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.

Credits: thank you @allnutt_eu, @martinned81 and @mbimmler for sending me legal documents to help with the writing of this blog entry! But any errors in here are mine alone.

[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!

3 Comments

  1. Peter Wilkinson

    To be cynical, I suspect that the Tories have applied the procedure in precisely the way that its original drafters intended. On what I believe was the very first time such a procedure was needed, back in 1999 or 2000, the person appointed to fill the vacancy had been 7th on the Labour Party list in the 1999 European election for the relevant region (where Labour had taken four seats). The two people jumped over, unlike the successful appointee at that time, were previous MEPs with perfectly reasonable records. To be fair, the successful appointee seems to have done fairly well at the job since.

  2. Edward Spalton

    Roger Helmer was a Conservative MEP for the East Midlands. He was intending to retire in the
    expectation that Rupert Matthews, the next candidate on the list, would replace him. The Conservative party had other ideas because Rupert was too white, too male and not favoured by Baroness Warsi who then made decisions of that sort for the party. So Roger Helmer remained an MEP but crossed the floor to UKIP. Now he is retiring and has made the story public.
    ( I stood against Roger Helmer as UKIP’s second candidate in 1999)

    The party list system is rotten anyway, as people have to accept the party’s order of preference. Now, it seems they can change their mind even in that.

    Back in 1999/2000, UKIP went through one of its convulsions and Michael Holmes MEP, the leader, resigned from the party and became an independent for a while. Not unreasonably, people who had voted for a UKIP candidate were upset. My wife tried to find out from the authorities what the legal position was. This was in the early days of the New Labour government and she has a Scottish accent. Very quickly, she was transferred to the Cabinet Office – and they didn’t know either!

    So the system still stinks and we will be well out of it. As I remarked to a lady Labour MEP some years later,

    the EU parliament fulfils the same purpose as the chorus in an operetta – to make the fundamentally anti democratic structure look and sound nicer whilst advising and consenting to the Commisiion’s will.

  3. I agree with Michael Bimmler (and he kindly quotes my post on the subject from five years ago). While the RO should indeed contact the next candidate on the list, the party is under no obligation to certify that candidate and need give no reason for not doing so. That seems to be exactly what happened in the Yorkshire case.

    In Scotland, it looks like Duncan’s resignation may not yet have been submitted, and the Tories are making a mess of their internal messaging around the succession. But they are within their rights to notify the returning office in advance that there will be no certification for Don, Mobarik and Gardiner. Strictly speaking the RO should receive that information from Don, Mobarik and Gardiner themselves, of course, but it’s a matter of procedure rather than outcome.

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