PLAYING PARTY POLITICS WITH A NON-PARTY MATTER: THE EU REFERENDUM BILL

Earlier this week MPs gave their assent to the EU Referendum Bill in a much anticipated report stage and third reading on the floor of the Commons. But it was not all plain sailing. The Prime Minister had to navigate a rather rocky path and was defeated on the issue of purdah rules, by a group of so called Conservative rebels and Labour MPs. But what is the purdah rule all about? And why does it matter so much?

The EU referendum Bill will establish the specific processes which need to be put in place for the forthcoming referendum on the UK’s membership of the European Union. It will also provide the legal basis for the referendum, ensuring that the outcome is legally binding. Last week’s Commons debate concerned recent amendments tabled by the government over the summer recess.  There was a heated debate over an amendment to the purdah rule.

Purdah is used to describe a period of truce before an election, or in this case the referendum taking place. The House of Commons Library defines purdah as a term used “across central and local government to describe the period of time immediately before elections or referendums when specific restrictions on the activity of civil servants are in place.” The legal basis for purdah differs depending on the kind of election we are looking at. For referenda it is the Political Parties, Elections and Referendums Act 2000 that we would be referring to for guidance. Chapter III of this Act outlines a set of controls on publications, with some detail on what is meant by publications and how we define the purdah period (section 125).

However, there is no detailed definition of publication in the context of purdah. Consequently, it relates to any of the issues raised by the question on which the referendum is being held. The prohibition of publication then includes any material engaging with issues relating to the UK’s membership of the European Union. Any arguments for or against any particular answer to the referendum question are also prohibited. Any IN or OUT campaigns in relation to referendum would therefore have to stop before the purdah period kicks in. Finally, section 125 of the Political Parties, Elections and Referendums Act 2000 even constrains efforts to encourage voting in the referendum. Due to the vague description of the actual content, the restrictions could go so far as to limit the civil servants in their use of Facebook and Twitter.

The period of is the period of 28 days before the referendum, ending with the date of the poll. This is a relatively limited timeframe considering the time that is being spent on campaigns in general. However, the government and above all Foreign Office minister David Lidington, argued that a full purdah, as in the 28 day period, would place such tide restrictions on the government’s workings that its functionality in relation to European Union matters would be at risk. Other members of the House though did not buy this argument.  The SNP’s Alex Salmond in particular, could not stay away from a reference to the Scottish referendum and how the purdah rules had been upheld then, to avoid the use of the government machine, as he called it, in the run up to the referendum. Looking at the General Election Guidance 2015, a distinction is being made between following business matters and introducing new initiatives. Following this advice in relation to the EU referendum, the government should not find it too difficult to keep up its functionality as long as it does not seek to engage in new commitments or make new proposals. As David Cameron seeks to renegotiate the terms of the UK’s membership to the EU, it looks as if he just needs to do so before the 28 day purdah period begins.

It is astonishing how a straight forward legislative process which will enable one of the most democratic instruments, a direct referendum, is becoming embroiled in party politics. The debate was immersed by fears of both, supporters of the European Union membership and Eurosceptics, to fall short or to be underrepresented and misunderstood. It moved away from a clear cut discussion of Bill amendments to an atmosphere of fear of certain politicians that the amendment of purdah rules would somehow pre-empt the referendum result.

The bill has now moved to the House of Lords, where it will have its second reading debate on 13th October 2015. It remains to be seen in how far the Lords are going to argue the case of purdah, if at all, or other aspects of the referendum, or indeed the membership to the European Union itself. As The Earl of Courtown put it on the day of the bill’s first reading: “It is has been 40 years since the British people had a say on our European Union membership. The organisation has changed vastly since then and it is time to put that right.” There remains some doubt as to whether ‘giving the British people a say’ is really what the whole process is about. Instead of discussing the options regarding a European Union membership transparently, it appears that a misinformed electorate will simply be manipulated by party politics. Same old, same old.

Anne Wesemann is Lecturer in Law at the Open University.

Image: Visionello CC BY-NC