The House of Commons considered yesterday the House of Lords’ amendments to the European Union Referendum Bill, and rejected the proposal to give 16 and 17 year olds the vote in EU referendum . During the debate, Bill Cash made the following speech and interventions:
Sir William Cash (Stone) (Con): I beg to move amendment (a) to Lords amendment 5.
Mr Speaker: With this it will be convenient to discuss the following:
Lords amendment 6, and amendment (a) thereto.
Lords amendments 2 to 4 and 7 to 12.
Lords amendment 13, and amendment (a) thereto.
Lords amendments 14 to 46.
Sir William Cash: I tabled amendment (a) to Lords amendment 5 because amendments were moved in the House of Lords, not the House of Commons, and accepted by the Government in respect of, in Lords amendment 5, a duty to publish information on the outcome of negotiations between member states and, in Lords amendment 6, a duty to publish information about membership of the European Union. That might sound all very well and good, but the problem is that they contain a whole raft of question marks that I want to raise today.
I will just give a brief outline of Lords amendment 5. On the outcome of negotiations, the Secretary of State will be under an obligation to publish a report,
“alone or with other material”—
we do not know what “other material” would involve—containing:
“a statement setting out what has been agreed by member States following negotiations”.
We have just seen the letter from Mr Tusk on the current state of the EU’s assessment of the negotiations and I do not think it makes for very pretty reading for the Government. In fact, I would go further than that. I find this quite astonishing, but the apparent point of the letter was to satisfy, and provide a solution for, the Prime Minister. I thought the real objective here was to satisfy the United Kingdom, in particular its voters. That, after all, is what the referendum is all about. It is not about what the Government think. Parliament is handing over the entire exercise to the voter, which is only proper and that for which I have campaigned for 25 years.
In addition, Lords amendment 5 imposes a duty to publish,
“the opinion of the Government of the United Kingdom on what has been agreed”.
From what we can gather, the Government’s opinion will be that we should remain in, so, not unnaturally, those of us with a different position—I say candidly that I am campaigning to leave the EU, but I need to be impartial and fair in my assessments—are deeply concerned about what the “other material” might contain and what the Government’s opinion in the report will be.
The second amendment (a) is to Lords amendment 6, which places the Secretary of State under a legal obligation to publish a report—again with other material of which we know nothing—relating to,
“information about rights, and obligations, that arise under European Union law as a result of the United Kingdom’s membership of the European Union”.
I have been a member of the European Scrutiny Committee, or its predecessor, for 30 years. There is such a vast accumulation of rights and obligations that I wonder whether it is conceivable that the information could ever be made available in the concise form that such a report would presuppose. In fact, it includes everything arising under sections 2 and 3 of the European Communities Act 1972, which has a massive effect on voters’ daily lives.
The report must also include,
“examples of countries that do not have membership of the European Union but do have other arrangements with the European Union (describing, in the case of each country given as an example, those arrangements).”
This brings to mind the question of Norway, which the Prime Minister raised in EU negotiations and his speech the other day. For me and most of my colleagues, the Norway option has never been on the table because we do not approve of the EEA arrangements. There are other permutations, certainly, but I do not intend to go into them today.
The amendments place on the Government an obligation to deliver reports. The essence of both my amendments is simple. The Electoral Commission, which has important duties relating to all referendum and election matters, has made clear its view of what happened in the House of Lords. We would have loved to debate this properly in the House of Commons, but we now have limited time, so I will keep my remarks brief. The fact is, however, that these massive reports are bound to have a huge effect on public opinion, so it is essential that they be impartial and accurate. The commission has stated, and has repeated to me in an email today:
“However, any provision in legislation for this should ensure that voters can have confidence in the accuracy and impartiality of the information. There should also be sufficient balance given to the consequences of both a majority vote to remain a member of the European Union and a majority vote to leave the European Union”.
I could not agree more. It is clear there has to be a balance. The problem is that everything emanating from the Government—all the speeches and arguments—inclines towards the notion that EU reform would satisfy the requirements set out. The European Scrutiny Committee has taken expert evidence and will publish a report very soon on the outcome of the negotiations thus far. I will not give anything away if I say there are some big question marks over what has been achieved under the renegotiations. There is time to go, however, and I realise that the reports would have to be published,
“before the beginning of…the period of 10 weeks ending with the date of the referendum”.
We will have 10 weeks to evaluate reports that will have enormous persuasive significance.
Mrs Main: How does my hon. Friend envisage the reports being scrutinised, and who does he think will sign them off before they are published?
Sir William Cash: I am confident that the European Scrutiny Committee will be looking at this carefully. During our examination of the renegotiations, we have been exercised by the desire to ensure that the Government do not just come forward with a final offer. The Minister knows what I mean. We do not want to be bounced by a final offer; we want to assess the negotiations as they progress. That is what we are doing, and what we will continue to do, because that is what our Standing Orders require us to do on behalf of the House of Commons. I am grateful to my hon. Friend for her intervention because it is important that the House not be bounced.
I spoke to, and received a note from, the Electoral Commission today. It regards the provision of the impartiality we would expect as beyond its own functions, which is extremely regrettable because it should have an opportunity to comment. My Committee will consider this matter carefully—the Minister knows what that means—and it is my clear assessment that any such report, if he could not guarantee it met the highest standards of impartiality and accuracy, would effectively mislead the British people. That is the test. If he tells me something along those lines, I will be prepared—
Sir William Cash: I am happy to give way to my right hon. Friend, as soon as I have finished my point.
It is important, if the voter is to make a balanced choice, that due accuracy and impartiality be implicit in any such report.
Damian Green: I am slightly puzzled. My hon. Friend is rightly demanding accuracy in the Government’s analysis, but he is also demanding impartiality. Does he mean, and is it the purport of his amendments, that the Government should not express an opinion on the most important issue facing the country for perhaps the next 40 years? I assume not, as that would clearly be absurd. Is he saying, therefore, that if the Government produce an accurate report and then reach a conclusion with which he disagrees, it could not, in itself, be impartial? There is a difference between accuracy and impartiality.
Sir William Cash: I will leave aside my own opinions on this point. As my right hon. Friend knows, I have strong views, which I will develop during the campaign, about why we should leave, but we already know from speeches made by the Prime Minister and other Ministers that there is a presupposition that a reformed Union is the way to go. The test to be applied is whether the reforms amount to much, which I do not think they will, and meet the test of changing our relationship with the EU, which is also relevant. On these questions there will be much debate, but anybody with a fraction of judgment, in respect of this huge landscape and the trust to be placed in the voter to make the right decision, will have to consider whether there is any significant bias in the reports. We have already been through the whole of the purdah debate, which was about using the civil service machinery. If I may say so, I think we won that one. There should not be a back door to achieving the same objectives relating to a report of this kind.
On that note, I give notice that I propose to withdraw my amendment. I want to know from the Minister whether or not he is prepared to accept my point about impartiality and accuracy. He knows perfectly well what I mean, and he is more than capable of giving us a decent answer.
Sir William Cash: Does my right hon. Friend attach the importance that I attach—and the Electoral Commission itself has attached—to the fact that the reports proposed by Lords amendments 5 and 6 should be produced on the basis of both impartiality and accuracy? We remember the review of competences: it was a whitewash. If these reports were anything like that, we would be significantly misleading the public, would we not?
John Redwood: Indeed. That is why I share my hon. Friend’s concern about Lords amendment 6, and fear that the Government might fall short of the full remit. Will they spell it out to people that we cannot control our own borders, our own welfare system, our own energy system and energy pricing, our own market regulations, our own corporation tax or our own value added tax, because all those matters have been transferred to the superior power of the European Union? That should be the very substance of the referendum debate about whether we wish to restore the full sovereignty of Parliament for the British people, or whether we wish to continue on the wild ride to political union that the EU has in mind, which will mean that even more powers are taken away.
The second part of Lords amendment 6 states that the Government must set out
“examples of countries that do not have membership of the European Union but do have other arrangements with the European Union (describing, in the case of each country given as an example, those arrangements).”
I have not read or heard anything so woolly for a long time. The amendment refers to all the countries that are not in the European Union but have some kind of arrangement with the European Union without even specifying a trade arrangement, although the Opposition seem to think that it relates to trade.
The Opposition try to perpetuate the myth that our businesses and people would be able to trade with the rest of the European Union only if we resubmitted ourselves to some of the powers of that Union through some kind of arrangement like those entered into by Norway and Switzerland. Have they not heard that America is a mighty trading partner of the European Union that does not have one of these special trading arrangements, and certainly does not pay a contribution to the European Union in order to sell goods and services to it—nor does China, nor does India, nor does Canada, and nor does Australia— and have they not heard that some individual countries have free trade agreements with the European Union which are arguably better than the arrangement that we have as members of the EU, because they do not have to pay anything like the very large levies and contributions that we must pay for the privilege of trading from within the internal market?
Sir William Cash: I rise to intervene on a member of my Committee simply to say that we know that the broadcasts and the information that will be delivered and published by the designated organisations on either side will provide that information. We saw it in Ireland, and there are many other examples in other referendums in the EU. But the idea that the Government are not going to try and organise the view that they want, which is to stay in a so-called reformed union, is, I think, for the birds.
Peter Grant: I wish I could share the hon. Gentleman’s absolute faith in the impartiality of broadcasters during important referendums, but that might be one of the very small number of issues on which we disagree.
The point about broadcasters is that if they are found to be in breach of the requirement of impartiality, a sanction is available and there are ways in which they can be held to account—and certainly the BBC feels as if it is being very severely held to account by any number of Committees in this place just now.
Sir William Cash: I was not referring to the impartiality of broadcasters in this context; I was referring to the fact that under the designated arrangements each side will have the right to issue broadcasts and provide information by way of literature. That is what I was concentrating on.
Mr Jenkin: I point out to the hon. Member for Glenrothes (Peter Grant) that, whether he thinks it an irony, an accident or something more sinister, it is the people who are in favour of Britain remaining in the European Union who are championing Lords amendment 6, while those who support the leave campaign regard it as a bit of a Trojan horse that would enable the publication of a lot of subjective judgments loaded in favour of one side and not the other.
I referred to the report published at the end of the last Parliament by the Public Administration Committee entitled “Lessons for Civil Service impartiality from the Scottish independence referendum.” The reason that we produced the report was to look at the question of impartiality. There is a rather modern, corrosive view that the concept of impartiality, when applied to civil servants, means simply that they should be prepared to work for whichever party happens to be in office, that by so doing they are therefore impartial and that their conduct can then be quite partial and loaded under the Armstrong doctrine, which states that they have to support the Government of the day. Actually, I think most people in this country regard impartiality as a rather more imprecise quality, with a higher moral tone. They see it as having something to do with objectivity, with balance and with not being compromised into becoming a mere cheerleader for one point of view or another.
I should like to address the amendments to Lords amendments 5 and 6, tabled by my hon. Friend the Member for Stone (Sir William Cash), to which I have added my name. I do not regard the proposed duty
“to publish information on the outcome of negotiations”
to be at all unreasonable. In fact, it would be rather odd if the Government did not publish such information. The advantage of having this obligation in the Bill is that the Government will have to publish it 10 weeks before the date of the referendum. That will mean that it will be properly scrutinised, rather than bounced on to the electorate at the last minute. I would say in response to my right hon. Friend the Member for Ashford (Damian Green) that it is perfectly reasonable for the Government to express their own opinion in such a document on the outcome of their own negotiations, as they would in any White Paper. It would be a good thing to have this provision in the Bill.
Sir William Cash: My hon. Friend should bear in mind that the White Paper that led to the European Communities Act 1972, which went through by only six votes in this House, contained a very precise promise that the use of the veto in our national interest would never be abandoned, because to abandon it would be to endanger the very fabric of the European Community itself. Is that not an example of how unreliable White Papers and other Government reports can be?
Mr Jenkin: Indeed, but it is unavoidable that the Government are going to produce information of this kind.
The second duty, in Lords amendment 6, is not something that I expected to see. The Lords amendment asks the Government to produce judgments and opinions on a vast topic, using examples that, by their very nature, will be subjective. I am not at all surprised that the Electoral Commission has decided that it would be far beyond its competence to make a judgment about what such a document might be. The Government have accepted this amendment, but if they are to justify retaining it—as I expect them to do—they will have to answer some questions about it.
What do the Government mean by the word “publish” in the amendment? It would be one thing to place a learned, detailed and technical paper in the Library of the House of Commons in order to present the depth of analysis that the hon. Member for Glenrothes believes would be justified, but would the Government produce such a subjective document in a form that could be circulated to every household? How would we feel about that, 10 weeks before a referendum? It is reasonable for the Government to explain the outcome of their negotiations, but it would not be reasonable for them to use public money to present their entire world view on European Union membership as part of a campaign to remain in the EU.
Mr Jenkin: I am waiting to hear what the Minister has to say on that point. The proposed amendment changes the wording. It now says that it should be allowed to make that decision only if
“no permitted participant makes an application to be designated under section 109 as representing those campaigning for that outcome except for a permitted participant whose application the Commission states is, in its opinion, vexatious or frivolous.”
That would mean that, provided there are two legitimate applications for designation, the obligation would be clear in the Bill that the commission has to designate two campaigns. That is not clear in the Bill at the moment. If one such campaign was “vexatious or frivolous” and was clearly just there to spoil in some respects, the Electoral Commission would have to justify its action. I hope the Minister will tell us that he can accept our amendment. If he cannot do so, I hope that he will make it clear that the substance of the amendment should be understood, and that it would be unconscionable to have only one campaign designated in this referendum. If an application is made in such a way as to be construed as vexatious or frivolous, such an application would have to be considered. We should be in no doubt that there will be an application in respect of both sides of this campaign.
Sir William Cash: I endorse what my hon. Friend has just said. Let me repeat for the sake of clarity that these amendments are the result of ping-pong between the Commons and the Lords, which is not the best way for them to be considered. We have not had enough time to have a really good look at this matter, and I hope that the Minister will take that into account when he gives us the very full explanation on amendments 5, 6 and 13.
Mr Jenkin: In closing, let me add that in all three amendments we have been discussing the potential role of the Electoral Commission. In respect of amendments 5 and 6, the Electoral Commission has shrunk from the possibility of being given an obligation for which it is not fit. It is worth reminding ourselves that we have already developed one new role for the commission during the passage of this Bill, which is that it will give its advice about possible new regulations on the restriction of section 125 of the Political Parties, Elections and Referendums Act 2000 in respect of purdah. It did not want that obligation, but we gave it to it. Electoral commissions in countries such as Ireland or Denmark have a very much more active policing role in respect of fair referendums, and that is a role that we, in this country, have not set up the Electoral Commission to undertake.
Sir William Cash: With both amendments 5 and 6, we need to bear in mind that a duty would be imposed. That duty would imply and carry with it the potential for judicial review. If there were any failure in carrying out that duty in the manner that was expected under all the precepts of administrative law, the Minister should accept that there is more than a high probability of a challenge in the courts. That challenge could arise not only because of the manner in which a report arose, but if any of the information were misleading in any way.
Mr Jenkin: I agree with my hon. Friend, and will add that, where the Electoral Commission clearly has a duty, its decision can be judiciously reviewed. In respect of the designation of only one campaign, I have absolutely no doubt that there would instantly be a judicial review, and I speak with knowledge aforethought.
In the absence of the duties on the Electoral Commission —for example, to provide for impartial and objective information from the Government—it is a moral imperative on Ministers to ensure that they undertake their obligations in the spirit of a fair referendum, and not to abuse the trust that this legislation places on them with regard to the publication of that information.
Sir William Cash: I refer vicariously to the most recent opinion poll, which showed that 52% of the United Kingdom electorate thought that they should leave and only 48% thought that they should stay in; 60% of those in the south-west said that they wanted to leave.
Sir William Cash: It would be useful, if people really wanted to hear how the debate was progressing, for them to follow the transcripts of European Scrutiny Committee, Treasury Committee and Foreign Affairs Committee proceedings. That will tell them an enormous amount about what is going on and what questions are being asked of Ministers.
Sir William Cash: My hon. Friend will have heard that the Electoral Commission has had duties imposed on it by Parliament, but what the amendment is driving at above all else, with respect to him and to my hon. Friend the Member for Fareham (Suella Fernandes), is that there should be proper impartiality and accuracy in the information. If the commission cannot do that, the Government can. If they do not do it, the courts will ensure that they do.
The Minister for Europe (Mr David Lidington): I thank right hon. and hon. Members in all parts of the House who have taken part in the debate this afternoon. The right hon. Member for Wolverhampton South East (Mr McFadden) was even so generous as to offer an additional filler for my Christmas stocking. I am sure the pamphlet that he proffered to me will take an honoured place on my shelves, alongside the collected works of my hon. Friend the Member for Stone (Sir William Cash).
The House will be aware that this Bill received detailed scrutiny in the Lords. The amendments in this group are part of a wide range of changes that the other House imported into the Bill. Many of those amendment were technical and procedural and were designed to strengthen the fairness and robustness of the campaign framework. The Lords also made technical amendments that ensure that the Bill works appropriately for Gibraltar and responds to recommendations from the House of Lords Delegated Powers and Regulatory Reform Committee. Finally—these are the subjects that have preoccupied the House most this afternoon—in response to concerns from Members of the House of Lords that the British people might not have access to the information they needed to take an informed decision, the Lords added to the Bill the duty to report on three topics: the results of the renegotiations; what membership of the European Union entails in terms of our current rights and obligations; and examples of already existing alternatives to EU membership. In the time that remains I shall address these areas of change in turn.
Amendments 5 and 6 deal with the provision of public information. As my right hon. Friend the Member for Ashford (Damian Green) and my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) both acknowledged, at the end of the negotiating process the Government will express their view and their recommendation to the British people for when the electorate vote at the promised referendum.
What we now have are obligations written on the face of statute for the Government to publish particular items of information. There was a clear appetite in the Lords for such statutory provision. The Lords tabled and debated a series of amendments calling for the Government to set out in very prescriptive detail the potential consequences of remaining in the European Union and also what the consequences of withdrawal would be in a number of areas of national life. Noble Lords called on the Government to set out what their—that is, the Government’s—envisaged relationship with the European Union would be in the event of a vote to leave.
For our part, we did not agree that the Government should speculate on potential consequences in this way and in the detail prescribed by the Lords amendments. In our view, it is for the designated lead organisations to lead the debate on the two sides of the argument. However, the Electoral Commission, in its research into the question, did identify that there is an appetite among the general public for information both on what remaining in the EU would mean and on what leaving could mean. Given the strongly held views that were expressed in the other place, we accepted the principle that the Government should be obliged to play a limited role in ensuring that the public are able to make an informed decision. In our view, the most useful role for the Government is to give information on the renegotiation deal that is achieved, and on the factual nature of membership, to try to aid understanding and to inform the public. Then it will be for the designated lead campaigners to interpret that information and provide their own arguments on both sides.
Amendment 5 is based on an amendment tabled in the Lords by my noble Friend Lord Forsyth, who I think everyone in the House would accept is not someone usually regarded as an unqualified admirer of the European Union. The amendment set a requirement for the Government to report on the outcome of the renegotiation. Building on this, the version of Lords amendment 5 that we now have before us would require the Government to report on what had been agreed by EU member states as a result of the renegotiation and to give their view on this.
Amendment 6 takes us further by requiring the Government to publish a report that would set out
“information about rights, and obligations, that arise under European Union law as a result of the UK’s membership of the European Union”.
This would enable us to describe what membership of the EU entails for this country.
Mr Jenkin: Who tabled amendment 6?
Mr Lidington: Amendment 6, as it currently stands, was tabled by my noble Friend Baroness Anelay, following debate in the Lords, as a way to try to build consensus in that House to enable it to give passage to the Bill.
Perhaps it would be useful for me to explain, in response to comments made in this debate, how the Government interpret the obligation imposed on us by the amendments and how we would propose to see those obligations implemented. By “rights”, as set out in amendment 6, we mean rights that the United Kingdom has as a member state of the European Union, and also the rights granted to individuals and businesses as a result of our membership, such as access to the single market. By “obligations”, we mean the things that our membership of the European Union commits us or obliges us to do. Most obviously, this is at member state level, but there would also be implications for businesses or individuals.
An obvious example is our obligation as a member state to transpose EU law in particular areas and to accept the primacy of the EU so long as we are a member of the European Union. The duty written into amendment 6 does not require the Government to set out information about every single right and obligation. Such a report would not be meaningful, and the purpose of the duties is to provide useful and relevant factual information to allow for greater public understanding.
Amendment 6 requires the Government to describe some of the existing arrangements that other countries that are not EU members already have with the EU.
Sir William Cash: On rights and obligations, the Minister is already beginning to move the argument into the arena of the question of impartiality and accuracy. If the Government pick and choose, the public will not have a clue whether what is chosen suits the Government or them, and it is the voters who will have to make the final choice.
Mr Lidington: To follow my hon. Friend’s logic, the implications of a requirement to provide an exhaustive list would mean going through the entire corpus of EU law—not just the particular areas of competence, as specified in general terms in the treaties—and trying to draw out from that what would be a voluminous list of both the rights and the obligations that derive from each of the measures. I simply do not think that that would aid public understanding. Actually, I think it would act as a formidable deterrent for many members of the public to read the document at all.
My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) asked about the form of publication. No decision has been taken yet, but I envisage it being comparable to a White Paper, if not an actual White Paper. As is normal these days, such a publication would be available online, so it would be widely accessible. The reports would have to be published at least 10 weeks before the referendum, which would give the campaigners clear time to lead the public debate. I emphasise that neither Lords amendment 5 nor 6 in any way affects the section 125 restrictions on Government publications during the final 28 days of the campaign. I hope that my hon. Friend the Member for Stone, in view of what I have said and of the Electoral Commission’s express view that it does not agree with his amendment, will agree to withdraw it.
Sir William Cash: Before I declare whether I am going to withdraw my amendment, I have asked my right hon. Friend several times to make it absolutely clear, on behalf of the Government, that when they give information under Lords amendments 5 and 6 they will do so with due accuracy and impartiality. Is he going to do that or not?
Mr Lidington: Certainly, that is the case, because it would probably have a perverse impact on the Government’s recommendation if they were to be seen to be acting in an excessively partisan manner. I say again to my hon. Friend that, at the end of the negotiation, the Government will express their view, their recommendation and their reasoning, but we see the statutory provisions laid out in the Lords amendments as being about the provision of actual and factual information.
Lords amendment 13 has also been debated in detail. It would allow the Electoral Commission to designate a lead campaigner for only one side of the argument in the event that either there were no applications for a particular outcome or the Electoral Commission was not satisfied that any applicant met the statutory test of adequately representing those campaigning for that outcome. Given the vigour we already see in opposing campaigns, it is very unlikely that we will end up in such territory. I hope that the House will accept Lords amendment 13 to prevent gaming by one side of the campaign to the disadvantage of the other.
Sir William Cash: I simply say that in the light of the clear assurance that there will be due impartiality and accuracy, I will not press my amendments to Lords amendments 5, 6 and 13. I beg to ask leave to withdraw amendment (a) to Lords amendment 5.