Select Committee on Delegated Powers and Regulatory Reform Twelfth Report


Annex 4

EUROPEAN PARLIAMENT (REPRESENTATION) BILL

Letter from the Lord Chancellor to the Chairman

I am writing to you further to the Delegated Powers and Regulatory Reform Committee's report of 12 February, which includes the Committee's comments about the European Parliament (Representation) Bill.

I accept in principle the recommendation at paragraph 19 of the report that the scope of clause 4 should be expressly limited to changes arising out of Treaties which have already been the subject of an earlier Act of Parliament. I will consider the detail and bring forward an amendment in due course.

I also accept the recommendations of the Committee that the powers in Part 2 should only be exercisable under the affirmative resolution procedure, to ensure an appropriate level of Parliamentary scrutiny. I propose to bring forward amendments to this effect.

I set out below the reasons why I consider that the matters set out in clause 16(1)(d) and (g) and clause 20 are suitable for delegated legislation. I hope that with this further explanation the Committee and the House will accept that such matters are suitable to be dealt with under delegated powers subject to the affirmative resolution procedure.

Firstly I would like to make the general point that it is apparent from the face of the Bill that the purpose of Part 2 is to include Gibraltarians in UK European Parliamentary elections rather than to set new conditions for European Parliamentary elections generally. This purpose will be an implied limitation on the use of delegated powers. In these circumstances, powers to make delegated legislation adapting UK law under the powers will effectively be restricted to providing, as far as possible, for provisions relating to the Gibraltarian electorate substantially corresponding to those applicable to the UK electorate.

Clause 16(1)(d) - Incapacity from Voting

Clause 16(1)(g) - Disqualification for Registration

Section 8(2) of the European Parliamentary Elections Act 2002 provides that those entitled to vote at parliamentary or local government elections shall be entitled to vote in European Parliamentary elections. Clause 14 of the Bill needs to provide similar conditions for the Gibraltarian electorate as those that would apply to parliamentary and local government electors in the UK. Accordingly, it is modelled on sections 1 and 2 of the Representation of the People Act 1983 (the 1983 Act), which set out the basic conditions for the franchise in parliamentary and local government elections. As in those cases the franchise requires that voters are not subject to legal incapacity to vote. Likewise, clause 15 on entitlement to registration is modelled on section 4 of the 1983 Act which requires that persons are not under a legal incapacity to vote and the entitlement is also subject to any enactment imposing a disqualification for registration. However, for the purposes of UK European Parliamentary elections, the actual provisions on legal incapacity to vote and disqualification are to be found in other provisions, including delegated legislation, and clause 16 will enable similar provisions to be made for the Gibraltarian electorate.

Under current UK law, in European Parliamentary elections persons convicted of corrupt or illegal practices under the 1983 Act (personation, voting twice, voting while under a legal incapacity to do so etc.) would be under an incapacity to vote or be disqualified for registration for 3 or 5 years owing to the effect on their entitlement to vote in parliamentary and local government elections. In addition the offences for such corrupt or illegal practices and the resulting incapacity to vote and disqualification for registration are applicable in relation to European Parliamentary elections by a modified application of those offences and section 160 of the 1983 Act under the exercise of powers to make the European Parliamentary Elections Regulations 1999 in section 7 of the 2002 Act. Accordingly, we already use secondary legislation to set such rules for European Parliamentary elections and it will be necessary to make similar provision to the UK electorate in respect of the Gibraltarian entitlement to vote and entitlement to register on the Gibraltar register. However, as clause 14 of the Bill sets out the basic franchise requirements it is preferable to also make the corresponding provisions on incapacity in regulations under clause 16. Nevertheless, by making such provision through the use of delegated powers similar provisions will remain compatible with, and follow the model in, the European Parliamentary Elections Regulations which will be updated prior to the 2004 European Parliament elections. Furthermore, it will also be necessary for the provisions relating to persons convicted for voting offences to apply to persons who have committed similar offences in relation to Gibraltarian House of Assembly elections. The detail to enable this will require careful consideration with the Government of Gibraltar.

The UK provisions relating to incapacity of prisoners and persons detained under UK mental health legislation set out in sections 3 and 3A of the 1983 Act for the purposes of parliamentary and local government elections apply to European Parliamentary elections by virtue of the fact that entitlement to vote in such elections derives from the entitlement to vote in parliamentary and local government elections under section 8(2) of the 2002 Act. Similar provisions also need to apply for the purposes of the Gibraltarian electorate. Clause 16(3) makes it clear that provision in this respect should correspond to the UK provisions and there is little scope for the provisions to be substantially different. It will be necessary, through further discussion with the Government of Gibraltar, to consider and take into account the detail of Gibraltarian law relating to prisoners and persons detained under similar circumstances in Gibraltar to persons detained under UK mental health legislation. While the Bill reflects the fact that there have been discussions and agreements on certain key principles with the Government of Gibraltar, detail of this nature will require further close consideration with them in order to make appropriate provision. The power to make such provision through the use of delegated powers will ensure that we are able to do so as fully as will be necessary.

Clause 20 - Disqualification from office of MEP

In the UK disqualification from office of MEP is provided for in section 10 of the 2002 Act. Some of the classes of persons who are disqualified for membership of the House of Commons are also disqualified from office of MEP. The law is contained in both statute and common law, some of which would also apply to Gibraltarians without further provision (e.g. disqualification for people under 21) and some of which would not (e.g. UK bankrupts). Statutory disqualifications are set by both primary legislation and under delegated powers.

A key statute is the House of Commons Disqualification Act 1975 which lists holders of certain offices or employment that are disqualified. However, although Schedule 1 to that Act sets out a large number of holders of certain offices who are disqualified, the classes of individuals included in that Schedule is, by virtue of section 5, subject to variation by way of an Order in Council following a resolution of the House of Commons. Furthermore, under section 10(2)(d) of the 2002 Act the Secretary of State has power to designate that the holders of offices specified in parts 2 and 3 of that Schedule are not disqualified from the office of MEP. The Secretary of State is to exercise that power under the negative resolution procedure under section 13(2) of the 2002 Act.

In addition, the European Parliamentary Elections Regulations 1999, under section 7 of the 2002 Act, apply with modifications a number of parliamentary or local government electoral offences amounting to corrupt or illegal practices and provide, by a modified application of section 160 of the 1983 Act, that persons convicted of such offences in relation to European Parliamentary elections shall be disqualified for membership of the House of Commons for 5 years. As individuals disqualified from membership of the House of Commons they will also, under section 10 of the 2002 Act, be disqualified from the office of MEP. It will be necessary to make similar provision in the European Parliamentary Elections Regulations under section 7 of the 2002 Act, as modified by clause 21 of the Bill, for corrupt or illegal practices during a European Parliamentary election in relation to the Gibraltarian part of the combined electoral region. It will also be necessary to provide that the disqualification also applies, for the purposes of European Parliamentary elections, to persons who commit similar offences under the law relating to elections to the House of Assembly in Gibraltar.

Accordingly, although there are certain classes of individuals specified in primary legislation, there are also significant existing powers to set the classes of disqualified MEPs under delegated powers. It is necessary to extend the classes of individuals so that similar classes of individuals to those in the UK who have a connection with Gibraltar will also be disqualified. The detail of such provision will require close consultation and consideration with the Government of Gibraltar, as it will be necessary to identify similar provisions of or offices under Gibraltar law to the provisions of or offices under UK law which give rise to disqualification in the UK. Also, certain persons are disqualified from membership of the Gibraltar House of Assembly, including the holders of certain prescribed offices, and it will be appropriate for some of such individuals to also be disqualified from being MEPs. In order to enable such detail to be considered and reflected in legislation, and to have the flexibility to reflect changes in UK or Gibraltar law arising under existing delegated powers, it was considered that this is a matter that is suitable for delegated legislation.

I hope the Committee will agree with the above justifications for dealing with the areas covered by clauses 16(1)(d), 16 (1)(g) and clause 20 of the European Parliament (Representation) Bill under delegated powers, subject to the affirmative resolution procedure. Furthermore, I trust the Committee is content with my acceptance of its recommendation that the powers in Part 2 of the Bill should only be exercisable under the affirmative resolution procedures and with my assurance that I plan to table amendments so that an appropriate level of Parliamentary scrutiny will be ensured.

19 February 2003


 
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