Sir Bernard Jenkin
MP for Harwich and North Essex · Conservative · United Kingdom
“Despite long and historic disagreements between successive UK Governments and Israel, it has remained a steadfast ally in counter-terrorist efforts to keep our people safe in this country. We are now embarked, it seems, on a full diplomatic dispute with Israel and tit-for-tat expulsions of diplomats.”
“I would very much have liked to have discussed the medical devices questions arising from the Bill. The Minister made an incredibly short speech about that important matter. It is quite clear that these provisions are part of the covert dynamic alignment with the EU and the covert rejoin agenda being pursued by the Government.”
“I am as keen as anybody to get on with discussing the Health Bill, but this topic is too serious an opportunity to miss, given that the hon. Member for Leeds Central and Headingley (Alex Sobel) has raised such important issues. I really commend his speech and his initiative. Everybody should read it.”
“The Minister shakes her head, but she is yet to give a good reason as to why this measure is in the Bill. When we had an Adjournment debate in July with the then Minister for patient safety, the hon.”
“The chief executive of the CQC is wantonly conflicted in terms of looking after the safe space, so he cannot be the one left in charge of that function. The real point here is that we are missing the opportunity to save so much money. Governments keep having public inquiries.”
“I asked the Minister, in a letter I sent her after the debate in July, to give us the information on how much the transfer of all this would cost. Nothing has arrived. I never had a reply to the letter. Of course, the Government have changed the Minister and the new Minister for patient safety, the right hon.”
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“Thank you for the early warning, Mr Deputy Speaker. It is my privilege to follow the Father of the House, who, in his now customary fashion, stilled this House with his wisdom. I think we should listen carefully to what he said and take on board the points he made. The only response I would make is this: he said that before this measure we were all equal, but I am afraid that that is not the case. The West Lothian question was originally coined in the 1970s, but it has been with us since the moment the devolution settlements were enacted in Wales and Scotland. The fact that it has been ignored, ignored and ignored, and amplified by further and further devolution to Scotland and Wales, and now to Northern Ireland, is the reason we are now having this debate: we have this one unresolved issue before us.”
“I am not going to give way. We are carrying out an evaluation of English votes for English laws that perhaps looks to a new settlement in the United Kingdom—what it might look like and what the financial consequences might be. This might finish up with exactly the kind of Joint Committee that has been proposed by Lord Butler of Brockwell, and that might be a good way of resolving these differences in the long term.”
“How will transparency in government be improved by the alteration of the code of conduct for special advisers, which now says that they shall be entitled to give instructions to communications staff in Departments?”
“Will my right hon. Friend join me in commending one of our foremost business leaders, who has said that the idea that investment will flee the United Kingdom if we leave the EU is “scaremongering”, saying that the EU “is an overinflated bureaucracy. There are too many unelected people…who are trying to get even more power”? He also said: “It’s not going to be a step change or somebody’s going to turn the lights out”, and “if you vote to come out in the referendum, you’re not going to suddenly find on the Monday morning I can’t do this, this and this.” Does my right hon. Friend agree with Lord Rose, who is chairman of the Britain Stronger in Europe campaign?”
“Does my right hon. Friend recall that in the debate about Syria two years ago there were voices around this Chamber arguing that the conflicts in Syria and elsewhere were nothing to do with us and should not involve us? Is it not clear that the failure of western security strategy in the middle east and elsewhere is the main driver of this migration crisis, and may I endorse his requirement for a full-spectrum response to ISIS? Will he consider setting that out in a comprehensive White Paper in order to lead world opinion?”
“What is the exact meaning of what the Minister is saying? My letter to him on behalf of the Public Administration and Constitutional Affairs Committee in July made clear the Committee’s view that section 125 should remain unimpaired and that “the Government should not be allowed to use the machinery of Government (i.e. the resources of the Government) for campaigning purposes during the purdah period, as is already implied in the Civil Service Code.” Do the Government accept that position?”
“I am somewhat astonished that the Government are raising the question of hon. Members somehow being caught by purdah provisions. It is an established legal principle that titles of sections are not used to determine construction in legal interpretation. The word “person”—here I take the advice of Speaker’s Counsel—is likely to mean “a legal person” and to be of a similar nature to “a body”. The Minister’s suggestion that this might constitute “individuals” betrays, I think, the poor legal advice he has been given.”
“He mentions provisions on EU business being conducted as normal, stating: “I do not share the view that these are caught by s.125.” It could not be clearer. He goes on: “Commenting on EU business is not providing information about a referendum”— that addresses the question of TTIP negotiations— “neither is it ‘dealing with any of the issues raised by a referendum’…nor is it putting any arguments for and against any particular answer”. He points out: “Even if they were doing any of these things, then s.125(3)(d) expressly allows the issue of press notices (without any restriction as to their content).” What do the Government need to be able to do that they will not be able to do? That has been singularly unexplained in the whole process.”
“It states: “Our view is that, if Parliament accepts this new clause, its use should be limited only to managing any potential restrictions on the conduct of ‘day-to-day’ EU business.” The Electoral Commission also makes clear its support for the amendment to new clause 10, which my right hon. Friend the Minister has accepted. It states that any changes should be made “well before the start of the restricted period of 28 days before polling day.” I am grateful to him for accepting that. Speaker’s Counsel has been mentioned. My right hon. Friend said that the TTIP negotiations might suddenly intrude on the last 28 days of campaigning, but Speaker’s Counsel has been clear on that point in emails today.”
“Friend the Minister for telephoning me while I was in Ireland last week and explaining what was intended. This is pretty complicated stuff, and to end up with 38 pages of amendments to debate in five or six hours is not the best advertisement for how we legislate in this House, but nevertheless there has been dialogue, and it has been good-natured. My colleagues and I do not relish disagreeing with our Government, so we very much appreciate the fact that the dialogue has been conducted in a good-natured way. I thank my right hon. Friend the Chief Whip for that. The Electoral Commission’s advice states that it has not had sufficient time to fully consider the detailed implications of the Government’s proposals, but that the Government should explain in more detail “how it would expect to use these powers”— the powers under new clause 10.”
“The Government were, and still are, putting forward the view that section 125 of the 2000 Act is too wide-ranging, but that failed to convince almost all our witnesses. As the Minister will recall, we made it clear in our letter that the Committee’s unanimous view was that section 125 should be restored to the Bill, and that “its intent should remain unimpaired by any amendment.” I imagine that that remains the view of Committee members, particularly as I suspect most of them will support what is decided in the Division Lobbies later. We have the Electoral Commission’s advice on the Government’s new proposals, which makes it clear that, like the rest of us, the commission has had very little time to consider them, although I thank my right hon.”
“In Ireland, for example, the equivalent of the Electoral Commission has a strong role in policing the purdah regime. I will come to that in a minute. I also thank my right hon. Friend the Minister for Europe for being so scrupulously polite and confirming to all of us once again that his integrity is unimpeachable. I commend him for having brought the Bill a long way from where it was in June, when the Committee wrote to him after taking evidence from Lord Owen, from Jack Straw, from Peter Riddell, the director of the Institute for Government, from Lord Bew, the chair of the Committee on Standards in Public Life, from the Electoral Commission, from Sir Jeremy Heywood and from Ministers.”
“Given that they started from the position that they did not want to have purdah in statutory form at all, we are entitled to be a little suspicious about what kind of regulations they might bring forward. I appreciate that there is a safeguard, in that regulations will have to be approved by both Houses of Parliament, and the Committee will be vigilant in looking at those regulations. I am grateful to my right hon. Friend the Minister, and to my right hon. Friend the Foreign Secretary, who is also listening, for the fact that the Government have accepted the principle that the Electoral Commission should be consulted and give a view in advance of any such regulations. That moves the Electoral Commission into a slightly new role, but it is not uncommon in other countries.”
“First, I thank my right hon. Friend the Minister for generously accepting amendment (a) to new clause 10. That will provide a significant safeguard and reassurance, and it will provide stability in the referendum campaign. It means that regulations changing the rules will not be made halfway through the campaign, perhaps to suit the convenience of Ministers at a time when the temptation to avail themselves of that convenience might be considerable, given the big issues at stake in the referendum. I am grateful to members of my Committee, the Public Administration and Constitutional Affairs Committee, for supporting that amendment. I am bound to say, however, that new clause 10 has been described as an open barn door for whatever changes to purdah the Government want to make.”
“and learned Friend the Member for Rushcliffe (Mr Clarke) and I really think he wants to go back to a 1975-style referendum where the Government are used as an instrument of campaigning in what should be a fair fight. What is the point of having spending limits on the yes and no campaigns if Ministers can use the machinery of Government in an unrestricted way, which is what the abolition of purdah would mean?”
“Indeed, the Foreign Secretary could bring forward a White Paper before the start of the 28-day period, just as the Scottish Executive brought forward a comprehensive White Paper about their proposals for Scottish independence, although it was lacking in detail and a little bit partisan—we had some comments to make about that. There is nothing to stop the Government bringing forward as much information as they want before the purdah period. Incidentally, the Electoral Commission thinks that 28 days is far too short for a purdah period and we are not debating that today. If the Government, with all the advantages that Governments have, cannot win the referendum just because they will be restricted for the last 28 days, what kind of referendum do we expect to have? I listened to my right hon.”
“The Government’s proposals take us backwards, as we have heard from those who have participated in referendums, such as Nigel Smith, a well-known referendum expert who was chairman of the Scottish yes campaign. He has been appalled by the proposals, and he gave evidence to our Committee about them. It has been suggested that the precedent for the forthcoming referendum should be 1975. I do not know whether Members have read the 1975 Cabinet minutes, but they show how the Government were set to run a parallel campaign to the yes campaign. That is not the precedent that we should follow in the last 28 days of campaigning.”
“Tony Blair’s Government introduced the 2000 Act in order that there could be a fair referendum on the euro, which was his ambition. If these arrangements were good enough for Tony Blair, why are they not good enough for our own Conservative Government? A referendum should be a solemn and carefully regulated constitutional procedure, not a ploy or device to get a particular outcome and fix a political problem. Abuse of the referendum by less scrupulous Governments in the last century famously led Clement Attlee to describe referendums as “a device of demagogues and dictators”. Other countries, such as Sweden, Ireland and Switzerland, have much tougher purdah regimes.”
“And indeed in our own country—it was the conduct of the Welsh referendum in 1997 that led the Committee on Standards in Public Life to bring forward its proposals for purdah, which the then Labour Government accepted and which the Labour party consistently supports today. Those arrangements were good enough for the north-east referendum, the alternative vote referendum and the most recent Welsh devolution referendum. Indeed, in the view of some Members, they were probably not strong enough in respect of the Scottish referendum last year. As my right hon. Friend the Member for Wokingham (John Redwood) said, the purdah proposals were designed for a referendum on the euro, so the idea that the European Union was not considered when the arrangements were formulated is just not correct.”
“If the Government want to provide exemptions, they should introduce the amendments under regulations rather than under amendment 53. The advantage of defeating amendment 53 is that we will be able to have amendment 4 instead. It was the unanimous view of the Public Administration and Constitutional Affairs Committee that section 125 and its effect on this referendum should be restored unimpeded. That would be the effect of amendment 4, but there may be some tidying up to do.”
“That is an unimpeded advantage of which the Government can avail themselves. All we are saying is that there should be something of a level playing field in the last 28 days. I regret that the Opposition accept new clause 10; nevertheless I am grateful that they support amendment (a) in order to create a framework for the creation of regulations. I am very unhappy with amendment 53. As the Opposition spokesman, the right hon. Member for Wolverhampton South East (Mr McFadden), made plain, to have amendment 53—which already adulterates section 125—without the scrutiny process of regulations and a specific debate about what Ministers actually want to exempt is a shot from a double-barreled shotgun against section 125 of the Political Parties, Elections and Referendums Act 2000.”
“That is absolute nonsense. Even in a general election, Ministers can get advice from their Departments. Ministers also take advice during local government elections. If something happens that is unconnected with the referendum, Ministers will be able to take advice. I have heard it said that Ministers want to use their private offices to organise their speaking tours and to use their special advisers, who are paid for by the taxpayer, to campaign in the referendum. That is not an acceptable use of public money. What is the point of placing spending limits on the yes and no campaigns if the Government are going to avail themselves of all those advantages? My right hon. and learned Friend could persuade the Government to produce a White Paper to set out their case well in advance of the purdah period.”
“Most of my Committee would certainly agree that this is making the best of a bad job. We will, however, make some progress today if we succeed in restoring section 125 under amendment 4, which the Opposition have pledged to put to a vote should amendment 53 be defeated. I therefore advise my colleagues, very reluctantly, to vote against amendment 53, because while I think the Government have conceded the principle that there should be purdah, they have not accepted the fact of how it will apply. If they want to amend the Bill again in the other place, it would be worth while having that discussion, rather than accepting amendment 53.”
“I wholly agree with my right hon. Friend. In fact, I think that would reinforce the integrity with which the Government have approached the matter. They still have the option of amending the Bill again in the other place and bringing it back for discussion in this House, and of introducing regulations under new clause 10, so long as that happens at least four months before the date of the referendum. I am bound to say that there are plenty of options available to the Government. They do not need to divide the House on amendment 53.”
“If we are to have a sensible referendum debate, there has to be a proper period for discussion of the outcome of the Government’s negotiations and the merits or otherwise of remaining in or leaving the European Union. I am sure that was the Government’s ambition when they originally proposed the idea of a referendum. I look forward to hearing what the Minister has to say in winding up.”
“I will certainly undertake to put that in front of my Committee. It depends on the Government: if they table amendments 35 minutes before the deadline and a recess period and are then determined to discuss them on the first day back, it makes it very difficult to scrutinise matters, as the Electoral Commission has attested. I invite my right hon. Friend the Minister for Europe to make sure that any regulations he introduces under new clause 10 are published in draft so that we can properly give them pre-legislative scrutiny, take proper advice on them and make objective recommendations to the House without being rushed or bounced into them. One of the advantages of amendment (a), which my right hon. Friend has kindly accepted, is that the temptation to bounce the country into a referendum has been significantly reduced.”
“I think the right hon. Gentleman and I are in agreement about the role of civil servants—obeying the Government of the day but not carrying out instructions that would put their Ministers in breach of purdah. There should be something in the civil service code that makes it clear that the yes and no campaigns of a referendum are the equivalent of political parties in an election, but the code contains nothing about referendums. I have great sympathy with the point he is making about the enforcement of purdah, because the north-east referendum had exactly the same problem as he is describing; John Prescott announced new proposals in the last few days before the referendum and we could not get anybody in government interested—they said it was a matter for Ministers.”
“If he wants that body to be truly independent and to have a special status, he should remember that the marine accident investigation branch and the air accidents investigation branch have specific legislation to provide for such immunity. Public interest disclosure protection must not be challenged by freedom of information requests, given that freedom of information has been extended into areas where we never imagined it would go. We have to be specific in legislation that that cannot happen in this instance.”
“I thank my right hon. Friend very much for his extraordinarily embracing response to the Public Administration Select Committee report on clinical incident investigation. We started less than a year ago with the germ of an idea, and it has turned into what amounts to a radical reform of safety investigation in the health service. That is a tribute to him and to the Committee’s witnesses, but it is a tribute to the health service itself that it has embraced the idea, which is a big change that I believe will be transformative. May I pick up on the Secretary of State’s reluctance to provide special legislation for the immunity of those giving evidence to the new patient investigation body? Will he keep an open mind on the subject?”
“Does my right hon. Friend agree that we are witnessing the kind of large-scale migrations that were predicted some 20 years ago? We now need a much more comprehensive response from responsible countries to deal with the issue. I commend her for insisting to our European partners that they should seek to return people to their home countries rather than accepting them into the European Union, and for questioning the borderless Schengen area in Europe that encourages large-scale migration across our continent.”
“May I observe for my right hon. Friend that the Scottish National party has only one objective in this House, which is to foment the break-up of the United Kingdom? Unless all Unionist parties in this House work together to frustrate that aim, instead of continuing the usual games we play in this House, we will help them to achieve that objective.”
“What does my right hon. and learned Friend think cannot be achieved by an Act of Parliament that can only be achieved by a written constitution in this regard?”
“I congratulate my hon. Friend on his appointment as Minister for the civil service and assure him that the now Public Administration and Constitutional Affairs Committee will look forward to working with him on civil service reform, as we did with his predecessor, who did so much during his term of office. May I also give my fullest support to his objective of achieving diversity? That is a vital part of having an agile civil service and requires the challenging of attitudes and habits of behaviour as much as setting targets.”
“Does not the eurozone states effectively endorsing a plan for fiscal and banking union, as proposed by the five eurozone Presidents, regardless of the treaty that the Prime Minister vetoed in December 2012, underline the urgency for the Chancellor to deliver on the dilemma that he outlined in a speech on 15 January 2014, when he said: “The…Treaties are not fit for purpose.” He also said: “If we cannot protect the collective interests of non-eurozone member states then they”— meaning we— “will have to choose between joining the euro, which the UK will not do, or leaving the EU.” Can he explain why those words have been taken down from the Downing Street website?”
“On a point of order, Mr Hoyle. Excuse me, but I thought we were discussing amendments, not the views of certain businessmen about the EU. Surely we should stick to the amendments.”
“I thank the right hon. Gentleman for giving way, and for the pertinent questions that he is putting to Ministers. They and I have been engaged in similar discussions. May I ask, however, why his party has decided not to support amendment 11, which would reinstate purdah, until he has received those assurances? Why is he letting the Government off the hook—or is it part of a Euro-stitch-up to rig the referendum?”
“The Government argue—I think we have to accept their argument—that these detailed and broad restrictions are too prescriptive and that they would not be able to carry on with the normal course of government, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) has explained. Does my hon. Friend not agree that there would be too much interference in the normal conduct of government?”
“You will have to do that through the no campaign or through your party.” That is exactly right. What is the point of the expenditure limits for the yes and no campaigns if the Government have 80 special advisers and thousands of press officers able to issue press releases, brief the media and organise media tours for Ministers? That is precisely what should not be available to Ministers during the closing stages of a referendum campaign.”
“That is precisely what should not be allowed. The idea that this will prevent Ministers from saying anything, and that somehow Ministers will not be able to take part in the referendum campaign, is clearly tosh. I seem to recall the Prime Minister being very vociferous in the run-up to the Scottish independence referendum, right to the last day of the campaign. However, he was unable to use his ministerial car, fly at ministerial expense or use the machinery of government to promulgate the messages he wanted to get across. There might have been a rather frustrating moment when he said, “I want to put out a statement”, and the Cabinet Secretary would have had to tell him, “I’m sorry, Prime Minister, but you can’t do that now that we are in purdah.”
“In fact, by explaining what is contemplated, it confirms precisely the opposite. For example, it states that the Government, “having taken a position on the outcome of our negotiations with the rest of the EU, will naturally be obliged to account to Parliament and the British people.” There is absolutely no problem about accounting to Parliament in any purdah period about any matter at all, because it is privileged. There are no purdah rules that apply to anything that any Minister would say on the Floor of the House of Commons. But are we seriously to believe, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) indicated, that civil servants should be used to put out press releases on matters that are being addressed by the referendum question, because that is what he is saying?”
“It was regarded as essential to have a period when the machinery of government cannot be involved in supporting one side or the other in a referendum campaign. The Electoral Commission would like 10 weeks, rather than just four weeks. There are certain myths about purdah. The Government do not grind to a halt during a general election. Ministers even attend meetings of the Council of Ministers during general elections. However, during a general election a Minister cannot use their Department to promulgate information or to brief the press in a manner that is intended to affect the outcome. We want the same to apply in the referendum. The letter from my right hon. Friend the Minister for Europe, which the right hon. Member for Gordon (Alex Salmond) has now seen, does not actually provide the reassurance that is required.”
“I very much hope to persuade my fellow members of the Committee to address some of these issues during this Parliament. I am disappointed that the Labour party has abandoned the principled position it adopted on purdah when it implemented the 2000 Act, which is quite extraordinary. I ran into Jack Straw, the former Foreign Secretary, this morning, and he was thoroughly disappointed to hear that the Labour party was backing off from supporting the constitutional legislation that it had implemented. Those ideas did not just come out of nowhere; they were ideas for a fair referendum that arose from the unfairness of the conduct of the first Welsh referendum, which were addressed by the Neil committee, which became the Committee on Standards in Public Life—the key is in the name.”
“When we rang up the Cabinet Secretary to complain that the Deputy Prime Minister had breached the purdah rules, we were told, “That’s a matter for the Minister, not for me.” That underlines the argument that the purdah rules are not tough enough, rather than that we should not have them at all, because they prevented civil servants from becoming embroiled in referendum questions, or being used by Ministers to promulgate the case that the Government wanted them to promulgate, and that is the vital protection. It is principally towards the impartiality of civil servants that I want to address my remarks, particularly given that, I am proud to say, I have been elected unopposed to the Chair of the Public Administration and Constitutional Affairs Committee.”
“I have some experience of referendums, because I set up the “North East Says No” referendum campaign in 2004, which turned around a two-thirds majority in favour of a north-east Assembly into a 4:1 defeat. We operated under the provisions laid down by the Political Parties, Elections and Referendums Act 2000, which worked pretty well. The purdah provisions restricted what the Government did, although they are probably not tough enough. They did not prevent the then Deputy Prime Minister, John Prescott, changing the Government’s policy on what powers that putative Assembly would have only a few days before the postal votes went out.”
“I will endeavour to be as brief as possible in order to allow other Members to speak. I will speak primarily to amendments (a) and (b) to amendment 11, which stand in my name, but also in support of amendment 11, which stands in the name of my hon. Friend the Member for Stone (Sir William Cash). I thank my right hon. Friends the Minister and the Foreign Secretary for the positive way in which they have engaged with the entire party on these questions. We are grateful for that dialogue. I think that absolutely proves that we are not in some re-run of previous grief. This debate is not even about Europe; it is, in fact, about how to conduct a fair referendum.”
“The report shows that the Scottish Executive abused their position by sending out a rather political White Paper, some parts of which read more like an SNP manifesto than an objective Government document—that is always the danger with Government publications—but at least they did not send it out in the purdah period, at the most sensitive moment. Not only that, but the advice of the permanent secretary at the Treasury, Sir Nicholas Macpherson, on currency unions was published in a completely unprecedented move on the basis that he had to “reassure the markets”. That was his excuse, and I am afraid that we regarded it as only an excuse. Are we to say that Ministers will agree to civil servants publishing their advice during the purdah period? Perhaps they might even be instructed to publish their advice during that period.”
“They must be able to say to a Minister, “No, Minister, we are in purdah, so I cannot do that now. You must do that yourself or through some other organisation.” If they are not subject to purdah, it is the job of civil servants to support the Government of the day by carrying out the instructions of their Ministers, so they will be obliged to put out press releases, to help Ministers make the case and to use the machinery of government unfairly to support one side or the other. I draw the Committee’s attention to the report that the Public Administration Committee produced just before the general election, “Lessons for Civil Service impartiality from the Scottish independence referendum”.”
“It is a simple matter of principle, which is why I think we would be right to press this to a vote if necessary, unless the Government accept our amendment. I really hope that they will, because it would simply put purdah back into the Bill, where it should be. I commend my right hon. Friend the Minister for saying that he wants dialogue on what the problem actually is and on how it can be addressed by amending the purdah regime, rather than scrapping it altogether and relying on assurances based on advice from civil servants who have clearly got it wrong. I want to focus in my final remarks on the impartiality of civil servants, because this is really about what they can and cannot do. They must be in a position to protect their impartiality.”
“Last night, Labour Members were going to vote for amendment 11, but today they are no longer going to do so. I think that they are in a bit of a muddle, and I suspect that quite a few pro-EU Labour Members would like to help to rig the referendum in favour of the yes campaign. [ Interruption. ] I see I have provoked the hon. Member for Rhondda (Chris Bryant). In the interests of brevity, I shall not invite him to intervene. Unless we insist that the provisions for purdah remain in the Bill, we are acquiescing in the dilution of an important principle.”
“If we do not press the amendment, we consent to the removal of that protection from the Bill. My right hon. Friend the Minister cannot ask us to do that. It is an issue of principle, and he is asking us to accede to completely the wrong principle. As I have said, I believe that he has been given very wrong advice. Far be it from me to speculate about how many Eurosceptics there are among the permanent secretary community, who might want a bit of extra freedom about what they get Ministers to do during a referendum campaign. I am deeply disappointed that the Labour party has abandoned all its principles, but we know that it is split on the matter. On Second Reading, it was in favour of scrapping purdah. At Prime Minister’s questions, it was against scrapping purdah.”