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European Parliamentary Elections (Amendment) Regulations 2009
Copy of Regulation
1st Report from JCSI
Motion to Approve
3.58 pm
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I am grateful that it has been agreed that the statutory instruments can be taken together. The three pieces of legislation refer to the European parliamentary elections, to be held in the United Kingdom on 4 June this year, and form an important part of the Government’s preparations for these elections. All three statutory instruments have
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I will deal first with the European Parliamentary Elections (Amendment) Regulations 2009. The main purpose of these regulations is to amend the European Parliamentary Elections Regulations 2004 to take into account the changes which have been made to electoral law since 2004. In general, this is meant to apply the changes made in the Electoral Administration Act to European parliamentary elections. We have already undertaken this exercise for the various types of local elections and the GLA elections. Even though the scale of changes is minor, in order to assist electoral administrators in the practical application of the legislation we have re-enacted Schedule 1, on European parliamentary election rules; Schedule 2, on absent voting; and Schedule 3, on modification of European parliamentary elections rules for combined polls, to the 2004 regulations in their entirety.
The European parliamentary elections are administered in Great Britain by 11 returning officers, one each for Scotland and Wales and nine for the regions of England. They are known colloquially as regional returning officers, or RROs. They perform some functions, for example nomination procedures, at a regional level, but most of the mechanics of the delivery of the poll fall to electoral administrators in each region, known as local returning officers, with the RRO acting as a co-ordinator. The European parliamentary election rules confer functions on the returning officers and local returning officers to ensure the smooth running of the poll.
Schedule 2 to the regulations replaces the European parliamentary elections rules in Schedule 1 to the 2004 regulations, and reflects the new security measures introduced under the 2006 Act. These measures include security markings on ballot papers, the introduction of unique identifying marks and the replacement of counterfoils with corresponding number lists. The rules also reflect the changes made under the 2006 Act in relation to the retention and inspection of election documents after the poll.
The key policy changes that we have made in relation to absent voting at European elections are set out in Schedule 3 to these regulations. The changes include new provisions for the collection of personal identifiers from persons applying to vote by post or proxy in a European parliamentary election; a requirement for postal voters in European parliamentary elections to provide their signature and date of birth on postal voting statements, which they must complete and return with their ballot papers; and a requirement for local returning officers to take steps to verify the signatures and dates of birth on postal voting statements, which involves checking that the identifiers provided on the postal voting statement correspond with those previously provided with the postal vote application.
Schedule 4 to the 2004 regulations, which sets out the modifications needed to the European parliamentary rules in the event of a combination of polls, has also been updated to reflect changes that have been made to the 2004 regulations as a result of the 2006 Act.
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To facilitate the smooth running of a poll in Scotland, we have defined “local counting area in Scotland” as a local government area in Scotland. However, the local returning officer for European parliamentary elections in Scotland remains the person who is responsible for UK parliamentary elections there, as required by Section 6 of the European Parliamentary Elections Act 2002. We have been able to provide, in Schedule 1 to the regulations, which inserts a new Schedule A1 in the 2004 regulations, that the local returning officer for each local counting area is the person responsible for a specified parliamentary constituency. To make this work in practice, we have assigned a local returning officer to each local counting area. This means that, on the ground, the checking of personal voting identifiers will be simplified because electoral administrators will not have to use multiple software systems to perform the task. This change was the express wish of the Scottish electoral administrators.
On future boundaries for the European parliamentary elections, in the long term we have included measures in the Political Parties and Elections Bill which, subject to Parliament’s approval, provides that all future European parliamentary polls after 2009 will be administered on local authority boundaries.
The European Parliament (Representation) Act 2003 enfranchised the Gibraltar electorate for the purposes of European parliamentary elections in response to a judgment of the European Court of Human Rights. We have worked with the Gibraltar Government to ensure that all necessary amendments have been made to those regulations to enable the Gibraltar electorate to continue to vote in elections to the European Parliament as part of, and on the same terms as, the UK. For example, the regulations require personal identifiers to be used in Gibraltar for the first time at a European parliamentary election.
On 9 January, the Gibraltar Parliament passed the European Parliamentary Elections (Amendment) Act 2008. The Act amends the European Parliamentary Elections Act 2004 to closely mirror the changes which were made for Great Britain by the Representation of the People Act 1983 as amended by our 2006 Act. Thus, the Gibraltar electorate will be able to take advantage of late and anonymous registration.
We have consulted the Electoral Commission and have incorporated a number of the points which it raised in its formal response to the regulations. This included a provision, and a recommendation to make it clearer on the ballot paper, that a voter must mark his or her vote with a cross—an X—in the box.
After careful consideration the Government agreed to implement the Electoral Commission’s recommendation to change the rules in relation to the use of party descriptions on the basis that the change is in line with Ron Gould’s recent findings about the use of descriptors at list-based elections. This means that the registered name of the party must appear first on the ballot paper, followed by any description of the party which has been used in the nomination papers. We will work with the Electoral Commission to review whether a similar change to the use of party descriptions would be beneficial for electors at local and UK parliamentary elections.
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Following the Electoral Commission’s recommendation, we have taken steps to make it clearer that a voter should mark his or her vote with a cross—an X—in the box to the right of the name of the party or individual candidate he or she is voting for, by amending the wording at the top of the ballot paper to read:
“Vote once (x) in one blank box”.
The Electoral Commission also put forward a recommendation for the regulations to make provision for the acceptance of valid votes where electors mark them in numbers rather than using an X or other mark to indicate who they are voting for. However, after informal consultation, the Ministry of Justice concluded that, in the light of the current legislation and guidance on the rejection of ballot papers, all decisions as to whether a vote is valid or not where a voter has marked his or her vote with a “1,2,3” should be left to the discretion of the returning officer applying the current rules.
We have worked to complete the regulations as early as possible, with an aim to meet Ron Gould’s recommendation for electoral legislation to be in place six months prior to the European parliamentary elections. While we have narrowly missed that target, the regulations will, subject to the approval of both Houses, be in force four months before the election on 4 June, which will hopefully be helpful to electors, electoral administrators and other stakeholders.
I move to the European Parliament (Disqualification) (United Kingdom and Gibraltar) Order 2009. Its purpose is to take account of the changes which were made by the Gibraltar Constitution Order 2006. The most notable changes are “Gibraltar Ordinances”, as they were called, now being known as Acts, and the House of Assembly being renamed as the Gibraltar Parliament. The repeal and re-enactment of the 2004 order is therefore due to a change of nomenclature rather than policy. The 2009 order continues to ensure that a consistent approach is taken in relation to the disqualification of MEPs in Gibraltar and the United Kingdom.
Finally, as regards the European Parliamentary Elections (Loans and Related Transactions and Miscellaneous Provisions) (United Kingdom and Gibraltar) Order 2009, during the four months before a European election, Gibraltar, which, as noble Lords will know, is combined with the south-west region of the United Kingdom for the purposes of voting in European elections, is subject to a modified form of the statutory provisions regulating donations to political parties.
The 2004 order allows UK political parties which declare an intention to contest a European parliamentary election in the combined region—that is, the south-west region and Gibraltar—to accept donations from donors who are based in Gibraltar in the four months before a European Parliament election, and regulates loans entered into by Gibraltar parties contesting the region during the same period. In addition, the order caps the total amount that UK parties may receive from Gibraltar donors at the amount of campaign expenditure which the registered party would be permitted to incur if it were standing for election in the combined region only, which equates to £315,000. This figure is called, perhaps sensibly, the “permitted maximum”. This order
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The order replicates the current donations provisions for loans; that is, to permit loans from specified individuals and organisations in Gibraltar to UK political parties contesting the combined region in the four-month period preceding an election and to regulate loans to Gibraltar parties contesting the combined region during this period. It also, in effect, alters the matters that count towards calculation of the “permitted maximum”. The order alters these matters by ensuring that the value of loans as well as donations must be taken into account by a party when deciding whether the permitted maximum has been reached. In order to reflect the spirit of the provisions in relation to donations from Gibraltar, loans entered into with Gibraltar individuals or bodies during the four-month period may not be subject to actual capitalisation—that is, an increase in the capital borrowed—after the date of the poll. The intention behind this is to prevent non-Gibraltar parties using existing loans to borrow more money from Gibraltar individuals or bodies after the end of the permitted period.
This draft order will help to fulfil the United Kingdom’s obligation to ensure that the Gibraltar electorate is able to vote at elections to the European Parliament on as similar a basis as possible to the UK electorate. It has been the subject of consultation with both the Gibraltar Government and the Electoral Commission: they are both content.
I appreciate, and am grateful for, the fact that noble Lords have borne with me while I outlined each of the statutory instruments. I hope that they will agree—although I am not sure about this—that it is important to go through the details. The Electoral Commission and other stakeholders have given us many helpful, useful and practical comments that we have taken into account in the final drafts of the statutory instruments before us today. The statutory instruments will enable the combined elections to go ahead successfully and make sure that they are conducted properly. I hope that they will also make matters easier for electors. That is our objective, and I commend the regulations and draft orders to the House.
4.15 pm
Lord Inglewood: My Lords, I speak at this rather late hour on a Thursday afternoon because I should have liked to speak in the debate on 14 October last year on Statutory Instrument 2008/1647, which deals with the same general subject matter as the proposals before us. However, I had a family commitment out of London that evening and was unable to do so. Nevertheless, before the debate I spoke to my party’s spokesman, my noble friend Lord Kingsland, and to the noble Baroness the Leader of the House, with whom I have subsequently had a most cordial correspondence.
I should first make it clear that I am the hereditary Peer referred to in the Merits of Statutory Instruments Committee’s report in respect of the 2008 order who
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My concern is that the Government have not taken the opportunity in these statutory instruments to remedy some of the shortcomings pointed out in the debate of 14 October 2008. In particular, I return to the discrimination between the exempted hereditary Peers and life Peers in respect of access to the process of disqualification made available in UK law for life Peers but not the 92 exempted hereditary Peers. This is also the subject of a petition that I have lodged in the European Parliament.
The reasons for this were described by the Minister in the House that evening, at col. 676 of Hansard. While I think that I know humbug when I see it, I do not wish to make any further comment about the merits or otherwise of that policy, other than to say that it is a bit bizarre to have a policy to eject the 92 hereditaries from this House as soon as may be while denying them the right of resigning.
The important issue is the dog that did not bark on that October night, regarding whether or not that policy is implementable under European Union law. After all, given the doctrine of the supremacy of EU law, Governments often discover that there are things that they would like to do but cannot. That is a long-established and recognised phenomenon, as we all know in this House—indeed, as anyone engaged in political life in this country knows in respect of things such as the common agricultural policy and the common fisheries policy.
Speaking as an individual, I entirely understand the thinking behind the “no dual mandate” rule for the European Parliament, and I see absolutely no difficulty with it, as long as due legal process is observed when implementing the legislation across the EU. It must be seen in the context of European law as a whole. In this instance, all that is required is for those in the second Chamber to have an escape route available to them. It is widely known that at one time in this country it was thought that the leave of absence procedure, which is available to hereditary Peers, as it is to every other Member of this House, would provide that route. However, more recently it was felt by the European parliamentary authorities that that was not the case. As a result, statutory instrument No. 1647 was put on to the statute book. However, that escape route is not available to the 92 exempted hereditaries who are, as the Minister explained in terms to the House on that evening, identical in respect of their membership of this House.
I expect that the Minister will say that the rules for election to the European Parliament for this country are exclusively a matter for the United Kingdom Government. That is probably the case, but I would not emphatically and completely agree with it. However, I am not making that point now. Rather, in dealing
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The failure of the Government to deal with this point regarding the 92 exempted hereditaries denies them their rights as European citizens to stand in another member state, unlike their life Peer colleagues. I ask the Minister, although this may be a triumph of hope over experience, to bring forward provisions to remedy this shortcoming by regularising the position and any other deficiencies in European Union law that may relate to it. The important point here is that, on these kinds of rights, we are not talking about something in the gift of the Government. The fact that the Government may, in their words, be planning to deal with these matters at some point, even in the quite near future, is interesting but not directly relevant.
It matters not at all whether the Government like or hate hereditary peers, whether they admire or despise them, or whether they agree or disagree with them. It is not a question of how we got here. The question is: now that we are here, what is the right position? We, too, have rights. Equally, those who have rights cannot sell or renounce them, or give them away, or have them modified by UK statute. Indeed, that is one of the criticisms made by the noble Lord, Lord Pearson of Rannoch. Whether any of us, as individuals, exercise our rights is our affair and a matter for our judgment and our conscience.
I turn to how these provisions were negotiated with the European Parliament’s legal service. My inquiries have revealed that the legal service made it clear, at the outset, that the rights sought by the UK Government should be available to all Members of this House. The Government demurred, saying that they would be dealing with the problem posed by the 92 quite soon, and perhaps rather weakly, but understandably—given that the UK Government rather than the European Parliament initiates legislation in this House—there was little more to be done. What is, however, absolutely clear is that the timescale of “soon” does not correlate with the Government’s policies as contained in An Elected Second Chamber: Further Reform of the House of Lords, which was published in July last year—that is to say, before the October statutory instrument came before Parliament.
First—to state the obvious—nobody knows the outcome of the next general election, although we can guess at it. Secondly, it is expressly stated that there is no finality about any plans for further reform. Thirdly, there is no certainty about how the issues posed by the
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A serious question, about how this was presented to the European Parliament’s legal service, needs to be answered. If I were one of those legal staff, I might feel that Her Majesty’s Government had been perhaps rather economical with the truth about what was happening. We must not forget that our reputation abroad as “perfidious Albion” must have come from somewhere.
I dare say that your Lordships will call this a nitpicking, pettifogging, silly little argument. In many ways, I am the first to agree but, in my opinion, the Government, by relying on nitpicking, pettifogging legal arguments, are attempting to take a nice cheap hit at the expense of the hereditary Peers. That hit goes against not only the provisions of the European treaty but the letter and spirit of the compromise behind the 1999 changes here.
It may seem a small matter, and in one sense it undoubtedly is, but it has considerable, wider implications. In my view, it is the wicket gate to the primrose path. It is just the kind of issue that I was expected to take up, and did, on behalf of my constituents during my 10 years in the European Parliament. It seems to me that if you choose to live by nitpicking, pettifogging legal arguments, you have no business to complain if you subsequently die by them. Over the weekend, I turned on the television and heard the right honourable Caroline Flint, the Minister for Europe, telling the nation on behalf of the Government that their role in Europe is to see that the rules are obeyed. Quite right; I agree entirely. However, the Government should take the beam out of their own eye before going around trying to take the motes out of other people’s eyes.
Lord Greaves: My Lords, I was fascinated by what the noble Lord, Lord Inglewood, said but I do not think that it was exactly the subject of our discussions this afternoon. I entirely understand why he has taken the opportunity to put his thoughts on the record but the Minister will probably be pleased to hear that I shall not be pursuing that line.
In most cases, these regulations and orders just regurgitate everything that has been before with, as the Minister said, a few changes to bring them into line with previous regulations and with the 2006 Act. Therefore, there is not much to complain about on the whole, although I shall start with a couple of general quibbles. I shall be very brief because, again, they are not really the subject of these regulations.
The first is the whole question of postal voting, which is now regulated for the European elections in the same way as it is for national and local elections. It remains my personal view that postal voting in this country is far too easy and far too open to corruption.
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