Clause 9 - Electoral Commission recommendation as to the electoral region to be combined with Gibraltar
European Parliament (Representation) Bill
10:00 am

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 42, in

clause 9, page 5, line 16, leave out 'the Governor and'.

Mr Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following:

Amendment No.7, in

clause 9, page 5, line 16, leave out from 'Governor' to end of line 17 and insert

'Chief Minister and the House of Assembly of Gibraltar, and representatives of political parties established in Gibraltar which it expects to seek registration under section 11(3)'.

Amendment No.43, in

clause 9, page 5, line 17, at end insert

'and the Leader of the Opposition in Gibraltar'.

Mr William Cash (Stone, Conservative)

The amendment's importance is reflected by the hon. Member for Somerton and Frome's rowing in with his own suggestions, which we can discuss when we move further forward.

Basically, clause 9 provides for the Electoral Commission's role in recommending the electoral region to be combined with Gibraltar. It states that before 1 September 2003, the Electoral Commission is obliged to

''consider which of the existing electoral regions . . . should be combined with Gibraltar''

and

''report its conclusions . . . to the Lord Chancellor.''

Those conclusions must include the existing region with which Gibraltar should be combined. It goes on to say:

''Before determining what recommendation to make'',

which would occur after the Electoral Commission has made its consideration of the existing electoral regions with which Gibraltar might or might not be suitable to combine,

''the Electoral Commission must consult''—

in other words it is under an obligation—

''the Governor and the Chief Minister of Gibraltar.''

That point was discussed on Second Reading.

There is a provision in the Bill—it appears in many Bills—that deals with the question of consultation. It means that due regard should be paid to the views of the person being consulted and that reasons should be given for the eventual decision. Having said that, that clause also states:

''The report required by this section must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor.''

In that context, I have repeatedly stated that there should also be proper debate.

On the role of the Governor, I have suggested in my amendment that the word ''Governor'' should be deleted. That is because—this relates to elections, citizens' rights and so forth—the clause provides for the Governor to be consulted about the constituency

with which Gibraltar should be combined. I cannot think of a good reason why the Governor should be interested, as an unelected, appointed representative of the United Kingdom Government, in being consulted about whom the people of Gibraltar should be combined with. It might seem on the surface that, as he is the Governor of Gibraltar, it would be nice to keep him informed, but we should consider the democratic implications. The unelected Lord Chancellor, the unelected Electoral Commission, and now the unelected Governor are all taking the prime role in determining whether the people of Gibraltar should be joined with one constituency or another.

It does not take much imagination to realise that that is not a democratic way of going about things. I hesitate to mention that we have already discussed the gamut of concerns about the manner in which the order-making powers are being made and so on. I have also said that I believe that the report presented by the Electoral Commission should be debated by Parliament on a substantive motion. It is not difficult to appreciate that the suggestion that some of the other people should be excluded but the Governor himself should be included is extremely unfortunate.

In amendment No. 43, I propose that the leader of the Opposition in Gibraltar should be consulted, too. In a similar situation in the United Kingdom, we might expect the Leader of the Opposition to be consulted, albeit on Privy Council terms, in relation to a major change in the electoral system. Therefore, there is a powerful case for consulting not only the Chief Minister but the leader of the Opposition.

The hon. Member for Somerton and Frome goes further in amendment No. 7. He wants the House of Assembly in Gibraltar to be added,

''and representatives of political parties established in Gibraltar which it expects to seek registration under section 11(3).''

Clearly, it is for the hon. Gentleman to develop his argument and I shall be interested to hear what he says. However, consultation with the Parliament, although it is not a huge Parliament, is quite difficult. Unfortunately, its Members are not elected as such. They are elected, but not to perform what I believe is the role of the Chief Minister and the leader of the Opposition in this context, who have the main responsibility—I put it no higher than that—for considering such matters.

I do not believe that the Governor, being unelected, should be at the centre of the consultation process about the sensitive matter of Gibraltar's democracy. Nobody would doubt for a minute that he would not be informed about what was going on, but it is unnecessary to provide for formal consultation in the Bill. I imagine that he takes his instructions from the Government anyway, because that is the basis on which governors and governors-general operate. To say that they take their instructions from the Government is probably going too far because they operate on behalf of the Queen, who takes advice from her Government, which often means the same thing. I was involved in the dispute when the Americans invaded Grenada and, without going into great detail, I was asked by a certain body of people to give a constitutional opinion on whether the Governor-

General had exceeded his powers. The role can become controversial.

Mr Andrew Rosindell (Romford, Conservative)

A governor is often appointed and is often a career civil servant from the Foreign Office, as is, I believe, the present Governor. Does my hon. Friend agree that it would be absurd to expect, for example, a lord lieutenant or deputy lord lieutenant of a county to be consulted on parliamentary constituency boundaries? Surely, there is no justification for such consultation when elected representatives such as the leader of the Opposition are not consulted.

Mr William Cash (Stone, Conservative)

My hon. Friend's point concerning the leader of the Opposition is right, but we shall get into deep water if we compare governors with deputy lieutenants. It is important to focus on the important aspect of the relationship between a governor and the Government in the United Kingdom and his constitutional role to understand the reasons why consultation with him under the Bill is unnecessary and could produce unsatisfactory results. The avenues exist and they can be left to existing constitutional arrangements. It is much more important that the Chief Minister and the leader of the Opposition should be consulted.

Mr David Heath (Somerton and Frome, Liberal Democrat)

I shall speak to amendment No. 7 in my name and that of my hon. Friend the Member for Colchester (Bob Russell) who, unfortunately, has had to attend a meeting of the Select Committee on Home Affairs. I know that he wanted to be here.

The hon. Member for Stone raised an important issue in his amendment about the role of the Governor. It would be anomalous if the Governor were described as a simple functionary of the Foreign and Commonwealth Office in that that would mean that the Government were consulting themselves. In this instance, the Governor has a wider constitutional role. The hon. Member for Romford (Mr. Rosindell) has a point in saying that the Governor is effectively the Crown in the context of an overseas territory. The Governor carries out the functions of the Crown and, following the recommendation of the Secretary of State, is an appointment of the Crown. It is an odd Bill that requires the Executive to consult the Crown on matters of electoral law and there could be strange constitutional ramifications. It would be hard to envisage any context in which the Governor could express a personal view or a view that could be construed as controversial in any way in those circumstances without bringing into question large parts of the constitutional settlement. That would be a worrying turn of events in relation to what is a minor provision.

Mr William Cash (Stone, Conservative)

Relying on such reports as I have come across and in the context of discussions and rows over the referendum when the Governor took a position, the consequences for his popularity were such that this might not be the most sensitive provision to put in the Bill.

Mr David Heath (Somerton and Frome, Liberal Democrat)

That may well be, but I return to my principal thesis. The proper people to speak for the

people of Gibraltar are those elected by the people of Gibraltar, not those appointed by the Foreign Secretary. It is extraordinary that provision has not been made for consultation with the elected Members of the Gibraltar House of Assembly. The Chief Minister may well speak for the people of Gibraltar and consult with the Assembly. In the case of Mr. Caruana, I have no doubt that that would happen, but that is not the point. The legislation should require consultation with elected Members en bloc.

It is a small House of Assembly elected on a rather strange franchise. I shall not bore the Committee with detail about how the number of seats is calculated, but it is not as one would expect for a normal legislative body. All sides of political opinion within Gibraltar should be heard and be seen to be heard, which is why I tabled the amendment.

I would go further. The House of Assembly currently constitutes representatives of three parties. As well as the main Opposition, the Liberal party, led by Dr. Joseph Garcia, holds two seats and I see no reason to exclude someone who holds two seats in the House of Assembly. A more basic question is relevant. Each of the political parties that might be expected to seek registration—this is the purport of my amendment—has a legitimate view on the operation of electoral arrangements.

In this country, political parties are always consulted about such matters. Indeed, huge consultation takes place not only over the Government's proposals for the political process, but the secondary proposals of the Electoral Commission that flow from them. Consultation is enshrined in several examples of legislation passed by the Government, so why should it be any different because it is Gibraltar? Why do we treat the people of Gibraltar as if they have no valid opinion of their own on these matters?

Identifying the electoral region for combination is a relatively minor matter in the context of the whole. At least anecdotal evidence suggests that the people of Gibraltar would prefer to be combined with the south-west region. The Select Committee on Foreign Affairs expressed that view in its 11th report of the 2001–02 Session. A footnote states:

''We note that during our visit to Gibraltar, a preference was expressed for the South West region.''

That may be the outcome, but it is not for me, or the House to judge. It is up to the Electoral Commission to bring forward a recommendation. Preferences should be expressed first by the House of Assembly en bloc and, secondly, by the political parties.

I am not sure whether any properly formed political parties are not currently represented in the House of Assembly. I admit my ignorance, but it is logical and reasonable to assume that there may be. There may even be a pro-Spanish party, although it would be unlikely to engender many votes in the present state of affairs in Gibraltar. Even the views of such a party, if it exists, should be heard.

Mr Andrew Rosindell (Romford, Conservative)

I might be able to help the hon. Gentleman. In fact, there are two Liberal parties, two Labour parties and one Social Democrat party—but no Conservative party—in Gibraltar. Is the hon. Gentleman suggesting that all five of the political parties be consulted, or only those that are elected to represent Gibraltar in the House of Assembly?

Mr David Heath (Somerton and Frome, Liberal Democrat)

The process for registration of political parties laid out in the Bill indicates that all political parties that aspire to registration and to taking part in the process should be consulted. However, it is reasonable to assume that the weight attached to the views of the House of Assembly is likely to be greater than that attached to the views of a party that has not succeeded in attracting electoral support.

I was not aware that there were two Liberal parties in Gibraltar. However, I have observed that in many European countries there are two Liberal parties, of which one is always in government. That seems to be an excellent state of affairs, along with there being no Conservative party, which also has its attractions. However, I will not pursue that matter further.

A basic principle of consultation is that it should take place with those who represent the people at whom the legislation is targeted. At present, only two individuals bear the responsibility for providing that input. The first of those is the Governor, who, for reasons that we have already discussed, may not be an appropriate person to consult. The other is the Chief Minister, whose views are certainly of importance. However, his views would be of even greater value if there were a requirement to consult with those who may not hold identical political views to his.

That is the purport of amendment No. 7, and I believe that the Government would be well advised to accept one or both of the amendments.

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

I am happy to agree to the principles behind the amendments, but I will ask the hon. Member for Stone to withdraw the amendment. I will explain the reasons for that request.

The Electoral Commission should consult widely, and has said that it intends to do so. It has a record of taking this sort of issue and the obligation to consult very seriously. I agree with Opposition Members that the Electoral Commission should consult Members of the House of Assembly, the political parties and the leader of the Opposition in Gibraltar, or, as the hon. Member for Romford suggested, the leaders of the several Opposition parties. I am also persuaded that to list the Governor in the Bill as one of only two named consultees is inappropriate, and gives the wrong balance to the Bill.

Many of those points were raised with us by the Government of Gibraltar when our officials met Peter Caruana, the Chief Minister of Gibraltar, and his colleagues just before Christmas to discuss a number of issues affecting the Bill. One of the issues they raised was the reference to who should be consulted under clause 9(2). The Chief Minister's view was that the Bill should refer to the Government of Gibraltar, and that it should not expressly refer to the Chief Minister or to

the Governor. We gave the Government of Gibraltar an undertaking that we would consider how their suggestions could be acted on. I am sympathetic to the points that they raised.

We intend to table further amendments on this matter at a later stage in the Bill. We said to the officials when we met them before Christmas that it would not be possible to prepare such amendments in time for the Committee stage, given the drafting requirements and the need for consideration. I am sympathetic to the principle of consulting Members of the House of Assembly and will also consider that issue. However, my one proviso is that we should not aim to compile an exhaustive list, because we will forget someone. The list in the Bill should be as narrow as possible, but we should make it clear during discussions in Committee and in the Chamber that we believe that political parties should be consulted, and that there should be a wide-ranging discussion.

I believe that the Electoral Commission will take that issue seriously and will want a wide-ranging consultation. There should be some reference in the Bill to provide the reassurance to the Government and people of Gibraltar that their views will be taken seriously, but we should avoid an exhaustive list.

Given those points and our intention to return to the matter at a later stage of the Bill's passage, I ask the hon. Member for Stone to withdraw his amendment.

Mr William Cash (Stone, Conservative)

I am grateful to the Minister for the constructive way, at last, in which we are beginning to make progress on some of the points that we have made. It is important to put on record that the Governor is the representative of the British monarch, by whom he is appointed, and is responsible for matters directly relating to external affairs, defence, internal security and other matters not specifically defined as domestic matters in Gibraltar's constitution. I made the point that elections are defined as a domestic matter under our constitution, so we were moving into territory that would have caused a direct conflict between the Gibraltar constitution and arrangements that arise under the Bill.

The Governor is the head of the Executive who administer Gibraltar, usually by acting on the advice of the Gibraltar Council. I am a bit mystified by the Gibraltar Council, on which I do not think that we need to elaborate, but I understand that it is not one of the most active bodies, although we may receive further information on that in due course. The Gibraltar Council includes the Chief Minister, who has been acknowledged in the Bill already, and the Governor's formal assent on behalf of the Crown is required for all legislation passed by the Gibraltar House of Assembly, although it is generally automatic.

That is all that I need to say. I am grateful to the Minister for her comments, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon

had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 9 ordered to stand part of the Bill.