The legislation is now 15 years old, and the more we have gone into its detail, the more I have come to the view that many of its provisions, including some we are not planning to amend, would benefit from a review simply to bring it up to date. For example, it was written in an age before the digital communications and social media that are now normal. We have considered this matter in detail and taken serious legal advice, and we believe that there are legal risks of the type I have described.
On new clause 10, on Second Reading, the Foreign Secretary and I argued that given that the referendum was being held on the basis of a clear Government commitment and that voters would be asked in effect whether they agreed or disagreed with a Government recommendation, following a Government-led renegotiation, it was reasonable for Ministers to be able, with restraint, to use ordinary Government communications channels and civil service support, including during the final 28 days of the campaign. However, it was clear from the debates at earlier stages and from my conversations with hon. Members on both sides of the House that there was widespread concern about the scope of any general exemption for Government communications.
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Instead, new clause 10 provides a power to make regulations to exempt particular categories of publication from section 125. Any such regulation would need to be approved by an affirmative resolution in both Houses. We have also adopted the recommendation of the Political and Constitutional Affairs Committee that the Government should consult the Electoral Commission before any such regulation is made.
While I understand the constructive intention behind the suggestion made by the hon. Member for North Down (Lady Hermon), I think that at the end of the day the Government must be free to go to Parliament and ask whether it accepts or rejects a particular proposal. The safeguard here is that if Government new clause 10 is accepted tonight, both Houses will have the right to veto anything that the Government might bring forward under this new provision.
Let me explain the kind of things I have in mind. They include, for example, modernising the press notice exemption, which is already in section 125, to take account of digital media, by making it clear that it is permissible to link to a press notice from a website or a social media site; allowing the publication of a document on government.uk; or clarifying that material passed on to the print or broadcasting media would be acceptable. None of those things is clear at the moment. Let me repeat that we have no intention of legislating to allow the Government to do things such as mailshots, paid advertising or leafleting.
I return to the point raised by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). This power by regulation could be used to clarify a possible de minimis common-sense use of official resources; it might be permissible for Ministers or others caught by section 125 as it currently stands to apply it. Depending on the phrasing of a regulation—if Parliament accepts it—it might cover fact checking by officials so that a Minister could respond in a ministerial capacity to a particular statement that had been made about the Government’s position. It would be for Parliament to say whether it was permitted or not; and on my reading of section 125, it is not currently permitted.