Here are the draft regulations that will (if approved by resolutions of both Houses of Parliament this morning) extend the voter registration deadline for the EU referendum. Thanks to Rich Greenhill for alerting me to their being online. Click on the bottom left of the viewer to see the draft in fullscreen view—you’ll find some detailed technical comments from me.
As I suggested yesterday the draft regulations amend Schedule 1 para. 4 of the “Conduct Regulations” with the effect of delaying the registration deadline. How they do the trick is not quite obvious on the face of it—nowhere do you see a reference to the 9th of June—because of the (I think unnecessarily) complicated way electoral legislation works. But they modify the application to the referendum of sections 13AB (I missed this in my hurried post yesterday) and 13B of the Representation of the People Act 1983 so that where the 1983 Act mentions “the appropriate publication date” (of the electoral register, that is) and “the fifth day before the date of the poll” it means “20 June 2016”. It’s a complex business (as I tried to explain yesterday) but this does indeed have the effect of extending the deadline by two days. The 20 June is (counting back from the 23rd) the third day before the date of the poll, so you can see how the draft allows registration officers two more days to complete their tasks.
Two technical legal points are worth making. First, the amendment
if and when made will be the law as from the beginning of today (because regulations take effect at the start of the day they come into force) but * ** is not drafted retrospectively so as to change the law as from the beginning of 8 June. That means government lawyers are not concerned (as I was) about leaving any arguable “gap” during which some applications for registration were in a legal sense “out of time”. They must be of the view that shoving back the deadline makes all recent applications now in time, regardless of what the legal position was on 8 June. On reflection I think they’re right; while the loose end would have been automatically tied had this amendment been made yesterday, it’s not legally risky enough to be worth tying up today by something obviously retrospective.
Second, the key power being used to make this amendment is in section 4(1) of the EU (Referendum) Act 2015, which is a wide power by regulations to apply the 1983 Act to the refendum with modifications. The power includes (because of section 14 of the Interpretation Act 1978) a power to amend the modifications that have already been made—which is exactly what’s being done today.
That leads me to the legal challenge that apparently Arron Banks is considering, apparently on the basis that the draft is “unprecedented” and “unconstitutional”. It’s a very weak legal argument.
He’s relying on a misunderstanding of the legal concept of precedent, which does not mean (as many non lawyers think) that something’s lawful if it’s been done before, and unlawful if hasn’t. The doctrine of precedent is purely about the extent to which a legal ruling in a court case in the past governs what a court must do today. So the fact that extending the deadline mid-campaign may be “unprecedented” is legally irrelevant. As for the claim that it’s “unconstitutional”, well, we have no higher constitutional law. This is not a legal argument either.
Banks may be getting at an argument that section 4(1) of the EU (Referendum) Act 2015 can’t be interpreted as permitting mid-campaign changes. But nothing in the wording of section 4 implies a “no mid-campaign changes” rule, and as we’ve seen, there is a clear power to amend. Banks must ask judges to read his limitation in. I find it very hard to imagine judges interpreting the legislation as though Parliament in 2015 thought “Ministers must have wide power to adapt electoral law to the referendum” but that “If a problem with a government website arises mid-campaign that could stop people voting, ministers’ otherwise wide power does not extend to solving the problem”. I think it’s a hopeless argument, and I expect soon to hear no more of this legal challenge.
*On reflection, I’ve realised the regulation will not be in effect as from the start of today. That’s because they’re said (in regulation 1) to come into force when they are made, which does not specify a day, and so does not attract the rule, under section 4 of the Interpretation Act 1978, (read with section 23(1)) that regulations take legal effect at the beginning of the day on which they come into force. We won’t know what time the amendment is actually signed (and therefore made) by a minister; but won’t be able to apply the “start of the day” rule. Oddly, therefore, it won’t be quite clear how the amendment applies in time. I doubt this matters for any practical purpose, though.
**But Rich Greenhill points out to me that some instruments do actually tell us what time they were made and came into force. Maybe this will be one of them. You learn something every day!
— Rich Greenhill (@RichGreenhill) June 9, 2016