Lords motion to approve the European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) (Amendment) Regulations 2019 - Oct 23

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 Therefore, as things stand, under the 2018 regulations the legislation will be repealed when we leave the EU.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.

Lord Tyler (LD)

My Lords, I am particularly delighted that it is the noble Earl who has brought this measure to the House for a reason that I will come to in a moment. However, I am not sure whether he is adding to his already substantial portfolio of responsibilities, because I do not know whether he is now permanently accountable to the House for the Cabinet Office. If so, he is of course warmly welcome, but he already carries a great many responsibilities. It might be that he is only temporary.

I and, I think, many other Members of the House feel that the noble Lord, Lord Young of Cookham, is truly irreplaceable. Nobody could compete with his command of the issues that the Cabinet Office deals with. He was in the House only a few minutes ago, but perhaps he will read Hansard in due course.

We are in urgent need of a Minister with particular responsibility for these issues. The Cabinet Office has some important jobs to do at the moment. I am not clear whether the noble Earl is now permanently taking up residence there, or whether some other Member will be given full-time responsibility. Maybe, since the noble Earl is Deputy Leader of the House, he will be able to tell us when there might be a Cabinet Office Minister responsible to your Lordships for the exercise of the many important duties that department has.

We think that this SI is very necessary and very appropriate. In its relative clarity, it is perhaps rather easier to understand than some of the SIs that the House looked at earlier. I pay tribute to the noble Earl’s clear exposition and to the excellent Explanatory Memorandum. Like many other Members of your Lordships’ House, I always go there first rather than to the SI.

I want in particular to draw attention to paragraph 9.1 of the Explanatory Memorandum on consolidation, because it goes beyond the SI’s particular area of responsibility and has incredibly important significance for the work being done by the Cabinet Office and the Law Commission. It says:

“The Law Commissions have conducted a review into the desirability and feasibility of reforming and consolidating electoral law. The Government is continuing to work with the Law Commissions, as well as other stakeholders such as the Electoral Commission, to consider ways to streamline and clarify our electoral system in order to make elections easier to administer and therefore more resilient to errors or fraud. We will consider their proposals in full once we receive the Law Commissions’ final report”.

That paragraph has much wider significance because it relates not just to recent elections, but to any future—perhaps near future—elections. As I keep reminding Ministers, there is an urgent need to make our electoral law fit for purpose. It would surely be irresponsible to trigger an early general election before many of the defects identified have been attended to. For example, it would leave candidates and their agents at the mercy of a legal minefield if the Electoral Commission’s new codes of practice had not been considered and approved by Parliament. The same is obviously true for the lack of effective transparency for online political campaigning, its origin and funding, particularly over whether some of that is from foreign shores.

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I know that the Cabinet Office must be well aware of the authoritative warnings—there were more this very morning—of the threat to the integrity of our elections in this respect. In the run-up to the poll in May this was an issue, too. I welcome the point made in the Explanatory Memorandum that reviewing what took place in May is a critical aspect of the opportunities given to the Electoral Commission under this SI. Paragraph 7.3 states that it will be,

“able to investigate any potential offences in relation to breaches of the rules in electoral legislation”.

It will not be just breaches; it will be whether the integrity of the election in May was at risk and whether it has important lessons for any future poll, be it a general election or indeed a referendum.

The SI very properly reminds us that the process and outcome of those parliamentary elections on 23 May require appropriate examination, analysis and follow-up. As the Minister said, that will take a bit of time, and I welcome the fact that the SI sets a reasonable period for that to take place.

It is rather nice to have an opportunity quickly to look back at the events of May 2019. I am reminded that the Conservative Party came fifth in Great Britain, with just a 9.1% share of the poll; the Labour Party had 14.1% and the Liberal Democrats 20.3%. Some of the Minister’s colleagues have spent some time in recent months—the noble Earl certainly would not have been guilty of it—teasing us on these Benches that we were perhaps not terribly representative of our support in the country. I gently remind them that the boot may now be on the other foot. They were temporarily converted to the issue of proportional representation. Not only does a procession of new Conservative Peers rip up the No. 10 agreement to the Burns scheme for reducing the size of the House but, on the basis of the most recent national poll, they must surely recognise that they are totally disproportionate.

The extensive references in the Explanatory Memorandum —I emphasise, in the memorandum rather than in the SI—to “exit day” as taking place on 31 October 2019 are now likely to be totally irrelevant. That is good news, but I would like assurance from the Minister that the fact that the date appears in the Explanatory Memorandum does not mean that the SI could be in any way defective. I am sure he will place on record unambiguously that the current “pause” in the progress of the Brexit Bill does not invalidate the terms of this statutory instrument.

Of course, we recognise that the effect of the European Union (Withdrawal) Act 2018 makes it necessary to preserve and implement various ongoing responsibilities. These are helpfully spelt out in paragraph 7.3 of the memorandum. This may also provide an opportunity for co-operation with both the Electoral Commission and the Information Commissioner’s Office on the transparency of online campaigning, which undoubtedly became an issue in the run-up to the 23 May poll. I know that important advice on this has been given to the Government and Parliament. I hope that the Cabinet Office, which has consulted widely on this matter, will now take action to ensure that the lessons are learned.

Paragraph 7.6 of Explanatory Memorandum is a statement of the obvious:

“Once the UK leaves the EU, there will be no obligation for the UK to hold European Parliamentary elections and we will no longer have MEPs”.

It was interesting in the previous debate to learn of the extent to which MEPs and Ministers from this country—I see one before me—made a major, positive contribution to important developments in the EU on plant health and other issues where we were looking for protection, which could have been achieved only on an international basis.

It is a sad day where we have to record that, in future, that contribution will not be made. However, just as a reminder that it is impossible to completely future-proof legislation, we should perhaps note that it is still just possible that Parliament could decide to support a confirmatory referendum on Brexit and that the current opinion polls—from today—show that the remain cause has a 10% lead over leave. For those who say that this SI is a realistic, completely up-to-date, factual presentation to your Lordships, I simply note that it relies in detail on very substantial and significant personal assurances from the right honourable David Lidington CBE MP, Minister for the Cabinet Office. Whatever happened to him?

Lord Deben (Con)

My Lords, this is of course a necessary SI. I say to my noble friend that I am not going to object to the nature of the SI, which is necessary, but I would like to make two principled points.

The first, in which I am to some extent following the noble Lord, Lord Tyler, is that it is remarkable, is it not, how we find time to bring forward necessary bits of legislation like this, which tidy things up—we have all sorts of discussions with all kinds of people about how it should be tidied up and then we make sure that those who are looking into statutory instruments are happy on the various elements—but we still have not found time, not for tidying up, but actually putting right our electoral system and the threats to it. It seems that, once again, we are spending time that we should never have to spend on tidying up, which we should not have had to do, but we cannot find time—nor the energy or enthusiasm—to make the changes necessary for the protection of our electoral system. Earlier this month, I suggested that now there is no question that we can possibly claim to be an exemplar of governance to the rest of the world, we might as well at least try to get an electoral system that is an exemplar for the rest of the world but, at the snail’s pace with which we are moving at the moment, it seems, sadly, that we are just not going to do that. Yet we do find time to tidy things up. In that sense, I am very happy that we should do the tidying but not that we should miss the fact that we do not have the energy to make the changes that are manifestly necessary, which all parties agree on, which the Cabinet Office has pointed to in what it says, but which we cannot manage to do.

My second point of principle is that I do not want this SI to go through without reminding the House of the serious damage that we have done to this nation by removing ourselves not just from the European Union but from the European Parliament. We have just had a debate, which I know my noble friend Lord Howe was sitting through, when my noble friend Lord Gardiner explained that the only way that we could handle the biosecurity of this nation is to do all the things that we have always done along the same lines as the rest of the European Union. That is what he told us: there is no way whatever that we are going to move aside from the European Union—and why? Because it is 22 miles away, and because we have to do that because there is no way whatever, except jointly, that we can protect ourselves. The only difference is that we will not be able to discuss it in the European Parliament. These decisions will be made by the European Union and the European Parliament and Britain will just take them. Oh, yes, we will take back control. We will take back control in order to say yes to everything that the European Union does. We have just had precisely that discussion. So when we pass this SI, what we are saying to the world is that we have been stupid enough to shoot ourselves in the foot by saying that we will now accept that we will have to do all those things that we are doing together now, only we are going to pass control to other people.

Members know that I do not normally allow these SIs to go through without reminding the House of the seriousness and the stupidity of what we have done. I hope that everyone here will go home and try to explain to their grandchildren what this ridiculous series of Bills and SIs do. What we have done is to give our grandchildren less control over the future, less opportunity to change things for good, less chance to be a real power in the world, and we have done it for the least satisfactory of reasons. We have lied to people—I do not talk about this House, of course—by saying that we are taking back control. No, we are giving up control, and this SI reminds us of the seriousness, the degree and the extent of giving that control to other people.

Baroness Hooper (Con)

My Lords, I recognise that these regulations are a necessary formality, as so clearly explained by my noble friend, but I am someone who campaigned long and hard for the right of the people of Gibraltar to have the vote. It may be remembered that, when we had our first direct elections to the European Parliament in 1979, the people of Gibraltar were actually disfranchised until the single-member constituency system was changed to a regional list system, which enabled them to vote in the south-west region of England. As a result, the people of Gibraltar exercised their right very adequately—in fact, rather better than the people of this country.

I simply wish, at this stage, to express my deep regret and sadness—I fully support everything my noble friend Lord Deben just said—that, as a result, we have lost our right, and not just the right of the people of this country but the right of the people of Gibraltar, to have a democratic voice in the European Union after Brexit, or after 31 December 2020, as has been stated. I deeply regret the necessity for these regulations.

Lord Kennedy of Southwark (Lab Co-op)

My Lords, I welcome the noble Earl to his Cabinet Office brief and look forward to our exchanges in the future. I join the noble Lord, Lord Tyler, in paying tribute to the noble Lord, Lord Young of Cookham. He certainly had an encyclopaedic knowledge of these matters and was always very courteous in all our dealings. He will be missed from the Government Front Bench.

I thank the noble Earl for going through the regulations. He explained them very carefully and I read them and the report of the JCSI carefully. He elucidated them well for the House and I thank him for that: it was very helpful. I agree with everything said by all noble Lords who have spoken. A number of points were raised, and I know that the noble Earl will come back to us on those points. It is very regrettable that we find ourselves in this situation. The noble Lord, Lord Tyler, made reference to the work of the Law Commission in respect of electoral law. This is slightly different from the main body of the regulations, but he said that it is looking at our electoral legislation.

I have raised these matters many times standing here. Usually the noble Lord, Lord Young of Cookham, would answer them. I would say that our law is not fit for purpose, and he would say, “I agree entirely with the noble Lord that it is not fit for purpose”. The noble Lord, Lord Young of Cookham, has been great; we have had meetings with the noble Lords, Lord Tyler, Lord Rennard, Lord Hayward and Lord Gilbert, from the Conservative Benches, and my noble friend Lady Kennedy of Cradley. We have sat there in meetings, including with Chloe Smith, and everybody agreed that our laws are not fit for purpose and we have to do something about it. However, as the noble Lord, Lord Deben, says, we do nothing about it.

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In the Queen’s Speech we have one tiny Bill about needing identification to come along and vote. We have a massive problem here, including what is going on with online campaigning. Who is behind these adverts, who is funding them and who is paying for them? What is going on? Is it foreign Governments? We do not know. We have the Prime Minister saying, “I want a general election”, but he is not prepared to do anything about this. Some time in the next few months or whenever it will be, we will have a general election, and there is no attempt from the Government to do anything about the state of electoral law.

We have an analogue electoral law system in a digital world, and that cannot be right. The Government really should talk to the other parties, then we could agree a Bill in both Houses that could go through very quickly to start to put some of this stuff right. That is the important thing. If we are to elect Governments, they have to be elected properly and fairly and everybody has to know that they have been elected properly and fairly. That is the tragedy of all this. That needs to be done but so far—I hope I am wrong—there seems to be no evidence that the Prime Minister wants to do that.

I will leave that there, but I hope that the noble Earl can take it back to his colleagues in government. On all sides of the House, we have to deal with the whole question of ensuring that our elections are free and fair and properly run so that we know that when we elect people, they will have been elected properly and fairly, and they can get the respect they deserve.

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.