Select Committee on Delegated Powers and Regulatory Reform Eleventh Report


Annex 3

EUROPEAN PARLIAMENT (REPRESENTATION) BILL

Memorandum by the Lord Chancellor's Department

INTRODUCTION

Part 1 - Changes in total number of United Kingdom MEPs

67.  The purpose of Part 1 of the Bill is to give effect to a change in the number of MEPs for the UK resulting from changes in that respect made under Community law. The Treaty of Nice provides for the EU to be enlarged to include new Member states. It was ratified by the UK following the European Communities (Amendments) Act 2002. Existing member states will be obliged to make reductions in the number of their MEPs so that accession states have fair representation in the European Parliament as new member states accede. It is intended to implement some reductions to account for the first tranche of accession states for the European Parliamentary elections in 2004.

68.  A Treaty of Accession, which will provide for the accession of ten new Member States on 1 May 2004 (prior to the 2004 elections), is expected to be signed on 16 April 2003. For the purposes of the 2004 elections, the Accession Treaty will set the total number of MEPs at 732 and the number of MEPs allocated to the UK at 78. In line with previous treaties of accession, it is not expected that the Accession Treaty itself will make any provision for reallocation of MEPs' seats in the event that one or more accession state should fail to ratify by the date of accession. However, Article 3 of the protocol on enlargement, annexed to the Treaty of Nice, requires the total number of MEPs upon enlargement to be "as close as possible to 732". If the number of MEPs upon accession is less than this (because one or more accession country has failed to ratify), the Council of Ministers is required to take a decision to bring the total number of MEPs as close as possible to 732. The means for making such adjustment will be a "pro rata correction".

69.  Section 1 of and Schedule 1 to the European Parliamentary Elections Act 2002 (the 2002 Act) sets out the total number of MEPs for the UK and divide the UK into 12 electoral regions for the purpose of European Parliamentary elections, allocating a fixed number of MEPs to each region. Part 1 of the Bill establishes a mechanism by which the Lord Chancellor can adjust the total number of MEPs for the UK and the numbers of MEPs that will represent each electoral region by amending the 2002 Act in order to comply with a new number set by Community law. He is to exercise these powers by an order under the affirmative resolution procedure.

70.  It is intended that Part 1 of the Bill will also enable any further Treaties which may provide for a change in the number of MEPs to be given effect by an order subject to the affirmative resolution procedure under the Bill. The content of a Treaty or Council Decision made pursuant to a Treaty setting out the total number of MEPs for the UK is subject to the prior scrutiny of the European Scrutiny Committee of the House of Commons and the European Union Committee of the House of Lords. A Treaty would also usually be subject to ratification by the UK and if it increased the powers of the European Parliament, this could not take place without a prior Act of Parliament by virtue of section 12 of the European Parliamentary Elections Act 2002 (the 2002 Act).

71.  In many respects the provisions concerning the change in the number of MEPs representing each region are modelled on the provisions for periodic reviews of the number of MEPs to be elected in each of the English electoral regions set out in Schedule 1 to the 2002 Act. However, in that Schedule the power to conduct such reviews is vested in the Secretary of State and the order making power is subject to the negative resolution procedure. The intention in this Bill is to confer the power to review and make recommendations as to the number of MEPs that are to represent each region on the Electoral Commission, but the order-making power is to vest in the Lord Chancellor or Secretary of State.

72.  The Electoral Commission were established under Part 1 of the Political Parties, Elections and Referendums Act 2000 (PPERA) to carry out functions relating to elections. They are an independent and expert body in this area and it not unusual for them to be given powers relating to fair representation. For example, under section 16 of PPERA they are to take over the responsibilities of the Parliamentary Boundary Commissions for reviewing the boundaries of Parliamentary constituencies, which provisions are likely to be brought into force after the present round of reviews that are being conducted by those Commissions are completed. They have already taken over responsibilites for reviewing the boundaries of local government areas for England from the Local Government Commission pursuant to section 18 of PPERA.

73.  The power to review the number of MEPs allocated to each region in a periodic review under paragraphs 3 and 4 of Schedule 1 to the 2002 Act is also replaced by this Bill. This is done in a way that replicates most of the procedures that are provided in Part 1 of the Bill in relation to changes in the distribution of MEPs arising from changes to the total number of UK MEPs. The provisions also take into account the fact that a periodic review would be unnecessary if the procedures for redistribution arising from a change to the total number of UK MEPs are underway.

Part 2 - Gibraltar

74.  Gibraltar is an overseas territory of the UK. The UK is responsible for its external relations. The Treaty Establishing the European Community (the EC Treaty) applies to Gibraltar by virtue of Article 299(4) which provides that the EC Treaty applies to European territories for whose external relations a member state is responsible.

75.  Under European Community (EC) law, elections to the European Parliament are governed by the EC Act on Direct Elections of 1976 (EC Act 1976). Annex II to this Act states that "The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom". Gibraltar is not part of the United Kingdom. For this reason, when provision was originally made in the UK for European Parliamentary elections (by the European Parliamentary Elections Act 1978), Gibraltar was not included.

76.  In 1999, in Matthews v UK (28 EHRR 361), Ms Matthews claimed before the European Court of Human Rights that the exclusion of Gibraltar from enfranchisement in the European Parliamentary elections was a breach of human rights. The Court ruled that the European Parliament formed a part of Gibraltar's legislature and held that the UK was bound by its conventions to secure the right for the people of Gibraltar to elect the European Parliament. The UK accepted the judgement of the Court and its obligation to secure the enfranchisement of Gibraltar.

77.  The UK tabled an amendment to the EC Act 1976 in March 1999, but such an amendment requires unanimity in the EU and this was not possible. In November 2001, the Government announced to Parliament that the UK would act unilaterally to enfranchise Gibraltar by means of UK domestic legislation. The government also tabled a Minute Statement, reflecting those intentions, before the Council of the European Union. This Bill provides for the incorporation of Gibraltar into UK European Parliamentary elections.

78.  The average electorate for the electoral regions is 3.7 million people. Gibraltar's electorate is only about 20,000 people and so it is inappropriate for it to form an electoral region on its own. The Bill therefore provides that Gibraltar should be combined with an existing electoral region in England or Wales for the purposes of European Parliamentary elections taking place after 1 April 2004. That region is referred to in the Bill as the combined region.

79.  The underlying approach of Part 2 of the Bill is that for the purposes of European Parliamentary elections Gibraltar is to be treated as if it were as much a part of the combined region as the other areas of the region. The Bill therefore needs to make provision for the electoral law that applies for the purposes of elections to the European Parliament in the UK to apply for these purposes to Gibraltar. It is not appropriate to deal with everything on the face of the Bill as neither does the electoral law applied. Fundamental issues are to be set out on its face but things which are a matter of detail are to be provided for by subordinate legislation, particularly as such matters are extremely complicated and involve such detail they can only be set out in subordinate legislation. Following closely the pattern of the 2002 Act the Bill makes specific provision for some matters, for example, the franchise, or amends the 2002 Act for others, for example, the returning officer, and provides enabling powers to provide for the application of the other detail of existing electoral law. Indeed, much of the Representation of the People Act 1983 and regulations made under it relating to Parliamentary elections are applied for the purposes of European Parliamentary elections by the regulations made under section 7 of the 2002 Act. Accordingly, where appropriate, provision under the Bill is to be made by use of powers to make delegated legislation to avoid excessive complexity on the face of the Bill, to enable detailed consideration with the Government of Gibraltar as to the content, and flexibility to take account of changes in the relevant laws, including the law of Gibraltar.

PART 1: CHANGES IN TOTAL NUMBER OF UNITED KINGDOM MEPS

Clause 1: Electoral regions in the United Kingdom (does not include delegated powers)

80.  This clause amends section 1 of the 2002 Act, and sets out the existing position in a way which makes subsequent changes under the powers in the Bill to the total number of MEPs and the numbers of MEPs for each region more easily achievable across the UK as a whole. It does not itself change the numbers of MEPs in any region.

Clause 2: Recommendations by Electoral Commission relating to changes in number of United Kingdom MEPs (does not include delegated powers)

81.  Clause 2 establishes a mechanism for reviews of the distribution of MEPs in the UK to take place when a change to the numbers under Community law has been made or is anticipated. The point at which the number will be fixed depends on the progress of accession negotiations and ratification. It will then be for the UK to take action to ensure that no more than that number are elected for the UK as a whole, though their distribution between the UK electoral regions is a matter for the UK alone.

82.  Subsection (1) therefore give the Lord Chancellor the power to require the Electoral Commission to make recommendations about the distribution of MEPs in accordance with a total number (or numbers) specified by him. Under subsection (3) these recommendations must be made within a specified period. Such number or numbers will be the number set by Community law or the number or the possible different options for the number that the Lord Chancellor anticipates may be agreed. This is because it is possible that the timing of the accession process will be such that the Lord Chancellor will need to ask the Electoral Commission to begin work on calculations agreed to take into account the possible different outcomes before a final number has been set. However, by virtue of clause 4, the actual distribution that can be implemented can only be the one that gives effect to the number that is actually set by Community law.

83.  Subsection (4) sets out the requirements to be met by the Electoral Commission when making their recommendations. As they are required to recommend a distribution that ensures the ratio of MEPs to electors is as nearly as possible the same in each electoral region, subject to a minimum of 3 MEPs for each region, this will largely be a mathematical exercise. By virtue of subsection (3) they must make such recommendations within a period fixed by the Lord Chancellor, to ensure the recommendations are made in good time for them to be implemented for the 2004 elections. Subsection (5) provides further constraints so that the recommendations must be laid before Parliament, and furthermore they will cease to have effect after a year.

Clause 3: Section 2: meaning of "elector" (does not include delegated powers)

84.  This clause defines the electorate to be used by the Electoral Commission when calculating the new distribution and in making their recommendations. They are to use the electoral registers arrived at through the last annual canvass of electors. There is provision for the Commission to assume that each relevant register is accurate and that names appearing more than once in registers for each region are the names of different electors because it would present a disproportionate and unachievable obstacle to the Commission if they were obliged to verify every entry as belonging to a different individual entitled to be so registered.

Clause 4: Orders implementing changes in the number of United Kingdom MEPs, and Clause 5: section 4: supplementary

85.  Clause 4(1) gives the Lord Chancellor power to make an order giving effect to a change in Community law to the total number of UK MEPs and the corresponding number of MEPs to be elected for each electoral region. He will need to do so by making amendments to the 2002 Act. With respect to the numbers of MEPs for each electoral region, by virtue of clause 4(2) he may only give effect to a recommendation of the Electoral Commission subject to the following. The order will be subject to the affirmative resolution procedure and if a draft order is withdrawn or rejected, the Lord Chancellor may alter it with the consent of the Commission provided that the new distribution of MEPs around the regions is one which the Commission are satisfied they could have recommended. By virtue of clauses 4(4) and 5(4) the Lord Chancellor must consult the Electoral Commission prior to making the order. The order must also be made within 12 months of the recommendation

86.  Clause 4(3) confers power to make consequential, transitional or saving provision, including provisions modifying any Act. As with the primary power, the Electoral Commission must be consulted before an order is made. The transitional and saving powers will be necessary to set out when and how the amendments should take effect, particularly if they are to take effect at a stage when a change in the number of MEPs will affect things that have already been done in reliance on the old number. The consequential power is necessary because it may be necessary to make minor adjustments to legislation which relates to the numbers of MEPs. For example, rule 6C of Schedule 1 to the Representation of the People Act 1983, as applied with modifications by Schedule 1 to the European Parliamentary Elections Regulations 1999, requires that the nomination papers submitted by registered parties for an electoral region should not contain more candidates than the number of MEPs for the electoral region. Those regulations will need to be applied with modifications by regulations made under section 7 of the 2002 Act, and pursuant to the powers as amended by clause 21 of the Bill will need to make similar provision in respect of Gibraltarian parties registered to contest European Parliamentary elections. Whilst the above example is an example of a provision which relates to the number of MEPs in the regions, it is not certain that all such provisions have to date been identified. It may be necessary to make consequential provision, including modifications to enactments, in relation to provisions of this kind.

87.  The definition of "enactment" in clause 24 makes clear that the reference includes references to future Acts and subordinate legislation. This is so that the powers can be used to ensure the system continues to work in the future, applying or making necessary changes to future Acts and subordinate legislation which may exist when powers to amend are exercised under the Bill. Future legislation ought to be drafted in the light of the objectives of the Bill but it is possible that the changes to the numbers and distribution of MEPs for the purposes of UK European election law will require consequential changes to be made to other UK legislation, whenever made. It is prudent to take this power to ensure the consequences of the changes to MEP numbers are reflected in any relevant legislation which may be identified at the time the power is exercised.

88.  By virtue of clause 5(3) and (7), an instrument made pursuant to clause 4(3) which does not also contain the amendments pursuant to clause 4(1) may be made using the negative resolution procedure. Any use of the consequential, transitional and saving powers alone will be limited to the nature and scope of other provisions which are likely to be affected by the use of the primary power, which will be narrow and accordingly the changes will be minor in effect. With Parliamentary time in mind it is considered that the negative resolution procedure is appropriate. As the timing of any further Treaty obligations is uncertain, the negative resolution procedure would also enable such consequential, transitional and saving provision to be made quickly if necessary.

Clause 6 and Schedule: Periodic reviews of distribution of MEPs and Schedule 1A to the 2002 Act

89.  This clause inserts a new section and Schedule into the 2002 Act and deals with the periodic reviews formerly undertaken by the Secretary of State under Schedule 1 to the 2002 Act. The new Schedule refers throughout to the Secretary of State rather than the Lord Chancellor. That accords with the wording of other provisions of that Act, which are expressed to confer functions on the Secretary of State. It should be noted, however that the Transfer of Functions (Transport, Local Government and the Regions) Order 2002 provides for the Lord Chancellor and the Secretary of State to have concurrent powers in relation to these functions. The inserted Schedule provides for the periodic review to be undertaken by the Electoral Commission as soon as possible after 1 May in a pre-election year subject to similar requirements on the Commission and the Lord Chancellor as in clause 2. However, by virtue of paragraph 2 the Commission will not be required to proceed with a periodic review if an order is made under clause 4 or the Secretary of State issues a suspension notice on the grounds that he considers it likely that such an order will be made before the next general election of MEPs. The Secretary of State has similar powers to implement the recommendations of the Commission to those in clause 4, including consequential transitional and saving provision, by virtue of paragraphs 3 and 4, and the same considerations apply. However, by virtue of paragraph 5 the use of such powers is precluded:

  • if an order under clause 4 has already been made; or
  • if he considers it likely that one will be made before the next general election of MEPs; or
  • if having reached the view that such an order is likely and it transpires that it is not, it is less than 4 months before the next election and he has not yet made an order under paragraph 3 or he does not consider it will be practicable for him to make an order under paragraphs 3 or 4 in time.

90.  The relevant electoral registers for the purposes of periodic reviews under this Schedule are those as at 1 May in the pre-election year.

Clause 7: Consequential amendments (does not include delegated powers)

91.  Clause 7 makes consequential amendments to the 2002 Act in consequence of Part 1 of the Bill.

PART 2: GIBRALTAR

Clause 8: Combination of Gibraltar with existing electoral region (does not include delegated powers)

92.  Clause 8 sets out the core principle of Part 2 of the Bill, that Gibraltar is to be combined with an existing electoral region for the purposes of European Parliamentary elections from 2004. The choice of existing regions is restricted to the 9 English regions and Wales, which forms a region on its own. This restriction is for practical reasons: differences in the legislation applicable to Northern Ireland and Scotland mean there would be difficulties in bringing forward the necessary legislative arrangements in time for the 2004 elections if they could be chosen because it would not be possible to prepare relevant secondary legislation before the choice of the region had been implemented.

Clause 9 : Electoral Commission recommendation as to the electoral region to be combined with Gibraltar (does not include delegated powers)

93.  Clause 9 requires the Electoral Commission to consider which electoral region Gibraltar should be combined with. They must report their conclusions to the Lord Chancellor with a recommendation. Subsection (2) requires the Electoral Commission to consult the Governor and the Chief Minister of Gibraltar before making a recommendation, but it is expected that the Electoral Commission will wish to consult more widely before making a recommendation. The Electoral Commission are obliged to publish the report and the Lord Chancellor must lay it before Parliament. The Electoral Commission are entrusted with functions concerning elections under Part 1 of PPERA, including keeping European Parliamentary elections under review, and it is considered that they are in the best position to carry out an independent and expert review in order to assess the most appropriate region with which Gibraltar should be combined. The Electoral Commission will be able to decide what the relevant factors are and it is not considered appropriate to constrain their consideration as to what is relevant on the face of the Bill.

Clause 10: Establishment of combined region, and Clause 12: sections 10 and 11: supplementary

94.  Clause 10 enables the Lord Chancellor, by order, to specify the electoral region which Gibraltar should be combined with and to create the combined region. The order is subject to the affirmative resolution procedure by virtue of clause 12(5). He is required to specify the region recommended by the Electoral Commission under clause 9, unless in accordance with clause 12(6), following rejection of or withdrawal of a motion for approval of the draft order, he substitutes a different region after consultation with the Electoral Commission.

95.  Section 1 of the 2002 Act provides for England to be divided into nine electoral regions and for Wales to constitute one region. Schedule 1 to the 2002 Act sets out the constituent areas of each English region. By virtue of the supplementary powers in clause 12(4), clause 10(1) includes power to modify enactments within the meaning set out in clause 24, including Parts 1 and 3 of the Bill and provisions already modified under the Bill. In particular it will be necessary to amend the provisions for electoral regions in the 2002 Act and the Bill to include Gibraltar in the geographical description of the combined region and so that the new combined region can be made subject to the provisions for review of MEP numbers after the 2004 election. Power to make consequential, supplementary, incidental, transitional and saving provisions under clause 12(3)(b) is required to ensure that the incorporation of the combined region in the legislative framework is effectively done. After careful consideration it is considered that the powers need to be broad although their use, for the purposes of reflecting the changes made under the primary powers, are likely to be minor in substance. Provisions will also need the flexibility provided by sub-paragraphs (c) and (d) of clause 12(3) to ensure that appropriate account can be take of the different position in respect of Gibraltar.

96.  It is normal practice (and in many cases a requirement by virtue of section 7 of PPERA) before making subordinate legislation on electoral issues for the Electoral Commission to be consulted, and clause 10(3) makes it a requirement that the Lord Chancellor should do so before making an order under this power, which will add an additional level of scrutiny.

Clause 11: Power to make consequential etc provision, and Clause 12: sections 10 and 11: supplementary

97.  The provisions for a European Parliamentary election made by or under the 2002 Act which relate to the franchise, disqualification of MEPs and the conduct of the election are to be applied and amended for the purposes of Gibraltar by clauses 13 to 22. Clause 11 is necessary to ensure that other provisions of UK law relating to elections can be applied or amended where the Lord Chancellor considers it necessary or expedient to do so in consequence of, or in connection with, including Gibraltar in an electoral region. The overall objective is a coherent system which is as near as possible the same throughout the combined region and the UK. By virtue of clause 11(5) the Lord Chancellor must consult the Electoral Commission before making an order.

98.  The order-making power will need to be exercised before the combined region is established because it will be necessary to have the provisions in place in good time before the elections, and preferably by the late Summer of this year to give Gibraltarians, the Electoral Commission and others time to prepare. For this reason, clause 11(2) provides that the powers may be exercised before the combined region is established as that is unlikely to take place until the Autumn.

99.  In particular, the power in clause 11 will need to be used to extend the majority of provisions of PPERA to Gibraltar, applying it with or without modifications or modifying it where necessary. The following is a provisional list of the provisions in PPERA where such provision or a similar provision as far as possible will need to extend to Gibraltar.

Part I (except sections 9, 12, 14-20) - The Electoral Commission

Part II (except sections 34 and 38) - Registration of Political Parties

Part III - Accounting requirements for Registered Parties

Part IV (except sections 59 and 70) - Control of Donations to Registered Parties and their Members

Part V - Control of Campaign Expenditure

Part VI - Controls relating to third party national election campaigns

Part IX -Political donations and expenditure by companies

Part X (except sections 141-142, 144 and 148) - Miscellaneous and General

100.  Express reference has been made to a number of provisions of PPERA in clause 11(3)(a) and (b). However the clause is intended to apply to all the provisions referred to above. Reference is made to particular provisions where they include matters which are once removed from the election but nevertheless relate to it.

101.  For similar reasons, express reference is made to broadcasting in relation to European Parliamentary elections and election campaigns in clause 11(3)(c) because UK elections legislation and broadcasting legislation contain controls on political broadcasting and it is intended that similar controls should apply as far as possible to broadcasting in Gibraltar.

102.  There will be other provisions relating to elections which will require similar provision to be made in respect of Gibraltar under the powers in clause 11, such as the European Parliament (Pay and Pensions) Act 1979.

103.  The legislation described above is very substantial and detailed. Relevant provision is to be made by use of powers to make delegated legislation to avoid excessive complexity on the face of the Bill and consequences in terms of Parliamentary time. The powers will also ensure that, should modifications be required this can be done where it is necessary or expedient to do so with the minimum disruption and delay. We have considered carefully how wide the powers need to be and have concluded that because of the complexity, particularly taking into account the Gibraltar position, it is necessary to deal with a range of matters so the powers need to be correspondingly wide, also taking into account the possibility of future changes to legislation. As indicated at paragraph 13 above it is not unusual for legislation in the elections field to be applied for the purposes of particular elections by subordinate legislation.

104.  In this case, the complexity is increased by the fact that the legislation will need to extend to the different jurisdiction of Gibraltar where in some cases there will be similar pre-existing legislation which touches on similar issues. It will be necessary to consider the detail and draft secondary legislation under these powers in consultation with the Government of Gibraltar to ensure that it operates effectively in the manner intended. In some cases the view may be reached that Gibraltar is best placed to make certain provisions extending only to Gibraltar under their own law, but in others it may be preferable, after discussions with Gibraltar, for some provision to be made which affects the existing of law of Gibraltar by the Lord Chancellor. For that reason power is given under clause 12(4), by virtue of the definition of enactment contained in clause 24, to make provisions affecting the law of Gibraltar.

105.  As existing provisions relating to elections consist of both primary and secondary legislation, clause 11 includes power, by virtue of clause 12(4), to modify enactments. The definition of "enactment" in clause 24 makes clear that the reference includes references to future Acts and subordinate legislation. This is so that the powers can be used to ensure the system continues to work in the future, applying or making necessary changes to future Acts, subordinate legislation or Gibraltar law, which may exist when powers to amend are exercised under the Bill. Future legislation ought to be drafted in the light of the objectives of the Bill but it is possible that any change in UK European election law, or Gibraltar law on ancillary matters, will require consequential changes to be made to other UK legislation, whenever made. This will ensure that all related legislation will work for the purposes of the inclusion of Gibraltar in the UK European Parliamentary elections on an ongoing basis. In the case of Part 2 it is also necessary to have power to change laws in Gibraltar and Part 1 and 3 of the Bill. The latter power will be necessary so that the new combined region can be made subject to the provisions for review of MEP numbers after the 2004 election.

106.  Furthermore, in the case of 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. For this reason power is also 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.

107.  Power to make consequential, supplementary, incidental, transitional and saving provisions, as set out in clause 12(3)(b), is required to ensure that the repercussions for other legislation can be taken into account where it is necessary or expedient to do so. Whilst most of such changes will not ultimately result in substantially different provisions to those which currently apply in UK European Parliamentary elections, the range of legislation relating to elections warrants powers of this width. For instance, the provisions of PPERA also relate to company law and insert amendments into the Companies Act 1985. It will be necessary for similar provisions to be made in Gibraltar as far as possible and in order to make the provisions work it may be appropriate to make consequential and other changes to UK and Gibraltarian law. For instance, a "qualified auditor" for the purposes of the accounting requirements of registered political parties in section 43 of PPERA is a person who is eligible for appointment as a company auditor under section 25 of the Companies Act 1985. If such auditors do not usually audit the accounts of Gibraltarian political parties, then it may be necessary to modify the requirements of PPERA in that regard and/or make appropriate amendments to Gibraltarian law with respect to auditors to ensure that suitably qualified auditors are used to audit the accounts of Gibraltarian parties registered to contest European Parliamentary elections. This kind of detail and how best to make suitable provision to deal with it will need to explored with Gibraltar prior to the use of the powers.

108.  The flexibility contained in the powers in clause 12(3)(c) and (d) is necessary as the existing position is different in Gibraltar and so the orders will need to take account of such differences in order to achieve a similar final position in both the UK and the combined region.

109.  The intention of clause 11(6) is to ensure that the order-making power in clause 11 is not restricted by the use of other powers under the Bill, in particular clause 16, or powers under another Act (such as the power to make European Parliamentary Elections Regulations under the 2002 Act), where it otherwise might be arguable that they are so restricted. An example is that some of the provisions of PPERA relate to the electoral register e.g. a permissible donor to registered parties may be an individual registered on a relevant register. Provision will need to be made in the order under clause 11 to also include individuals registered on the Gibraltar register so that they can give donations legally. However, clause 16(1)(a) also enables clause 16 to make regulations about the Gibraltar register. Accordingly, clause 11(6) will ensure it is not arguable that clause 11 does not include power to make such provision. However, the wording of this clause, together with the limited meaning of enactment in clause 24, do not allow the power to be used to change Part 2 of the Bill itself.

110.  Clause 12(8) was considered to be advisable after discussing with the Public Bills Office whether there are any technical grounds on which a reasonable exercise of the powers might be treated as technically hybrid. The use of powers under clause 11 may affect private interests. For instance, an Order is likely to be made that will control donations to Gibraltarian parties by regulating who may make such donations and the procedures to be followed, working in the same way as existing control over donations to UK political parties under PPERA as far as possible. As such the legislation as a whole after the order has been made should not affect private interests in Gibraltar differently from those in the UK except where it has not been possible to replicate the UK position exactly. Nevertheless, the order could amount to a technically hybrid instrument where it has not been possible to replicate the UK position. It is unlikely, but it cannot be said with certainty that it is impossible.

111.  The hybrid instrument procedures could present significant difficulties in meeting the timetable required to ensure that everything is in place in Gibraltar in time for the 2004 elections. In particular, the intention is to have provisions made under clause 11 reflecting the provisions in PPERA by the end of the Summer to ensure that there is time for any Gibraltarian political parties who wish to contest the European Parliamentary elections to make the necessary arrangements. It is considered appropriate to exclude the hybrid instrument procedures in this case because of the importance of the time-scale and the importance of the measures that are intended to be made under this clause as against the small risk that measures may be technically hybrid. A precedent is to be found in the Local Government Act 1992, section 26(2).

112.  By virtue of clause 12(7) an order under clause 11 is subject to the negative resolution procedure unless it is made in the same instrument as an order under clause 10. It is considered that there will be a sufficient level of Parliamentary scrutiny because, the core propositions and the nature of the powers set out on the face of the Bill reflect the fundamental changes that will be required for the purpose of adapting the current UK legislation so that it also applies for the purposes of Gibraltar. The general intentions underlying the content of orders that will be made under this clause are apparent and subject to the purpose of clause 11 and the Bill as a whole. There is little scope to make substantially different provisions for Gibraltar as currently apply in the UK. The resulting adaptations will therefore be minor in effect largely adapting existing mechanisms and filling in detail in order to achieve these purposes. Accordingly, if Parliament approves clause 11, it is considered that it would be acceptable in this situation to not require that the order-making power should be subject to the affirmative resolution procedure.

113.  The timetable for making the necessary secondary legislation under this Bill will be tight and complicated. The European Parliamentary elections regulations are subject to the affirmative resolution procedure and we intend to have them made by the Summer. Regulations under clause 16 will also be required. The orders under clause 11 dealing with issues of the nature outlined above should also be in place by the same time to enable all concerned to prepare for the 2004 elections. However, it will be necessary to consult with the Government of Gibraltar and the Electoral Commission on the detail of all of such provisions beforehand. Logistically, it would be preferable for all concerned, where the appropriate level of Parliamentary scrutiny would nevertheless be afforded, to use the negative resolution procedure where possible.

Clause 13: The Gibraltar register (does not include delegated powers)

114.  Clause 13 makes provision for an electoral register of Gibraltarian European Parliamentary electors. In the UK, the electoral registers for European Parliamentary elections purposes are the following: the register of Parliamentary electors, the register of local government electors (in respect of peers), and the register of those entitled to vote by virtue of European Union citizenship under the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001. Gibraltar will need its own register, governed by similar rules and conditions to the UK registers and it is intended that the powers to make regulations in clause 16 will be used to provide those detailed rules and conditions. The electoral registration officer for the Gibraltar register is to be appointed by the Governor of Gibraltar

Clause 14: Gibraltar franchise for European Parliamentary elections (does not include delegated powers)

115.  Clause 14 sets out the franchise for voters in European Parliamentary elections in Gibraltar. It is very similar to the UK franchise. For example, electors are required to be Commonwealth citizens or citizens of the EU. Section 8 of the 2002 Act makes provision for the franchise at European Parliamentary elections. It cannot be applied to Gibraltar directly as, for example, Gibraltar will have a different register. Accordingly, the clause disapplies section 8, for the purposes of voting in Gibraltar, and makes equivalent tailored provision to Gibraltar. As in the UK, additional detail will be set out by way of further provision and this will be done by regulations under clause 16.

Clause 15: Entitlement to be registered in Gibraltar (does not include delegated powers)

116.  Clause 15 provides conditions for entitlement to be registered on the Gibraltar register. Subsection (1) is very similar to the rules for the UK electorate relating to the registers that are used for UK purposes in European Parliamentary elections. It sets out the core requirements but the detail surrounding them is to be set out under regulations made by the Lord Chancellor pursuant to clause 16. Subsection (2) makes provision so that Commonwealth citizens qualifying for registration as overseas electors can also register to vote whilst overseas. By virtue of that paragraph and the regulation-making powers under clause 16, the Lord Chancellor may prescribe conditions for registration as an overseas elector, and the intention is to make similar provision to that which applies to British citizens in respect of the UK. Subsection (5) reflects the conditions in the Gibraltarian Immigration Control Ordinance as to rights to enter or remain in Gibraltar.

Clause 16: Regulations supplementing sections 13 to 15, and Clause 17: section 16: supplementary

117.  This clause provides for the detail required to give effect to clauses 13 to 15 to be made in regulations. As with the powers under clause 11 and 12, clause 16 provides power for the Lord Chancellor to make provisions which owing to their level of complexity and detail are not considered suitable to be set out on the face of the Bill. The subject matter to be dealt with by the regulations is specified by clause 16 in order that it is clear what primary matters are to be covered by these regulations. The intention is to use the powers so that as far as possible the UK rules can be mirrored for Gibraltar. Clause 17(3)(a) supplements clause 16 to ensure there is power to make consequential, supplemental, incidental, transitional and saving provision. There are also similar powers in clause 17(3)(b) and (c) to those found in clause 12(4), for similar reasons. Generally, the considerations which apply to clause 12 as are set out in paragraphs 37 to 42 above in relation to clause 11 also apply to the regulation-making powers in clauses 16 and 17. Provisions made under these powers will largely consist of detailed application with modifications of existing UK provisions to incorporate the Gibraltar electorate on similar terms, and modifications to the UK law to take such provisions into account. Although wide powers are necessary to ensure that consequential etc. changes to the detail can be taken into account, their use will therefore be modest in effect.

118.  It will be necessary to work with Gibraltar on the detail that needs to be contained in these provisions in order to take account of different pre-existing Gibraltarian law which touches on such matters. For instance, section 7 of the Representation of the People Act 1983 provides that certain persons in mental hospitals shall be treated as resident there if their residence is long enough for them to be regarded as resident for the purposes of electoral registration. The provision contains a definition of mental hospital which does not apply to Gibraltar. It will be necessary to explore the detail of Gibraltarian provision in this area with the Gibraltarians before a provision can be made in regulations that will have similar effect for the purposes of the Gibraltar register under the power in clause 16(3)(b). Another example is the likely content of provisions relating to the publication of the Gibraltar register and rules on the disclosure of its contents. It is intended that the provisions should include similar provision to that in the existing provisions contained in the Representation of the People Regulations 2001, which make provision about the manner in which the register is to be maintained and published, and the conduct of elections, in respect of the UK registers and express power is given under clause 16(2) for that purpose. However, there are likely to be consequential, supplementary, incidental, transitional and saving provisions required in UK and Gibraltarian law to make such provisions work for both jurisdictions.

119.  Regulations made under clause 16 are subject to the negative resolution procedure unless they are to be combined in the same instrument with regulations made under section 7 of the 2002 Act, which regulations are subject to the affirmative resolution procedure. It is intended that the majority of the provisions will indeed be made in the same instrument as those regulations, which will be made in preparation for the June 2004 European Parliament elections. However, as with the order-making power under clauses 11 and 12, the use of these powers will be subject to the purposes apparent from the face of the Bill itself and there is little scope for substantially different provisions in respect of Gibraltar to those which apply in the UK. Accordingly, for the same reason as given at paragraphs 46 and 47 above in relation to that clause, it is considered that the negative resolution procedure would provide an appropriate level of Parliamentary scrutiny.

Clause 19: Returning officers

120.  Clause 19 provides for the returning officer for the Gibraltar part of the combined electoral region. In UK European Parliamentary elections there are two types of returning officer: the regional returning officer and the local returning officers. Local returning officers are usually a Parliamentary acting returning officer, within the meaning of section 28 of the Representation of the People Act 1983, who are themselves usually the electoral registration officer for the local authority in which the constituency is situated. Their functions, and those of the regional returning officers, are set out in European Parliamentary Elections Regulations 1999.

121.  The regional returning officer's task is, broadly, to co-ordinate the work of and collect the results from the local returning officers. In Gibraltar, the local returning officer will be the Gibraltarian European Parliamentary electoral registration officer, appointed under clause 13. The regional returning officer for Gibraltar will be the regional returning officer for the combined region, selected by the Lord Chancellor under section 6(2) of the 2002 Act from acting returning officers in the UK part of the combined region.

122.  It is intended that the regulation-making power contained in section 7 of the 2002 Act, as modified under clause 21 of the Bill, will be exercised so as to confer similar functions on the Gibraltar local returning officer as local returning officers in the UK, and similar functions on the returning officer for the combined region as such regional returning officers in the rest of the UK. Its use will be subject to the affirmative resolution procedure in accordance with that Act.

Clause 20: Disqualification from office of MEP

123.  Clause 20 amends the 2002 Act so as to give power, under subsection (1), to the Secretary of State to disqualify certain classes of individuals from being entitled to stand as MEPs, after consultation with the Electoral Commission. As discussed further under paragraph 62 below the Lord Chancellor has concurrent powers and in practice it is likely to be the Lord Chancellor who will exercise this power. The intention is that the Lord Chancellor can use this power so that similar classes of individuals in Gibraltar to those who are disqualified in the UK are also disqualified from being MEPs. For example, in the UK persons disqualified include those disqualified from being a member of the House of Commons, and that includes civil servants and the intention is that similar people in Gibraltar should be disqualified. This power is subject to the negative resolution procedure. This is considered appropriate because the purpose of the power must be exercised within the context in which it is provided, and as with other powers under this Bill the intention is that its use will be to try to have similar provisions as far as possible in place for Gibraltarians as already apply in the UK.

124.  There is also power, in subsection (2), to prescribe a different figure in respect of security for costs for application for a declaration that an MEP is disqualified to take account of possible increased costs arising from the fact that a challenge may be made by a Gibraltarian in the UK High Court, subject to the same negative resolution procedure to which the usual exercise of the power is subject.

Clause 21: European Parliamentary election regulations

125.  Clause 21 adds to the powers under section 7 of the 2002 Act to make regulations concerning European Parliament elections. The present regulations made under that provision are the European Parliamentary Elections Regulations 1999. They apply much of the body of law relating to Parliamentary elections with modifications to make appropriate provision for European Parliamentary elections. They include, amongst other matters, provision relating to the procedures for conduct of such elections, election campaigns, election offences and challenges to the result. The power is amended so that different provision can be made for Gibraltar and the UK or different electoral regions such as the combined region and the other regions, and so that the jurisdiction of the courts can be conferred in Gibraltar or the UK as appropriate. The power is to remain subject to the affirmative resolution procedure.

126.  We are still to explore the detail on the allocation of jurisdiction of the courts fully with the Government of Gibraltar but we are working to a framework which we have provisionally agreed with them. The intention is that matters arising in Gibraltar in connection with European elections, which were they to arise in the UK would fall within the jurisdiction of the Election Court (which is a separate court made up from two judges of the High Court) or the High Court would fall within jurisdiction of those same courts. Any such matters on appeal would continue to fall within the jurisdiction of the UK Courts. Other matters arising in Gibraltar in connection with the European Elections would fall within the jurisdiction of the appropriate Gibraltar Court, both at first instance and on appeal. Broadly, matters under UK law which are determined by the Elections Court of the High Court are matters which will affect the result of the election, including direct challenges to the result by an election petition and applications for declarations that MEPs are disqualified. In contrast, the kinds of matters which might be dealt with by the Gibraltar courts include appeals relating to decisions of the registration officer on applications for registration (UK county court) and the prosecution of electoral offences (UK criminal courts). This is of course only the basic framework for ensuring proper jurisdiction in all these cases, and it will be necessary to discuss the details further with the Government of Gibraltar prior to the exercise of the powers.

PART 3: SUPPLEMENTARY

Clause 22: Financial provisions

127.  Clause 22 contains both relevant provision in respect of the Money Resolution and provisions to make it clear that the powers exercisable under the Bill include powers to make appropriate provisions touching on public funds. As the detail of the arrangements are still to be worked through with the Government of Gibraltar the powers in clause 22(3) are intended to give flexibility. However, it is possible to say at this stage that for instance the general intention is that where finances would be met centrally out of the UK Consolidated Fund in the UK, similar provision should be made in respect of the position in Gibraltar but where financial provision would usually be met locally in the UK by the local authority, similar provision should be made by the Government of Gibraltar. For example, it is currently intended that the expenses of the local returning officer for Gibraltar should be met out of the UK Consolidated Fund but that those of the registration officer for the Gibraltar Register should be met by the Government of Gibraltar. However, further discussions with the Government of Gibraltar are required to confirm the detail of arrangements under this clause. The use of the powers will be subject to the same parliamentary procedures as will the use of the powers referred to in clause (4) which they will supplement for the reasons given in respect of those provisions (see paragraphs 46, 47, 53 and 59above).

Clause 23: Functions of Lord Chancellor exercisable concurrently with Secretary of State

128.  Clause 23 makes provision to the effect that any of the UK Secretaries of State could also exercise the powers that are specified in the Bill to be exercisable by the Lord Chancellor. After the Transfer of Functions (Transport, Local Government and the Regions) Order 2002 came into force, responsibility for European Parliamentary elections transferred to the Lord Chancellor, although the Secretaries of State also retains powers under the relevant legislation. Who in practice will make any particular provision of subordinate legislation is likely to depend upon which Minister of the Crown has been entrusted with handling the relevant law and in the case of European Parliamentary elections, that is the Lord Chancellor. Under this Bill an approach consistent with the Transfer of Functions Order has been taken.

Clause 25: Short title, extent and commencement

129.  The whole of Parts 1 and 3 and clauses 8 and 9 of the Bill will come into force in the UK as soon as the Bill receives Royal Assent, but will be brought into force for the purposes of Gibraltar by commencement orders in order that such provisions do not apply until it is appropriate for them to do so. The other clauses in the Bill which provide for or depend on the making of secondary legislation to, for example, apply UK law affecting European parliamentary elections to allow for the inclusion of Gibraltar in the UK system, will come into force by commencement order, and it is proposed that they should do so within two months of Royal Assent. This prompt commencement is necessary so that the Electoral Commission can make their recommendations in good time, and the necessary secondary legislation can be put in place shortly afterwards to enable electoral administrators and political parties to prepare adequately for the next European Parliamentary elections in 2004. The exercise of the Commencement Orders is not to be subject any parliamentary procedures, as is usual for such powers.

February 2003


 
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