How to extend the referendum voter registration deadline

In response to the overloading of the website where people could register to vote in the coming EU referendum, government is apparently considering how it can extend the deadline (which expired at midnight) by a day:

Mr Cameron said people should continue to register on Wednesday, saying the government was working urgently with the commission to “make sure those who registered today and who registered last night will be able to vote in the EU referendum”.

I rarely criticise legislation: I know how hard it is to draft successfully, and how well it’s drafted by and large. The legislation in this area is seriously opaque, however—so much so that it’s hard even for someone like me (who loves trawling through and cross-referencing the small print in regulations) to work out exactly why June 7 was regarded as the deadline in the first place. The problem is that government makes legal provision for a referendum like this not by drafting bespoke legislation but by a complicated technique of applying to the referendum, with modifications, the already complicated (and often amended) legislation that governs ordinary elections.

The ordinary legislation is section 13B of the Representation of the People Act 1983; the power to apply section 13B with modifications is in section 4(1)(b)(i) of the European Union (Referendum) Act 2015; and the government did exactly this in Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016. If you’ve followed that last link you’ll see exactly how opaque this all is. I think the 7 June deadline is arrived at by adding the five day period set out in section 13B(5) of the 1983 Act and the five day period in regulation 29(4) of the Representation of the People (England and Wales) Regulations 2001 plus the day on which the electoral register is published, all of which must be between the day of the deadline and the day of the referendum itself. Both 5-day periods refer to working days because of section 13B(6), which applies for these purposes section 119(1)(b) and (2). Phew.

All that convolution doesn’t normally matter much because it’s councils, government and the Electoral Commission that have to make sense of it all: they, not the man and woman in the street, are the “users” of this legislation. Nor does it mean amending the law to add a day would be a very complex undertaking. We know the five day period in section 13B of the 1983 is part of the problem, and that we have power to apply any provision in that Act with modifications, so we can simply amend Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016 to change the reference to five days, so that it’s only four days instead—so allowing one more day. The only real question is whether that’s enough time in practical terms for registration officers to do what they need to do, not any huge legal question.

True, section 9(2) of the 2015 Act requires our amendment to be laid before Parliament in draft and voted through by both Houses. But both Houses are sitting today, and could make time for this; and the normal Parliamentary procedures (such as the usual requirement for a scrutiny committee to report on the draft before the House of Lords votes on it) are not legally required and can, where there’s urgency, be dispensed with. The system can move very quickly when it must.

As it happens, under the Interpretation Act 1978, an Act takes legal effect at the beginning of the day on which it comes into force (a rule that also applies to regulations because of section 23(1)) with the result that an amendment passed by both Houses and made by ministers by midnight at the end of today would actually be the law as from midnight at the beginning of today. Legally, there’d be no “gap” period in which any registration application was out of time, and no room for technical legal quibbles arising from that. More obviously retrospective legislation might be required to remove all doubt, if the amendment were made later than today.

Would the amendment spark a dramatic legal challenge from one side of the campaign or the other, risking a postponement of the referendum? I doubt it very much indeed. There’s no doubt Parliament has granted power to make such an amendment, which would therefore not be ultra vires; it could hardly be called unreasonable since the problem was caused by an unforeseen technological glitch; and there would be no unfair procedure in making it. In my view a claim that the minister making the amendment was biased (the Chancellor of the Duchy of Lancaster, Oliver Letwin, made the original regulations) would be utterly hopeless. EU law is irrelevant, and no human rights are involved either. There are, in other words, no real legal arguments on which a challenge could be made.

Even if someone were rich and daft enough to try a judicial review, I’ve no doubt the courts would deal with it very quickly, and have no truck with an application to delay the referendum.

Whether the government should do this is a separate matter, of course; were I the PM, I think I’d do so only after obtaining both official campaigns’ public consent. But that’d be my way of seeking political, not legal, cover. I’m confident government could, anyway, make the change with negligible legal risk. Let’s see if it does.