Clause 12 - Sections 10 and 11: supplementary
European Parliament (Representation) Bill
3:00 pm

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 54, in

clause 12, page 6, line 33, leave out subsection (4).

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

With this it will be convenient to discuss amendment No. 63, in

clause 17, page 9, line 22, leave out from 'Kingdom' to end of line 25.

Mr William Cash (Stone, Conservative)

We now come to points that are fairly similar to those that we have already discussed, because clause 12 relates to matters supplementary to clauses 10 and 11.

Clause 12 states that an order under clause 10 or 11 will be empowered to

''modify, exclude or apply, with or without modifications . . . any provision made by or under an Act (including any provision which is modified by or under this Act or which confers power to make subordinate legislation) . . . and . . . any provision of the law of Gibraltar.''

We have probably covered this subject extensively enough, because it raises the very questions that we have just discussed. However, there is grave concern in Gibraltar about any order made by the Lord Chancellor as a consequence of decisions taken by a Government who are going through with the Bill not with any great enthusiasm, but because they have been driven to it.

Even if we appreciate the point made by the Minister in respect of the previous clause that there has to be some degree of complementarity among the laws applying in the combined region, in Gibraltar and in the United Kingdom, we are none the less talking about a draconian power, which, as I understand it, has not been exercised for 50 years. At the very worst, an order could be made to exclude

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

This is a pretty draconian and an extremely insulting provision. It certainly bears no relation to the good working relationship with the many thousands of electors in Gibraltar through their elected representatives in the House of Assembly and the legislature. Imagine if we were put in a similar position and somebody else—I hesitate to mention the European Union—came along and unilaterally knocked out our legislation. In the context that I have described, the difference is that there is at least a superficial indication that it is all part of a democratic process. In this case, it is simply a question of whether or not it is appropriate in a modern world for a Government, who have been moving towards greater human rights, democracy and constitutional correctness—I am not referring to the Government; I am talking about the Governments of the United Kingdom over the past 50 years—to recognise the integral and intrinsic rights of, in this case, the people of Gibraltar.

There was a more proactive invitation to accommodate the wishes of the people of the Falklands, but in this particular case to modify or exclude

''any provision of the law of Gibraltar''

is, by any standards, extremely draconian and offensive. I do not know what the Minister will say about it, although there is no doubt she will tell us that it is necessary. That would not be an answer, but I have got used to that in Committee. One or two of her recent comments have been moderately constructive, which is why I withdrew some amendments. In that constructive spirit, I hope that she will indicate that those offensive words can be removed, which would be a step in the right direction. The words are unnecessary, but we will hear what she has to say.

Clause 17 refers to the power to make regulations on a vast number of electoral matters. The Committee will know that I have already mentioned internal domestic reserved matters under the existing constitution of Gibraltar, which has been endorsed by the United Kingdom. If it has already been decided that electoral matters, which are matters of internal domestic concern, should be determined by the people of Gibraltar through their House of Assembly—they are such matters under British, let alone Gibraltarian, law—the provisions in clause 17(3), and in particular clause 17(3)(c) should be knocked out. Clause 17 states:

''This section applies to regulations under section 16 . . . such regulations may''.

Because our approach is not curmudgeonly or negative—we are open-minded and tolerant—we understand that such regulations should make consequential, supplementary provisions. Indeed, we even accept that they may make a provision extending or applying to Gibraltar or any part of the United Kingdom. However, we gib at the regulations on electoral matters, which are matters of internal, domestic law and therefore, by definition, questions of law for the United Kingdom under the 1969 Order in Council as well as for Gibraltar. Clause 17(3) states that those regulations may

''modify, exclude or apply . . . any provision made by or under an Act or any provision of the law of Gibraltar.''

I have the sense that the draftsman, whom I can observe through the prism at my disposal, is exceedingly intelligent and perceptive. He realises that there are a lot of bear traps here and that it is a problem to achieve symmetry between the legislative arrangements required. But I fear that he has taken the route of overkill. The consequence is that we have ended up with a Bill that goes too far in shifting the centre of gravity when a more constructive and medium position will ultimately be arrived at—I hope as a result of these discussions.

That is not just a technical question of legislative drafting. It is about good relations based on sensible democratic understandings between people faced with a difficult question. That is the key point. These days we have fallen into the trap, when faced with a difficulty, of trying to blast it out of the way and

obliterate it, when a constructive and sensible approach would be based on discussion.

We have discussed the matter sufficiently. I wait to hear what the hon. Member for Somerton and Frome has to say—he has nothing to say.

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

We should resist these amendments. The hon. Member for Stone has made important points about the power to change the law of Gibraltar. I want to set out exactly what the power is and why the amendments are inappropriate. The power set out in clause 12(4) does not allow Parliament to make any change to the law of Gibraltar. It applies only to areas where the law of Gibraltar is affected in consequence of or in connection with its inclusion in an electoral region for the purposes of European parliamentary elections. It would not give us powers relating to its other elections, for example. It would not give us power through this order to change the Gibraltarian law on unrelated issues.

Our intention would not be to change existing Gibraltarian law through orders of the Westminster Parliament. Such changes should be made by the Government of Gibraltar. We expect the Government of Gibraltar and the House of Assembly to amend their existing laws. For example, the provisions may relate to areas where there is already some Gibraltarian law and where it may be appropriate for amendments to be made by Gibraltarian law, and it will be possible and appropriate for Gibraltar to make those changes. There may be issues under section 95 of the Representation of the People Act 1983, which provides for the use of schoolrooms for candidates' public election meetings. Existing Gibraltarian law may prevent schoolrooms from being used for such purposes. We would then expect the Gibraltarian Government and the House of Assembly to address that matter through amending their law rather than by seeking to do so in the Westminster Parliament.

Where decisions are taken, we would expect them to be a matter for discussion with the Government of Gibraltar. There should be a flexible approach. It is important to maintain this power in the Bill. Until we can explore with the Government of Gibraltar all the complex detail of UK electoral law and how it can best be applied to Gibraltar, we cannot afford to risk finding that once the Bill has been enacted it is beyond our vires to make the necessary changes in secondary legislation.

There are examples in election registration of provision for extensive modifications of pre-existing election legislation in that way. It could also, for example, enable amendments to be made through order in the Westminster Parliament if the Government of Gibraltar thought that that would be easier. This might be done in the case of complex technical details that may already be the subject of change by means of orders in the Westminster Parliament; it may be simpler to include in them provisions that affect Gibraltarian law as well.

It may also cover areas in which the UK Parliament has a considerable stake. For example, matters that, if

not amended in Gibraltar, would have a significant effect in the UK. Among these are company registration and donations to political parties. If the amendments were not made in Gibraltar a company registered there could make donations to UK parties without any of the provisions of the Political Parties, Elections and Referendums Act 2000 applying. There are issues, which, even though they concern amendments to Gibraltarian law, will, as a result of the creation of a combined region, have a significant affect on the UK. For those two reasons it is important to retain the power in the Bill to amend Gibraltarian law, even though it is our intention that wherever possible the changes should be made in the House of Assembly in Gibraltar by the Government of Gibraltar.

Mr David Heath (Somerton and Frome, Liberal Democrat)

I accept the intention of the hon. Lady: she would like the changes to be effected through the Gibraltarian House of Assembly and pass into Gibraltarian law in that way. However, the effect of the provisions will be to repatriate to the UK Parliament the right to change Gibraltarian law unilaterally, and that is a retrograde step.

I accept entirely that there must be conformity for electoral purposes between Gibraltarian law and that of the United Kingdom to ensure that there is no electoral malpractice or inconsistencies that would be detrimental to the electoral process, and I see no evidence to suggest that the Government of Gibraltar would not wish to comply immediately with any request of the United Kingdom Government. I am at a loss to understand why that should be affected by the process—and this a matter of process—of an order introduced into this House in order to change what is properly the concern of the Government of Gibraltar. I am afraid that the hon. Lady has yet to convince me—she might have convinced the hon. Member for Stone; I am not sure—that the provision is necessary. Its effect is retrograde as it deletes the degree of devolved administration in Gibraltar, and it means that the UK Parliament is arrogating to itself powers that it previously gave to Gibraltar, and there is no obvious reason why that should be done.

I could understand the Minister including in the Bill a provision to require conformity between the laws of Gibraltar and those of the United Kingdom before the franchise could be extended. That would have been a proper provision, but it would have left the responsibility for making law in the place where it should be—the House of Assembly of Gibraltar. The Minister has not yet persuaded me of her case, but I will reflect on what she said. It may be that the Member for Stone wishes to press his amendment. Although I understand the reasoning and the good intentions behind the Minister's reply, it raises more questions than it answers.

Mr William Cash (Stone, Conservative)

There has been an interesting exchange. The Minister said that discussions will take place and gave a general indication that Gibraltar would be likely to legislate for itself. However, she implied that that would be the case only until a situation arose in which there were provisions, such as those relating to political donations or other matters that she mentioned, with which we could not entirely trust

the Gibraltarians to comply. The Government do not really trust the Gibraltarians. That may be the cause of the problems that we have experienced throughout our consideration of the Bill. It probably also has a lot to do with the problems that the Government have experienced in respect of the Anglo-Spanish discussions and the Brussels process.

Underpinning all this, I can imagine the legal adviser presenting his instructions to the parliamentary counsel drafting the Bill and saying that they should bear in mind that those people cannot be entirely trusted. I also imagine him saying that Gibraltar has a sort of colonial status, and that the UK Government had not wanted any of this to happen in the first place, but had been driven into it by that wretched court in Strasbourg, which they normally thought was a good institution but which had done them a great disservice on this occasion because it had fouled up the UK's relations with Spain. I imagine that legal adviser asking the parliamentary counsel, when drafting the Bill, to make sure that they gave the Government enough power to be able to insist on what they wanted.

The hon. Member for Somerton and Frome rightly made the point that this matter could have been dealt with in some other fashion, perhaps by primary legislation or by including a provision in the Bill requiring conformity. He was right to emphasise that using a statutory instrument for the purposes of what I described as Cardinal Wolsey's revenge again demonstrates a degree of constitutional paranoia, which has tended to bubble up to the surface repeatedly as we have considered the Bill. It is not just belt and braces, but a sort of straitjacket, which is quite a different thing.

I confess that I am in a quandary. On the one hand, I want the Government to follow through on what they have to say, and to do so by Report, but on the other, I am deeply concerned about the draconian character of the provisions. I must also take into account the fact that the Minister is putting the best gloss on the situation.

The provision is restricted to modifying the laws of Gibraltar in respect of elections to the European Parliament. However, if I were in the position of the Chief Minister of Gibraltar, I would ask myself whether, if the UK Government are prepared to go this far for elections, they would go further for something much worse in the pipeline, such as relations with Spain. Psychologically, I regard it as an extremely dangerous weapon. However, because I have had a welcome assurance that there will be discussions, and because I have heard that—all things being equal—these matters will be legislated for in Gibraltar, I am inclined to believe that we can return to the question on Report in the light of those discussions.

I urge the Minister to accelerate the discussions, so that we know which position to adopt before Report. On balance, I feel that the provisions are so offensive that I am bound to ask the Committee to divide, albeit without prejudice to discussions that may take place on Report. I may seek guidance on the question

because it is important to the people of Gibraltar. If we divide, I trust it will not prevent us from moving an amendment on the matter on Report. Could I ask for advice on that point before we do? I think that the Committee senses that the question is important enough for us to develop the argument a little further.

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

It is not possible to guarantee which amendments the Speaker may select on Report. I cannot give the hon. Gentleman the guarantee he seeks.

Mr David Heath (Somerton and Frome, Liberal Democrat)

The amendment would remove all of subsection (4). An amendment might be tabled on Report that would remove subsection (4)(b), which is the critical element in the provision. That might allow for a further discussion at that stage if necessary. Let us hope that it is not.

Mr William Cash (Stone, Conservative)

On balance, I shall withdraw the amendment because the Minister has been specific about discussion and internal legislation. I do not need to repeat what I have said already. We will be able to employ some mechanism if on Report we experience any difficulties in dealing with the matter, which is the Bill's central provision for the people of Gibraltar, who are my prime concern. We have to protect their position. They are not here and cannot participate in the proceedings. The onus on us is therefore greater. Having made strong points, I believe that my course is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 56, in

clause 12, page 7, line 4, leave out subsection (8).

The amendment is an extremely interesting one.

Mr Fraser Kemp (Assistant Whip (funded by HM Treasury); Houghton and Washington East, Labour)

Fascinating.

Mr William Cash (Stone, Conservative)

As the Whip says, it is fascinating. The provision it deals with is most unusual. I have never come across it before, but I stand open to correction. I have a slight interest in it for two reasons. First, I have not the foggiest idea why it is included. Secondly, I was the legal adviser to the ship repairers on the famous Aircraft and Shipbuilding Industries Bill in 1977. I was in private practice before I entered Parliament, and I was the chap who identified the hybridity in the Bill and had to argue the case—which we won—in the House of Lords. I should explain briefly—I am sure that you will allow me that indulgence, Mr. Taylor. The Lord Chancellor at the time, Lord Elwyn Jones, was one of the senior members of the Committee that was set up by the then Labour Government. When I got to my second to last point in the Moses Room, he gave me the most enormous wink, indicating that on that point I had won the day. I hope that you will forgive me for that little diversion, Mr. Taylor.

Hybridity is an important constitutional principle that takes up many pages of ''Erskine May''. In essence, it exists when a category is created in a Bill and a class is created within the category and the different classes within that framework are treated differently. Some people believe that it involves being adversely affected, but it is not as simple as that. It depends on whether the classes within that category are treated differently. I am paraphrasing pages and pages of learned matter, but hybridity is a

fundamental principle of British constitutional and parliamentary law. Incidentally, it is also includes matters involving private interests. It is a question not only of public Bills where there is no private interest, but of a private interest being involved and a distinction being drawn between different categories within a class.

However, what I cannot immediately understand is why it is thought that an order made under the Bill could be hybrid. As far as I recall, hybridity applies only to affirmative resolutions, so only those parts of the Bill with order-making powers in statutory instruments requiring affirmative resolution could be hybrid. The consequences of establishing hybridity are horrendous from the Government's point of view—they are so democratic—because they enable the people affected to petition if the appropriate Clerks or the Speaker decree that the Bill is hybrid, and the order would have to go to a Select Committee for consideration. That is my recollection of the position, unless it has changed. I am looking at the Clerk, who is looking at me. I would be happy to receive further and better particulars because my memory is becoming a bit dim with the years, but it is curious that the House of Lords has a procedure for hybrid instruments whereas the House of Commons does not. That arises from page 587 of ''Erskine May''.

The curiosity about the provision in the Bill is that it refers in subsection (8) to standing orders of either House of Parliament when, in fact, it seems that we would not expect the House of Commons to be involved at that stage. The standing orders of each House are different in that respect. I recall, for example, that the Speaker can declare hybridity, after appropriate procedures have been gone through, after Second Reading or in Committee. It does not have to be done at any particular time during a Bill's time in the House of Commons, but there comes a point, at certain later stages of a Bill's passage, when the procedure could not be followed through because a Select Committee could not be set up in either House of Parliament.

Even if the drafting is defective and needs to be rectified, the real question is whether the provision is required at all. Why has it been included? What mischief, as the Government see it, are they seeking to avoid? By my terms, it would not be a mischief but an opportunity, under our normal constitutional procedures, to guarantee that people who were adversely affected—or differently affected—in the class had the opportunity to state their case.

If we were to apply that principle to other Bills or hybrid instruments, and knocked out the procedure, we would probably have a substantial row on the Floor of the House. People would be outraged by the idea that hybridity should simply be shunted off into exterior darkness, but that is what the Bill is doing in respect of matters pertaining to the democratic rights of the people of Gibraltar. The procedures stipulated in orders made under clauses 10 and 11, with all the wide powers that they will contain, including the exclusion of provisions in Gibraltar's laws, make me

nervous. I am not a very nervous person, but I am concerned because I see that the Government have anticipated all sorts of difficulties, which they want to avoid and which they are determined to get round, to the point of excluding the right of petitioners, under our normal constitutional procedures, to take the action necessary to defend themselves.

What is sauce for the goose is sauce for the gander. If the provision is passed, the next thing we will hear is that a similar provision could be applied to other legislation. I was the person responsible—with others, I am happy to say—for what happened to the Aircraft and Shipbuilding Industries Bill, in which I was very much involved, as the Committee will have gathered, so I have a particular interest in ensuring that we do not have a repeat performance of that now. If this provision had, in a slightly different shape, been in that Bill back in the 1970s, those industries would have been nationalised. I see the Whip smiling with satisfaction at that idea, but I have to tell him that I was very glad to prevent that happening on that occasion, with some help from my friends.

Mr David Heath (Somerton and Frome, Liberal Democrat)

I rise only to observe that this provision contains the sort of wording that makes those who want legislation to be intelligible to the average citizen despair. I really look forward to the day when we can draft Acts of Parliament that are understood by those whom their provisions affect.

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

Clause 12(8) is included in the Bill, in effect, as a precaution to ensure that the 2004 timetable can be met. As the hon. Member for Stone has said, provisions in ''Erskine May'' apply—[Interruption.] I have a copy of page 587, which was deftly supplied to me by officials when the hon. Gentleman started speaking. They clearly expected that he would leap into intricate detail when faced with such an issue.

Those procedures apply where orders are regarded as being hybrid, as the hon. Gentleman has set out, and treat private interests in different ways. The different procedures are given in House of Lords Private Business Standing Order No. 216. They exist for a good reason: to ensure that private interests are treated fairly. However, as the hon. Gentleman says, the procedures take some time and provide for quite extensive consideration that can take many months. Given our time scale—we have to ensure that the Bill is implemented before the 2004 election—that could have quite significant consequences.

We are not setting out with the intention of making different provisions for the same categories of people, or of introducing hybrid orders. However, we need to provide for circumstances in which a provision might be ruled hybrid through a technicality. For example, the provisions relating to permissible donors to political parties registered to contest European parliamentary elections will also need to apply in Gibraltar. In practice, it may not be possible to have exactly the same class of permissible donors in Gibraltar and the UK, although clearly that is our intention.

We will aim to avoid differences when possible. However, such differences are conceivable, because the

orders have not yet been drafted, as the detailed consideration has not yet taken place. In the end, there may be minor differences that will give rise to orders being regarded as hybrid, although only technically.

Mr William Cash (Stone, Conservative)

I in no way want to introduce a note of flippancy, but is it possible that the Minister has in mind that the donations might be payable in euros?

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

That is not an issue that I had considered, although given the hon. Gentleman's interests, I should have anticipated his question. I assure the hon. Gentleman that that was not a consideration.

Effectively, this is a precautionary measure only. If one of the orders were ruled hybrid on a technical basis, it would be subject to an elongated procedure that might be appropriate and right under normal circumstances, but that would make it very difficult or impossible to implement the Bill—or at least important clauses of it—under the current circumstances, with the 2004 deadline looming ever closer. Given the ticking clock, we regarded the provision as an appropriate precaution, although we do not expect to need to use clause 12(8) when drafting the orders. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Mr William Cash (Stone, Conservative)

I am sorry to disappoint the Minister. She is being candid, and I am grateful for that, but by being so, she has exposed the greater reasons for objection that I feared might exist. I said that I was nervous about the provision; I also referred to Wolsey's revenge. In relation to the timetable, Hon. Members might remember that Wolsey only managed to avoid being executed by dying en route to London, having been summoned by the king. We are being told that any unfairness that emerges from the provisions of an order of the Lord Chancellor should be allowed to persist, simply because it would be inconvenient and inexpedient from the point of view of time to prevent it. That is the most unacceptable reason that can be given. I understand the concern—particularly given that we are not against part 2 in general—to get all the ducks in a row so that we can move forward with the Bill, but we must do so in the right fashion.

We have given a range of reasons why we have been concerned about other matters, but if it emerges that a provision is drafted in a way that produces hybridity, we should not be constrained by the time factors. I can think of many occasions when some of the most important events in parliamentary history have been frustrated because something that was wrong in principle has been resisted by the Opposition, or even by the Government Benches. The Maastricht treaty is one example. Opposition was set up against it at an exceedingly inconvenient time. The same may apply to the question of war with Iraq, unless opposition is crushed by the power of government—and, believe me, that is real power.

In the context of these provisions, serious constitutional issues could arise. We cannot anticipate them, because we do not know how the order will be drafted, what it will contain and so on.

Mr David Heath (Somerton and Frome, Liberal Democrat)

Is it not important that the Committee remind itself that the original judgment from the

European Court of Human Rights on this matter was in February 1999? The time constraints are manufactured by the Government to delay introducing legislation for the enfranchisement of Gibraltar until the last possible moment before the 2004 elections.

Mr William Cash (Stone, Conservative)

I congratulate the hon. Gentleman on a perceptive comment. He is right: all these things are artificial in the sense in which he has described them. What is not artificial is the fact that the Lord Chancellor is taking these powers against the background that we have already discussed. The short point is that we shall seek to divide the Committee on the amendment.

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

Although the subsection is in place, there will still be clear constraints and protection for private interests. The aim of the Bill is to establish a level playing field between Gibraltar and the rest of the region with which it is to be combined. Article 3 of protocol 1 to the European Convention on Human Rights, which refers to free and fair elections, will clearly apply. Gibraltar will be treated in the same way as the rest of the region. The only reason to include the subsection is that, otherwise, minor differences in the treatment of certain private interests might give rise to a hybrid order on a technicality. That must be balanced against the overwhelming public interest to ensure that the main provisions of the Bill are in place in time for the 2004 elections.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.