Returning Officers Indemnity Arrangements (European Parliamentary Elections)

Tuesday 8th April 2014 Written Statements

[The Minister of State, Cabinet Office (Greg Clark)]

It is normal practice, when a Government Department proposes to undertake a contingent liability in excess of £300,000 for which there is no specific statutory authority, for the Minister concerned to present a departmental minute to Parliament giving particulars of the liability created and explain the circumstances; and to refrain from incurring the liability until 14 parliamentary sitting days after the issue of the minute, except in cases of special urgency.

This minute sets out the Cabinet Office proposal to indemnify returning officers and local returning officers in the forthcoming European parliamentary elections against uninsured claims that arise out of the conduct of their duties. We will also provide a certificate confirming that we will bear any employee liabilities of the returning officer or local returning officer which would otherwise be covered by insurance procured under the Employers’ Liability (Compulsory Insurance) Act 1969. Indemnities were previously provided by the Home Office in 2012 at the police and crime commissioners elections and—in more limited form—by the Ministry of Justice for the 2010 UK parliamentary general election and the 2009 European parliamentary elections.

European parliamentary elections will be held on 22 May 2014.

Returning officers and local returning officers are independent officers appointed by statute—see section 6 of the European Parliamentary Elections Act 2002, the European Parliamentary Elections (Returning Officers) Order 2013 and the European Parliamentary Elections Regulations 2004—and are separate from both central and local government. As such, they are personally liable for the conduct of the European parliamentary elections. They are therefore exposed, as a result, to a variety of legal risks and potential challenges. Existing insurance that covers returning officers and local returning officers in taking forward their statutory duties at local elections will not, in most cases, cover them in these elections.

In the light of this, Cabinet Office proposes to provide returning officers and local returning officers with a specific indemnity, where existing insurance coverage will not apply. We will also certificate returning officers and local returning officers under the Employers’ Liability (Compulsory Insurance) Regulations 1998 in respect of any liability to their employees.

Besides the elections on 22 May 2014, we also wish to cover liabilities incurred in any subsequent European parliamentary by-elections. Therefore this indemnity is expected to run until the day before the poll at the next European parliamentary elections for all Members of the European Parliament in 2019.

The precise level of the legal risk covered by this indemnity and likelihood of it arising are difficult to quantify. However, the level and value of claims arising in recent UK parliamentary general and European parliamentary elections has been very low. In the last 10 years the largest claim met under previous insurance and top-up indemnity arrangements for a national election was £24,035.75 at the 2009 European parliamentary election. Minor injury and damage claims met at national elections have amounted to less than £10,000 over the last decade.

However, it is not possible to rule out a more significant claim in future. If an election petition involving a returning officer or local returning officer went to full trial and ran for several days it is conceivable that the bill for legal costs could run into many £100,000s or more. It is also conceivable that there could be more than one occurrence associated with an election. This has, however, not happened in the recent past with other elections and is considered an extremely remote possibility.

The indemnity is therefore unlimited save for particular exclusions. It will provide returning officers and local returning officers with cover for:

Amounts excluded by the excess or that exceed the upper limits on any existing insurance policies held by returning officers or local returning officers, or local authorities on their behalf, that will provide coverage;

Any reasonable costs resulting from their liabilities to the public, as an employer and in their professional role.

The indemnity will have the following exclusions:

It will not cover any costs which arise in whole or in part from any deliberate or wilful negligence by a returning officer or local returning officer;

It will not cover situations where an existing insurance policy offers an alternative means of cover;

It will not cover any claim relating to the acts or omissions of a returning or local returning officer in carrying out registration duties;

It will not cover any claim relating to the use of a motor vehicle where such use does not relate to the conduct of the elections and/or should have been covered by a valid insurance policy but was not.

If the liability is called, provision for any payment will be sought from the Consolidated Fund. The Treasury has approved the proposal in principle.

I am aware that departmental minutes normally allow 14 parliamentary sitting days after the minute is laid for Members to scrutinise and object to the proposal if they wish. However, in this case there is special urgency as the elections will take place in less than two months. As returning officers are already preparing for these elections and need to continue to do so confident that they are covered in respect of those actions, the indemnity needs to commence immediately and cover retrospective claims, such as those arising from advice they may have already given.

Although in this case Members have not had the normal scrutiny period, given the urgency of the situation, I trust Members will understand that it was necessary to provide this indemnity to returning officers simultaneously with notifying Parliament.

This indemnity does not apply to the returning officer for Northern Ireland or the local returning officer for Gibraltar, who are indemnified or insured through separate arrangements.