Friday 10 June 2016

EU Referendum - Voter Registration - A nightmare of a paper chase!

I had planned to do a walk today: fresh air and exercise and all that.  Unfortunately, the weather turned dull with bouts of heavy rain so I abandoned the idea of the walk.  I suppose that I could have found something better to do but I ended up delving into the law behind Voter Registration for the EU Referendum.  Get a life I hear you say!  OK - but it demonstrated what an absolute mess our statute law is in.

It is now over 14 years since Lord Justice Laws expressed dismay in the "Metric Martyrs" case about the "nightmare of a paper chase" involved in weights and measures legislation.  He was dealing with criminal offences relating to how vegetables were weighed out for customers and said - "I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation."

The same could be said of Voter Registration.  I will try to demonstrate - as briefly as possible - why.

Our journey begins with the Representation of the People Act 1983 (RPA).   

This already heavily amended Act was amended again when the Electoral Registration and Administration Act 2013 section 16 inserted section 13AB into the RPA.    

Section 13AB was then amended by the Recall of Members of Parliament Act 2015 (Schedule 2 paragraphs 1 and 4). 

Parliament then enacted the European Union Referendum Act 2015 and sections 4(1) and (5), 9(5) and 11(1) of the Referendum Act made it possible to make subordinate legislation so that the RPA could be applied to the EU Referendum.  

Enter the European Union (Conduct) Regulations 2016.   Schedule 1 paragraph 4 of this beings - "In relation to England, Wales and Scotland, section 13AB of the 1983 Act applies for the purposes of the referendum but as if ...." and then a lengthy set of changes to the RPA section 13AB follows.

Earlier this week, when the need to extend Voter Registration arose, the Conduct Regulations were amended by the The European Union (Voter Registration) Regulations 2016.  These amended the European Union (Conduct) Regulations 2016 which, as already noted, amended the RPA section 13AB.

So there you have it!  I still don't have an accurate text of the RPA as amended by all of this.  I suspect that very few will have one!  It may emerge in the next few days or so once the "cut and paste" experts have burned some midnight oil.

There may be a problem.  The European Union (Voter Registration) Regulations tell us precisely when they were made - 16.29 hours on 9th June.  According to Regulation 1, these Regulations commence when made - i.e. 1629 hours on 9th June.  It seems, as Carl Gardner points out in his Head of Legal post of 9th June, that the period from midnight 7th June to 16.29 on 9th June may not be covered.  Whether this will matter remains to be seen.  Probably not.

In any event, I think that in this instance it is clearly implicit that Parliament intended the Voter Registration Regulations to cover the period from midnight 7th to midnight 9th.  Any common law presumption against retrospective legislation may be overcome by necessary implication especially where the new law is made to deal with a matter of such fundamental democratic importance as the right to vote.  

Perhaps next time I will do my planned walk but it's a pity that, in a democracy where voting is vital, our statutory electoral law is in such a mess.   Time for a pint in the local.  Yes, beer may still be legally sold in pints!

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