A story caught my eye in The Guardian this morning. “Former candidates sue Conservative party after missing out on MEP posts” it is titled. Remember that MEPs are elected on regional lists, and each party puts up as many candidates as there are to be MEPs elected in a particular region. The Guardian story explains two cases where the behaviour of the Conservative Party looks open to question in how it allocates vacant MEP seats, but the story does not say exactly what the Tories are supposed to have done wrong. Here I will try to explain that.
But first of all, a quick recap of the two cases.
The first is that of Alex Story, a Tory MEP candidate in Yorkshire and The Humber who was number 2 on his party’s list at the 2014 EP elections (Yorkshire & The Humber 2014 results here). Timothy Kirkhope resigned to take a seat in the House of Lords, but instead of appointing Story, the Tory Party instead went for the number 3 on the list – John Procter. Procter was appointed as a MEP on 17th November 2016 – he can be found in the list of incoming MEPs on the EP’s website, and his EP bio is here. Story explains his side of things here.
The second and more recent case is that of Belinda Don in Scotland. The sole Tory MEP for Scotland, Ian Duncan, is in the process of resigning in order to go to the House of Lords. Belinda Don was number 2 on the Scottish list in 2014 (results here), but the Tories are trying to appoint the candidate fifth on the list (Ian McGill), skipping not only Don but Nosheena Mobarik and Jamie Gardiner as well. However so far the process on the Brussels side has not happened – Duncan is not listed as an outgoing MEP at the time of writing. More details about this case can be found in The Scotsman here.
The problem here is it looks to me that the Tories are not actually respecting UK election law in what they are doing. Take this with a pinch of salt as I am not a lawyer, but this is how it seems to me to work.
The rules determining how candidates can be replaced in light of a vacancy in the European Parliament for UK constituencies are laid out in Section 5 of the European Parliament Elections Act 2002 (as amended). The text of that section can be read here. The relevant part is this:
Filling vacant seats
(1)The Secretary of State must by regulations make provision prescribing the procedure to be followed when a seat is or becomes vacant.
(2)The regulations may—
(a)include provision requiring a by-election to be held in specified circumstances (and provision modifying section 2 in its application to by-elections);
(b)require a seat last filled from a party’s list of candidates to be filled, in specified circumstances, from such a list (without a by-election). [my emphasis]
So then we need to find the relevant Regulations. They are The European Parliamentary Elections Regulations 2004 – text here. Part 3, Reg 83. that I quote here is the relevant bit*:
Filling of vacancies from a registered party’s list
83.—(1) On receipt of a notice under regulation 82(4), the returning officer shall ascertain from the list submitted by the registered party named in the notice (“the relevant list”) the name and address of the person whose name appears highest on that list (“the first choice”) [my emphasis], disregarding the name of any person who has been returned as an MEP or who has died.
(2) The returning officer shall take such steps as appear to him to be reasonable to contact the first choice to ask whether he will—
(a)state in writing that he is willing and able to be returned as an MEP, and
(b)deliver a certificate signed by or on behalf of the nominating officer of the registered party which submitted the relevant list stating that he may be returned as that party’s MEP.
(3) Paragraph (4) applies where—
(a)within such period as the returning officer considers reasonable—
(i)he decides that the steps he has taken to contact the first choice have been unsuccessful, or
(ii)he has not received from the first choice the statement and certificate referred to in paragraph (2), or
(b)the first choice has—
(i)stated in writing that he is not willing or able to be returned as an MEP, or
(ii)failed to deliver the certificate referred to in paragraph (2)(b).
Putting this in simple terms: the Returning Officer shall contact the first choice – i.e. the first non-elected candidate – and only if that person declines the post or is unable to reply within a reasonable amount of time shall further candidates be contacted.
The only inkling as to how the Tories think they can get away with this is in Story’s article for Conservative Home where he says:
Yesterday, finally, my first official communication with the party. A curt letter from the nominating officer (who must certify my position as MEP) – he has checked the list and could not provide a certificate because I was no longer on it.
This refers to Story no longer being an approved candidate for the Conservative Party, something that he was in 2014 – which is what is surely crucial here as that was when the European Election actually happened. I also presume the Tory Party in Scotland is now going through a similar procedure – Don seems to want the job and will not stand aside, so her case might go the way of Story’s, while the intentions of Nosheena Mobarik and Jamie Gardiner are currently publicly unknown.
I cannot see how the behaviour towards Story can be legal (and the Returning Officer in Yorkshire & The Humber must have serious questions to answer!), and it looks like the issue is repeating now in Scotland – where the party aims to jump over three candidates, not just the one in Story’s case.
[UPDATE 26.6.17, 1525] * – wording of this sentence was amended, correcting how to refer to a Regulation
[UPDATE 26.6.17, 1530] A different view from Michael Bimmler in this tweet. Question then is what grounds a party could have for failing to issue this certificate?
[UPDATE 26.6.17, 1800] Debate about this has been rumbling on all afternoon – thanks to @martinned81 and @MBimmler for their research. Do look at this thread!