Select Committee on Constitution Fifth Report

Appendix 2

Reply from the Lord Chancellor, the Lord Irvine of Lairg

Thank you for your letter of 13 February which raised a number of queries about the content of this Bill.

1.  You asked whether the Lord Chancellor was bound to act on the advice of the Electoral Commission when presenting an Order to change the number of UK MEPs. The answer is yes; by virtue of Clause 4(2) of the Bill, the Lord Chancellor may only put before Parliament the distribution proposed by the Electoral Commission. If Parliament rejects the Order, then the Lord Chancellor may only propose a different distribution, under clause 5(4) and (5), if the Electoral Commission has consented. By virtue of clause 5(6), the Electoral Commission may consent only if the alternative proposed distribution is one they could properly have recommended under clause 2.

2.  You asked what the criteria would be on which the Lord Chancellor would base his decision to link Gibraltar to a particular electoral region in England and Wales. The Lord Chancellor will not make this decision. Under Clause 9 of the Bill, the Electoral Commission will be asked to make a recommendation for the combined region. Under Clause 10, the Lord Chancellor may only present an Order giving effect to the Electoral Commission's recommendation. If Parliament rejects the Order, the Lord Chancellor may withdraw it and substitute another, but he may do so only after further consulting the Electoral Commission (see Clause 12 (6)). The Bill deliberately does not spell out any criteria which the Electoral Commission should use.

On the question of the conduct of the election, it is our intention that the whole of the combined region should be treated in the same way. The rules for the parties and the candidates will be, so far as possible, the same in both parts of the region. Gibraltar based candidates and parties will be able to campaign throughout the combined region if they wish to do so. UK based candidates and parties will be able to do the same. The relevant provisions of the Political Parties, Elections and Referendums Act 2000 on registration of political parties will be extended to Gibraltar in respect of European Parliamentary elections, with some modifications to take account of the inclusion of Gibraltar. For instance, the rules on political donations and the definition of overseas donors will similarly have to be applied with necessary adaptations to allow Gibraltarian electors to donate In the same way, large parts of the Representation of the People Act 1983, which is the basic UK electoral law, will have to be applied to Gibraltar as well for these purposes, including provisions regarding the conduct of meetings and free election addresses. However, there is no intention to interfere at all in the conduct of domestic elections to the Gibraltar House of Assembly.

3.  You asked about the power in clause 12(3)(a) to enable delegated legislation made under it to have the power to make further delegated legislation. As you are no doubt aware, large parts of UK electoral law are already contained in delegated legislation. This is particularly so for European Elections, where the basic rules set out for Parliamentary Elections have to be modified to cope with the different circumstances of European Parliamentary elections. This legislation is immensely detailed. Some of the same circumstances apply in the Gibraltar part of the combined region. It is important that it should be possible to keep all the component parts of electoral law consistent with each other, and therefore that changes in the 'master' legislation can be picked up quickly. The power to make provision for further subordinate legislation is a necessary part of the overall package of powers to deliver this objective. In the case of existing powers to make secondary legislation, the powers to make consequential changes under the original primary legislation may be limited. However, if substantial modification or duplication of secondary legislation is necessary, it may be necessary for that subordinate legislation to be remade taking into account the Gibraltarian context rather than to amend it or apply it with modifications. It is for this reason that the power is needed under Clause 12(3)(a) to create powers to make subordinate legislation. For instance, this may be necessary to enable minor amendments to definitions to take account of fluctuating elements of Gibraltar law which may affect them. The use of the power will be limited to provisions which are necessary or expedient in consequence of or in connection with the inclusion of Gibraltar in an electoral region. As with other provisions in Part 2 of the Bill, adaptations to UK law under this power will effectively be restricted to providing, as far as possible, for provisions relating to Gibraltar substantially corresponding to those applicable in the UK.

The Delegated Powers and Regulatory Reform (DPRR) Committee considered these provisions in some depth but did not feel it necessary to draw the House's attention to them (although they did recommend that all the powers in Part 2 should be subject to affirmative resolution). The power would be conferred on whichever Minister of the Crown was responsible for the underlying legislation. In most cases, this will be the Lord Chancellor, but there might, for example, be circumstances where it would properly be the Secretary of State for Culture, Media and Sport in relation to broadcasting. Whether the power when conferred will itself be subject to parliamentary procedure, and if so which one, will depend on the precise form of the power. The instrument which confers the powers will itself be exercisable by statutory instrument (see clause 12(2)). As I have said, the DPRR Committee has recommended that all the powers under Clauses 10 and 11 should be exercisable by affirmative resolution and the Government will accept that recommendation.

4.  You asked whether the regulations to be made under Clause 16 would be exercised so far as possible to produce the same conditions for eligibility to vote in the Gibraltar and UK parts of the combined region. I am happy to confirm that this is precisely our intention.

5.  You asked about the provisions of Clause 21 and the jurisdiction of the various courts. We are presently discussing the detail of this clause with the Government of Gibraltar and I expect that the Government will in due course be proposing amendments to it. The broad intention, however, which is not in dispute between us and Gibraltar, is as follows. Matters which under existing UK law must be dealt with by an election court will be dealt with by an election court for the combined region. Certain matters which would be dealt with by the UK High court would also be within the jurisdiction of that court in the combined region. Matters which would be dealt with by the county court, Crown Court or a magistrates' court under existing UK law will be dealt with by the appropriate court in either the UK or Gibraltar. The original drafting did not provide for jurisdiction to be conferred on any court in Gibraltar because it was not necessary to do so to achieve the above result. We have subsequently realised, however, that although the position set out in the Bill as presently drafted is perfectly accurate, it can give a false impression. We are therefore discussing with Parliamentary Counsel and then with the Government of Gibraltar an alternative form of words which will make it clearer that what is intended is a distribution of powers between two jurisdictions. You also asked whether it was necessary to refer to 'any court in the United Kingdom', given that neither Scotland nor Northern Ireland can, under the Bill, be the combined region. I accept that it is unlikely that offences committed in respect of the election in the combined region would fall to be considered by a court established in either Scotland or Northern Ireland, but it is not absolutely impossible, for example if an electoral offence was committed by a resident of Scotland or Northern Ireland. It would be better to make provision in this way to ensure that, thought unlikely, such possibilities will be provided for.

6.  Finally, you asked to what extent it is expected that the functions under the Bill would be exercised by the Lord Chancellor. The answer is that we expect almost all of them to be so exercised, and particularly the powers in clauses 2, 4, 9, 10, 11 and 16. However, electoral law is now, under the terms of the Transfer of Functions (Transport, Local Government and the Regions) Order of November 2002, exercisable concurrently by the Lord Chancellor and the Secretary of State and the Bill simply takes a consistent approach. This is because electoral law may apply for example to local elections, which are the responsibility of the Deputy Prime Minister, or to elections in Scotland, which are the responsibility of the Secretary of State for Scotland. In addition, a some provisions which are touched on by the Bill may relate to the functions of other Secretaries of State, such as (as already mentioned) in relation to broadcasting which are the responsibility of the Secretary of State for Culture, Media and Sport. Existing references to the Secretary of State in the Bill and other UK electoral law (on the whole) can be read as referring to the Lord Chancellor. (See, for example, Clause 20 of the Bill which, because it is inserting a provision directly into the European Parliamentary Elections Act 2002, refers to the Secretary of State in the existing language of that Act. The power in question will in fact be exercised by the Lord Chancellor.) References to the Lord Chancellor may, in certain circumstances, be read as referring to the Secretary of State. Which minister exercises the power will be determined by the Prime Minister's distribution of ministerial duties.

19 February 2003

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