European Union Referendum Bill — Report (1st Day) (Continued)

– in the House of Lords at 6:24 pm on 18th November 2015.

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Votes in this debate

Amendments 4 and 5 not moved.

Amendment 6

Moved by Baroness Miller of Chilthorne Domer

6: Clause 2, page 2, line 25, at end insert—

“(d) the persons who fall within subsection (4).”

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat 6:34 pm, 18th November 2015

My Lords, these amendments seek to extend the Westminster franchise to those British citizens who have lived in the EU for more than 15 years. This extension to the franchise is an exception in the same way that the Bill allows for Members of your Lordships’ House to vote in the referendum.

In Committee, we heard many examples of why these British citizens should be enabled to vote in the referendum. I will not repeat all of them but simply remind the House that many in this currently excluded group have spent the whole of their working lives working for Britain. Many receive government pensions as they were soldiers, nurses or civil servants and so they pay UK taxes. In Committee, one of the points made—which was conceded even by those who seem to oppose this amendment—was that there should be no taxation without representation.

Many other people working in the EU are there because they are flying the flag for Britain. They have been encouraged by successive Governments of this country to expand their careers and look to the EU. For some this started when they were at university, with the Erasmus scheme getting them to spend time at EU universities, and for others it is because the UK has developed partnerships with firms such as Airbus. So Governments have encouraged British citizens to look on the whole of the EU as a place to study, work and live, and they cannot now pull the rug from under their feet. They should at least give them a say in whether that rug is pulled.

In Committee, some noble Lords could not understand why being a British expat in the EU is different from being an expat in, say, Singapore or Australia. As the noble Lord, Lord Anderson of Swansea, put it so succinctly, it is because of the network of arrangements upon which our citizens relied when they made their choice to live and work in the EU.

When I reflected on the Government’s response in Committee, I could not understand why they are not keen to enfranchise this group of citizens. I am glad to see the noble Baroness, Lady Royall, in her place because she asked a very important question. If the Government believe it is right for British citizens to vote in future general elections, as announced in their manifesto, why is it not right to give these people a vote in a referendum that will have a greater impact on their lives than a general election? The noble Lord, Lord Lexden, rightly said that it will be incomprehensible to our fellow citizens living abroad that a manifesto commitment cannot be implemented, by one means or another, to participate in a vote of such overwhelming importance.

When I reread the proceedings of the Committee stage, the only arguments I could find were from the noble Lord, Lord Dobbs, who said that the Electoral Commission would not know where the expats lived or who they were. However, the answer is that if you want to enfranchise them, they will apply for a franchise—they have passport numbers, national insurance numbers and fixed addresses—and, after all, those who have lived in the EU for 14, 13 or 12 years can register. It is only those above 15 years. Surely the Government would not deny such people the right to vote simply on that basis. It cannot be that difficult.

The noble Baroness, Lady Morgan of Ely, seemed to be against this exceptional franchise because she does not want to set a precedent for votes for life, which her party is against. I say to her that this enfranchisement is exceptional and should not set a precedent. The noble Baroness used the phrase about those working in the EU flying the flag for their country. I am sure she believes that and I wonder whether she might soften her position.

In replying for the Government, when it came down to not wishing to agree with the amendment, the Minister said that he was simply concerned with legitimacy. He wanted no sense that there had been an attempt to skew the result. He felt that the “safest way” to do this was to stick with the Westminster franchise. We should not be looking at safety, but at the fairest way. In any case, we are not sticking with the Westminster franchise because we have already made a couple of exceptions. The Government have accepted them and they are in the Bill.

All I am asking for here is that those who have lived in the EU for more than 15 years can join with those who have lived there for a shorter time, and that for the referendum they may exceptionally have the right to vote on a really important future for this country and for them. I beg to move.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

My Lords, I rise to support the amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer. We had a good debate about this in Committee and I think we established rather clearly that there is in fact no difference of principle on this matter between those who supported the amendment and the Minister who opposed it. His party has a manifesto commitment, which I am sure it is going to fulfil, to introduce legislation in this Parliament to give the vote to precisely the people we are talking about; that is, people who have been living abroad for more than 15 years. Admittedly, he is going to do that erga omnes and not just for those in the European Union, but there seems to me to be no difference of principle between us.

Nor does this amendment cross in any sense the line that has been frequently prayed in aid in previous debates, that this is a referendum which British people should be deciding. These people are British. They hold British passports and they are our citizens. The reason to give them the vote is because we are having a referendum which could fundamentally affect a large amount of the way in which they live. It could affect their healthcare arrangements, their ability to travel freely, their social coverage, their jobs and the way their children are treated. This is a huge range of things that could and will be affected if by any chance—mischance, in my view—the electorate votes to withdraw from the European Union. Yet the Government, which want these people to have the vote and believe that they are rightly going to be given the vote under their own proposals to be brought forward later in this Parliament, feel that they should not have it in the one vote which they really mind about. They are probably not all that interested in voting in our parliamentary, municipal and other elections, but they jolly well are interested in this referendum because their interests are at stake.

It would be really good if the Government could take a deep breath and say, “Yes, we agree that these people should have the vote because that is what our manifesto says, and we agree that this referendum vote matters more to them than anything else”. The Government have been saying for years now that the people must have their say. Did they really mean to exclude British citizens living elsewhere in the EU from having their say when their interests will be affected? I hope that we can move ahead with the amendment. Not only does it have logic and consistency on its side—two qualities which were given a rather hard time in the previous debate—it has common sense on its side as well.

Photo of Lord Scott of Foscote Lord Scott of Foscote Crossbench

My Lords, I rise to support this amendment as strenuously as I can, very much for the reasons already given by the noble Lord, Lord Hannay. I have a personal interest which I must declare. I have a daughter who lives in Spain with her English husband. Both were born in England and are English through and through. They have both always held English passports. They met in Spain, married and have two sons, both of whom hold British passports. All those members of my family are British, but they live in Spain under the arrangements made whereby the citizens of one EU country have the right to live anywhere in the EU. They have been in Spain for well over 15 years. The eldest of my grandsons is now 18 and at university, not in Spain but in the Netherlands, for reasons I do not quite understand. At any rate, they have been living in Spain for more than 15 years on the footing that they have the right to do so.

If the referendum requires this country to leave the EU, that would create the problem that I am referring to, but to say that they should not have the right to vote in the referendum, given the interest and importance to them of this country remaining in the EU, seems quite unacceptable. I therefore wholeheartedly support this amendment.

Photo of Lord Lexden Lord Lexden Conservative 6:45 pm, 18th November 2015

My Lords, I should like to return briefly to two points from among those I made in Committee. First, if our fellow countrymen and women who have lived overseas for more than 15 years are deprived of the vote in this all-important referendum, it will be because of a preventable accident of timing. As we have heard, the Conservative Party is committed to enfranchising them, but the promised Bill to do so has not appeared. The right thing to do, and this is a Government that pride themselves on doing the right thing, is to make provision for them to take part in the referendum through this Bill.

Secondly, I say again, as I did in Committee, that we should put ourselves in the shoes of our fellow countrymen and women who have been living in other EU countries for more than 15 years. How would we like it if we were deprived of the vote in a momentous referendum which will touch our present livelihoods and future prospects so intimately and directly, when we knew that at the next parliamentary election a vote would be ours? I take the view that the Bill should be returned to the other place incorporating this amendment. The issue was discussed hurriedly and incompletely during the earlier debates on the Bill there. Let the elected Chamber be asked to make a carefully considered decision on this issue. If we do that, we will have discharged our proper constitutional duty in relation to this part of the Bill.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I regret that I was not able to speak at the Committee stage, but I want to make one brief point. It is extremely important for us, through the Government and Parliament, to recognise the service given by our fellow citizens when they serve in the European institutions. I have made the point in the past so far as judges are concerned. It is vital to get good British judges to serve in Europe. But exactly the same applies elsewhere in the European public service.

The example that comes to my mind is that of an admirable civil servant, now retired, called Simon Palmer. He has lived in France for more than 15 years. He lives there because during the whole of that time he served the Council of Europe as a member of the European civil service. He takes his holidays in England and he is thoroughly British, but he has brought up his family in Europe. I see no good reason why he should suffer the penalty of being disqualified from the referendum simply because he has lived there for the wrong side of 15 years. His connection with this country is no weaker, and it is very important that through this debate and what comes of it, we should recognise the vital public service given by people like him by giving them the ability to vote in this crucial referendum.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Labour

My Lords, I too, support this amendment, to which I have added my name. There are many people living all over the European Union who, as the noble Lord has said, have done fine service for our country who are still receiving pensions from this country and paying tax in this country, and they deserve a voice. This is one of the most important votes that will have happened in their lifetime, and they certainly deserve a voice, as I say.

I respect the coherent position of my own party, although I disagree with it, but I do not understand the incoherent position of the party opposite, as was said by the noble Lord, Lord Hannay, and other noble Lords. The Conservative Party has, I believe quite rightly, said that it will extend the franchise. This is the most important vote for many of those people to whom the franchise will be extended, so why cannot it be extended now? Why cannot that legislation be brought forward before we have the referendum? That is a simple question, and I believe it is the proper one to ask.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, why do I smell another rat here? It seems to me that this is once again trying to slew the whole playing field, which we have desperately been trying to keep level, in favour of those who want to keep us in the EU. It has been quite established for some time. There is the argument that it is very unfair for these people who have been abroad for more than X number of years that they cannot vote in the referendum. But they cannot vote in general elections either. It is quite extraordinary that we seem to be determined all the time to bring in amendments that will make it more likely that we will stay in the EU than leave it.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat

Does the noble Lord believe that the Conservative manifesto commitment to raise the 15-year cap in the future is also an attempt to fix the electorate?

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

A large number of commitments have been made in manifestos that have not been brought in. That is rather like, by the same token, arguing that this is the moment to change the electoral mandate for 16 and 17 year-olds. Are we going to bring all these changes in on the back of a referendum Bill? Like my noble friend Lord Forsyth, I believe that we should have a constitutional convention to look into all these things. The whole thing is becoming more messy and piecemeal as it goes along, and I certainly do not approve of that at all.

All the time, amendments are being brought forward that are designed to make it more likely that the electoral register will be slewed in such a way that more people will vote to stay in than to leave.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I wonder whether the noble Lord would agree that voting for this amendment will make the electorate less piecemeal, not more piecemeal. It is the exclusion of people who are British citizens that is piecemeal and which his party, which he seems to treat with contempt, proposes to remedy. This is really quite an odd thing for him to do. It would be much more logical if they were included.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

All the time, we seem to be trying to change the existing electoral register in favour of those who are more likely to vote to stay in than they are to leave. This is quite clearly changing the whole thing in favour of those who want to stay in the EU. I do not know why the noble Lord actually denies this. Does he really think that people living in the EU for more than 15 years will vote to come out? It is extremely unlikely. He knows that as well as anybody else. We have established that there is an electoral register and now we are starting to mess about with it. Once it includes the 16 and 17 year-olds a whole host of other people can be put in. That moves totally away from the original register on which we were having this referendum.

If everybody wants to hold a referendum in this country which is narrowly won by those who say we should stay in the EU when there is all the gerrymandering that has been going on, do noble Lords really think that that decision will be accepted by the country when it is obvious that the whole thing has been slewed in favour of those who want to stay in the EU?

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

I can help the noble Lord. He will not be surprised to hear numbers from me, or that I am repeating them. We are talking about 1.3 million people, according to the UN Population Division. Some of those will be minors because that figure does not distinguish between minors and adults, and some will have been in Europe for fewer than 15 years. There are no statistics and no way of knowing exactly how many people would be covered by this amendment, and I am not suggesting that there is. However, if we start with that 1.3 million, probably 0.3 million of them are minors, so we are left with 1 million, of which—who knows?—maybe 0.5 million or 0.3 million have been in Europe for more than 15 years. Whichever way we look at it, the noble Lord is quite right that this is a significant number of people, running into hundreds of thousands. We should be aware of that when we consider the amendment.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

I am grateful to the noble Lord, and it is very helpful to have a few statistics to bring everything more vividly to light. I give way to the noble Lord.

Photo of Lord Howie of Troon Lord Howie of Troon Labour

I did not intend to interrupt the noble Lord; I thought he had finished.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

In which case I will sit down and listen to the noble Lord.

Photo of Lord Howie of Troon Lord Howie of Troon Labour

So, the noble Lord has finished. I want to add no more than a pennyweight to this debate. It is based on personal experience, in that I have been excluded from no fewer than three referendums in recent years—two on the question of devolution in Scotland and one on the question of Scottish independence.

In my maiden speech in this House in 1978, I spoke about those who were Scots by birth or upbringing, or like me having a Scottish title, who because we had lived in London or England for some time were excluded from that referendum. All I wish to say is that, like those who live abroad and yet retain their allegiance to the United Kingdom, I living in England—and opposing independence, let it be said—retain an affection and loyalty to Scotland. Therefore, having been excluded from those referenda, I have a continuing feeling of resentment and annoyance. Those who, like the civil servant in Brussels mentioned earlier, are excluded from this referendum will quite rightly have a feeling of resentment and undue exclusion. I support the amendment.

Photo of Lord Bowness Lord Bowness Conservative

My Lords, I had my name to a similar amendment that was tabled in Committee. I have to say to my noble friend Lord Hamilton of Epsom that for me it is an issue of fairness. With great respect to him, we will not get very far if we throw words such as “gerrymandering” at each other. I suppose that those of us who want to see a positive vote in favour of remaining in the European Union could say that to exclude tax-paying British citizens—a group who have committed their lives and made decisions about their lives and who live in Europe—is also gerrymandering in trying to skew it in another direction. I do not think that that gets us very far.

I believe that the amendment is one of fairness. As I said in Committee, these are people, many of whom if not all, will not be outside the reach of Her Majesty’s Revenue & Customs. The fact that you are non-resident does not mean that you are non-resident for tax purposes. HMRC will keep its fingers on you if you have property, family or a whole lot of various matters where you are judged not to have broken your connection totally with the United Kingdom.

The advice from the Electoral Commission in respect of this amendment—which, indeed, I support—says:

“It is not clear how such proof could be provided and verified by EROs”.

I am rather surprised at that advice from the Electoral Commission, because I should have thought that the vast majority of people about whom we are talking are people who will be resident in one particular place. They will have evidence of employment and evidence of that residency, and they will have the same papers that the rest of us have in connection with bills, credit cards and bank accounts, which will be the kind of evidence that they would be able to present to an electoral registration officer. While I have great respect for the Electoral Commission and its advice, although it says that it is not clear how such proof could be provided, I am not clear in my mind why it is so difficult to find suitable items to prove that you are entitled to a vote in the circumstances that this amendment envisages. I support the amendment.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales) 7:00 pm, 18th November 2015

My Lords, many noble Lords believe in the principle of votes for life for British citizens, irrespective of where they now live or how long they have lived there for. Others have argued that this is a one-off, exceptional situation relating to the fact that this is an EU referendum— that UK citizens living in the EU will be directly impacted and they should therefore be given the vote. These are different arguments and we disagree with both.

I am clear that if we were to leave the EU there would be an immediate and direct impact on UK citizens living in other EU member states. Their status in the country would at the very least be reviewed. Will their qualifications be recognised? Will their pensions be uprated? Will they be able to access member states’ medical services? There is a deafening silence from the Government on these issues, but it does not mean that they should be given special status in this referendum because of the possible impact on their lives.

In Committee, my noble friend Lord Grocott eloquently inquired why we allow some expats in some countries in Europe, such as Sweden, to vote, while preventing others in countries such as Norway from voting. He also suggested that we would be getting into difficult territory if we allowed only those affected to vote. If we start down that route we will get into difficulty.

Then there is the practical issue of registering these people. Who are they? How do we find them? What if we extend the franchise to 16 to 18 year-olds? The Minister suggested that if all citizens around the world were invited to register there could be about 5 million of them. That is not what the amendment says; it says, “Let’s restrict this to the EU”. That is 1.3 million citizens. We have just heard some very clear statistics, but they actually were not that clear. That is the problem. We have no idea how many there are. It will be very difficult to trace them in a short space of time. This is very different from 16 to 17 year-olds voting. We know exactly where they are: in school. These people are spread throughout the continent. We would not know where to start, not within the nine-month timeframe.

Many UK citizens overseas have been invited to register in the past, but as the noble Lord, Lord Dobbs, pointed out in Committee, fewer than 20,000 British expats in the European Union have taken up that right to vote, despite all the efforts and funding that has been given to advertising by the Government and to get them involved.

Photo of Lord Lexden Lord Lexden Conservative

The noble Baroness underestimates the figure. It is not 20,000, but more than 100,000 registered to vote at the last general election.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales)

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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?

Photo of Lord Liddle Lord Liddle Labour

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?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

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?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

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.

Division on Amendment 6

Contents 116; Not-Contents 214.

Amendment 6 disagreed.

Division number 2 European Union Referendum Bill — Report (1st Day) (Continued)

Aye: 114 Members of the House of Lords

No: 212 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 7 not moved.

Amendment 7A

Moved by Lord Hamilton of Epsom

7A: Clause 2, page 2, line 32, at end insert—

“( ) Regulations under section 1(2) may not be laid before either House of Parliament unless the Electoral Commission has certified that any persons in the United Kingdom who would not be entitled to vote as electors at a parliamentary election in any constituency but are entitled to vote in the referendum by virtue of this section have had sufficient time to register to vote (the meaning of “sufficient time” having been determined by the Electoral Commission).”

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative 7:29 pm, 18th November 2015

My Lords, I hope that we are now moving into slightly calmer waters. I tabled this amendment in anticipation that the House might vote to enfranchise 16 and 17 year-olds. I do not think there can really be too much opposition in the House to my amendment because we have to ensure that the new franchise actually happens. The amendment enfranchising 16 and 17 year-olds passed by a very big majority in your Lordships’ House and it may well be that it never comes back from the Commons, either. There are a number of different reasons why the other place might actually accept the amendment, so there may well be no future opportunity to amend it.

The whole point of my amendment is to ensure that we do not enfranchise 16 and 17 year-olds with one hand and disenfranchise them with the other. We have heard different stories from the Electoral Commission. The noble Baroness, Lady Morgan, said that she had been assured by people at the Electoral Commission that it would be possible to get all this through by September. But we are in uncharted waters and we really do not know how long it is going to take to get the new register drawn up; it is completely new territory. All these people have to be individually registered, which may take a quite serious amount of time.

All my amendment does, which I am sure must be acceptable to the House, is to say that the Electoral Commission must be able to tick the box for the Government and say, “Yes, we have got a decent number of 16 and 17 year-olds on the electoral roll”—I am not saying it should come back and say that it has got 100% of them—and that should be acceptable to everybody. We do not want to end up with a whole lot of 16 and 17 year-olds going round saying, “I was told that I had a vote but I never got on the electoral roll”— because the process was only half completed, or whatever. So is it really too much to leave it to the Electoral Commission to tell the Government or whoever is deciding on the date of the referendum when the new register has been drawn up and everything is in place?

I do not pretend to know how long the process is going to take. At one stage the Electoral Commission was telling us that it would take up to 12 months. It is now reining back from that and saying that perhaps it will be quicker. But that is not really where I come from. It does not matter how long it takes. If it takes three months, fine. If the Electoral Commission can come back in three months and say that the job is done, that is absolutely fine and the referendum can be held after that. But it is very important to ensure that we do not, as I say, give enfranchisement to 16 and 17 year-olds with one hand and then, by having a very early referendum, ignore all those who are not on the electoral roll and take it away with the other. That is the point of my amendment. I beg to move.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

My Lords, if I had heard the noble Lord, Lord Hamilton of Epsom, arguing against this I would think it a blatant attempt to bias the level playing field of which he is so fond by delaying the referendum. This amendment is simply unnecessary because the Electoral Commission will of course vouch for when the process has reached an appropriate stage. We therefore do not need to write this into the Bill. While I am on my feet, in his last speech during Committee the noble Lord referred to our friends and enemies within the European Union but did not specify which Governments he thought were our enemies within it. If he is going to reply, it would perhaps be helpful if he said whether they are the German Government, the French Government or others, because that would help us in understanding where he is coming from in the various amendments he has tabled.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

That is a particularly silly point from the Liberal Benches. I was merely making the point that we have people who are on our side in certain negotiations, and people who are against us. That was the rather loose way in which I used the term “enemies”. To go back to the noble Lord’s earlier point, the fact is that the Electoral Commission’s job is to advise the Government, who do not have to take its advice. The Government could say, “There is a wonderful opportunity now to win this referendum” and hold it after three months, when only a handful of 16 or 17 year-olds would be on the register.

Photo of Viscount Ridley Viscount Ridley Conservative

My Lords, I will speak briefly in support of my noble friend Lord Hamilton’s amendment. The key point was that in discussing the amendment on 16 and 17 year-olds, it was clearly said to us that it did not allow sufficient time to ensure that we get the electoral register right. We also heard that the Electoral Commission thought that there was an issue with individual registration being different from household registration. We may well see a specific issue in Scotland, in that people who got on the register for the Scottish referendum may now find that it is not so easy to get on the register for this one, given the amendment we have just passed, because they have not gone through the individual registration process. There has to be clarity and time to get the electoral register right.

I come back to the point I made in Committee and which has been made here. The crucial thing is to make sure that this is as fair and final a referendum as we can manage, so as to settle the issue once and for all. It would be a great mistake—

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

Does the noble Viscount accept that the Scottish Parliament has now brought forward legislation to enfranchise 16 and 17 year-olds for the Scottish parliamentary and local government elections, the former taking place next May? I appreciate his concern about 16 and 17 year-old Scots, but the issue does not really arise because they will already be on the register by virtue of legislation passed by the Scottish Parliament.

Photo of Viscount Ridley Viscount Ridley Conservative

That is good news but there are a lot of other people in this country as well as Scots, and we have to ensure that they are properly registered. The next canvass begins, as we have heard, in July 2016. I do not quite understand how that interacts with this business of registering people for the referendum, but I beg my noble friend the Minister to take my noble friend Lord Hamilton’s amendment seriously.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat

My Lords, I do not believe that this amendment is necessary. It is very reassuring to know that noble Lords opposite, who were opposing votes for 16 and 17 year-olds a few minutes ago, are now so concerned to ensure that those people who may now have the vote—

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Does the noble Baroness not accept that those people who believe in democracy accept a democratic vote?

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat

My Lords, I am very pleased to hear that. We have all talked about making sure that this is a level playing field, so I am delighted to know that noble Lords are keen to ensure that people who will be entitled to vote can be registered. However, the issues are whether this needs to be in the Bill and whether we need to wait until the annual register, which starts in July 2016. We have a rolling electoral register. Can the Minister say whether it would be possible to look at registration at an earlier stage? Lest anyone think that I am trying to skew things by looking for a quick referendum at a later or earlier date, we do not know the date, so we have the veil of ignorance. However, we will know relatively soon when we shall have Royal Assent for the Bill. Could the Electoral Commission not set in train the process of registration as soon as Royal Assent is granted?

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, it seems to me that the noble Lord, Lord Hamilton, is trying to be helpful, and I am surprised that he should be opposed from the Liberal Benches. I did not agree with one thing he said: that we should abide by a democratic vote. The vote in this House is not and has not been democratic. The vote will be democratic only if the House of Commons agrees. It is rather an impertinence that this House should have carried the amendment on the franchise when it knows perfectly well that the House of Commons opposed such an amendment by quite a large majority—51, I think.

The noble Lord, Lord Hamilton, is being treated very badly, because he has tried to be helpful, bearing in mind that he has a different view from that held on the Liberal Benches. While I am talking about the Liberal Benches and democracy, I have to say that they came out in huge numbers to vote for the amendment on the franchise, yet they have only eight MPs in the House of Commons. That is an absolute disgrace. It is a disgrace that they should use their undemocratic power in this House to overrule the democratic House—another place.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat

My Lords, I certainly have no intention of doing down the noble Lord, Lord Hamilton. We have had a vote in your Lordships’ House. The Members of the other place will have the opportunity to either accept votes at 16 and 17 or to vote it down, and we will reach a point of ping-pong. The elected or unelected nature of this House is for another debate—

Photo of The Earl of Courtown The Earl of Courtown Lord in Waiting (HM Household) (Whip)

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.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

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.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales) 7:45 pm, 18th November 2015

My Lords, of course we want proper registration to take place. We know that it will take a bit of time, and that exercise is now, to an extent, in the hands of the Government. They could start that process now. They could already indicate the direction in which they would like to go. Whether the referendum will be held up or not is therefore in their hands.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Is the noble Baroness saying that the process of registration should start tomorrow? Surely it can start only after the Bill is granted Royal Assent.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales)

Of course I understand that we have to wait for Royal Assent, but people could start to gear up: they could be given an indication that this is on its way. It is in the hands of the Government to determine whether that happens. We could gain a couple of months if the Government got on with the job right now, now that we have had a clear indication from this House of the way we want to go

Of course we want proper registration. We have spoken to the Electoral Commission, which has made it clear that it thinks it can do this within a nine-month time frame. The electoral administration authorities have said the same thing. Electoral registration officers at local authority level, given resources, can also deliver it. We now have a rolling registration process. There is no cut-off date, as in the past. None of us knows the timing of the referendum. None of us knows whether the Prime Minister will be able to convince other member states of the merits of his reforms.

I agree that we need to make sure that there is sufficient time. I do not know how long that is, and I would like to know what the Electoral Commission thinks is sufficient time before agreeing to the amendment. Given the earlier vote and the clear indication from this House, I suggest that the Minister look seriously at what needs practically to be put in place, but the amendment is unnecessary.

Photo of Lord Willoughby de Broke Lord Willoughby de Broke UKIP

The noble Baroness made light of the Electoral Commission’s recommendations. In the last paragraph on page 4 of its briefing, on registration, it states:

“This would need to be reinforced by significant public awareness activity at both the national and local level. Political literacy initiatives may also be needed, as were targeted working schools and other educational institutions to help get the message out to these groups quickly. Additional funding would also be needed to make sure that these activities could be delivered by EROs, the Commission and other relevant bodies”.

It is not a matter of snapping your fingers, waving a stick and saying, “It’s done”. It will take a long time, and I am sure that the right thing is to accept the amendment of the noble Lord, Lord Hamilton. I hope that the House will agree with him.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

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.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

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.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

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.

Amendment 7A withdrawn.

Schedule 1: Campaigning and financial controls

Amendments 7B and 8 not moved.

Amendment 9

Moved by Baroness Anelay of St Johns

9: Schedule 1, page 8, line 7, at end insert—

“( ) The period prescribed under this paragraph must be a period which—

(a) is at least 10 weeks, and

(b) ends with the date of the referendum.”

Amendment 9 agreed.

Amendments 10 and 11 not moved.

Consideration on Report adjourned until not before 8.59 pm.