RECALL PETITION
Departmental Minute on Liabilities:
Indemnity for Petition Officers at Recall Petitions
It is normal practice, when a Government Department proposes to undertake a contingent liability in excess of £300,000 for which there is no specific statutory authority, for the Minister concerned to present a departmental minute to Parliament giving particulars of the liability created and explaining the circumstances; and to refrain from incurring the liability until 14 parliamentary sitting days after the issue of the minute, except in cases of special urgency.
This minute sets out the need for the Cabinet Office to indemnify petition officers in England, Scotland and Wales against uninsured claims that arise out of the conduct of their duties should a recall petition under section 1(1) of the Recall of MPs Act 2015 be triggered. We will also provide a certificate confirming that we will bear the cost of any claims in respect of any liability to any employee of the petition officer which would otherwise be covered by insurance procured under the Employers’ Liability (Compulsory Insurance) Act 1969.
The indemnity will only apply so far as any charges are not otherwise recoverable under the charges provisions contained in paragraph 3 of Schedule 1 to the Recall of MPs Act 2015 (and see further the exclusions below).
Section 6 of the Recall of MPs Act 2015 provides that every constituency is to have a petition officer for a recall petition and identifies who the petition officer is for each constituency: in England and Wales, it is the person who is the acting returning officer for UK Parliamentary elections for the relevant constituency; in Scotland it is the returning officer for UK Parliamentary elections for the relevant constituency.
For the purposes of recall petitions, like returning officers and acting returning officers at elections, petition officers are independent officers. They are separate from both central and local government. As a result, they are exposed to a variety of legal risks varying from minor claims for injury at designated signing places, to significant recall petition complaints and associated legal costs.
After consultation with the Association of Electoral Administrators and the Society of Local Authority Chief Executives, it is clear that the existing cover that returning officers and acting returning officers have in relation to their specific duties for elections will not cover petition officers because recall petitions are legally distinct from elections.
In addition to the specific cover provided for a returning/acting returning officer’s duties, the liabilities of returning/acting returning officers are also covered by some provisions of their Local Authority’s insurance cover. However, this cover will not extend to petition officers as such policies specifically cite returning/acting returning officers, not petition officers.
In light of this, the Cabinet Office proposes to provide Petition Officers with a specific indemnity for recall petitions. The indemnity will fund Petition Officers’ for costs - including reasonable legal costs and reasonable expenses - incurred in connectionwith a recall petition, which arise in relation to their discharge of responsibilities as a Petition Officer, and where all other forms of recourse have been exhausted.
The indemnity will be limited to the extent that it will not cover:
●any costs which arise in whole or part from any deliberate or wilful negligence by a petition officer;
●any penalty imposed in relation to a criminal offence;
●any claim relating to the carrying out of electoral registration duties;
●any claim relating to the use of a motor vehicle where such use should have been covered by a valid insurance policy but was not;
●any claim to the extent that such a claim is covered by the terms of an existing insurance policy including any excess costs in respect of that policy; and
●any claim for charges that the Petition Officer may recover under paragraph 3 of Schedule 1 to the Recall of MPs Act 2015.
The indemnity will cover costs arising in relation to recall petitions, where the first day of the signing period of any petition is on or before 06 May 2020. Any claim must be made within 13 months of the end of the signing period of a petition to which it relates.
The Government gave similar indemnities in relation to previous UK Parliamentary general elections, European elections and Police and Crime Commissioner elections.
We anticipate that the likelihood of the indemnity being called will be very low. Recall petitions themselves are anticipated to be rare events, due to a petition only occurring if one of the conditions is triggered under the Act, and in the event one occurs a significant claim is unlikely too. The claims against similar indemnities for UK and European Parliamentary and Police and Crime Commissioner elections have been small in nature and low in value. The largest claim was £24,000 at the 2009 European parliamentary election. Minor injury and damage claims met under Government insurance or indemnity arrangements at national elections, including the European Parliamentary elections on 22 May 2014, have amounted to less than £10,000 over the last decade.
It is not possible to entirely rule out a more significant claim in future. If a petition court considering a recall petition complaint went to a full trial and ran for several days it is conceivable that the bill for legal costs could run into many £100,000s or more. For example, the costs for the Winchester election petition in 1997, following the general election of that year, amounted to £250,000. Accounting for inflation, this would would be £370,000 in today’s prices. This compares to the c.£250,000 that was paid by the Government to insure regional returning officers at the 2009 European elections, which turned out to provide poor value for money in light of the value of claims met under the insurance. Therefore, given that there is only a remote possibility that a claim will arise that is greater than the cost of providing insurance, and the unpredictable nature of when a recall petition will occur, and thus what period any insurance policy should cover, an indemnity in all likelihood offers best value for money to taxpayers.
The indemnity is unlimited. The indemnity will only extend to a recall petition under section 1(1) of the Recall of MPs Act 2015, and will not extend to any subsequent by-election as referred to under section 1(2)(b) of that Act. Cover for such a by-election will be provided by existing arrangements as set out in the Returning Officers (Indemnity) written ministerial statement of 4 March 2015. If the liability is called, provision for any payment will be sought through the normal Supply procedure.
The Treasury has approved the proposal in principle. If, during the period of fourteen Parliamentary sitting days beginning on the date on which this Minute was laid before Parliament, a member signifies an objection by giving notice of a Parliamentary Question or by otherwise raising the matter in Parliament, final approval to proceed with incurring the liability will be withheld pending an examination of the objection.