Clause 11 - Power to make consequential etc provision
European Parliament (Representation) Bill
11:00 am
Mr William Cash (Stone, Conservative)
I beg to move amendment No. 50, in
clause 11, page 5, line 34, at end insert
'; provided that no such order shall be made until the Secretary of State has consulted the Chief Minister of Gibraltar as to what matters may be legislated in the House of Assembly in Gibraltar and what matters may be legislated in Parliament and thereafter such matters as the Secretary of State may by order prescribe to be legislated in the House of Assembly may be so legislated.'.
Mr Frank Cook (Stockton North, Labour)
With this it will be convenient to discuss the following:
Amendment No. 55, in
clause 12, page 6, line 44, after 'Commission', insert
'and the Chief Minister of Gibraltar'.
Amendment No. 59, in
clause 16, page 8, line 43, at end insert—
'provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated'.
Amendment No. 62, in
clause 17, page 9, line 16, after 'section 16', insert
'; provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated.'.
Mr William Cash (Stone, Conservative)
We had a wide-ranging discussion about the relationship between Gibraltar and the United Kingdom and the Governor, and the constitutional implications of that, but we did not consider what lies behind it, which is the manner in which the order that is made by the Lord Chancellor will impact on the relative functions of the House of Assembly as compared with this House. The point that I made
about the constitutional status of Gibraltar is not just theological; it is also about the manner in which legislation is passed by reference to the wishes of the people of Gibraltar. On the last provision but one, I made it clear that there are serious concerns, which we express and which are felt in Gibraltar itself, about the intrinsically colonial nature and mentality that lie behind the measures. This amendment is also directed at that point.
As I said, it is not only the people who are being enfranchised; the principle of overriding importance for Gibraltar is that both the people and the territory are enfranchised. If one enfranchises the territory, one must inevitably accommodate its legal and constitutional status and institutions. Otherwise, one is simply left with tagging on the people. That is not an intrinsic part of a proper constitutional process, but a de minimis operation that does not reflect the wishes of the people in terms of their legislative decision making. After all, the people who are elected to the House of Assembly in Gibraltar are elected as representatives of the people of Gibraltar.
The albeit small population of Gibraltar has created the most enormous stir about what has been going on in that part of Europe. They have resolutely refused to accept being part of Spain. The fact that there happen to be only a few of them, as with so many rebellions, does not mean that they cannot make a disproportionately large impact on the extent to which the democratic process moves forward. I can think of one or two personal examples, but I can also think of some of the problems coming up for the Government over the war in Iraq.
It would be a great mistake to imagine that, just because the people of Gibraltar are not numerous, they could not and have not demonstrated that they can punch above their weight. They have done extremely well, and I pay tribute to the Chief Minister, Mr. Caruana, for the manner in which he has conducted the defence of his people's interests. That is a remarkable illustration of my point.
All comes down to what happens when the legislation is considered. I was glad to hear the Minister say that, as we proceed, opportunities may arise for further amendments and for reconsidering the balance between what should be determined in the House of Assembly and what in the UK Parliament. I have already argued that under the constitution order now in force in Gibraltar, elections are an internal domestic matter. We debated that earlier and no controversy remains: it is a fact. The question of what should be legislated in the House of Assembly and what in this Parliament goes to the heart of the constitutional balance between the UK and Gibraltar.
It is unexceptionable that when the order-making power is processed, a proper degree of consultation—the amendment refers to the Secretary of State, but the Lord Chancellor may be more likely in the current circumstances—must take place. No order should be made by the Lord Chancellor until he has
''consulted the Chief Minister of Gibraltar as to what matters may be legislated in the House of Assembly in Gibraltar and what matters may be legislated in this Parliament and thereafter''—
this is important—such matters as the Lord Chancellor
''may by order prescribe to be legislated in the House of Assembly may be so legislated.''
Without the amendment, consultation might take place, but someone could argue that it was ultra vires because the UK Parliament introduced the Bill, overriding the proper functions of Gibraltar. It would not then be open to the House of Assembly to make the legislative arrangements that flowed from the order—and we want to avoid that.
Amendment No. 55, which relates to clause 12, would include the Chief Minister of Gibraltar in consultation with the Electoral Commission. Under clause 11, the Lord Chancellor has extraordinarily wide powers: he may
''by order make such provision as he considers necessary or expedient''—
one cannot go much further than that—
''in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European Parliamentary elections.''
The width of those powers and the uncertainty about whether the House of Assembly would be allowed to legislate—as a territory with a right to make its own electoral law under its own constitutional arrangements, I believe that it should—make it necessary to establish where the line will be drawn between this House and the House of Assembly.
Amendment No. 59 relates to clause 16 and deals with regulations under sections 13 to 15, which make a stack of provisions for electoral registration and voting in Gibraltar. That goes to the heart of the issues that I have raised about where the line should be drawn.
The Lord Chancellor's list of regulations in clause 16(1) run the gamut of electoral law. If Gibraltar is to be part of a combined region, I understand the Minister's point about the necessity of there being a degree of compatibility with our electoral law; it would be extraordinary if that were not the case. We do not have the time, nor is it necessary, to go into detail about every permutation that could arise, but the people of Gibraltar, the Chief Minister and those who are familiar with their constitutional arrangements know where the line can be drawn with regard to the law. Therefore, I take the Minister's word that she will guarantee that any amendments that may be proposed to strike a balance between what will properly be dealt with in Gibraltar and what will be dealt with in the UK Parliament will be debated before the Bill completes its passage through this House, certainly on Report, as the final decision on the Bill should not be left to the House of Lords, which is an unelected body. The matter should be resolved in the spirit of proper consultation between Government and Opposition Front Benches. Perhaps the hon. Member for Somerton and Frome may care to comment on that. There is time to deal with the matter and we should be given the opportunity to
consider and assess the amendments on the Floor of the House of Commons, not be bounced along on Lords amendments.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I shall be brief as time is short. It is important that there is clarity in the legal and constitutional arrangements between the United Kingdom Parliament as a legislative body and the Gibraltar House of Assembly, which has some, but not all, the characteristics of a devolved legislation. Were it to be part of the United Kingdom devolved administration we would have a clearer idea what powers were exercised and at what level. If we were in doubt we could call in the Advocate-General to advise us. It would give substance to Advocate-General's Question Time, which it sometimes lacks. In the case of Gibraltar we have no such apparatus.
It is therefore important that before we legislate on the matter we ensure that the measure we finally approve has no possibility of being challenged as ultra vires, either in respect of the powers that we arrogate to this legislature or those maintained by the House of
Assembly and the courts in Gibraltar. There is an element of doubt, and it would be sensible if the Minister could state with greater clarity where the dividing lines lie.
Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)
As the hon. Member for Stone explained, the amendments relate to the use of the powers in part 2, especially in clauses 11 and 16, to make secondary legislation. The Bill provides only the basic framework for the enfranchisement of Gibraltar: it sets out the creation of the combined region, the electoral register for Gibraltar, and the franchise. It is right that those central, important elements should be in the primary legislation. In practice, however, there is a range of existing electoral law that currently applies to the whole of the UK and other areas in the combined region that need to be applied in Gibraltar too, modified or adapted as necessary.
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.