Draft Representation of the People (England and Wales and Northern Ireland) (Amendment) Regulations 2024

Simon Hoare Excerpts

Wednesday 8th May 2024 General Committees

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Simon Hoare)]

I beg to move,

That the Committee has considered the draft Representation of the People (England and Wales and Northern Ireland) (Amendment) Regulations 2024.

It is a pleasure to serve under your chairmanship, Mr Hosie. May I start with an apology? We have had to bring the draft instrument forward as a tidying-up and housekeeping exercise. It is nothing to set the world alight, but it is an important thing to do, and I hope it will be supported across the Committee.

The Elections Act 2022 introduced measures to, among other things, amend the franchise to reflect the United Kingdom’s new relationship with the European Union and to protect the rights of UK citizens living in EU countries. Last year, two statutory instruments were passed that flowed from that aspect of the Elections Act. They made changes to the voting and candidacy rights of EU citizens in England and Wales and Northern Ireland. They provided for a new registration requirement for applications from EU citizens and set out a process requiring electoral registration officers to conduct a one-time review to determine the eligibility of all registered EU citizens. One instrument applied to all local elections in England and to police and crime commissioner elections in England and Wales. A separate statutory instrument applied franchise changes to local government and Assembly elections in Northern Ireland. The majority of the changes came into effect from 7 May.

We are bringing forward this instrument to amend a drafting oversight in both of those sets of regulations. A primary intention of the two current instruments was to allow EU citizens who chose to make the UK their home prior to the end of implementation period—that is, before the UK left the EU—to continue to have the right to vote and to stand for election. That group of electors is referred to as “EU citizens with retained rights”. People applying to register to vote under the retained rights criteria, referred to as “relevant EU applicants”, must make a legal declaration that they meet the criteria of an EU citizen with those retained rights, have been legally resident in the UK since the end of the implementation period and are from a country with which the UK does not have a voting and candidacy rights treaty.

Relevant EU applicants were intended to be defined as individuals who are citizens of the 19 EU member states with which the UK does not have a reciprocal voting and candidacy rights treaty and who are not citizens of Ireland, Cyprus or Malta—for which exemptions exist because Irish citizens’ UK voting rights long predate the EU, while the voting rights of Cypriot and Maltese citizens derive from their citizenship via the Commonwealth. The five countries with which the UK has voting and candidacy treaties are Spain, Portugal, Luxembourg, Poland and Denmark. Citizens of those countries will not lose their voting rights in the UK.

However, due to an oversight, the requirement for applicants to indicate that they fulfil retained rights criteria unintentionally applies to particular applicants with dual nationalities—that is the key point here—even though their answer to those criteria requirements will have no bearing on their eligibility to register to vote. In essence, the drafting error forces people to prove twice, rather than only once, their right to vote.

The current legal definition of a relevant EU applicant means that citizens of the 19 relevant EU countries who also have another nationality that is British or Commonwealth, excluding Cyprus or Malta, or have citizenship of a treaty partner state, are legally obliged to indicate that they fulfil retained rights criteria, as part of their application to register to vote, even though that answer is irrelevant to determining their eligibility. Retained rights criteria are immaterial because the eligibility of an individual with more than one nationality to participate in elections is established based on whichever of their nationalities grants them the greatest voting rights. For example, an individual with British and French dual nationality would have the same voting eligibility as someone with single British nationality, making it unnecessary to make demands that are relevant only to French applicants.

While this issue exists in law, if an application to register to vote from a relevant dual national is received by an electoral registration officer and the applicant has not indicated that they fulfil the retained rights criteria, that application would technically be incomplete. As such, the administrator would have to get in touch with the applicant to require this information, even though the answer to the question would make no difference to the outcome of their application.

In practice, this issue creates the potential for confusion among applicants, who could reasonably object on the grounds that being asked to indicate that they fulfil retained rights criteria is unreasonable. Worse, this confusion could even result in people abandoning an application to register, disenfranchising themselves—something I am keen to avoid. It also creates the potential for an increased administrative burden on electoral registration officers.

Today’s statutory instrument amends the definition of a relevant EU applicant in the England and Wales regulations, as well as the equivalent term used in the regulations pertaining to Northern Ireland. The instrument defines a relevant EU applicant as someone who is a citizen of an EU member state, is not a citizen of an EU member state that has a treaty with the UK and/or is not a British citizen, a qualifying Commonwealth citizen or a citizen of the Republic of Ireland. That will provide an enduring resolution to the issue, with the dual nationals I referred to earlier no longer being legally required to provide immaterial information as part of their application to register to vote. Until this instrument comes into force—which I hope it will with the support of the Committee this afternoon—measures have been put in place to minimise the extent of the issue, but this instrument is needed to fully remedy the problem.

Having set out the background to this statutory instrument, I hope the Committee will appreciate the need to make swiftly this straightforward legislative amendment to remove the risk of confusion among applicants and unnecessary burden for electoral administrators.

--- Later in debate ---

[Simon Hoare]

I thank the hon. Lady for the tone and tenor she adopted in her remarks. I would say to her that to err is human; to forgive, divine. I did start my remarks by issuing an apology to the Committee: no Minister of the Crown likes to have to come back to this place to tidy up a legislative oversight. It is embarrassing and a nuisance; it wastes colleagues’ time and the time of the House. If there had been another way we could have done this, we would have, but it required the draft regulations. We thought there were two options: one was just to pretend it had not happened and to keep the burden there, with a double qualification; the other was to fess up, to put our hand up and to tidy everything up to make things easier for the administrators—the hon. Lady is absolutely right that we do not want to overburden our administrators.

To pause there for a moment, Mr Hosie, I want to put on record—I think this would be echoed in all quarters of the House—our thanks to all the staff who delivered what were peaceful and calm elections last week. They do a huge amount of work, not just on election day, as we all know, but in the weeks and months spent preparing the registers, the paperwork and everything else.

I agree fundamentally with the hon. Lady that we want to maximise the number of people who qualify not just to be on the register but to participate in our electoral processes. The requirement of the beating heart of democracy is that that beating heart be exercised, and it is exercised through the ballot. We want to maximise that.

We have seen a collision of two things. One is the Elections Act and the determination to tidy up our electoral system and to make it as resilient and robust as possible looking forward. That is tied up with the obvious knock-on implications of leaving the European Union, which meant that certain rights had to change and so on. I will not describe that as a perfect storm, but those two things—which would have been big and chunky pieces of work in themselves—have, when added together, been a test for our administrators, although I have to say that they have risen to the challenge magnificently.

The whole purpose of this exercise is to ensure that the system is as transparent and as easy to use as possible. We will of course continue to seek other treaties such as those we have with Spain, Portugal, Luxembourg, Poland and Denmark—that is an organic and iterative process, and something to be welcomed. No one qualified to be on the register under the double qualification-proving requirements we are seeking to tidy up today will have to reapply; there is no additional burden for them or, indeed, for the administrators.

I am not convinced that that requires a huge information campaign. When we have talked to the people affected, they have not realised that they have been having to answer the same question, but through two different routes. However, we will of course keep this under review, to address the point the hon. Lady made, perfectly validly, about the need to maximise the numbers of people on the register who duly qualify and to secure their participation in the ballot.

The hon. Lady referenced—I hope I quote her correctly—the “flawed photo ID system” but, truth be told, I do not think that that bears scrutiny. Yesterday, I had one read-out from officials on the electoral events of last week; this morning, I was with the Electoral Commission, and I will see it again next week. We, and the commission, have said that we will review each event in these relatively new times since the Elections Act has come into play, to ensure that things are working as we envisaged they would. If they are not, we will tidy up where appropriate. I was very struck, as I am sure everyone else here was travelled to their polling stations last Thursday, that people were there with their voter ID. Again, I pay tribute to the work of all the political parties, civic society, local authorities, the commission and the Government on promoting and raising awareness of that requirement, which does ensure that our electoral system is as robust and reliable as we can make it.

If I missed anything that the hon. Lady raised with me, my apologies, but she can drop me a line and we will reply in writing. I hope I covered the main thrust of her argument. This is a tidying-up point, which will make things easier for those who apply, while those who have applied and qualified will not have to do anything else. The changes will ease the burden on electoral administrators involved, because they do not require any going back to check on details. I do not say this in any way to be flippant, but this is a housekeeping, tidying-up point.

I am grateful for what I think I heard the hon. Lady say was her support. She and I share an annoyance that we have to be here in order to do these things, but I thought it better to get them done than to leave them hanging. With that, I close my remarks.

Question put and agreed to.