Select Committee on Delegated Powers and Regulatory Reform Fourteenth Report

Annex 5


Supplementary Memorandum by the Lord Chancellor's Department

The purpose of this Supplementary Memorandum is to bring to the Committee's attention a number of Amendments to this Bill which have been introduced for the purposes of the Committee stage of the House of Lords, which is to be held in Grand Committee on 13 March 2003. The Amendments are partially in response to the recommendations of the Committee in the 11th report of this session concerning this Bill, and partly in response to concerns raised in the House of Commons about the limited legislative and judicial role that Gibraltar has under the Bill.

AMENDMENT 1 [1][21]

The purpose of this amendment is to give effect to the Committee's recommendations relating to Part 1 of the Bill contained in the 11th Report of this session. It provides that a change in MEP numbers may only be made to give effect to a change made by or under a Treaty which has been included in section 1(2) of the European Communities Act 1972. As it is necessary for an Act of Parliament to include a Treaty in section 1(2), it means that such a change could not be brought into force without such an Act.


This amendment should be read in conjunction with amendment 1. It is likely that the Accession Treaty which is to provide for the accession of 10 new States prior to the June 2004 election will come into force on 1 May 2004, shortly before the election. Alternatively, if one of those States fails to ratify, a Council Decision made under the protocol on enlargement annexed to the Treaty of Nice may equally make a late change. It is necessary to ensure that in that case the change can come into force under UK law immediately afterwards so that the procedures provided for by electoral law affecting the run up to the election are not adversely affected. It is also necessary to ensure that individuals and political parties will have as clear an indication as possible in advance of such a Treaty coming into force as to what its effect will be in the UK. For this reason, the amendment makes it clear that the Order under clause 4 can be debated and made, but not brought into force, before the relevant Treaty or a Council Decision or other instrument made under such a Treaty, or an Act including a Treaty in section 1(2) of the European Communities Act 1972 are brought into force. A precedent of a similar nature can be found in section 1(6) of the Human Rights Act 1998.


This amendment simply moves the position of the relevant provisions and makes no change to the substance.


Clause 9(2) of the Bill requires the Electoral Commission to consult with the Governor and Chief Minister in reaching a decision on the combined constituency. In the House of Commons the view was expressed that this gives the wrong balance. The Electoral Commission will be free to consult both those specified on the face of subsection (2) and others but in recognition of those concerns, this amendment would provide for consultation of the Governor, Chief Minister and the leaders of political parties represented in the House of Assembly.

AMENDMENTS 5, 6 AND 7 [12, 14 AND 15]

These amendments are in response to the recommendations of the Committee that the powers in Part 2 of the Bill should be exercisable under the affirmative resolution procedure. They require the Lord Chancellor to use an affirmative procedure, whereby a draft is laid and may not come into force until Parliamentary debates have been held. However, they also provide for an alternative affirmative procedure in cases of urgency whereby the debates may be held within 40 Parliamentary sitting days after the instrument has been made. This option is considered important to enable measures to be made where it is necessary for things to be done under a measure before it is possible for affirmative debates to be held, such as during a recess. However, we would not intend to use this to deal with issues where it would be difficult to alter the position if the instrument were not subsequently approved. Having this option is considered important because of the need to have all relevant measures in place in good time before the June 2004 European Parliamentary elections but also the need to consult with the Government of Gibraltar and investigate the detail carefully before such measures can be introduced. However, it will not be possible to use the urgent procedure in the case of the Order specifying the electoral region with which Gibraltar is to be combined.


In the House of Commons, the view was put forward that the electoral registration officer responsible for the Gibraltar register should be the person who exercises the role of electoral registration officer in relation to the Gibraltar House of Assembly. It was considered that the provision in clause 13(2) would enable that but the amendment will make it clear that the Clerk to the House of Assembly will become the European Parliamentary electoral registration officer for Gibraltar by virtue of that office.


This is the same in effect as amendments 5 to 7.


This amendment alters the reference to the Government of Gibraltar as amended by clause 19(4) of the Bill to refer to the Government of Gibraltar in terms which more clearly distinguish between the status of the Government of Gibraltar and local authorities, without altering the effect of the provision.


This is the same in effect as amendments 5 to 7.


This amendment should be read with Amendment 13, and its effect is simply to move the provision about jurisdiction of courts which is currently in clause 21 to a separate new clause. This is so that the provisions about jurisdiction of courts can be made in the same orders or regulations made under the Bill that deal with the issues of law to which the respective court jurisdictions will relate. This will clearly be more convenient for all concerned but will not alter the effect of the provisions themselves.


This amendment is intended to set out more clearly the powers already contained in the provision and the uses to which they will be put as set out in paragraphs 59-60 of the Department's original Memorandum.

The election court is applicable in European Parliamentary elections by virtue of the European Parliamentary elections Regulations 1999. The court will need to have jurisdiction for both UK and Gibraltar, and so provision needs to be made under the Bill to ensure there is a coherent body of law dealing with European Parliamentary elections which includes challenges to results affecting both the UK and Gibraltar. The power in subsections (1) and (2)(a) are intended to enable appropriate modification of the provisions made under the existing regulations. They also enable further modification to be made smoothly and effectively in the event of amendment to those regulations. By the use of delegated legislation it will also be possible to discuss the detail with Gibraltar in order to ensure that the necessary practical arrangements may be reflected in the detail.

They include express provision that in the combined region the election court may be constituted from the usual UK rota judges and a judge of the Gibraltar Supreme court. For those purposes that judge will need to have the necessary power, jurisdiction, and authority, and power to make such provision is made clear. A High court judge has certain privileges and immunities and there may be other consequential provisions required to ensure that the Gibraltar judge can be treated as if he were a High court judge for those purposes, and so it has been considered necessary to take a limited power to ensure appropriate provision can be made where necessary.

In addition the amendment makes it clear in subsection 2(b)(ii) that where jurisdiction is granted to local Gibraltar courts along the lines referred to in paragraphs 59-60 of the Department's original Memorandum, provisions can, where it is possible to do so, refer to the particular courts which Gibraltar determine should deal with particular matters.

The exercise of these powers will be subject to the affirmative resolution procedure in the same way as the other powers relating to Part 2 under the Bill.


This new clause confirms that the Bill does not remove the power of the Gibraltar legislature to make legislation which is not contrary to provisions made by or under the Bill. The amendment does not affect the Lord Chancellor's powers to make provision in exercise of his powers under the Bill. In the case of provisions in exercise of the powers which are part of the electoral process itself, they will have to be made by the Lord Chancellor. However, in the limited case of some consequential and supplemental matters there may be areas where the Gibraltar legislature can make provision. This possible scope for legislation by Gibraltar was referred to in paragraph 39 of the Department's original Memorandum. The purpose of the amendment is to clarify the position on the face of the Bill.


This amendment removes reference in clause 22(3) to the powers to require that Gibraltar fund expenditure under the Bill, and make payments into and out of their Consolidated Fund. Those powers were originally taken to enable flexibility. However, in practice the expenditure in issue that will be met by Gibraltar from its own funds will be the expenses of the European Parliamentary electoral registration officer, who will be the Clerk to the Gibraltar House of Assembly by virtue of his office. Accordingly, the amendment retains power to make it clear that the UK will not deal with such matters and recognises that it is better that Gibraltar make such arrangements. It is also possible to leave out the express references in paragraph (a) of subsection (3) in consequence of these changes.


This minor amendment provides that the reference in subsection (3) to law passed or made in Gibraltar should also include references to legislation made for Gibraltar. This provision is intended to refer to all legislation, other than the Bill itself, which does not fall within the other descriptions of legislation set out in subsection (2) and applies to Gibraltar. Making this change will provide for the small theoretical possibility of an amendment under the powers in the Bill to a legislation which has been made using a prerogative Order in Council.


This amendment is a typographical correction.

21   References in square brackets are to the amendment number on the Marshalled List before the Grand Committee. Back

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