of purdah, but not the complete purdah that I and I think the British people want under amendment 78. We are the representatives of the people, which is why I wish to speak so candidly on this matter.