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Lord Willoughby de Broke: My Lords, I rise briefly to support the amendment tabled by the noble Lord, Lord Marsh. It is important that during a referendum campaign the Government and other public bodies should be prohibited from sending contentious and slanted propaganda through the post, by e-mail and so forth.

There was a recent example of that when the Post Office sent about 170,000 leaflets through the post to small and medium-sized businesses extolling the virtues of the euro in terms which could not be described, even by the warmest admirer of the euro, as impartial. Such incidents make the amendment essential.

Furthermore, it would be unfortunate if under the guise of information the Government brought forward another discussion paper or introduced an annual review of the national changeover plan during a referendum period. Amendment No. 203 covers those matters and I hope that the Government will take on board the points which have been made and act accordingly.

Lord Bassam of Brighton: My Lords, Clause 122 is the Government's discharge of the recommendation in the Neill report that at a certain point before a referendum is held the government of the day, as a government, should stand back--should stand aloof--and leave the campaigning to the political parties and other campaign organisations.

The Neill committee was particularly sceptical about material which in previous cases was circulated to the electorate very close to the date of the poll. It questioned the distinction between factual and persuasive material. Clause 122 implements the committee's recommendation by providing for a 28-day embargo on the issue to the public of government publications. This arrangement is equivalent to restrictions on the role of the Government in the run-up to a general election.

Amendment No. 203 would additionally require that material circulated by the Government during the referendum period as a whole must be factual and impartial and must have been circulated to permitted participants at least seven days prior to publication. In other words, it is proposed that, in addition to the

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complete ban which applies in the 28 days prior to the poll, it should also be incumbent upon the Government to prepare neutral material during the remainder of the referendum period.

That would not work. Perhaps I may remind the House precisely why the Neill committee considered a ban on government material to be necessary. The Neill committee said in paragraph 12.44 of its report:

    "We believe that it is extraordinarily difficult, if not impossible, for the government of the day to offer purely objective and factual information in the course of a referendum campaign, especially when, as is usually the case, it is itself a party to the campaign";

in other words, it was the very impossibility of regarding even purported factual material as impartial that led the committee to conclude that the kind of ban for which this clause provides was necessary. There is an argument over whether the ban should apply throughout the entire referendum period. The reason for not doing so is that that period is likely to cover the passage through Parliament of a Bill which makes provision for the referendum.

8 p.m.

Lord Bach: My Lords, the noble Lord, Lord Phillips, rises to speak. I take it that the noble Lord intends to put a question to elucidate an answer from the Minister.

Lord Phillips of Sudbury: My Lords, I thank the noble Lord for anticipating my purpose. Is it not the case that, in the context of the difficulty of adjudicating between pure information and tendentious information, under Clause 142 the commission has "the general function of monitoring compliance"? Therefore, is not the commission the obvious and natural body to undertake that task?

Lord Bassam of Brighton: My Lords, one can argue that the commission is the natural body to do it. However, one would be charging the commission with an extraordinarily difficult task. Recently, we had a debate on the question whether a referendum question should be viewed as fair or biased. The amendment in question proposed that that matter should be put to the commission for consideration. I believe it was concluded that it was a very difficult job for any body to carry out, and it ran the risk that the commission would be placed in a highly political position. I believe that that could well be the result in this context.

During the course of a Bill passing through Parliament government would want to argue their case. It is not possible to conceive that factual material produced by government in relation to such a Bill would be universally regarded as impartial. I do not see the case for providing permitted participants with advance sight of any such "factual and impartial" material. Why should campaign organisations see such material before the electorate? Is it being suggested that, for example, the explanatory notes to a Bill should be circulated to permitted participants before being published?

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The proposal seems to be predicated on the assumption that such material will not be impartial at all and that permitted participants should be given advance notice so that they can have their riposte prepared in time for publication. In short, the proposal is aimed at the wrong target. The real point is that, as the Neill committee recommended, there should come a point at which the government of the day stand back from the fray altogether, and the clause as it stands provides precisely for that. I believe that the noble Lord's amendment, well intentioned though it is, places far too great a responsibility on those who would be asked to judge whether something was impartial and fair. For those reasons, I ask the noble Lord to withdraw his amendment.

Lord Phillips of Sudbury: My Lords, before the noble Lord sits down, does he agree that the clause as it now stands, bereft of this amendment or something like it, allows the government of the day, who after all are the only ones who will know when a referendum is to be held, to shower the public with highly tendentious and persuasive literature five weeks before a referendum, and in a manner which would be grossly unfair and unbalanced vis-a-vis other parties to the referendum?

Lord Bassam of Brighton: My Lords, the noble Lord asks a loaded question, and I believe that his proposition is an unreasonable one. Government who are in the serious business of governing will act entirely responsibly throughout the introduction of the Bill, and the debates upon it, in Parliament. I cannot see government wanting to try to load the issue because it would be counter-productive, particularly in the United Kingdom, which has a free press.

Lord Phillips of Sudbury: My Lords, is it not a negation of the purpose of this clause, and the amendment to it, to say that government will be responsible? Surely, we are talking here of the possibility of government being irresponsible.

Lord Bassam of Brighton: My Lords, I just cannot agree with the noble Lord.

Lord Marsh: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 204 and 205 not moved.]

Clause 126 [Orders regulating conduct of referendums]:

Lord Mackay of Ardbrecknish moved Amendment No. 206:

    Leave out Clause 126.

The noble Lord said: My Lords, Amendment No. 206 would simply remove Clause 126. The clause gives the Secretary of State very wide-ranging order-making powers. During Second Reading in the other place, Mr Mike O'Brien said:

    "We intend to table amendments that will ... make the legislation a truly generic referendums Bill".--[Official Report, Commons, 10/1/00; col. 113.]

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Clause 126 was a government amendment tabled in Committee in another place. However, the clause does not turn this Bill into a truly generic referendums Bill; it is a Henry VIII provision. The clause gives the Secretary of State the power, after consulting the electoral commission, but not on that body's recommendation, to make rules for referendums. Further, he will have power to create criminal offences. Can the Minister tell us what kind of criminal offences and penalties the Government intend to create under Clause 126?

In another place the clause was condemned by opposition members as a charter for gerrymandering referendums. The Government promised a generic referendums Bill, but this clause does not provide one; it is a Henry VIII provision. Having called for a general referendums Bill since 1997 when the first measure concerned with referendums appeared, I am deeply disappointed that a clause like this appears in the Bill. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, I speak in support of my noble friend's amendment. At Report stage we have talked at great length about the strategic purpose of the Bill which is to rebuild confidence in the democratic process. This is one of the issues to which we have turned all our efforts. The Minister has spoken of the importance of the electoral commission being in a position which is above reproach so that it carries the confidence of all sections of the community. Suddenly, one sees Clause 126, which covers referendums that are by any stretch of the imagination contentious. The Government must be aware of the degree of disquiet in different corners of the House tonight about the issue of referendums and the various provisions of the Bill which are complicated and difficult to understand. The Secretary of State is to take unto himself powers that are wide ranging. To do that in a contentious area is likely to undermine not only the purpose of the Bill but confidence in the electoral commission and its role in the future structure of government.

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