European Union Referendum Bill

Michael Ellis Excerpts

Monday 7th September 2015 Commons Chamber

[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.

--- Later in debate ---

[Michael Ellis]

It is a privilege to follow my hon. Friend the Member for Wycombe (Mr Baker). I want to use the two or three minutes available to me to discuss the crux of the matter, to which several colleagues have referred. It boils down to the fact that the Government are honouring a commitment to hold a referendum on our membership of the European Union, which has been the cause célèbre, requirement and demand of many for generations. I am sure that Conservative Members will agree that the Government should be commended for including that as a manifesto commitment, and for undertaking to have the referendum. That is the crux of the matter.

I support the Government on this issue this evening because not only are we giving a generation of British voters, who have been denied previously, the chance to have a say in such a referendum, but we are actually putting historical injustices right and are allowing a referendum to take place. To hear the Scottish National party preaching about fairness earlier was a bit galling, when the no voters in the referendum on Scottish independence last year felt quite intimidated at times.

In lifting the purdah provisions, we must bear it in mind that section 125 would stop the Government publishing material on any issue raised by the referendum question. The restriction would be unworkable because it is so broad that it would prevent publication in relation to any issue raised by the referendum. It could therefore prevent Ministers from conducting the ordinary day-to-day business of the United Kingdom’s dealings with the European Union. We have to bear in mind the broad scope of the section.

Mention has been made in the debate of different lawyers giving different legal opinions. If I may say so as a barrister, it is quite easy to find lawyers who disagree with each other in good faith. It does not necessarily mean that they are right or wrong. The Government expect to have a view.

[Stephen Gethins]

Will the hon. Gentleman give way?

[Michael Ellis]

Sorry, I am running out of time, so I will not give way.

The Government should have a view, and it should not be expected that the Government of the day will be silent on these issues. The Government should expect to take a position and will want to make a recommendation. Under section 125, purdah would be unnecessarily restrictive.

I am conscious of the time and want to give my right hon. Friend the Minister the opportunity to sum up, but I want to make one more point. The European Commission and foreign Governments cannot be permissible donors under our law, so they would not be entitled to contribute. The fear that has been expressed by some hon. Members is therefore misguided, because the rules are already such that their fear will not be realised. I support the Government’s measures and thank the House for its attention.

[Mr Lidington]

Everybody who has spoken has agreed that there should not be untrammelled freedom for the Government or other public bodies to campaign during the final 28 days before the referendum. Nobody has argued for that; rather, the argument has been about how best to define the scope of restrictions on such activity and the precise form that they should take. It has been about the extent to which the rules should be set by Act, secondary legislation or guidance. I emphasise again that so far as the Government are permitted to act by whatever Parliament eventually decides, those permitted actions will be subject to guidance.

I am grateful to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) for the courtesy with which he put his arguments. As he was open enough to say in his letter to me of 21 July, a number of witnesses to his inquiry suggested

“that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge”.

It is therefore not as if the Government have been completely on their own in saying that there are serious questions that ought to be addressed by a limited and carefully defined exemption from the section 125 arrangements.

We could have chosen to make the changes that we are offering in Government amendment 53 by way of secondary legislation, using the regulation-making power that we propose in new clause 10. We chose to table an amendment to the Bill because it offers greater clarity and certainty to Ministers and their officials, who will have to go off to Brussels and Strasbourg and argue the case for this country’s interests and circulate documents—to publish things in the terms defined by section 125—and they do not want to be looking over their shoulder trying to second-guess whether they might end up with a legal challenge. Primary legislation is just a stronger guarantee than secondary legislation.

We also felt that that greater certainty and clarity should apply to the assurance given in the same Government amendment that any such exemption could not be misused by the Government to pray in aid a piece of ongoing routine EU business to suggest that a particular outcome to the referendum—a case for leaving or remaining—was somehow validated by that publication on the ongoing business. Yes, that could have been done by statutory instrument, but we came to the House with this proposal precisely because we felt that not only the exemption but, critically, the safeguard would be better assured by means of primary legislation.

My right hon. Friend the Member for North Shropshire (Mr Paterson) asked me about the Venice Commission. The commission’s code of good practice in respect of referendums states that, contrary to the case of elections, it is not necessary to prohibit completely intervention by the authorities in support of, or against, the proposal submitted to a referendum. The Venice Commission goes on to say that public authorities must not influence the outcome of the vote by excessive, one-sided campaigning. That is exactly the sort of balance that the Government have sought to embody in the proposed legislation and in the amendments we are presenting today.

I believe that the package is balanced and fair. It will ensure a referendum that is fair, and seen by all sides to be fair, and in which the whole country can have confidence.