European Union Referendum Bill

Lord Faulks Excerpts

Wednesday 18th November 2015 Lords Chamber

[Baroness Morgan of Ely]

That is even fewer. That makes my point more eloquently. The point is, there was a huge drive to get these people to sign up and they did not take it up, although I think every one of those 100,000 has emailed me in the past few weeks to ask for this vote in the EU referendum.

The issue of citizenship and the responsibilities of citizens that my noble and learned friend Lord Goldsmith talked about earlier should be taken into account. In this country we have said time and again that we want to encourage people to integrate into their communities, to be a part of this society. It would therefore be inconsistent for us to suggest that, after 15 years in a country, they should not also be encouraged to become part of that society and to establish roots in their adopted lands.

There must be no question about the legitimacy of this referendum. We believe that there should be a cut-off point when people should lose their entitlement to vote if they have made their home abroad. We think that the current cut-off point of 15 years is about right. However, let me make it absolutely clear that there is no inconsistency in Labour’s position on this. The Conservative Government have said clearly that they want to see this extended. It is in their manifesto. They want British citizens who move abroad to be able to vote for ever. We do not believe that. When that Bill comes before this House we will oppose it.

I hope noble Lords will agree that there is, at least, a degree of consistency in the Labour Party’s position on this issue. We do not want to see this franchise extended beyond 15 years.

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

My Lords, the purpose of these amendments is to allow British citizens resident in other EU member states to vote in the EU referendum, regardless of the time they have been resident overseas. They would, therefore, lift the 15-year time limit on voting rights in the referendum for British citizens resident overseas, but only for those Britons resident in the EU. I have listened to the arguments put forward today and in Committee. I fear that, as with all the proposed changes to the franchise, the Government’s position remains the same.

I am, of course, sympathetic to the case. Indeed, as has been referred to, the Government are committed to getting rid of the 15-year time limit and have committed to bringing forward a stand-alone, dedicated Bill to provide for votes for life in due course. On the principle of removing the 15-year rule, therefore, I have no argument with the amendments. I can also understand the desire of British citizens who have been abroad for more than 15 years—whether they live in the EU, or within Europe in Oslo, in the point made by the noble Lord, Lord Grocott—to participate in the referendum. I appreciate that some will feel frustrated that they will not be able to participate. The other part of the 100,000 obviously sent their emails to me, rather than to the noble Baroness, Lady Morgan. They can argue that they might be affected by the vote, but I fear that that does not change the Government’s position on the franchise as a whole.

[Lord Hannay of Chiswick]

My Lords, there seems to be a perhaps excessive interest in the probably not very large numbers of British citizens who live in Norway. It might be worth recalling that, whatever the result of the referendum, they will not be affected. They live in a country in the European Economic Area, which is part of the single market. All their rights and privileges, and all the advantages they get from that, will remain with them whichever way we vote. That is what makes them different from British citizens in EU countries.

[Lord Faulks]

I am grateful for that interruption. The Government’s commitment is to votes for life for everybody, whether they live in the EU or elsewhere. The point is not in terms of their direct association with the EU, but whether they are British citizens who live abroad. Therefore, the point that I understood the noble Lord, Lord Grocott, to be making, which had some force, was that it is mere happenstance whether an individual lives in a country in the European Union or outside of it.

Removing the 15-year rule will be a complex and important constitutional change. It is not something that we suggest should in any way be rushed by way of a single amendment. It needs a whole Bill to be implemented properly—a Bill that plainly will be opposed by the party opposite. There are decisions to be taken. The media and the public should have a chance to scrutinise these changes. That is something of an echo of the argument I advanced unsuccessfully on the previous amendment. We will need to consider questions of potential fraud and how we should update the registration system. It is not something that should in any way be rushed through. This is just a small sample of the decisions that would need to be taken and implemented. Changing the franchise in this way is no small task. Giving effect to such a change would take a significant amount of time and resources in central government and in local authorities.

In many ways this is the most complex change to the franchise being proposed today. The group of people in question are almost by definition not known to us, as British citizens do not need to register when they move abroad. There are many, like the relations of the noble and learned Lord, Lord Scott, who will be well known and easily identifiable, but for many others it is difficult to have an adequate canvass. We could hardly go door to door, as electoral registration officials can in the UK. I entirely accept the contribution that many who live in the EU have made over a long period to Great Britain, as the noble Lord, Lord Lester, pointed out, although they have not hitherto taken part in general elections if they are outside the Westminster franchise. Verifying identities for others is a complicated task where a person has been away for at least a decade. For example, it might be difficult to prove that they have been previously resident in the UK.

These changes have to be made judiciously and carefully to ensure that the system remains transparent. My noble friend Lord Lexden said in Committee and again today that the Government should have started the process of the votes for life, which would, of course, incorporate this amendment. I know that is an issue close to his heart. I assure him and the House that the Government are committed to this change, but without knowing the date of the referendum I cannot, of course, guarantee that the change will be implemented in time. As I said, the decisions are complex.

I return finally to the point that I have made before. Indeed, I think it is one of the areas of common ground between this party and the party opposite at least. This process must be seen to be fair. There is clearly a view taken, as exemplified by the contribution of my noble friend Lord Hamilton, that a change of this sort may have an ulterior motive. I do not presume to guess how anybody is going to vote, whether they live outside the United Kingdom, outside the EU or whether they are under 18 or not. However, it is important that this should not in any way be seen to be some form of specially amended franchise so as to achieve a certain outcome. Nothing should undermine its legitimacy. The public might ask why we have made this change now just in time for the referendum. Should it not have been done as a much more careful stand-alone vote?

[Lord Liddle (Lab)]

I am a simple-minded chap but the Government are making a special change to the Westminster franchise to include citizens of Gibraltar to give them a vote in the British referendum. Presumably, the argument for that is that they are deeply affected by the result, as, indeed, they would be because their position in relation to Spain would become much more difficult were we to withdraw. But what about British citizens who have lived in the EU for a long time? The reason a lot of these people have gone to live there is because they were taking advantage of our EU membership. They see themselves as EU citizens as well as British citizens. What is the logic of excluding them if we are including the Gibraltarians?

[Lord Faulks]

The position is that British citizens are not able to vote in referenda in other European countries. This minor exception, which includes Peers and Gibraltarians who are members of the Commonwealth, is a very minor change to reflect that fact rather than to reflect the fact that Gibraltar happens to be in Europe and is part of the south-west area. I do not think it follows therefore that there should be an automatic change to the whole approach.

[Lord Hannay of Chiswick]

Before the noble Lord sits down—I think he is winding up—I do think it is a bit bizarre that we have got as far as the housemaid’s baby now. It is a very small baby—it does not matter very much. It is a change. However, the Ministry of Justice seems to be singularly ignorant of the role that British embassies, consulates and other diplomatic missions in the EU play. They have a duty of care to British citizens living in those countries. They know where a lot of them live—not, I am sure, all of them—and they have a duty of care. If those citizens are accused of a crime, they have to try to help them. So it is no good simply saying, “We don’t know where they all are. It’s a huge problem”. That is not actually the truth.

[Lord Faulks]

I would not dream of underestimating the role of British embassies and consulates around the world. They play an extremely valuable and continuing role. Nevertheless, it is asking a great deal of them—even of the most conscientious embassy—to be conscious of the whereabouts of all the various citizens living in countries outside the United Kingdom.

[Lord Lester of Herne Hill]

In a previous debate, the noble Lord talked about the mental capacity of adolescents to take part in elections and suggested that they might be mentally in some way less capable, or something like that. I hope that I do not put it too crudely. As regards the particular group we are discussing, is the problem that they are rather well informed because they have lived in other parts of Europe and have great experience? I have no idea how they will vote but at least they will be better informed than many Members of this House.

[Lord Faulks]

The noble Lord makes an entirely false point. The argument that I advanced in relation to an earlier group of amendments had nothing to do with mental capacity. In fact, I eschewed any reliance on mental capacity. I simply said that we draw an arbitrary line where adolescents are concerned—whether it is 16 or 18—and part of informing ourselves whether it is appropriate that they should vote involves looking at the development of the adolescent mind, without impugning in any way their capacity. I hope that I have made that position clear. As regards the capacity of those who are disfranchised by the current state of affairs, I do not at all wish to impugn their capacity or the level of their information or their ability to take a decision.

[Lord Kerr of Kinlochard (CB)]

I thank the noble Lord for giving way. I quite agree with him about the difficulties of drawing a line. Why draw a line, then, at 15 years?

[Lord Faulks]

Fifteen years is the line drawn by a previous Government, who thought that was a reasonable assessment of somebody who had a sufficient or recent connection with the country. Any line, whether it is 16 years or 14 years, is going to be arbitrary. Sympathetic though the Government are to the general tone of these amendments, for the reasons I have given I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Miller of Chilthorne Domer]

My Lords, I am very sorry that the Government have not followed the suggestion of the noble Lord, Lord Hannay, drawn a deep breath and thought again about this. I am afraid that there is no logic to the position laid out by the Minister. He admits that the line is arbitrary. He says that any change has to be considered and that more time should be taken over adopting it. In that case, the Government could have made the votes for life Bill a priority at the beginning of this Session. That is what they should have done if they believe in it. I am afraid that a lot of the EU expats listening to this debate will conclude that it is humbug as they will be disfranchised.

The noble Lord, Lord Bowness, put his finger on the matter when he said that it was about fairness. That is what it is. It is very unfair that the people we are discussing have been led to understand throughout their lives that being in the EU means being part of a network to which Britain belongs. Now, when Britain may make a choice to leave it, they have no say in that whatever. That position is unfair and, as the noble Lord, Lord Lexden, said, it is an accident of timing. This is an unfairness that the Government could have rectified. I will certainly not withdraw the amendment. I wish to test the opinion of the House.

--- 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.

[Lord Hamilton of Epsom]

I am very disappointed in my noble friend, because he is basically saying that the advice of the Electoral Commission could be overridden. If he is not saying that, it is quite difficult to see why he is rejecting my amendment. I think that people will find it very difficult to understand how, on the one hand, you enfranchise 16 and 17 year-olds and then, on the other, leave the Government free to hold the referendum in three months when only one-quarter of the 16 and 17 year-olds are on the register. That is the illogicality of the position that he is in. However, I am incredibly heartened by the advice that he received from the noble Baroness, Lady Morgan, because she told him that he should go away and think again about this—and I seriously echo that sentiment. I shall withdraw the amendment now, but I want him to think very carefully about this, so I shall resubmit it at Third Reading. In the mean time, he can give some serious thought as to how the problem can actually be dealt with.