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 who 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.
8.57 pm
Two and a half hours having elapsed since the commencement of proceedings on consideration, the debate was interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.
Question agreed to.
New clause 10 accordingly read a Second time.
The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Manuscript amendment made to new clause 10: (a), after subsection 5 insert—
‘(5A) Any regulations under subsection (2) must be made not less than four months before the date of the referendum.’.— (Mr Jenkin.)
The purpose of the amendment is to ensure that the “purdah” arrangements that govern ministerial and official announcements, visits and publicity are made at least four months before the date of the referendum.
New Clause 10, as amended, added to the Bill.
Amendment proposed: 11, page 5, line 28, at end insert—
“(1A) (a) Section 1 will come into effect after a resolution has been passed by both Houses approving arrangements for a purdah period covering a period of five weeks before the referendum date.
(b) arrangements for a purdah period will include—
(i) restrictions on material that can be published by the government, public bodies and the EU institutions; and
(ii) measures to determine breaches of purdah and penalties for such a breach.”—(Alex Salmond.)
The referendum provision of the Bill could only come into effect after arrangements for purdah had been approved by both Houses of Parliament.
Question put, That the amendment be made.