European Union Referendum Bill

Lord Forsyth of Drumlean Excerpts

Wednesday 18th November 2015 Lords Chamber

[The Earl of Courtown (Con)]

Order. I think we are now clearly in breach of the Companion. I have been really relaxed, trying to let the debate flow, but we will want to get on with this. I suggest that during the dinner hour, noble Lords just go to page 151 of the Companion and take a rest.

[Lord Forsyth of Drumlean (Con)]

I just wanted to intervene very briefly to say that it is absolutely extraordinary that the Liberals should have pitched their tent on the 16 year-old thing. There was an article by the leader of the Liberals in the paper this morning. They have brought their troops here to vote, most of whom have not been here throughout the proceedings on the Bill. Now they seem to be arguing against my noble friend’s amendment, which would simply ensure that all 16 year-olds have the opportunity to cast their votes. The noble and learned Lord, Lord Wallace of Tankerness— I am seeing two Lord Wallaces —is normally very sharp. He rebukes my noble friend Lord Ridley and says, “Of course, in Scotland, we’ve got it all fixed”. Yes, we have got it all fixed, but it took more than a year to produce the separate register for the Scottish referendum elections.

The Liberals and the Labour Party have been vociferous in arguing that individual registration would take far too long. The Government have been regularly harried about not giving enough time for people to register, and about some people being left off the vote. When my noble friend comes along with an amendment which says that it should be done in a proper manner attested by the Electoral Commission, they say that that is unnecessary and the commission does it anyway. If it is unnecessary and it does it anyway, what possible objection can there be to giving those 16 year-olds who do not live in Scotland the security of knowing that they will have exactly the same opportunity as the Scots got by having a properly conducted register? I support my noble friend’s amendment.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the amendment in the name of my noble friend Lord Hamilton of Epsom applies to individuals in the United Kingdom who are eligible to vote in the referendum but would not be eligible to vote in a parliamentary election. The amendment means that the Government would be unable to table draft regulations that set the date of the referendum until the Electoral Commission has certified that that group of eligible voters had received sufficient time to register to vote.

As my noble friend made clear, he was somewhat anticipating the result of the vote in this House in relation to 16 and 17 year-olds, and plainly had them in mind. I do not impugn his motives in tabling the amendment, although it is a rather late amendment—a starred amendment. As a result, the Electoral Commission has not had an opportunity to review it or to express an opinion. I question whether the commission would either welcome this suggestion or think it necessary. The commission’s role in referendums is set out in the Political Parties, Elections and Referendums Act 2000. It is to help to deliver and regulate certain conduct in the referendum. In the most recent briefing referred to in the House, the Electoral Commission once again made it clear that a change in the franchise is a matter for Parliament and that the commission’s role is to,

“advise on the practical indications of any such change”.

This amendment would fundamentally change the relationship that the Government enjoy with the Electoral Commission, giving the commission unprecedented power. Determination of who can participate in the referendum, and when it is to be held, is a matter for the Government and Parliament, and not a matter that should be transferred, directly or indirectly, to the commission, or indeed any other body.

As noble Lords will be aware, the regulations that will set the date of the referendum will be subject to the affirmative procedure. This is a safeguard that the Delegated Powers and Regulatory Reform Committee has deemed appropriate. To prevent Parliament from even considering the date of the poll until all newly eligible electors have had sufficient opportunity to register to vote is unnecessary. This is a process that can happen in parallel.

I think it entirely possible that this amendment could be read simply as an attempt to delay the referendum poll—that was the subtext of one of the contributions—but perhaps that is not fair. It is a poll that this Government have committed to holding before the end of 2017. There seems to be a suggestion that the Government should be getting on with it now, notwithstanding that this Bill has not gone through the normal parliamentary stages. Unfair though it may be, the Liberal Democrats are not quite as well represented at the other end of the corridor as they are at this end—so the result of the next round of this saga is not something that one can anticipate. I am sure that it is not seriously suggested that the Electoral Commission should be tasked to get on now with what may not be necessary, depending on the ultimate outcome of this Bill.

I have made it clear that the Government firmly believe that the franchise used for the referendum should be based on the parliamentary franchise; subject to further developments, there is to be a qualification on that, having regard to the vote that we had this afternoon. Once the legislation that will govern the referendum has been passed, the Government will then begin working with the Electoral Commission and local administrators straightaway. If a change to the franchise is to be made, we would need to ensure that newly eligible voters were aware of their right to vote and could register to do so. The Electoral Commission, as has rightly been pointed out, made it clear that there is no fixed period for implementation of a change. I corrected under the previous group of amendments the suggestion that 12 months must pass between legislation passing through Parliament to change the franchise, and the referendum itself.

The question is what should happen, and when, in relation to Royal Assent. If the referendum franchise is changed, the Government can start work after Royal Assent, rather than wait until the secondary legislation is in place—because, of course, there are various steps that have to follow Royal Assent. First, the referendum date has to be set; then the start date of the designation process has to be set; then the referendum period—the regulated period leading up to the poll—must be set; and the detailed conduct rules governing how the poll will be administered must be set. Then the designation process can take place. Under the Political Parties, Elections and Referendums Act, that is a six-week process, with four weeks for applications, and two weeks for the Electoral Commission to make a decision. The referendum period will also need to occur.

Once the legislation has been passed, work can be done. If a change to the franchise were to be made, we would need to ensure that newly eligible voters were aware of their right, as has been pointed out by the noble Lord, Lord Willoughby de Broke. As the Electoral Commission makes clear, the media and others will be expected to play a significant role in informing any newly enfranchised group of their rights, with 16 and 17 year-olds being at the moment those that may be enfranchised. It is a significant piece of work that has to be done; the Electoral Commission has a duty to discharge its role, and I respectfully say that it is not helpful to put it in the Bill or, indeed, to tell the Electoral Commission how to discharge its duty.

[Lord Forsyth of Drumlean]

I have just been reflecting on what my noble friend seemed to imply—that there might be some tactical reason for the amendment. He did imply that, but he might just like to note that the people who have spoken in favour of this amendment all voted against extending the franchise and that, whether the Electoral Commission or the Government are required to do this, none of us would for a moment imagine that the Government would try to rush this process. Surely he would not want to imply that there were any tactics behind that.

[Lord Faulks]

I accept the gentle rebuke from my noble friend. If I seemed to imply that, I would like to disabuse him. The central message that I wish to convey is that there is no point in the Government trying to second-guess the motives behind amendments, nor indeed to try to anticipate how individuals will vote in the event of a restriction or extension of the franchise. The question is whether the amendment is something that helps the Bill, and whether it is a reasonable amendment to incorporate in the Bill. We take the view that it is the Electoral Commission that should advise us how best to achieve what we must achieve, depending on what the legislation ends up telling us to do. It would not be appropriate to give the commission effectively a form of veto over the Government and Parliament’s decision as to whether a referendum should be held. I respectfully say that this Government, working with the commission, electoral registration officers and civil society will do all that they can to allow any newly enfranchised voter to have the opportunity to register. However, I am grateful to noble Lords for discussing an important fact—that there will need to be some work done to respond to any change in the franchise, and it will be challenging work. The Electoral Commission will do what it is supposed to do. But I respectfully ask my noble friend, without in any way impugning his motives, to withdraw his amendment, in the reassurance that its duties will be discharged, if it becomes necessary.