EUROPEAN PARLIAMENT (REPRESENTATION) BILL
Supplementary Memorandum by the Lord Chancellor's
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.
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
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.
5, 6 AND
7 [12, 14 AND
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
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
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