As I have just said to the House, what the Government can and cannot do in general elections is governed by guidance and convention, and not by statute, which brings the risk that a dispute could end up before the courts. The situation as regards the EU referendum is different, because there is law on the statute book, dating from 2000, so discretion and common sense cannot be applied in the way that is possible during elections, when we rely on guidance.
On amendment 53, we believe that section 125, as drafted in the 2000 Act, would create legal risk and uncertainty in what I might describe as ongoing normal EU business during the final weeks before the referendum. One of the problems with the original subsection 1(b) is the breadth of the wording that describes and defines the material that would be caught. It imposes a very wide-ranging prohibition on Government activity. It bans public bodies and persons
“whose expenses are defrayed wholly or mainly out of public funds”
from publishing material that
“deals with any of the issues raised by”
the referendum question.
Unlike the recent cases of the Scottish or alternative vote referendums, the subject matter of the EU referendum cannot simply be avoided in Government communications during the last 28 days. The subject of EU membership is broad. A Government statement in Brussels on an EU issue under negotiation could be said to be dealing with an issue raised by the question of our membership, and therefore be caught by the restrictions in section 125. Let me provide an example.
There are ongoing negotiations between the EU and the United States on the Transatlantic Trade and Investment Partnership. It is perfectly conceivable that, at some stage during the last month of our referendum campaign, those negotiations could reach a stage at which there would be a discussion between the institutions of the EU and member states of the EU. The British Government would have a view on the right outcome and might want to circulate papers to lobby, using the sort of materials that would be captured by the section 125 definition of publication. If the section remains unamended, my concern is that there is a risk that that will be challenged in court, because it could be said to be raised by the referendum campaign. It is certainly conceivable that one or other or both of the campaign organisations could pray in aid that particular issue as indicating why we should or should not remain a member of the EU. Once that happened, it would certainly be classed as raised by the referendum campaign.