10
Public Administration and Constitutional Affairs Committee House of Commons London SWlA OAA Tel 020 7219 2107 Email [email protected] Website www.parliament.uk/pacac Mr David Lidington MP Minister for Europe Foreign Office 21 July 2015 Copied to: Mr John Penrose MP, Minister for Constitutional Reform Inquiry into the EU Referendum Bill: Purdah and Impartiality of the Civil Service The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness, transparency and balance, which are crucial in order to ensure confidence in the process and legitimacy of the outcome. We were therefore concerned by the Government's proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum. The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to "consult parliamentary colleagues in all parts of the House to understand their concerns and views more closely, and to frame a set of amendments that will command the widest possible consensus in the House on Report". 1 The Committee wishes to avail itself of this opportunity. On the 8 July, we launched an urgent inquiry into the EU Referendum Bill: Purdah and Impartiality, with a commitment to report our findings before the summer recess. Given the limited time, I am writing to you to present our conclusions from the evidence we have heard, including from you, and to express our view in advance of the Government's new proposals. We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill, scheduled for Monday 7 September 2015. We intend to take further evidence during the next phase of our inquiry in relation to other issu es relating to the Bill, such as the date of the Referendum, the franchise, the length of the referendum period, campaign spending limits and the wording of the question. We intend to publish a full Report in advance of the second reading debate in the House of Lords. I HC Deb, 16 June 2015, c235 ,' I o1 S [LINK] LETTER TEXT -

Public Administration and Constitutional Affairs · PDF filePublic Administration and Constitutional Affairs Committee ... The Public Administration and Constitutional Affairs

  • Upload
    lamphuc

  • View
    239

  • Download
    3

Embed Size (px)

Citation preview

bull

Public Administration and Constitutional Affairs Committee House of Commons London SWlA OAA Tel 020 7219 2107 Email pacacparliamentuk Website wwwparliamentukpacac

Mr David Lidington MP Minister for Europe Foreign Office

21 July 2015

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governments proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to consult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Report 1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governments new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

I HC Deb 16 June 2015 c235

I o1 S

[LINK] LETTER TEXTshy

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 2015 2 In particular our predecessor Committee recommended that the Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaigns Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a very wideshyranging ban on what the Government can do during the purdah period and would prevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgment 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakers Counsel for example noted that some of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Const1tut1ona l Affairs Select Committee Public

Adm1nistrat1on Select Committee Fifth Report ofSession 2014-15 lessonsforCivtl Service 1mpart1a1tyfrom the Scortish independence referendum 17 March 2015 HC 111

3wwwparhamentukbusinesscommitteescommit tees-a-zcommons-selectpublic-admin1stration -and-constitut1onal-affairsshy

comm1tteeinqulnesparilament-2015eu-referendum-bill-partmiddot l-purdah-and-1mpartial1typubl1cations

4 HC Deb 16 June 2015 c232

construction of its terms5 Similarly Dr Catherine Haddon from the Institute for Government stated that the question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governments statements thus far6

The Electoral Commission in their evidence to the Committee also expressed their opinion that what has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Bill7 or that there is anything in Section 125 that stops minutes of meetings being published in the ordinary course of business 8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had not seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a resu lt of section 125 9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governments position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any material (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

wwwparliamentukbussnesscommitt eescommittees-a-zcommons-selectpublic-administrat1on-and-constitutional-affairsshy

comm1tteeinquiriesparliamentmiddot2015eu-referendum-bl II-part-1-purda h-a nd-i mpart ia lity pubIIcat ions

bull Written evidence from Dr Catherine Haddon wwwparl1amentukbussnesscomm1tteescomm1ttees-a -zcommons-selectpublic-admnistrationshy

andmiddotconstitut1onalmiddotaffa1rsmiddotcommittee1nqu1nesparl1amentmiddot2015eumiddotreferendum-bilimiddotpartmiddot l middotpurdah-and-lmpartia ltypublications

7Ql95

8 Ql96

9 Q203

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the run up to the Vow10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described the Vow as having been probably against any form of objective advice as to how the government machine should operate 11 In his opinion to have another vow in those circumstances in this coming referendum would be outrageous12 Lord Bew in his evidence also raised concern about impartiality and objectivity for example of civil servants and stressed that the prize [in the referendum process] is to get legitimacy 13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instil confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

to See t he Public Administration Select Committee s report from March 2015 Lessons for Civil Service mpartality ofter the Scottish independence

referendum

1 u20

l2 Q21

1 Answers to Qs 93 and 98

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is inappropriate because 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 Our advice is that there nothing whatever which would restrict the Government from explaining the outcome of the negotiations and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKs membership of the EU during the purdah period However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain the outcome of the negotiations during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governments proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

~ shy c- ~ 6r ~

~~

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 2015 2 In particular our predecessor Committee recommended that the Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaigns Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a very wideshyranging ban on what the Government can do during the purdah period and would prevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgment 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakers Counsel for example noted that some of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Const1tut1ona l Affairs Select Committee Public

Adm1nistrat1on Select Committee Fifth Report ofSession 2014-15 lessonsforCivtl Service 1mpart1a1tyfrom the Scortish independence referendum 17 March 2015 HC 111

3wwwparhamentukbusinesscommitteescommit tees-a-zcommons-selectpublic-admin1stration -and-constitut1onal-affairsshy

comm1tteeinqulnesparilament-2015eu-referendum-bill-partmiddot l-purdah-and-1mpartial1typubl1cations

4 HC Deb 16 June 2015 c232

construction of its terms5 Similarly Dr Catherine Haddon from the Institute for Government stated that the question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governments statements thus far6

The Electoral Commission in their evidence to the Committee also expressed their opinion that what has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Bill7 or that there is anything in Section 125 that stops minutes of meetings being published in the ordinary course of business 8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had not seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a resu lt of section 125 9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governments position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any material (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

wwwparliamentukbussnesscommitt eescommittees-a-zcommons-selectpublic-administrat1on-and-constitutional-affairsshy

comm1tteeinquiriesparliamentmiddot2015eu-referendum-bl II-part-1-purda h-a nd-i mpart ia lity pubIIcat ions

bull Written evidence from Dr Catherine Haddon wwwparl1amentukbussnesscomm1tteescomm1ttees-a -zcommons-selectpublic-admnistrationshy

andmiddotconstitut1onalmiddotaffa1rsmiddotcommittee1nqu1nesparl1amentmiddot2015eumiddotreferendum-bilimiddotpartmiddot l middotpurdah-and-lmpartia ltypublications

7Ql95

8 Ql96

9 Q203

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the run up to the Vow10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described the Vow as having been probably against any form of objective advice as to how the government machine should operate 11 In his opinion to have another vow in those circumstances in this coming referendum would be outrageous12 Lord Bew in his evidence also raised concern about impartiality and objectivity for example of civil servants and stressed that the prize [in the referendum process] is to get legitimacy 13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instil confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

to See t he Public Administration Select Committee s report from March 2015 Lessons for Civil Service mpartality ofter the Scottish independence

referendum

1 u20

l2 Q21

1 Answers to Qs 93 and 98

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is inappropriate because 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 Our advice is that there nothing whatever which would restrict the Government from explaining the outcome of the negotiations and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKs membership of the EU during the purdah period However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain the outcome of the negotiations during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governments proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

~ shy c- ~ 6r ~

~~

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

construction of its terms5 Similarly Dr Catherine Haddon from the Institute for Government stated that the question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governments statements thus far6

The Electoral Commission in their evidence to the Committee also expressed their opinion that what has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Bill7 or that there is anything in Section 125 that stops minutes of meetings being published in the ordinary course of business 8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had not seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a resu lt of section 125 9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governments position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any material (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

wwwparliamentukbussnesscommitt eescommittees-a-zcommons-selectpublic-administrat1on-and-constitutional-affairsshy

comm1tteeinquiriesparliamentmiddot2015eu-referendum-bl II-part-1-purda h-a nd-i mpart ia lity pubIIcat ions

bull Written evidence from Dr Catherine Haddon wwwparl1amentukbussnesscomm1tteescomm1ttees-a -zcommons-selectpublic-admnistrationshy

andmiddotconstitut1onalmiddotaffa1rsmiddotcommittee1nqu1nesparl1amentmiddot2015eumiddotreferendum-bilimiddotpartmiddot l middotpurdah-and-lmpartia ltypublications

7Ql95

8 Ql96

9 Q203

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the run up to the Vow10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described the Vow as having been probably against any form of objective advice as to how the government machine should operate 11 In his opinion to have another vow in those circumstances in this coming referendum would be outrageous12 Lord Bew in his evidence also raised concern about impartiality and objectivity for example of civil servants and stressed that the prize [in the referendum process] is to get legitimacy 13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instil confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

to See t he Public Administration Select Committee s report from March 2015 Lessons for Civil Service mpartality ofter the Scottish independence

referendum

1 u20

l2 Q21

1 Answers to Qs 93 and 98

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is inappropriate because 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 Our advice is that there nothing whatever which would restrict the Government from explaining the outcome of the negotiations and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKs membership of the EU during the purdah period However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain the outcome of the negotiations during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governments proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

~ shy c- ~ 6r ~

~~

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the run up to the Vow10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described the Vow as having been probably against any form of objective advice as to how the government machine should operate 11 In his opinion to have another vow in those circumstances in this coming referendum would be outrageous12 Lord Bew in his evidence also raised concern about impartiality and objectivity for example of civil servants and stressed that the prize [in the referendum process] is to get legitimacy 13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instil confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

to See t he Public Administration Select Committee s report from March 2015 Lessons for Civil Service mpartality ofter the Scottish independence

referendum

1 u20

l2 Q21

1 Answers to Qs 93 and 98

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is inappropriate because 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 Our advice is that there nothing whatever which would restrict the Government from explaining the outcome of the negotiations and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKs membership of the EU during the purdah period However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain the outcome of the negotiations during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governments proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

~ shy c- ~ 6r ~

~~

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is inappropriate because 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 Our advice is that there nothing whatever which would restrict the Government from explaining the outcome of the negotiations and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKs membership of the EU during the purdah period However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain the outcome of the negotiations during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governments proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

~ shy c- ~ 6r ~

~~

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

Public Administration and Constitutional Affairs Committee House of Commons London SW1A 0AA Tel 020 7219 2107 Email pacacparliamentukWebsite wwwparliamentukpacac

Mr David Lidington MP

Minister for Europe 21 July 2015

Foreign Office

Copied to Mr John Penrose MP Minister for Constitutional Reform

Inquiry into the EU Referendum Bill Purdah and Impartiality of the Civil Service

The Public Administration and Constitutional Affairs Committee (PACAC) is committed to the proper conduct of any referendum and to the required standards of fairness transparency and balance which are crucial in order to ensure confidence in the process and legitimacy of the outcome We were therefore concerned by the Governmentrsquos proposals to disapply or to dilute Section 125 of the Political Parties and Referendum Act 2000 (PPERA 2000) (which sets out the statutory rules which apply to the 28 day purdah period in the run up to a Referendum) in respect of the EU Referendum The Committee was appointed by the House on 6 July 2015 and noted your commitment on the Floor of the House on 16 June 2015 to ldquoconsult parliamentary colleagues in all parts of the House to understand their concerns and views more closely and to frame a set of amendments that will command the widest possible consensus in the House on Reportrdquo1 The Committee wishes to avail itself of this opportunity

On the 8 July we launched an urgent inquiry into the EU Referendum Bill Purdah and Impartiality with a commitment to report our findings before the summer recess Given the limited time I am writing to you to present our conclusions from the evidence we have heard including from you and to express our view in advance of the Governmentrsquos new proposals We will report this letter to the House and on our website in good time for the remaining stages of the European Union Bill scheduled for Monday 7 September 2015 We intend to take further evidence during the next phase of our inquiry in relation to other issues relating to the Bill such as the date of the Referendum the franchise the length of the referendum

1 HC Deb 16 June 2015 c235

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

period campaign spending limits and the wording of the question We intend to publish a full Report in advance of the second reading debate in the House of Lords

Background

Our predecessor Committee in the previous Parliament published its Report Lessons for Civil Service impartiality from the Scottish independence referendum in March 20152 In particular our predecessor Committee recommended that ldquothe Civil Service Code should be revised to specifically refer to referendums and provide civil servants across the UK with clear and definitive guidance on their role in respect of referendum campaignsrdquo Our proposed new paragraph for the Code was drafted on the basis of extensive legal advice We are keen that the lessons learned from the recent experience of the Referendum on Scottish independence are applied to the running and administration of the EU Referendum to guarantee that it is fair balanced and transparent and that the conduct of both the Government and Civil Service is beyond reproach thereby ensuring the legitimacy of the result of the Referendum vote whatever that may be

The proposal to disapply or to dilute Section 125 threatens at the very least the perception of impartiality and fairness and the proper conduct of both Ministers and Civil Servants during the course of the campaign We heard oral evidence from a range of witnesses during the last two weeks including from Rt Hon Lord Owen of the City of Plymouth Rt Hon Jack Straw Rt Hon Peter Riddell (Director of the Institute for Government) Lord Bew (Chairman of the Committee on Standards on Public Life) the Electoral Commission Sir Jeremy Heywood (Cabinet Secretary and Head of the Civil Service) and yourselves3

Section 125

The starting point of our inquiry was the provision of the EU Referendum Bill which would disapply Section 125 of PPERA to the EU Referendum Bill thereby removing the requirement of the 28 day statutory purdah period immediately prior to the EU Referendum We note that the Government justified this on the basis that Section 125 would result in a ldquovery wide-ranging ban on what the Government can dordquo during the purdah period and would ldquoprevent the Government or any public body from making any comment not necessarily on the referendum question but on an issue that might be discussed in the Council of Ministers meeting or in response to a European Court of Justice judgmentrdquo 4 It would be fair to say however that this interpretation has failed to convince most of those who gave evidence to the Committee

Michael Carpenter Speakerrsquos Counsel for example noted that ldquosome of the reasons advanced for the complete disapplication of Section 125 suggest that the section is being read more restrictively of the ability to report EU business than is really justified on a true

2 Standing Order 146 was amended on 3 June 2015 to establish the Public Administration and Constitutional Affairs Select Committee Public Administration Select Committee Fifth Report of Session 2014-15 Lessons for Civil Service impartiality from the Scottish independence referendum 17 March 2015 HC 111

3wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

4 HC Deb 16 June 2015 c232

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

construction of its termsrdquo5 Similarly Dr Catherine Haddon from the Institute for Government stated that ldquothe question of which particular restrictions the Government should not be applied or how Section 125 could be amended to address legitimate concerns is difficult to fully appreciate on the basis of the Governmentrsquos statements thus farrdquo6

The Electoral Commission in their evidence to the Committee also expressed their opinion that ldquowhat has been said so far [by the Government] has not persuaded us that Section 125 should not be in the Billrdquo7 or that ldquothere is anything in Section 125 that stops minutes of meetings being published in the ordinary course of businessrdquo8 Importantly the Commission noted that in their experience of referendums since Section 125 was implemented they had ldquonot seen any concrete examples that Governments have highlighted where they have faced difficulties in continuing normal business as a result of section 125rdquo9

None of our witnesses could think of a previous example where the Government had faced the kind of restrictions which the Government seems to fear during the purdah period immediately before a referendum under Section 125 as currently drafted We recognise that the legitimate business of Government (including EU business) must continue during the referendum campaign but do not agree with the Governmentrsquos position that Section 125 will prevent it this It is therefore the view of this Committee that Section 125 be restored to the Bill and that its intent should remain unimpaired by any amendment

This need not preclude the position of many of our witnesses (Jack Straw Peter Riddell and others) that Section 125 could be amended to provide clarification to reduce the perceived risk of legal challenge perhaps by extending Subsection 3 (d) of Section 125 so that certain other material relating to the conduct of EU business would be permitted However we are unanimously of the view that whatever additional exemptions are made the Government should not be allowed to use the machinery of Government (ie the resources of the Government) for campaigning purposes during the purdah period as is already implied in the Civil Service Code This reflects the intention of Section 125 that the Government should not publish any ldquomaterialrdquo (ie issue any communication in whatever form including briefings to the media) which could be considered to be an attempt to influence the voters in a referendum Anything less than this risks compromising the impartiality of the Civil Service and the improper use of the machinery of Government which is a public resource

Guidance

An important and related issue is the impartiality of the Civil Service during the Referendum campaign There was a particular concern in the wake of the Scottish independence referendum when objections were raised about the activities of Civil Servants working for both the UK and Scottish Governments and in particular the role of the UK Government in the

5 wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

6 Written evidence from Dr Catherine Haddon wwwparliamentukbusinesscommitteescommittees-a-zcommons-selectpublic-administration-and-constitutional-affairs-committeeinquiriesparliament-2015eu-referendum-bill-part-1-purdah-and-impartialitypublications

7 Q195

8 Q196

9 Q203

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

run up to ldquothe Vowrdquo10 Indeed one witness Lord Owen who had direct experience of the last national referendum on Europe described ldquothe Vowrdquo as having been ldquoprobably against any form of objective advice as to how the government machine should operaterdquo11 In his opinion ldquoto have another vow in those circumstances in this coming referendum would be outrageousrdquo12 Lord Bew in his evidence also raised ldquoconcern about impartiality and objectivity for example of civil servantsrdquo and stressed that ldquothe prize [in the referendum process] is to get legitimacyrdquo13

We welcome the additional guidance which was published for Civil Servants in the run up to the Referendum on Scottish Independence and call for similar guidance to be issued in advance of the EU Referendum but this is no substitute for strengthening the Civil Service Code For clarity we suggest that the Civil Service Code be amended to include specific reference to impartiality and proper conduct during a Referendum campaign as PASC recommended in its report at the end of the last Parliament Failure to do this alongside any watering down of S 125 will not instill confidence in the impartiality of Government during the purdah period

Finally while the Members of my Committee have different views on the EU we are unanimously of the view that in respect of any referendum the Government of the United Kingdom must be seen to conduct itself properly fairly and impartially during the purdah period The disapplication or dilution of Section 125 would make it appear that the Government is seeking to circumvent proper processes to enable it to use the machinery of Government for campaigning activity as well as legitimate Government activity in the run up to the EU Referendum Contrary to what is implied by the Government case that an EU referendum creates exceptional circumstances we would remind you that PPERA was enacted with the prospect of an EU referendum on the question of whether the UK should be joining the Euro

In your appearance before the Committee you could neither advance any specific evidence that Section 125 has restricted Government in any unreasonable way in past referendums nor that could it do so in this forthcoming referendum You also clarified in your letter to MPs that Section 125 is ldquoinappropriate because 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 peoplerdquo Our advice is that there nothing whatever which would restrict the Government from explaining ldquothe outcome of the negotiationsrdquo and justifying its merits in advance of the purdah period just as the Scottish Executive and the UK Government set out their respective cases before the purdah period in the Scottish independence referendum Contrary to what you seemed to suggest in your letter Ministers would of course be free to campaign as part of the Yes (or No) campaign(s) during the purdah period You confirmed today that it is your intention to allow the relaxation of Section 125 to enable a Minister to use the machinery of Government to make the case for Government in respect of any renegotiation of the terms of the UKrsquos membership of the EU during the purdah period

10 See the Public Administration Select Committeersquos report from March 2015 Lessons for Civil Service impartiality after the Scottish independence referendum

11 Q20

12 Q21

13 Answers to Qs 93 and 98

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC

However it is the purpose of Section 125 to prevent Ministers from using the machinery of Government to explain ldquothe outcome of the negotiationsrdquo during the 28 day purdah period in order to avoid the Government giving a huge advantage to one campaign over the other

While we accept your good faith that it is not your intention the Governmentrsquos proposal has cast a shadow of doubt over the propriety of the process even at this early stage We regard this as completely unacceptable This must be remedied at the report stage of the EU Referendum Bill so that the integrity of the process and the legitimacy of the result is beyond question

Mr Bernard Jenkin Chairman PACAC