European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) (Amendment) Regulations 2019

Earl Howe Excerpts

Wednesday 23rd October 2019 Lords Chamber

Moved by

[Earl Howe]

That the draft Regulations laid before the House on 23 July be approved.

Relevant document: 69th Report, Session 2017-19, from the Joint Committee on Statutory Instruments (special attention drawn to the instrument)

[Earl Howe (Con)]

My Lords, the instrument that we are now considering is designed to make sensible provision to ensure that, in consequence of our participation in the European parliamentary elections earlier this year, the necessary administrative processes that are required following the poll are able to be carried out and completed. I shall go into more detail on the actions and processes that are required in a moment, but one example is the requirement for relevant electoral officers to store ballot papers and other election-related documents for 12 months after the poll.

The proposed changes will provide for legislation governing European parliamentary elections to remain in place until 31 December 2020. We consider that this will provide sufficient time for post-poll processes to be completed. The Government are acting responsibly in bringing forward the instrument, which is essential to maintain the integrity of our electoral process. The instrument brought before the House today applies to the United Kingdom and Gibraltar.

I turn to the detail of the proposed changes. The intention had previously been that the UK would leave the European Union before the European parliamentary elections in May 2019. As a result, the European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018—which I will call the 2018 regulations—were made to come into force on exit day. Those regulations repeal, revoke or amend legislation relating to European parliamentary elections which would no longer be required. Therefore, as things stand, under the 2018 regulations the legislation will be repealed when we leave the EU.

However, as a result of not having left the European Union before the European parliamentary electoral period, the UK took part in the European parliamentary elections on 23 May 2019. As I have indicated, as a consequence of holding the poll, there are a number of post-poll actions and processes set out in legislation which need to be completed. It is therefore necessary for European parliamentary elections legislation to stay in place after exit day—whenever that is—in order to ensure that the electoral process runs smoothly.

I now turn to the detail of the proposed changes. The instrument is being made under powers in the European Union (Withdrawal) Act 2018. It amends the 2018 regulations concerning European parliamentary elections that I referred to earlier, in order to delay the repeal of the European parliamentary elections legislation until 31 December 2020. We consider that this will provide sufficient time for the post-poll processes that I referred to to be completed. The instrument does not make any substantive changes to any of the provisions in the 2018 regulations but changes the date that the regulations come into force from exit day to 31 December 2020.

That means that necessary functions and processes that are required following the European Parliament poll on 23 May of this year can be carried out and completed. I will give some examples. The SI will allow for the relevant electoral officers to store ballot papers and other election documents for 12 months from the date of the poll, or longer in certain circumstances. Without the law remaining in force, electoral officers will have no legal authority to keep the ballot papers or other documents. The police may need to refer to the documents in the event of an investigation and would not be able to do so if the documents were no longer stored. Political parties will be able to inspect and obtain the marked register throughout this 12-month period. There are also provisions concerning payments to returning officers for the costs of running the poll. If these provisions were not in force, the Government would no longer have legal authority to reimburse returning officers for costs incurred in running the poll.

The European Union (Withdrawal) Act 2018 repeals the two main pieces of legislation governing European parliamentary elections: the European Parliamentary Elections Act 2002 and the European Parliament (Representation) Act 2003. The repeal of these two Acts in the European Union (Withdrawal) Act 2018 will come into effect on a day set out in commencement regulations. In line with the approach we are taking today in relation to this instrument, we similarly intend not to commence the repeal of the European Parliamentary Elections Act 2002 and the European Parliament (Representation) Act 2003 until after exit day.

I should also highlight that the 2018 regulations include provisions that are not linked solely to the holding of European parliamentary elections. The approach that we have taken in the instrument before us is to leave these provisions on the statute book for a limited period. The Joint Committee on Statutory Instruments drew this instrument to the attention of both Houses on the basis that it required elucidation. The Cabinet Office provided details to the committee to explain further why we have taken this approach. It was explained that we carefully considered a number of options and concluded that this approach was the most appropriate because it has the benefit of being clear and simple for electoral administrators to understand and implement. It also ensures that all necessary legislation stays in force, minimising the risk of any adverse unintended consequences.

The committee accepted that these reasons were a reasonable justification for taking the approach in the SI, specifically keeping in force the provisions that are not to do with the European parliamentary elections. I reassure noble Lords that, if it emerges that there are provisions left on the statute book that will cause practical difficulty, we will of course take steps to commence repeal of those provisions.

Once we have left the EU, the UK will no longer have any MEPs or take part in European parliamentary elections—either scheduled elections or by-elections—since the EU law obligation to do so will have fallen away. I can give reassurance that the instrument does not change that position.

Finally, on the wider engagement we have undertaken, the Cabinet Office has engaged on the proposed change with the Electoral Commission, representatives of the Association of Electoral Administrators, the Electoral Management Board for Scotland, the Society of Local Authority Chief Executives, the Wales Electoral Coordination Board, the devolved Administrations in Scotland, Wales and Northern Ireland, and the Government of Gibraltar. The Electoral Commission and other bodies agree with the Government’s approach in the instrument and consider that the proposed approach is sensible, given that the UK took part in the European parliamentary elections in May of this year. We have also kept the Parliamentary Parties Panel informed of the position with the instrument. I commend the instrument to the House.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful to all noble Lords who have commented on these regulations and I thank them for accepting that we need them, regardless of whether we should be in this position in the first place—I note in particular the comments of my noble friends.

Completely understandably, the noble Lords, Lord Tyler and Lord Kennedy, asked me about the Law Commission’s recommendations on electoral law. As they both will be aware, the final report has not been published yet; it is due to be published early next year. The Government will consider it as expeditiously as possible, and any actions that they need to take. It is therefore not fair to say that we are doing nothing about the reform of electoral law. No responsible Government would wish to proceed with reform in an area such as this without having the benefit of the Law Commission’s final report. I appreciate that a lot of discussion has happened, and I am grateful to noble Lords opposite and around the House for participating in that. We would like to proceed as quickly as we may, but it has to be done on a properly informed basis.

I noted the comments of my noble friend Lord Deben in particular. He and the noble Lord, Lord Tyler, asked me about the lessons that we have learned collectively from past elections, but the noble Lord asked me in particular whether the May election was open to any kind of abuse, what we know that arises from that, whether lessons were learned, and so on. That is the subject of the report from the Electoral Commission, and the report by the Association of Electoral Administrators called The Electoral Landscape in 2019. We will obviously wish to give careful consideration to both those reports on the matters raised. As we have done previously, we will look to consider the Electoral Commission’s report in conjunction with the AEA report, and we will respond formally as appropriate.

[Lord Tyler]

There is a specific issue about transparency of online campaign messaging, which was a major issue in May and was a big issue in the referendum and the subsequent general election. The Cabinet Office consulted about it many months ago. Evidence was taken from the Information Commissioner’s Office; the Electoral Commission also looked into it. I would be grateful if the Minister could take back to the Cabinet Office the concern from all over your Lordships’ House that there seems to be very little action taking place on this. It remains a very sensitive issue, not least because of the important report from the DCMS Select Committee.

[Lord Kennedy of Southwark]

I take the point that the Minister made about the work of the Law Commission. It is doing its work and will come back with some comprehensive reports. However, when I have sat in a room with Chloe Smith and the noble Lord, Lord Young, we have all agreed that there are things we can do now. They have never said, “We can’t do anything because we need this Bill going forward”. There are things that can be done. I would ask the Minister to talk to his officials. He would certainly be encouraged by all of us around this House to sort this out quickly, notwithstanding the much more detailed work of the Law Commission; that cannot be used as an excuse for saying, “We do not know enough about that, so we have to leave the electoral system as inadequate as it is now”.

[Earl Howe]

I take the points made by both noble Lords. There are some tremendously important areas that we need to address. The online issue is one of them. All I can say at the moment is that the strength of feeling that has been articulated this evening will not be lost on my officials: I shall make sure of that. We are committed to implementing an imprints regime for digital election material. This will ensure greater transparency. It will make it clearer to the electorate who has produced and who has promoted online political materials. I assure the noble Lord, Lord Tyler, that we will be bringing forward proposals in this area in the coming months.

The noble Lord asked me whether the progress of the withdrawal Bill might invalidate this statutory instrument. I can reassure him that it will have no effect at all. We simply need to ensure that the European parliamentary elections legislation is not repealed on exit day, in all circumstances—or in any circumstances—so we still require this statutory instrument to be agreed. If it is, the correct result will be achieved, namely that the repeal of the European parliamentary elections legislation will happen not on exit day but rather, as I said either, on 31 December 2020. The SI is needed simply to provide certainty to electoral administrators and to maintain the integrity of our domestic electoral processes.

The noble Lord, Lord Tyler, asked whether I was a permanent or temporary spokesman for the Cabinet Office. I wish I could quantify the length of the piece of string that we are dealing with here. I am but a pale imitation of my noble friend Lord Young, whose presence on the Front Benches is sorely missed. Currently, I respond for the Cabinet Office. It is my privilege to do so and I will continue to do so until requested not to.

Motion agreed.