Select Committee on European Scrutiny Twenty-Second Report













Resolution on a draft electoral procedure incorporating common principles for the election of Members of the European Parliament.

Draft Council Decision amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976.

Council General Secretariat note to delegations attaching the contribution of the UK delegation in the form of two proposed minutes statements.

Council General Secretariat Note on behalf of the Presidency to the Permanent Representatives Committee/Council in which the Presidency introduces the compromise proposal represented by the documents (b) and (c) above.

Legal base:Article 190(4) EC; unanimity; European Parliament assent
Deposited in Parliament:(b), (c) and (d) 28 February 2002
Department:Transport, Local Government and the Regions
Basis of consideration:EM of 14 March 2002
Previous Committee Report:(a) HC 23-iv (1999-2000), paragraph 7 (15 December 1999) and HC 23-vii (1999-2000), paragraph 5 (2 February 2000)
To be discussed in Council:15 April General Affairs Council
Committee's assessment:Politically important
Committee's decision:(All) Cleared


  17.1  The election of the representatives of the European Parliament (EP) is provided for in the EC's 1976 Act on Direct Elections to the European Parliament. However, the 1997 Amsterdam Treaty amended Article 138(3) of the EC Treaty (now Article 190(4)) to the effect that the elections for the EP need no longer necessarily be conducted according to "a uniform procedure in all Member States", but, as an option, could be conducted "in accordance with principles common to all Member States". In July 1998, before the entry into force of the Treaty of Amsterdam, the EP adopted a Resolution and proposed amendments to the 1976 Act. The proposed draft Council Decision takes account of the political traditions of each Member State but avoids the need for an across-the-board harmonisation of the electoral procedure by focussing on the option of "principles common to all Member States".

The European Parliament Resolution

  17.2  We considered the Resolution on 15 December 1999, when we put a number of questions to the then Minister of State at the Home Office (Mrs Barbara Roche), and again on 2 February 2000, when we considered her replies and put further questions. We did not clear the document, which we consider again here.

  17.3  The main proposals in the Resolution were set out by the Minister in her Explanatory Memorandum of 2 December 1999 as follows:

"(a)  with effect from the 2004 election, in each Member State, Members of the European Parliament (MEPs) shall be elected by a list system of proportional representation (PR), using constituencies in Member States whose population does not exceed 20 million inhabitants;

"(b)  a minimum threshold for the distribution of seats may be set and at a national level may not exceed 5% of the votes cast;

"(c)  further consideration may be given by the EP to a proposal that a certain percentage of the total number of its seats should be filled, with effect from the 2009 election, by means of list-based PR relating to a single constituency comprising the territory of all the Member States;

"(d)  the office of MEP should be incompatible with the office of member of a national parliament;

"(e)  each Member State may set a limit for candidates' expenditure linked to the conduct of the election campaign."

  17.4  The Minister commented that the Government broadly welcomed the proposed amendments. It considered that two only were problematic for the UK. The first was the proposal outlined in (c) above which raises the possibility of a certain percentage of the total number of seats being elected on a list-based system of Proportional Representation (PR) in which the whole of the EU would form a single constituency with effect from the 2009 elections. However, the Minister did not expect Member States, including the UK, to be in favour of this approach.

  17.5  The second problematic proposal was that, with effect from the 2004 elections, the office of MEP should be made incompatible with the office of member of a national parliament. The Minister said that the Government had not yet taken a view on this issue as it did not wish to pre-judge the outcome of the Royal Commission on House of Lords Reform, although it would wish to preserve the position of current holders.

  17.6  The Minister added:

"The Government is considering how to enfranchise citizens of Gibraltar for the purposes of European Parliamentary elections, following the judgement of the European Court of Human Rights of 18 February 1999 in the case of Matthews v UK[38]. We believe that the draft Act would be the most appropriate means of ensuring that the 1976 Act is brought into compliance with that judgement. Progress on this matter will be the subject of further discussions with fellow Member States. If agreed, this will require amendment of UK law and may have financial implications."

  17.7  The Department for Transport, Local Government and the Regions is now responsible for electoral law. In his Explanatory Memorandum of 14 March 2002, the Minister of State (Mr Nick Raynsford) comments on the three documents under scrutiny.

The Presidency compromise proposal

  17.8  According to the Minister, discussions in Council on all areas in contention have now been concluded. The proposed amendments are set out in:

  • a draft Council Decision (document (b));

  • a minutes statement by the Council covering future reviews of the 1976 Act. This is annexed to the draft Decision (document (b)); and

  • a draft of minutes statements by the United Kingdom and the Council/Commission concerning Gibraltar (document (c)).

The proposed amendments

  17.9  The main amendments to the draft Treaty text, set out in the draft Council Decision, include:

— Article 1

Elections shall be by proportional representation, using the list system or single transferable vote, by direct universal suffrage, free and secret. Member States may authorise voting based on a preferential list system;

— Article 2

Member States may divide their electoral areas into constituencies as they wish, whilst respecting the essentially proportional nature of the voting system.

— Article 2A

Member States may also set a minimum threshold for the allocation of seats, but at national level this may not exceed 5 per cent of votes cast.

— Article 2B

Each Member State may set a ceiling for candidates' campaign expenses;

— Article 3

MEPs will serve five-year terms;

— Article 6

Certain specified appointments shall be incompatible with membership of the EP.

  17.10  From 2004, dual mandates will be abolished, making it impossible for MEPs to serve in national parliaments. Derogations are included for the UK and Ireland. The Irish Members may have a dual mandate until the next election to their national parliament. Members of the UK Parliament "who are also members of the European Parliament during the five-year term preceding election to the European Parliament in 2004, may have a dual mandate until the 2009 European Parliament elections."

  17.11  The minutes statements at document (c) record the action the UK intends to take to enfranchise Gibraltar for EP elections. The UK delegation proposes that these be recorded in the minutes of the Council when it adopts the Decision recommending the amendments to the 1976 Act for adoption by the Member States.

  17.12  In its Note to COREPER/the Council, the Presidency says that it believes that all outstanding issues have been resolved and political agreement on its compromise text should now be possible.

The Government's view

  17.13  The Minister comments as follows:

"In its responses to the previous Explanatory Memoranda, the House of Commons European Scrutiny Committee made various points. Those outstanding from the most recent response are dealt with below.

"MEPs representing the EU as a whole: There was an earlier proposal at Article 7 of the draft that a proportion of EP seats should be reserved for MEPs representing the EU as a whole. The Committee commented at 1.4(i) of its most recent response that they welcomed the Government's continued opposition to this proposal. The Government persisted firmly with its opposition and, as expected, the proposal has now been dropped.

"Dual mandates: The Committee expected, at 1.4(ii) of its most recent response, that the Government would confirm its support of the principle of this amendment to Article 6. The Government had indeed previously agreed in principle, but wanted to wait for the outcome of the Royal Commission on the House of Lords before committing itself. In the event, the recommendations in the Wakeham report had little bearing on the issue, beyond a comment on the excessive workloads dual mandates would impose. The Government therefore supports the draft provision, with one already agreed proviso, as follows. The UK had sought a derogation from the operation of the amendment for those who are currently both MEPs and Parliamentarians (currently 2 MPs and 3 members of the House of Lords). This derogation forms part of the proposed amendment and will last until 2009, after which date no MEP may be a member of a national Parliament.

"Limits to Candidates' expenses: The Committee asked at 1.4(iii) of its most recent response for further consideration to be given to the question of limiting candidates' expenses. Whilst the Government believes that this is right in the UK, and has provided for it in legislation (most recently in the Political Parties, Elections and Referendums Act 2000), it considers that the permissive provision proposed at Article 2B is more compatible with allowing Member States to govern their own electoral procedures than a prescriptive one.

"Gibraltar: The Explanatory Memorandum dated 2 December 1999, and the subsequent Supplementary Explanatory Memorandum of 14 January 2000, reported the Government's view that securing amendment of the 1976 Act on Direct Elections would be an appropriate way to implement the judgement of the ECHR in the case of Matthews v UK. Accordingly, during the course of these negotiations, the Government proposed that the provisions on EP elections should include an addition to the 1976 Act, which would have made express provision for the application of these EP election provisions (in the form of the 1976 Act) to Gibraltar. However, it proved impossible to obtain the unanimous agreement of other Member States to such an amendment.

"Therefore, in November 2001, the Government announced its intention to introduce domestic legislation to extend the EP franchise to Gibraltar. Before taking this step, the Government consulted the Government of Gibraltar, other Member States and the European Commission. All accepted the Government's approach. The Committee will recall that it welcomed, at 1.4(iv) of its most recent response, the Government's efforts and its commitment to consider unilateral action. In recognition of this, it is proposed that two statements will be entered in the minutes of the Council meeting that adopts the amending Act. The United Kingdom will make the following statement:

'Recalling Article 6(2) of the Treaty on European Union, which states that:

'the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community Law,

the UK will ensure that the necessary changes are made to enable the Gibraltar electorate to vote in elections to the EP as part of and on the same terms as the electorate of an existing UK constituency, in order to ensure the fulfilment of the UK's obligation to implement the judgement of the European Court of Human Rights in the case of Matthews v UK, consistent with EU law.'

"The Council and Commission will then make a joint statement noting the UK's proposals. Both these statements are set out in 6150/02.

"As a consequence, there is no longer any need, as was proposed, to add Gibraltar to the UK in Annex I (as amended by the provisions) to the 1976 Act.

"Consolidation: The committee suggested at 1.4(v) of its most recent response that the legislation should be consolidated. The Government has noted the comment and agrees that such consolidation would be helpful. Article 2 of the draft provisions (6151/02 Annex A) provides for re-numbering of the Articles of the 1976 Act. The Presidency's compromise includes a draft minute statement (6151/02 annex B) recording the Council's view that the 1976 Act should be further reviewed before the second EP election held after the amendment comes into force (likely to be before 2009). This further review would be an appropriate opportunity for consolidation.

Other issues

"Dates of elections: Proposals to move the date of the EP elections from June to May, which were included in previous drafts, have now been removed because it has proved impossible to obtain agreement of all Member States to a suitable date. The fixed reference electoral period (currently second Thursday in June until the following Sunday) remains. The flexibility in the 1976 Act which would allow in certain circumstances the Council, by unanimous decision, to vary the reference period by one month either side of the fixed period is extended to allow variation of up to two months before and one month after the fixed period."

Legal and procedural requirements and timetable

  17.14  The Treaty provides that the Council of the EU shall, acting unanimously, after obtaining the EP's assent, lay down the appropriate provisions for amending the 1976 Act. Once Council has agreed the elements of a revised Act, it will begin discussions with the EP in order to reach agreement on the text. After receiving the EP's assent, it will be adopted by the Council, as an annex to a Council Decision. The Act will then be subject to ratification in the Member States.

  17.15  According to the Minister, it is understood that the Presidency's compromise will be considered by the General Affairs Council on 15 April 2002. If the Council agrees, the aim would be to obtain the agreement of the EP soon after, so that the Council can lay down the provisions and recommend them to Member States for adoption in time for them to be in force for the 2004 European parliamentary elections.


  17.16  We understand that the other Member States consulted by the Government on its approach to extending the European Parliament franchise to Gibraltar include Spain, and therefore that Spain accepts the Government's approach.

  17.17  When we last considered the EP Resolution in January 2000, we noted with pleasure that the Government had said that it would give further consideration to the question of requiring, rather than simply permitting, Member States to set a limit on candidates' campaign expenditure. We are disappointed that the Government did not press for the provision proposed at Article 2B to be amended. We continue to believe that the permissive approach adopted could work to the advantage of large political parties which command substantial financial backing. This could put less well-funded parties at a disadvantage. It could also increase the influence of those providing financial support to political parties. However, the text requires the unanimous agreement of all the Member States and we do not intend at this stage to withhold clearance on this account.

  17.18  We now clear the documents.

38  In this case, the European Court of Human Rights found that the UK was in breach of its obligations under Article 3 of the First Protocol to the ECHR by failing to provide for elections in Gibraltar to the European Parliament. Back

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Prepared 28 March 2002