The European Parliamentary Elections (Amendment) Regulations 2009

Made: 29th January 2009

Coming into force in accordance with regulation 1(2)

In accordance with section 201(2) of the Representation of the People Act 1983, section 13(2) of the European Parliamentary Elections Act 2002 and section 18(4) of the European Parliament (Representation) Act 2003 a draft of these Regulations has been laid before and approved by a resolution of each House of Parliament.

Citation, commencement and extent

1

• (1) These Regulations may be cited as the European Parliamentary Elections (Amendment) Regulations 2009.

• (2) These Regulations shall come into force on the day after the day on which they are made.

• (3) These Regulations extend to England, Wales, Scotland and Gibraltar.

Interpretation

2

Unless the context otherwise requires, in these Regulations and in any provision applied by these Regulations—

• “the 2004 Regulations” means the European Parliamentary Elections Regulations 2004⁵;

and

a reference to a numbered regulation or to a Schedule means the regulation or Schedule so numbered in the 2004 Regulations.

Amendments to the 2004 Regulations

3

For paragraph (1) of regulation 2 (interpretation) substitute the following paragraph—

(1) Unless the context otherwise requires, in these Regulations— - “1983 Act” means the Representation of the People Act 1983⁶; - “1985 Act” means the Representation of the People Act 1985⁷; - “1986 (Scotland) Regulations” means the Representation of the People (Scotland) Regulations 1986⁸; - “2000 Act” means the Political Parties, Elections and Referendums Act 2000⁹; - “2001 Franchise Regulations” means the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001¹⁰; - “2001 Regulations” means the Representation of the People (England and Wales) Regulations 2001¹¹; - “2001 (Scotland) Regulations” means the Representation of the People (Scotland) Regulations 2001¹²; - “2002 Act” means the European Parliamentary Elections Act 2002; - “2003 Act” means the European Parliament (Representation) Act 2003; - “2004 Act” means the European Parliamentary Elections Act 2004 passed by the Gibraltar Parliament¹³; - “2006 Act “ means the Electoral Administration Act 2006¹⁴; - “anonymous entry” in relation to a register of electors, other than the Gibraltar register, is to be construed in accordance with section 9B of the 1983 Act¹⁵ and - “the record of anonymous entries” means the record prepared in pursuance of regulations made under paragraph 8A of Schedule 2 to the 1983 Act¹⁶; and in relation to the Gibraltar register “anonymous entry” and “the record of anonymous entries” are to be construed in accordance with the equivalent provisions forming part of the law of Gibraltar; - “bank or public holiday” in relation to Gibraltar means a day which is a bank or public holiday under the Banking and Financial Dealings Act¹⁷ and the Interpretation and General Clauses Act¹⁸; - “citizen of the Union” is to be construed in accordance with Article 8 of the Treaty establishing the European Community¹⁹, and “relevant citizen of the Union” means such a citizen who is not a Commonwealth citizen or a citizen of the Republic of Ireland; - “the City” means the City of London; - “Combination of Polls Regulations” means the Representation of the People (Combination of Polls) (England and Wales) Regulations 2004²⁰; - “Common Council” means the Common Council of the City; - “completed corresponding number list” means a list prepared under rule 23 of the European Parliamentary elections rules including the parts which are completed in accordance with rules 32(3)(d) and 41(1)(b) of those rules or paragraph 48(1) of Schedule 2; - “disability”, in relation to doing a thing, includes a short term inability to do it; - “dwelling” includes any part of a building where that part is occupied separately as a dwelling; - “election” means a European Parliamentary election; - “elector”, in relation to an election, means any person who has for the time being an entry in a register of electors, but does not include those shown in such a register (or, in the case of a person with an anonymous entry in the register, in the record of anonymous entries) as below voting age on the day fixed for the poll; - “European Parliamentary elections rules” means the rules in Schedule 1 to these Regulations; - “European Parliamentary election petition” means a petition presented in pursuance of Part 4 of these Regulations; - “European Parliamentary overseas elector” means a person falling within section 8(4) of the 2002 Act; - “European Parliamentary overseas elector’s declaration” means a declaration made in pursuance of regulations made under section 3 of the 1985 Act²¹; - “Gibraltar elector”, in relation to an election, means any person who has for the time being an entry in the Gibraltar register, but does not include those shown in such a register as below voting age on the day fixed for the poll; - “legal incapacity” includes (in addition to any incapacity by virtue of any subsisting provision of the common law) any disqualification imposed by these Regulations or by any Act; - “legal process” means a claim form, application, notice, writ, summons or other process; - “list” means a list of candidates submitted by a registered party to accompany its nomination for election; - “local counting area” means any of the following— a parliamentary constituency wholly or partly comprised in an electoral region in England, or in Wales, or a local government area in Scotland, or Gibraltar; - “the list of proxies” has, in relation to any election, the meaning given by paragraph 5(3) of Schedule 2 to these Regulations; - “mayoral election” means an election conducted under the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007²²; - “marked register” is the copy of a register of electors marked in accordance with rule 41(1)(c) of the European Parliamentary elections rules; - “marked copy of the postal voters list or the proxy postal voters list” is the copy of that list marked as mentioned in paragraph 60 of Schedule 2 to these Regulations for the purposes of rule 35 of the European Parliamentary elections rules; - “national election agent” means the person appointed under regulation 33; - “nominating officer” means the person registered under the 2000 Act as the officer with responsibility for the matters referred to in section 24(3) of that Act in respect of a registered party; - “overseas elector” means a person falling within section 8(2)(b) of the 2002 Act or in relation to Gibraltar, a person falling within section 16(2) of the 2003 Act; - “overseas elector’s declaration” has the meaning given by section 2 of the 1985 Act or, in relation to Gibraltar, paragraph 15 of Schedule 4 to these Regulations; - “postal voters list” means the list of persons kept in pursuance of paragraph 5(2) of Schedule 2 to these Regulations (persons whose applications to vote by post have been granted); - “the proxy postal voters list” means the list of persons kept in pursuance of paragraph 7(8) of Schedule 2 to these Regulations (persons whose applications to vote by post as proxy have been granted); - “proper officer” in England and Wales means a proper officer within the meaning of section 270(3) and (4) of the Local Government Act 1972²³, or in Scotland, section 235(3) of the Local Government etc. (Scotland) Act 1973²⁴; - “referendum” means a referendum conducted under the Local Authorities (Conduct of Referendums) (England) Regulations 2007²⁵; - “register of electors” means any part of— a register of parliamentary or, in the case of peers, local government electors, a register under section 3 of the 1985 Act, a register under regulation 5 of the 2001 Franchise Regulations, and the Gibraltar register²⁶, in force within an electoral region at the time of a European Parliamentary election in that region; - “registered party “ means a party registered under Part 2 of the 2000 Act; - “registration officer” means an officer appointed under section 8 of the 1983 Act²⁷ or, in relation to Gibraltar, the European electoral registration officer for Gibraltar²⁸; - “relevant registration officer” (except where otherwise provided) means— the registration officer of the local authority in whose area the election is held; or if the local counting area comprises any part of the area of more than one local authority, the registration officer of the local authority in whose area the greater or greatest (as the case may be) number of electors are registered to vote at European Parliamentary elections; or in relation to the City of London, the registration officer for the London borough of Westminster; or in relation to the Scottish electoral region, the returning officer designated under section 6(3) of the 2002 Act; or the European electoral registration officer for Gibraltar as regards documents issued for use in Gibraltar; - “service voter” means a person who has made a service declaration and is registered or entitled to be registered in pursuance of it; - “sub-agent” has the meaning given by regulation 35(1) in relation to registered parties under Part 2 of the 2000 Act or regulation 39(1) in relation to individual candidates; - “universal postal service provider” means a universal service provider within the meaning of the Postal Services Act 2000²⁹ and, in relation to Gibraltar, such person or persons with the right to exercise the functions of a universal service provider within the meaning of Council Directive No. 97/67/EC³⁰; and - “voter” means a person voting at an election and includes a person voting as proxy and, except in the European Parliamentary elections rules, a person voting by proxy; and - “vote” (whether noun or verb) is to be construed accordingly, except that in those rules any reference to an elector voting or an elector’s vote is to include a reference to an elector voting by proxy or an elector’s vote given by proxy.

4

In regulation 4 (general application to Scotland) omit paragraph (6).

5

• (1) In regulation 5 (general application to Gibraltar) for “Ordinance” (wherever it appears) substitute “Act”³¹.

• (2) After paragraph (5) insert—

(6) Any reference to a “civil partner” (wherever it appears) is omitted. (7) Any reference to section 13B(3B), 13B(3C) or 13B(3D) of the 1983 Act is to be construed as a reference to the equivalent provision forming part of the law of Gibraltar.

6

• (1) In regulation 6 (conduct of the poll and count in each local counting area), in paragraph (2) omit the words “or the returning officer in Scotland”.

• (2) After paragraph (2) insert—

(2A) The local returning officer for the local counting area listed in column 1 of the table in Schedule A1 shall be the person who is the returning officer for the parliamentary constituency listed in column 2 of that table.

7

Before Schedule 1 to the 2004 Regulations insert Schedule A1 comprising Schedule 1 to these Regulations.

8

In regulation 8 (polling districts and places), in paragraph (4) for “House of Assembly elections” substitute “elections to the Gibraltar Parliament”³².

9

In regulation 9 (rules for European Parliamentary elections and general duty of returning officers and local returning officers), after paragraph 4 insert—

(4A) A returning officer or a local returning officer for a European Parliamentary election may take such steps as he thinks appropriate to remedy any act or omission on his part, or on the part of a relevant person, which— (a) arises in connection with any function the returning officer or local returning officer or relevant person has in relation to the election, and (b) is not in accordance with the European Parliamentary elections rules or other requirements applicable to the election. (4B) A returning officer or local returning officer may not under paragraph (4A) re-count the votes given at an election after the result has been declared. (4C) These are the relevant persons— (a) a registration officer; (b) a presiding officer; (c) a person providing goods or services to the returning officer or local returning officer; (d) a deputy of any person mentioned in sub-paragraphs (a) to (c) or a person appointed to assist, or in the course of his employment assisting, such a person in connection with any function he has in relation to the European Parliamentary election. (4D) A returning officer or local returning officer for a European Parliamentary election must take such steps as he thinks appropriate to encourage the participation by electors in the electoral process in the area or region for which he acts. (4E) A returning officer or local returning officer must have regard to any guidance issued by the Electoral Commission for the purposes of paragraph (4D) of this Regulation.

10

Omit regulation 13 (modification of the 2003 Act and these Regulations for 2004 elections in relation to citizens of Accession States).

11

In regulation 15 (payments by and to returning officers and local returning officers)—

• (a) for paragraphs (1) to (4) substitute—

(1) A returning officer or a local returning officer may recover his charges in respect of services rendered, or expenses incurred, for or in connection with a European Parliamentary election if— (a) the services were necessarily rendered, or the expenses were necessarily incurred, for the efficient and effective conduct of the election; and (b) the total of his charges does not exceed the amount (“the overall maximum recoverable amount”) specified in, or determined in accordance with, an order made by the Secretary of State. (2) An order under paragraph (1) may specify, or make provision for determining in accordance with the order, a maximum recoverable amount for services or expenses of any specified description and, subject to paragraph (3), the returning officer or local returning officer may not recover more than that amount in respect of any such services or expenses. (3) The Secretary of State may, in a particular case, authorise the payment of— (a) more than the overall recoverable amount, or (b) more than the specified maximum recoverable amount for any specified services or expenses, if he is satisfied that the conditions in paragraph (4) are met. (4) The conditions referred to in paragraph (3) are— (a) that it was reasonable for the returning officer concerned to render the services or incur the expenses; and (b) that the charges in question are reasonable.

; and

• (b) in paragraph (10) for “paragraphs (1) and (2)” substitute “paragraph (1)”.

12

• (1) Regulation 17 (effect of registers) is to be amended as follows.

• (2) After paragraph (1) insert—

(1A) Paragraph (1) applies to an entry in the record of anonymous entries as it applies to an entry in the register of electors.

13

In regulation 19 (discharge of registration duties), in paragraph (4)(a) for “Clerk to the House of Assembly for Gibraltar” substitute “Clerk of the Gibraltar Parliament”.

14

In regulation 21 (registration appeals: England and Wales) for paragraph (1) substitute—

(1) Subject to paragraph (2), an appeal lies to the county court from any decision under these Regulations of the registration officer— (a) disallowing a person’s application to vote by post or proxy as elector or to vote by post as proxy, or (b) to remove a person’s entry from the lists of postal voters or of proxy postal voters, in any case where the application or entry is not related to a particular election only.

15

In regulation 24 (other voting offences), after paragraph (7) insert—

(7A) A person is not guilty of an offence under paragraph (3)(b) or (4)(b) only by reason of his having marked a tendered ballot paper in pursuance of rule 44(4) or 44(6) of the European Parliamentary elections rules.

16

• (1) Regulation 25 (breach of official duty) is to be amended as follows.

• (2) In paragraph (3), after sub-paragraph (b) omit “and” and insert—

(ba) a CORE keeper (within the meaning of Part 1 of the 2006 Act), (bb) any other person whose duty it is to be responsible after a European Parliamentary election for the used ballot papers and other documents (including returns and declarations as to expenses), and

• (3) In sub-paragraph (3)(c) for “(a) to (b)” substitute “(a), (b) and (bb)”.

• (4) After paragraph (3) insert—

(4) Where— (a) a local returning officer to whom regulation 9 applies is guilty of an act or omission in breach of his official duty, but (b) remedies that act or omission in full by taking steps under paragraph (4A) of that regulation, he shall not be guilty of an offence under paragraph (1) of this regulation. (5) Paragraph (4) does not affect any conviction which takes place, or any penalty which is imposed, before the date on which the act or omission is remedied in full.

17

In regulation 26(1)(b) (tampering with nomination papers, ballot papers, etc) for “declaration of identity” substitute “postal voting statement”.

18

In regulation 28 (offences in connection with candidature), after paragraph (2) insert—

(3) An individual candidate or a candidate being nominated in a list submitted by a registered party at a European Parliamentary election is guilty of a corrupt practice if, in any document in which he gives his consent to his nomination in accordance with rule 8 of the European Parliamentary elections rules, he makes— (a) a statement of his date of birth, or (b) a statement as to his qualification for being elected at that election, which he knows to be false in any particular. (4) For the purposes of paragraph (3), a statement as to a candidate’s qualification is a statement— (a) that he is qualified for being elected, (b) that he will be qualified for being elected, or (c) that to the best of his knowledge and belief he is not disqualified for being elected

19

• (1) Regulation 29 (requirement of secrecy) is to be amended as follows.

• (2) For sub-paragraph (c) of paragraph (1) substitute—

(c) every person so attending by virtue of any of sections 6A to 6D of the 2000 Act ³³,

• (3) After each occurrence of the word “number” in paragraphs (2)(a), (4)(c), (5)(b) and (c) and (6) of that regulation, insert “or other unique identifying mark”.

20

In paragraph (1) of regulation 31 (interpretation of Part 2), in the definition of “election expenses” for “regulations 60 to 62” substitute “regulations 60 and 62”.

21

In paragraph (2) of regulation 32 (computation of time for purposes of Part 2), omit the words “Maundy Thursday,”.

22

• (1) In regulation 36 (office of agents of registered parties)—

• (a) in paragraph (1), for “writs, summonses and” substitute “legal process and other”; and

• (b) in paragraph (4), for “writs, summons or” substitute “legal process or other”.

23

In regulation 43 (payment of expenses of individual candidates through election agent), in paragraph (5)(d) for “regulation 60(5)(b)” substitute “regulation 60(5)”.

24

In regulation 45 (expenses of individual candidate incurred otherwise than for elections purposes)—

• (a) in paragraph (2) omit the words in parenthesis “(determined in accordance with regulation 61)”; and

• (b) in paragraph (3) for the words “regulations 60 to 62” substitute the words “regulations 60 and 62”.

25

• (1) Regulation 46 (prohibition of expenses of individual candidate not authorised by election agent) is to be amended as follows.

• (2) For paragraphs (1) and (2) substitute—

(1) No expenses shall, with a view to promoting or procuring the election of an individual candidate at an election, be incurred after he becomes a candidate by any person other than the candidate, his election agent and persons authorised in writing by the election agent on account— (a) of holding public meetings or organising any public display; or (b) of issuing advertisements, circulars or publications; or (c) of otherwise representing to the electors that candidate or his views or the extent or nature of his backing or disparaging a registered party or its candidates or an independent candidate. (1A) Sub-paragraph (c) of paragraph (1) does not restrict the publication of any matter relating to the election in— (a) a newspaper or other periodical, (b) a broadcast made by the British Broadcasting Corporation, the Gibraltar Broadcasting Corporation, or by Sianel Pedwar Cymru, or (c) a programme included in any service licensed under Part 1 or 3 of the Broadcasting Act 1990³⁴ or Part 1 or 2 of the Broadcasting Act 1996³⁵. (1B) Paragraph (1) does not apply to any expenses incurred by any person— (a) which do not exceed in the aggregate the permitted sum (and are not incurred by that person as part of a concerted plan of action), or (b) in travelling or living away from home or similar personal expenses. (2) For the purposes of paragraph (1B), the “permitted sum” means £5,000; and expenses must be regarded as incurred by a person “as part of a concerted plan of action” if they are incurred by that person in pursuance of any plan or other arrangement whereby that person and one or more other persons are to incur, with a view to promoting or procuring the election of the same candidate, expenses which (disregarding paragraph (1B)(a)) fall within paragraph (1). (2A) For the purposes of paragraph (1), expenditure incurred before or on the date when a person becomes an individual candidate or a candidate included in the list of candidates submitted by a registered party at the election, is to be treated as having been incurred after that date if it is incurred in connection with any thing which is used or takes place after that date.

26

In regulation 51 (return as to election expenses: individual candidates) in sub-paragraph (3)(e) for “regulation 60(5)(b)” substitute “regulation 60(5)”.

27

For regulations 60 (meaning of “election expenses”) and 61 (incurring election expenses for the purposes of regulation 60) substitute the following—

(60) (1) In this Part of these Regulations “election expenses” in relation to a candidate at an election means (subject to paragraph (2) and regulation 62) any expenses incurred at any time in respect of any matter specified in Part 1 of Schedule 7A which is used for the purposes of the candidate’s election after the date when he becomes a candidate at the election. (2) No election expenses are to be regarded as incurred by virtue of paragraph (1) or regulation 62 in respect of any matter specified in Part 2 of Schedule 7A. (3) In this regulation and regulation 62 “for the purposes of the candidate’s election” means with a view to, or otherwise in connection with, promoting or procuring the candidate’s election at the election. (4) For the purposes of this Part of these Regulations and in Schedule 7A, election expenses are incurred by or on behalf of a candidate at an election if they are incurred— (a) by the candidate or his election agent, or (b) by any person authorised in writing by the candidate or his election agent to incur expenses. (5) In this Part of these Regulations and in Schedule 7A, any reference to election expenses incurred by or on behalf of a candidate at an election includes expenses— (a) which are incurred as mentioned in paragraph (1) before the date when he becomes a candidate at the election, but (b) which by virtue of that paragraph fall to be regarded as election expenses. (6) In this Part of these Regulations and in Part 4 and in Schedule 7A, any reference (in whatever terms) to promoting or procuring a candidate’s election at an election includes doing so by prejudicing the electoral prospects of another candidate at the election. (61) Schedule 7A, which makes provision for election expenses, has effect.

28

In regulation 62 (property, goods, services etc provided free of charge or at a discount) paragraph (2) is to be amended by substituting for “regulation 60(3)” a reference to “Part 2 of Schedule 7A to these Regulations”.

29

• (1) Regulation 63 (candidate’s right to send election address post free) is to be amended as follows.

• (2) After paragraph (2) insert—

(2A) The individual candidate and the nominating officer of a registered party which are included in the statement of parties and individual candidates nominated for the election or a person authorised in writing by that officer may also require the local returning officer to make arrangements with the universal postal service provider for communications under paragraph (1)(b) to be sent to persons who have anonymous entries in the register. (2B) Arrangements under paragraph (2A) must be such as to ensure that it is not disclosed to any other person that the addressee of such a communication has an anonymous entry.

• (3) In sub-paragraph (b) of paragraph (5) for the words beginning with “as below voting age” to the end of that sub-paragraph substitute “(or, in the case of a person who has an anonymous entry in the register, in the record of anonymous entries) as below voting age if (but only if) it appears from the register (or from the record) that he will be of voting age on the day fixed for the poll.”.

30

In regulation 65 (broadcasting of local items during election period), in paragraph (4) after “the British Broadcasting Corporation” insert “, the Gibraltar Broadcasting Corporation”.

31

For regulation 74 (details to appear on election publications) substitute the following—

(74) (1) This regulation applies to any material which can reasonably be regarded as intended to promote or procure the election of a candidate at an election (whether or not it can be so regarded as intended to achieve any other purpose as well). (2) No material to which this regulation applies is to be published unless in the case of material which is, or is contained in, such a printed document as is mentioned in paragraph (4), (5) or (6), the requirements of that paragraph are complied with. (3) For the purposes of paragraphs (4) to (6), the following details are “the relevant details” in the case of any material falling within paragraph (2), namely— (a) the name and address of the printer of the document; (b) the name and address of the promoter of the material; and (c) the name and address of any person on behalf of whom the material is being published (and who is not the promoter). (4) Where the material is a document consisting (or consisting principally) of a single side of printed matter, the relevant details must appear on the face of the document. (5) Where the material is a printed document other than one to which paragraph (4) applies, the relevant details must appear either on the first or the last page of the document. (6) Where the material is an advertisement contained in a newspaper or periodical— (a) the name and address of the printer of the newspaper or periodical must appear either on its first or last page; and (b) the relevant details specified in paragraph (3)(b) and (c) must be included in the advertisement. (7) Where any material falling within paragraph (1) is published in contravention of paragraph (2), then (subject to paragraphs (8) and (9))— (a) the promoter of the material, (b) any other person by whom the material is so published, and (c) the printer of the document, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale. (8) It shall be a defence for a person charged with an offence under this regulation to prove— (a) that the contravention of paragraph (2) arose from circumstances beyond his control; and (b) that he took all reasonable steps, and exercised all due diligence, to ensure that the contravention would not arise. (9) Where a candidate or his election agent would (apart from this paragraph) be guilty of an offence under paragraph (7), he shall instead be guilty of an illegal practice. (10) In this regulation— - “print” means print by whatever means, and “printer” is to be construed accordingly; - “the promoter”, in relation to any election material, means the person causing the material to be published; and - “publish” means make available to the public at large, or any section of the public, in whatever form and by whatever means. (11) For the purpose of determining whether any material is material such as is mentioned in paragraph (1), it is immaterial that it does not expressly mention the name of any candidate.

32

In regulation 79 (undue influence), for sub-paragraph (b) of paragraph (2) substitute—

(b) if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents or intends to impede or prevent the free exercise of the franchise of an elector or proxy for an elector, or so compels, induces or prevails upon or intends so to compel, induce or prevail upon an elector or proxy for an elector either to vote or to refrain from voting.

33

In regulation 86 (interpretation of Part 4)—

• (a) for the definition of “Licensing Acts” substitute–

Licensing Acts” means the Licensing Act 2003³⁶ or, in relation to Scotland, the Licensing (Scotland) Act 2005³⁷, or in relation to Gibraltar, the Licensing and Fees Act³⁸, the Clubs Act³⁹, the Entertainment Act⁴⁰ and the Leisure Areas (Licensing) Act 2001⁴¹;

• (b) type=start slip=2010-06-01 time=1277802493788in paragraph (b) of the definition of “public office”type=end slip=2010-06-01 time=1277802493788 for “borough” substitute “burgh”.

34

In regulation 89 (presentation and service of European Parliamentary election petitions) after paragraph (1) insert—

(1A) The reference in paragraph (1)(a) to a person who voted as an elector at an election or who had the right so to vote does not include a person who had an anonymous entry in a register of electors.

35

Omit regulation 103 (abatement of petition).

36

In regulation 109 (prosecution for corrupt practice), in paragraph (1)(a)(i) after “regulation 23” insert “or paragraph 11 of Schedule 2”.

37

For regulation 114 (time limit for prosecution), substitute—

(114) (1) A proceeding against a person in respect of any offence under any provision contained in these Regulations shall be commenced within one year after the offence was committed, and the time so limited by this regulation shall, in the case of any proceedings under the Magistrates’ Court Act 1980⁴² or, in the case of Gibraltar, the Criminal Procedure Act⁴³, for any such offence be substituted for any limitation of time contained in those Acts. (2) A magistrates’ court in England, Wales or Gibraltar may act under paragraph (3) if it is satisfied on an application by a constable or Crown Prosecutor, or in Gibraltar, the Attorney General— (a) that there are exceptional circumstances which justify the granting of the application, and (b) that there has been no undue delay in the investigation of the offence to which the application relates. (3) A magistrates’ court may extend the time within which proceedings must be commenced in pursuance of paragraph (1) to not more than 24 months after the offence was committed. (4) If a magistrates’ court acts under paragraph (3), it may also make an order under paragraph (5) if it is satisfied, on an application by a constable or Crown Prosecutor, or in Gibraltar, the Attorney General, that documents retained by the relevant registration officer in pursuance of rule 66 of the European Parliamentary elections rules may provide evidence relating to the offence. (5) An order under this paragraph is an order— (a) directing the relevant registration officer not to cause the documents to be destroyed at the expiry of the period of one year mentioned in rule 66 of the European Parliamentary elections rules, and (b) extending the period for which he is required to retain them under that rule by such further period not exceeding 12 months as is specified in the order. (6) The making of an order under paragraph (5) does not affect any other power to require the retention of the documents. (7) An application under this regulation must be made not more than one year after the offence was committed. (8) Any party to— (a) an application under paragraph (2), or (b) an application under paragraph (4), who is aggrieved by the refusal of the magistrates’ court to act under paragraph (3) or to make an order under paragraph (5) (as the case may be) may appeal to the Crown Court or, in Gibraltar, the Supreme Court. (9) For the purposes of this regulation– (a) in England and Wales, the laying of information; (b) in Gibraltar, the laying of information; and (c) in Scotland, the granting of a warrant to apprehend or cite the accused (if, in relation to an offence alleged to have been committed within the United Kingdom, such warrant is executed without delay), shall be deemed to be the commencement of the proceeding.

38

Before regulation 123 (public notices and declarations) insert—

(122A) (1) Paragraphs (2) and (3) apply to any document which by virtue of these Regulations is required or authorised to be given to voters or displayed in any place for the purposes of a European Parliamentary election. (2) The person who is required or authorised to give or display the document must, as he thinks appropriate, give or display or otherwise make available in such form as he thinks appropriate— (a) the document in Braille; (b) the document in languages other than English; (c) graphical representations of the information contained in the document; (d) other means of making the information contained in the document accessible to persons who might not otherwise have reasonable access to the information. (3) The person required or authorised to give or display the document must also, as he thinks appropriate, make available the information contained in the document in such audible form as he thinks appropriate. (4) Paragraphs (2) and (3) do not apply to— (a) the nomination paper; and (b) the ballot paper. (5) The local returning officer at a European Parliamentary election must cause to be displayed at every polling station in the election an enlarged sample copy of the ballot paper in accordance with rule 32(5)(a) of the European Parliamentary elections rules. (6) The sample copy mentioned in paragraph (5) — (a) must have printed the words “Vote once (X) in one blank box” at the top; and (b) may include a translation of those words into such other languages as the local returning officer thinks appropriate. (7) The local returning officer at a European Parliamentary election must provide at every polling station in the election an enlarged hand-held sample copy of the ballot paper for the assistance of voters who are partially sighted. (8) The sample copy mentioned in paragraph (7) must be clearly marked as a specimen provided only for the guidance of voters.

European Parliamentary elections rules

39

For Schedule 1, substitute the Schedule comprising Schedule 2 to these Regulations.

Absent voting

40

For Schedule 2, substitute the Schedule comprising Schedule 3 to these Regulations.

Modification of European Parliamentary elections rules for combined polls

41

For Schedule 3, substitute the Schedule comprising Schedule 4 to these Regulations.

Entitlement to registration and legal incapacity to vote in Gibraltar

42

• (1) Schedule 4 is amended as follows.

• (2) Subject to paragraphs (3) and (6), for “Ordinance” (wherever it occurs) substitute “Act”⁴⁴.

• (3) For “European Parliamentary Elections Ordinance 2004” (wherever it occurs) substitute “2004 Act”.

• (4) In paragraph 2(3) (time), omit “Maundy Thursday,”.

• (5) In paragraph 4(2)(c) (legal incapacity to vote of offenders detained in mental hospitals) for “an admission order has been made under section 116B” substitute “a hospital order has been made under section 116A”⁴⁵.

• (6) In paragraph 4(3) (legal incapacity to vote of offenders detained in mental hospitals), omit “Ordinance or” (in both places).

• (7) Omit paragraph 7 (alteration of Gibraltar register: pending elections).

• (8) In paragraph 17(2)(a) (service declaration) for “12 months” substitute “3 years”.

Modifications for relevant citizens of the Accession States in 2004

43

Omit Schedule 5.

Control of donations to individual candidates

44

• (1) Schedule 6 is amended as follows.

• (2) For sub-paragraph (7) of paragraph 1 substitute—

(7) In relation to a donation received by a candidate at an election in Great Britain or Gibraltar, references to a permissible donor falling within section 54(2) of the 2000 Act are to be read as if section 54(2) did not include a party registered in the Northern Ireland register maintained by the Commission under Part 2 of that Act.

• (3) The existing text of paragraph 10 shall become sub-paragraph (1) of that paragraph and after sub-paragraph (1) insert—

(2) If the statement states that the candidate’s election agent has seen a certificate of anonymous registration issued pursuant to regulation 45G of the 2001 Regulations⁴⁶, regulation 45F of the 2001 (Scotland) Regulations⁴⁷ or the equivalent provision forming part of the law of Gibraltar, which is evidence that an individual donor has an anonymous entry in an electoral register, the statement must be accompanied by a copy of that certificate of anonymous registration⁴⁸.

Election expenses

45

After Schedule 7, insert the Schedule 7A comprising Schedule 5 to these Regulations.

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 5

Signed

Michael Wills — Minister of State — Ministry of Justice — 29th January 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

The European Parliamentary Elections (Amendment) Regulations 2009 (“the 2009 Regulations”) amend the European Parliamentary Elections Regulations 2004 (S.I. 2004/293)(“the 2004 Regulations”), which set out in full how European Parliamentary elections are to be conducted. The 2004 Regulations correspond to the provisions of the Representation of the People Acts of 1983 and 1985 and regulations made under them, which they apply subject to modifications.

The 2009 Regulations apply for the purposes of European Parliamentary elections the changes to electoral procedures made by the Electoral Administration Act 2006 (c.22) (“the 2006 Act”). They also apply the amendments made for the purposes of implementing the 2006 Act’s provisions by the Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006 (S.I. 2006/2910), the Representation of the People (Scotland)(Amendment) Regulations 2007 (S.I. 2007/925), the Representation of the People (Scotland)(Amendment) Regulations 2008 (S.I. 2008/305), the Representation of the People (England and Wales) (Combination of Polls) Regulations 2006 (S.I. 2006/3278) and the Service Voters’ Registration Period Order 2006 (S.I. 2006/3406). They also reflect other amendments to subordinate legislation made since the 2004 Regulations were made.

The amendments made to the 2004 Regulations reflect the changes made by the 2006 Act to the Representation of the People Act 1983 (c.2) (“the 1983 Act”). Regulation 11 of these Regulations amends regulation 15 of the 2004 Regulations to bring the provisions relating to payments to and by returning officers at European Parliamentary elections into line with the provision made at parliamentary elections by section 29 of the 1983 Act. Regulation 27 of the 2009 Regulations amends the 2004 Regulations so that the definition of “election expenses” made in the 2004 Regulations mirrors that made in section 90ZA of, and Schedule 4A to, the 1983 Act (as inserted by section 27 of the 2006 Act). The provisions relating to time limits for prosecutions in regulation 114 of the 2004 Regulations, as substituted by regulation 37 of the 2009 Regulations, reflect the amendments made to section 176 of the 1983 Act by section 70 of the 2006 Act. New regulation 122A of the 2004 Regulations, as inserted by regulation 38, makes provision which is equivalent to section 199B of the 1983 Act (translations etc. of certain documents) as inserted by section 36 of the 2006 Act.

Schedule 2 to the Regulations replaces the European Parliamentary elections rules in Schedule 1 to the 2004 Regulations. The European Parliamentary elections rules in Schedule 1 to these Regulations apply, with modifications and exceptions, the Parliamentary elections rules set out in Schedule 1 to the 1983 Act.

The rules differ from the 2004 rules by including, with relevant modifications, the amendments to the Parliamentary elections rules made by the 2006 Act. Particular changes resulting from the 2006 Act are mentioned below.

The rules reflect new security measures introduced by the 2006 Act. Security markings on ballot papers are provided for; so too are unique identifying marks. Counterfoils on ballot papers are replaced by corresponding number lists.

The rules reflect the changes made as to the persons who may be admitted to polling stations and to count to observe elections.

Amendments are made in consequence of the provisions in section 13B of the 1983 Act, as amended by section 11 of the 2006 Act, which moved the deadline for applying for registration closer to polling day. Amendments are made to provide for the transmission of information to a presiding officer about alterations to the electoral register taking place on the day of the poll. Amendments consequential to the introduction of a scheme for the anonymous registration of certain electors are made.

The rules reflect the changes made regarding the retention and inspection of election documents after the poll.

Consequential amendments are made to the forms prescribed for use at European Parliamentary elections.

Schedule 3 to the 2009 Regulations replaces Schedule 2 to the 2004 Regulations and provides for absent voting at European Parliamentary elections. The amended Schedule 2 reflects the changes made to Schedule 4 of the Representation of the People Act 2000 (c. 2) and the regulations made under it, which make provision for absent voting in Great Britain at parliamentary and local elections, by the 2006 Act. In particular, provision is made in the amended Schedule 2 for the collection of personal identifiers from persons applying to vote by post or by proxy at a European Parliamentary election. Postal voters at European Parliamentary elections will be required to provide their signature and date of birth on postal voting statements which they must complete and return with their postal ballot papers. A postal ballot paper will not be deemed to be valid if the postal voting statement does not contain either a signature or date of birth. Local returning officers are required to take steps to verify the signature and date of birth on postal voting statements which involve checking that the identifiers provided on the postal voting statement correspond with those previously provided with the postal vote application.

Schedule 4 to these Regulations replaces Schedule 3 to the 2004 Regulations which sets out the modifications needed to the European Parliamentary elections rules when the poll at a European Parliamentary election is taken together with the poll at a relevant election or referendum, meaning a Parliamentary election, a local government election (which includes Greater London Authority elections in London) or referendum, or an election for an elected mayor held under the Local Government Act 2000 (c.22).

These Regulations extend to Gibraltar and the changes in electoral law since 2004 are applied to Gibraltar by these Regulations. Changes are also made as a result of the Gibraltar Constitution Order 2006. A copy of the Gibraltar Constitution Order 2006 and the Gibraltar Acts referred to in these Regulations can be obtained from www.gibraltarlaws.gov.gi.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

Footnotes