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Representation of the People (Franchise Amendment and Eligibility Review) Regulations 2023

Volume 833: debated on Wednesday 18 October 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 6 July be approved.

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee

My Lords, in moving the Representation of the People (Franchise Amendment and Eligibility Review) Regulations 2023 I will speak also to the Representation of the People (Franchise Amendment and Eligibility Review) (Northern Ireland) Regulations 2023.

This Government are committed to protecting the integrity of our democratic processes and we have delivered on that commitment. Last year, Parliament passed the Elections Act, which includes changes to ensure that UK elections remain secure, fair and modern. Today, I am delighted to bring forward two statutory instruments which flow from that Act. The changes made by these instruments are very similar, so I intend to talk through both in parallel. Taken together, the instruments provide a single package of measures covering non-devolved elections in England, Wales and Northern Ireland.

The Elections Act amended the franchise to reflect the UK’s new relationship with the EU and protect the rights of UK citizens living in EU countries. This moved us to the principle of a mutual grant of rights, through agreements with individual EU member states. Qualifying EU citizens from EU member states that have bilateral agreements with the UK will have the right to vote and stand in relevant elections. We also preserved the existing rights of all EU citizens who chose to make the UK their home prior to the end of the implementation period. As such, EU citizens with retained rights will continue to have the right to vote and stand. The long-standing voting rights of Irish citizens remain unchanged. Likewise, the voting rights of Maltese and Cypriot citizens, as Commonwealth citizens, are not affected by these changes.

These instruments provide for a new registration process for EU citizens which includes clear information about the new eligibility criteria for electors. Persons applying under the retained rights criteria will have to make a legal declaration that they have been legally resident in the UK since the end of the implementation period. Registration officers will be able to accept this declaration as sufficient evidence of eligibility or, if they deem necessary, will be able to require further information and evidence from the individual to make a determination.

Electoral registration officers have a legal duty to ensure that the electoral register remains accurate, so the instruments require them to conduct a one-time review to determine eligibility of all registered EU citizens. It may be helpful to note that the Chief Electoral Officer for Northern Ireland is the registration officer for the whole of Northern Ireland, and therefore this process will be conducted by them. This bespoke eligibility review process is designed to be fair and transparent for review subjects and to minimise burdens on registration officers. As far as possible, it has been based on and benchmarked against existing practice and processes.

Initially, registration officers will use data already available to them to confirm an elector’s continued eligibility without the need for an elector to take any action. Where a registration officer is unable to confirm eligibility using existing data, this instrument requires them to contact the elector to request the information necessary to determine eligibility. In the event of no response, a registration officer must make at least three attempts to contact the elector in writing, and at least one attempt to contact them in person, before they may determine them to be ineligible. All those reviewed will be notified of the franchise change and the review outcome, with the contents of all review communications prescribed for consistency. Where a person is deemed ineligible and removed from the register on the basis of non-response, they will be invited to reapply if they believe they are eligible to do so. We anticipate that the end-to-end review process will take up to three months to complete. Registration officers will have a nine-month implementation window from 7 May 2024 to 31 January 2025 to undertake the one-time review.

Finally, the SI requires registration officers in England and Wales to report on the operation of the review process to the Electoral Commission upon completion. The Secretary of State will write to the Chief Electoral Officer for Northern Ireland to request similar data.

This franchise change will apply only to polls which are non-devolved. These instruments cover all local elections in England, and police and crime commissioner elections in England and Wales, as well as local and Assembly elections in Northern Ireland. Secondary arrangements to implement candidacy changes in England are being taken forward in other statutory instruments. The changes will update nomination forms to reflect the new qualification criteria for EU citizens. Candidacy changes for Northern Ireland were implemented in the Elections Act. In practice, candidacy processes at local and Assembly elections will not change significantly. I commend these regulations to the House.

My Lords, our debates on the Elections Act last year highlighted a number of inconsistencies with the franchise. The rights of Irish citizens, and, for example, Maltese and Cypriot citizens as members of the Commonwealth, are protected, but the rights of some EU citizens who live and work here and pay their taxes here, and who may do so in future, are not properly respected. It is time to look fundamentally at the issues of the franchise, as we are now going backwards with post-Brexit changes.

The Government estimate that under the new criteria around 2 million EU citizens will be verified and remain on the electoral register, but around 160,000 EU citizens will be removed from that register and will lose their right to vote in local elections in England and Northern Ireland. EU citizens moving here in future will never have such rights. It seems to me that permanent residency should really be the basis for voting, at the very least in local elections, and that we need to look at the rights of all EU citizens in the same way as we do for Irish and qualifying Commonwealth citizens.

The franchise is increasingly inconsistent, and therefore confusing, in different parts of the UK, and none of these measures provide any more clarity on these issues. Will the Minister accept that there should be a proper government-led consultation on the principles of the franchise for voting at different levels?

My Lords, in the previous debate, I referred to a letter that I had written to my noble friend Lady Scott where I raised a number of electoral issues. I mentioned this when we debated other SIs in the Moses Room a few weeks ago, when I said that I had received replies to questions that I had not asked. One was on a subject covered by this statutory instrument.

I raised the question of environmental referendums in neighbourhood plans, and I sent a copy of the letter to the Electoral Commission, the AEA, the noble Lord, Lord Rennard, the noble Baroness, Lady Hayman, and others because, as I indicated at the end of that letter, these are broad electoral matters—I am referring to page 31 and the requirement to ensure that ratepayers, who may be multiple ratepayers, are fully aware that they are entitled to vote only once in the area where a referendum is taking place, even if they have more than one property there. I was seeking clarification on the guidance because the police had decided not to take action where somebody voted five times because he maintained that he genuinely believed that he was so entitled. The response from the police was that the guidance was not clear. I was seeking a response from different people and the response I received from the Minister said that I was asking the department to intervene on a police operational matter. I was not; I was seeking clarification on the guidance. I am taking this opportunity to re-emphasise that somebody, whether the Electoral Commission, the law or whatever it is, has to make the guidance clear so that people cannot reasonably come to that conclusion, and the full force of the law can be applied to somebody who votes five times when they are entitled to vote only once.

My Lords, these instruments would implement provisions in the Act to remove the automatic right of EU citizens to vote and stand in local elections in England and PCC elections in England and Wales.

After their implementation, only EU citizens from countries that currently have a bilateral treaty with the UK or citizens lawfully resident in the UK before 2021 would have the right to vote and stand. Of the 2.1 million EU citizens affected in England, around 160,000 are expected to be removed from the register—a point made by the noble Lord, Lord Rennard.

As a principle, Labour believes that people who contribute to society, work hard and pay their taxes should have some say in decisions being made for their community. This is about not just who can vote but devolving power to communities so that they have a say over local decisions. Current rights give EU citizens the power to vote and stand in local elections, regardless of immigration-based eligibility criteria. However, we recognise that the status quo around decision-making cannot continue following our departure from the EU and we will not oppose the regulations today.

Can I press the Minister on the important franchise changes due to come into effect from 7 May 2024? If a general election takes place prior to this, will this timescale remain feasible? Can the Minister also provide an update on the guidance being prepared for electoral registration officers? The Explanatory Memorandum states that it will be completed by the end of 2023.

My final point was made also by the noble Lord, Lord Rennard. What work are the Government doing with local authorities to ensure that the 160,000 EU citizens affected have clear guidance on how they can become permanent citizens and change their criteria in order to vote?

I thank the noble Lords, Lord Khan and Lord Rennard, and my noble friend Lord Hayward for taking part in this debate. I would like to add some explanation in light of one or two of the issues that have been raised.

First, to pick up on my noble friend Lord Hayward’s point about neighbourhood plan referendums, I am happy to arrange that meeting with officials after this debate and to look into that further. My noble friend and I have discussed it at some length in the past few weeks and it seems to me that a very small tweak is required to make it more straightforward. I am happy to facilitate that after today.

The noble Lord, Lord Khan, made some very important points on preparation and dates, and I will come back to him on the specifics. Obviously, it is not in the gift of your Lordships’ House to call a general election; nevertheless, it is very important to make sure that everything is ready and that all electoral registration staff are completely prepared, were that to happen.

Probably the most substantive issue raised in the debate was that raised by the noble Lord, Lord Rennard, on EU citizens. Parliament resolved to update the electoral franchise in the Elections Act 2020, and the UK Government’s position remains unchanged: the right to reside in the UK should not automatically confer the right to participate in our democratic processes. Now that we have left the European Union, the right to vote and stand in local elections, which we granted as a consequence of our EU membership, cannot continue. The parliamentary franchise is rightly restricted to British citizens and those with the closest historic links to our country. As noble Lords are aware, there has never been a general right for European nationals to vote in parliamentary elections. I am happy to write to the noble Lord giving more detail, and I know he has a very strong view on this, but I would now like to close the discussion.

I know that all Members of the House support these instruments enabling us to enact Parliament’s duty to uphold the franchise and ensure that we continue to meet our commitment to respect the rights of EU citizens who have made their home in the UK. I am therefore pleased to be able to introduce these measures. I beg to move.

Motion agreed.