Clause 11 - Power to make consequential etc provision
European Parliament (Representation) Bill

Mr David Taylor (North West Leicestershire, Labour/Co-operative)

I remind the Committee that with this we are discussing 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.'.

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

It is a pleasure to welcome you to the Chair, Mr. Taylor.

The amendments set out provisions in respect of consultation before the orders could be made. I shall say why the clause is as drafted. We put most of the detail in secondary legislation, because many of the provisions that need to be changed in order to allow Gibraltar to participate and be part of the same region in the European parliamentary elections are already in secondary legislation. It was therefore appropriate to make the changes through further secondary legislation. Moreover, much of the complicated detail would not be appropriate in the Bill. That is why we are making the changes by order.

We are aware from the meetings and the correspondence with the Government of Gibraltar in the past year that they welcome the opportunity in the Bill to give the people of Gibraltar a say in European democracy. They made it clear, too, that they recognise that because they will be treated as part of an elected UK region for these purposes, it is essential

hat UK electoral law is applied as uniformly as possible to Gibraltar. The Government of Gibraltar and the House of Assembly want to play their part in ensuring that the necessary legislation is put in place and that the system works effectively. There is scope within the existing provisions for that to happen. Discussions are still taking place and consideration is still being given to the changes that it might be possible to make through changes to Gibraltar law by the House of Assembly and the Government of Gibraltar. What changes will need to be made to the detail of UK electoral law through this Parliament is also being considered. However, we are keen that whenever possible changes can take place through the House of Assembly and Government of Gibraltar in Gibraltar.

At our last meeting with the Government of Gibraltar on 17 December the officials had a constructive and detailed discussion about the scope of the provisions. The meeting considered whether it was possible to include something in the Bill to reflect more clearly the fact that Gibraltar, too, would contribute to the creation of the legislation. We have given an undertaking to consider the matter, and if necessary we will introduce amendments at a later date.

Mr William Cash (Stone, Conservative)

The Minister will no doubt be familiar with the situation in the Falklands, where such a contribution has not only been invited by the Government but has been acted upon. Some people would regard it as peculiar if that applied to the Falklands but not to Gibraltar.

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

As I have clearly said, we believe that if it is possible for the Government of Gibraltar and the House of Assembly in Gibraltar to make the changes, it would be better for them to do so. That would be appropriate, as it is their law, and because it would mean that this House could confine itself to the issues that are relevant to UK law and to the business of the House.

The amendments ask for consultation with the Chief Minister of Gibraltar on which matters may be legislated in the House of Assembly in Gibraltar and which may be legislated in Parliament. That discussion and consideration is already taking place. We do not need to wait for the Bill to make that happen. As I said, we want the Government of Gibraltar and the House of Assembly to be able to legislate whenever possible. The amendments are unnecessary because they refer to work that is currently under way.

I also made it clear that we are prepared to consider further amendments, in the light of the Chief Minister's request, to see whether the Bill could include anything else to ensure that it is clear to everyone that the Government of Gibraltar are playing a role in the process.

Mr William Cash (Stone, Conservative)

The Minister indicated that discussions are being held and that some progress, albeit imperceptible and undisclosed, has been made. As she says, this is a complicated matter. However, there is also a matter of principle, which gravitates around the fact that subsidiary legislation, such as the order-making power and the amendments made to the 2002

Act, enables the Lord Chancellor to make direct legislative provision for Gibraltar on such domestic matters as the registration of parties, party donations and broadcasting, which are all in the clause.

Under clause 17(3), the part would be taken to modify, exclude or apply

''any provision of the law of Gibraltar''.

I have also suggested that proposed new section 7(4A)(c) under clause 21 be excluded altogether.

Clause 16 will enable the Lord Chancellor to do many of the things that one would reasonably expect Gibraltarian legislation to do. There is an understanding in Gibraltar that Gibraltarian legislation would have to be agreed with London to ensure uniformity of regime throughout the combined region, so there is no suggestion that the Gibraltarians will want to do something that is completely inconsistent with the uniformity of law, which the new region and new Gibraltarian voters will need.

None the less, the powers that are being taken to modify, exclude or apply any provision of the law of Gibraltar are draconian. Such powers have not been taken for 50 years. This is a backward step, which shows the reluctance with which the Government have proposed the provision. They were driven to propose it because of the Denise Matthews case, the spirit in which the matter has been conducted, and the failure adequately to consult the Chief Minister and others in Gibraltar. The Minister seems to dispute that, but that will be on the record and I will get further and better particulars of the degree of consultation that she claims has taken place. They certainly did not see a copy of the Bill before it was produced. People in the Falklands were invited to produce proposals for their constitutional changes and they were given a fair wind. One is bound to ask why, in relation to the important and immediate problem of Gibraltar, the Government takes such a position on that issue. The answer to that problem lies in the Brussels process and the dispute with Spain.

Under no circumstances could I believe that Parliament would ever countenance the idea of acquiescing in Spain's demands. The ramshackle discussions on the issue of sovereignty, which bit the dust, have been scuppered by the democratic wishes of the people of Gibraltar. The issue is whether the constitution would be made by a balanced and tolerant consultative process between the parties—one could say through a process of natural justice, which I advocate—and whether it would cater appropriately. That has been stated categorically by the Chief Minister in his discussions with me, which would indicate that the questions can be resolved if there is the will to do so. I have to say, without being the slightest bit curmudgeonly, that the de minimis approach adopted by the Government is too negative. Let us our raise our eyes to the hills and question whether it is possible to be a little more constructive and recognise the fact that the people of Gibraltar have a right to be properly consulted.

The Minister may know about the Gibraltar constitution order 2001. The present situation, which is directly relevant and important, is that the prescribed constitutional arrangements would be overridden by the exclusion, modification or application of law by the order-making powers, and that is geared to arrangements that currently exist under the Gibraltar constitution order 1969.

The draft Gibraltar constitution order was prepared by the House of Assembly and arose out of the discussions that took place at the same time as the Anglo-Spanish discussions, which were put in place by Mr. Caruana. The object of those was to modernise the constitutional relationship of Gibraltar with the United Kingdom. As a result of much detailed consideration, the Gibraltarian select committee on constitutional reform completed its draft in December 2001. That was submitted to the House of Assembly and Opposition parties for comment, published on 23 January 2002 and approved by the House of Assembly on 23 February. That draft has not been given a fair wind by the UK, despite what happened in the Falklands. It is outrageous that when Gibraltar brings forward such proposals it is faced with a complete blockage. I have no doubt that the Minister will receive advice presently with regard to some of those points, since pieces of paper are being passed around the Room.

The amendments contain the very points that one would have hoped and expected to have been dealt with by the Lord Chancellor, when he voluntarily made his proposals, and in consultation with the Chief Minister and others in Gibraltar, including the Leader of the Opposition. The key words, on which I shall concentrate, are that

''The Committee's amendments''—

the ones proposed by the people of Gibraltar—

''are 'such as would maximise the self government of Gibraltar by the people of Gibraltar, whilst retaining British sovereignty and close links with Great Britain'.''

Nothing could be more constructive and helpful than that.

I want to correct an extremely seriously mistake that I made this morning. I confess to having made the most serious historical error when referring to the conquest of Gibraltar by Admiral Rook. I was corrected when I said that it happened 1702—I was told that it was 1704—but it is much worse that. It was not a colony by conquest, but a colony by cession—[Hon. Members: ''Utrecht.''] Because of the treaty of Utrecht. I am glad to have received a unanimous shout of approval from the entire Committee. Without elaborating, it does make a difference.

The Select Committee's report continues:

''The Committee's approach has been guided by its unanimous view that reform of the constitution should achieve both a suitable modernisation of the relationship with the United Kingdom . . . and that these reforms should, when and if accepted by the people of Gibraltar in a referendum, bring about its decolonisation of Gibraltar through the exercise of the right of self-determination by the people of Gibraltar, and Gibraltar's de-listing from the UN's list of Non Self-Governing Territories under Article 73(e) of the Charter.''

Self-governance, in effect, is a recurring theme of the amendments, so one can hardly be surprised at the degree of concern, which I share, at the disproportionate imbalance in the centre of gravity of the proposals before Parliament today.

That imbalance clearly indicates not only a massive reluctance to accept the principles that the Government have been driven to put into the proposals, but that they have no understanding of the aspirations of the people of Gibraltar for a greater degree of self-government—with the caveat that they want to retain British sovereignty. Their wish for close links with Great Britain lies at the heart of the problems that I put to the Committee.

It is terribly important that we recognise that, when the Government legislate in that way, they create unnecessary problems. It does not help. It will not resolve the issues. I offer a word of advice to the Minister. We should return to a more constructive and useful discussion between the Government and the people of Gibraltar. I sense from what she says—I am not being negative in contending this—that the proposal is for a greater degree of open and fair discussion, on complementary terms, between the Chief Minister and the Government. As we make our way through the rest of the proposals, and in subsequent stages, it would be very helpful to get that on the right footing,

I hope that the Committee will be rewarded with some movement. From what the Minister has said, we are seeing a slight glimpse of that. She has not yet gone far enough, but perhaps as we proceed we will get further and better indications that the people of Gibraltar, the Chief Minister and others are being properly heard.

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

I shall not respond to the wider issues that the hon. Gentleman raised about the constitutional status of Gibraltar, because the Bill does not address that. I shall also resist the temptation to respond to the hon. Gentleman's historical accounts.

Mr. Cash rose—

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

May I tell the hon. Gentleman what I will respond to before he comes back?

There are important issues about which detailed provisions—secondary legislation in this House—should be implemented in Westminster and which should be implemented in Gibraltar. That is under discussion with the Government of Gibraltar, because we are very sympathetic to their point of view. We are keen that as much as possible is done in Gibraltar. The broad principle should be that if changes to Gibraltarian law can implement the Bill and make it possible to hold European elections in both Gibraltar and a UK region, that should happen in Gibraltar. However, if it were necessary to amend a UK law such as the Political Parties, Elections and Referendums Act 2000 to allow that to happen, that must be done in Westminster, because it could not happen in Gibraltar.

Discussions about the changes that can be made in each place continue and will take a little longer to resolve. We also want to listen to the Government of

Gibraltar about whether more could be put in the Bill to ensure that that process occurs. That might not be necessary, but we are sympathetic to their concerns and we are considering that. The hon. Gentleman's amendment is unnecessary.

Mr William Cash (Stone, Conservative)

May I pick up the Minister on an important point? We are making progress and hearing that there will be further discussions. Will the Minister give us an undertaking that the discussions will take place before Report or get so far under way that I can be assured that the matters will be discussed on Report, if necessary? The issue is at the heart of the Bill and it would be useful to know that.

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

I would expect further discussion of the subject on Report, although I cannot guarantee that we will know the exact issues that will be addressed through secondary legislation in this place and those that will be addressed in Gibraltar by that time. That is partly because the details of electoral law that require amendment are complex and technical. An immense number of amendments might be required to ensure that the same electoral law and circumstances apply in Gibraltar as in the United Kingdom. We intend to do things as speedily as possible, and we have the ultimate deadline of the 2004 election. Everything has to be in place before then. Our aim is that anything that requires an amendment to the Bill will be resolved in time for consideration on Report, but the given complex nature of the issue, I cannot give the hon. Gentleman the guarantee that he wants. I can assure him only that we intend to allow the Government of Gibraltar to make their own decisions and pass their own legislation whenever possible. However, it will be necessary—we should not kid ourselves that it will not be necessary—for this House to pass secondary legislation.

Mr William Cash (Stone, Conservative)

In the light of the Minister's remarks, the matter is sufficiently open to allow us to assume that we can return to it on Report. Assuming that we can accept that as an undertaking, I propose that we do not press the amendment on the grounds that we are making constructive progress. I look in the direction of the hon. Member for Somerton and Frome (Mr. Heath), and he concurs. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 53,

in clause 11, page 6, line 21, leave out subsection (6).

I have nothing to add to the wording on the amendment paper. I admit that this is no more than a probing amendment. I was not at all sure of the provision's purpose, so I thought that it would be useful to hear what the Minister had to say.

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

The hon. Gentleman poses a good question. I discussed the matter with my officials, to ensure that I understood it.

The power in clause 11 allows for consequential changes that may be needed to different parts of electoral law in order to implement the core changes at the heart of the Bill. Powers are set out in other parts of the Bill. For example, clause 16 sets out order-making powers for establishing the register for

Gibraltar. However, consequential amendments may be required under clause 11 to deal with issues that affect the register, such as donations.

Subsection (6) makes it clear that it is possible to make consequential amendments, even in areas for which powers are set out in other parts of the Bill. In other words, the power to make the consequential amendments as set out in subsection (1) is not restricted by the fact that under clause 16 there are also order-making powers in respect of the Gibraltar register and the manner in which it is to be maintained, and so on. Provisions in other parts of the Bill do not prevent the making of consequential amendments under clause 11(1).

Mr David Heath (Somerton and Frome, Liberal Democrat)

Will the Minister explain the purpose of clause 16 if the power is available under clause 11?

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

It is true that the Bill could have been written such that the main principle was set out in clause 8, with everything else done through secondary legislation, but we chose not to do that. We thought that certain issues that are fundamental to any system of elections, such as establishing the franchise and aspects of the registration process, were important and should be part of primary legislation. That is why clause 16 deals with registration and makes the central issues very clear for Parliament. Clause 11(1) concentrates on issues listed in clause 11(3), paragraphs (a), (b) and (c), such as donations and registration of political parties. They are not set out in the same detail.

We tried to get a balance between the more detailed concerns, which can be dealt with through secondary legislation, and the principal concerns that required setting out in primary legislation.

Mr William Cash (Stone, Conservative)

In a nutshell, this is an all-singing, all-dancing, Monty Python gobbling-up clause. Clearly, it is intended to cater for any contingencies that might arise. If there were any uncertainty as to whether adequate power had been taken, the Lord Chancellor, in his typical fashion, would guarantee to be able to exercise plenipotentiary powers as they arose under the provisions of this part of the Bill, which, after all, affects the people of Gibraltar, their domestic elections, their democracy, their self-government and all the other matters that we have discussed. Although it is a short provision, it is quite extensive.

I should like to reserve judgment on this provision. I hope that allowing this through does not allow more to go through the back door than would be wise. I issue a word of caution. We need to consider this matter carefully against the background of what I have said already. In the circumstances and looking at the expressions of those behind and to the left of me, we are prepared to withdraw the amendment. However, we reserve judgment on exactly what the provision really means. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Question proposed, That the clause stand part of the Bill.

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

The clause allows the Lord Chancellor to make provisions that he considers necessary or expedient in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European parliamentary elections. The Bill makes provision for the whole corpus of UK electoral law that applies for the purposes of election to the European Parliament to apply for these purposes also to Gibraltar. The clause, with the help of the supplementary powers in clause 12, will allow that to happen in relation to the registration of political parties under the Political Parties, Elections and Referendums Act 2000 and other Acts.

It is important to make it clear that this is not an open-ended power. It applies only in connection with issues that are in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European parliamentary elections. It applies to some of the details surrounding the registration of political parties, but it does not provide powers for unrelated matters, such as the UK registration system or the voting age. It is further limited by clause 12(4), which ensures that the orders made here are limited by the rest of the Act. They can amend other Acts, but not the other clauses in this Bill. The clause allows for the implementation of the earlier clauses in the Bill to ensure that we can have European elections in Gibraltar by 2004. It is therefore important.

Mr William Cash (Stone, Conservative)

We do not need to add anything to what has been said on this. We have had an extensive debate. We have been given an assurance on the seminal amendments to determine where the centre of gravity should be in the balance between the House of Assembly and the UK Government. We have been promised that there will be an opportunity for debate on Report. We have the gravest concern about the clause, but that said, in the light of what we have heard, it would not be right, on balance, to divide the Committee on clause stand part.

Mr David Heath (Somerton and Frome, Liberal Democrat)

In introducing the stand-part debate, the Minister helpfully expressed the limits of the application of clause 11. I was developing the view that clauses 13 to 16 were for illustrative purposes only, and that clause 11 gave a rather free rein to a Minister to whom we do not usually like to give a free rein, for various reasons. However, she has reassured me.

There are still concerns about the way in which the democratic arrangements in Gibraltar will be brought into play. When we discussed that this morning, the Minister kindly said that she had been in dialogue with the Chief Minister and the rest of the Government of Gibraltar, and that they had expressed concerns. I ask her to go a little further and to share with members of the Committee, perhaps before Report, any written submissions that she has received from the Chief Minister about aspects of the Bill, so that we are fully apprised of what concerns remain outstanding for Gibraltar. That said, I am more than happy to allow

this clause to stand part of the Bill, with a view to discussing it at a later date.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.