Grand Committee Report of 13 March 2003

Official Report of the Grand Committee on the

  European Parliament (Representation) Bill
  Thursday, 13th March 2003.
  The Committee met at half-past four of the clock.
  [The Deputy Chairman of Committees (Lord Skelmersdale) in the Chair.]
  The Deputy Chairman of Committees (Lord Skelmersdale): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in a Grand Committee. Any issue on which agreement cannot he reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
  I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division bells are rung and then resume after 10 minutes. For the avoidance of doubt, the Chairman's watch is always correct, even when it is wrong.
  Title postponed.
  Clause 1 agreed to.
  The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal) moved Amendment No. 1:
  Before Clause 2, insert the following new clause—
  "REFERENCES TO CHANGES UNDER COMMUNITY LAW
  (1) In this Part "change under Community law" (in relation to a change in the number of MEPs to be elected for the United Kingdom) means a change made by—

  (a) a treaty provision that is part of the Community Treaties; or

  (b) any provision of a Council Decision, or of any other instrument, made under a treaty provision that is part of the Community Treaties

  (2) In this Part a reference to a treaty provision being part of the Community Treaties is to it being, or being included in provisions which are, specified in section 1(2) of the European Communities Act 1972 (c. 68) by virtue of an amendment made by an Act (whether passed before or after this Act).
  (3) In this Part "treaty" includes any international agreement (however described) and a protocol or annex to a treaty or other international agreement."
  The noble Baroness said: This clause has been introduced by the Government to meet the concerns of the Delegated Powers and Regulatory Reform Committee. In its report, it expressed the view 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".
  The Government have accepted that recommendation and this clause has been drafted to achieve that end.
  Any treaty which itself provides for a change, or which authorises such a change to be made by a Council decision or other Community instrument, would need to be included in Section 1(2) of the European Communities Act 1972 by an amending Act before any change in the number of United Kingdom MEPs could be implemented in UK law under Clause 4.
  The protocol on enlargement annexed to the Treaty of Nice has already been included in the list of Community treaties in Section 1(2). Therefore, any change made by or under that protocol may be implemented under Clause 4.
  We believe that this clause will satisfy the recommendation of the Delegated Powers Committee and I commend it to the Committee. I beg to move.
  Baroness Rawlings: We welcome the Government's amendment. We are very supportive of their efforts to build on the consensus reached in another place. I have a few questions that I would like to put to the noble Baroness the Minister later on in the debate. On Amendment No. 1, however, I welcome the clarification that Clause 4 should apply only to changes arising out of the existing treaties and we support it.
  Lord Goodhart: We, too, welcome the amendment. We are pleased to see that the Government have accepted the advice of the committee.
  On Question, amendment agreed to.
  Lord Rennard moved Amendment No. 2:
  Before Clause 2, insert the following new clause—
  "RECOMMENDATION BY ELECTORAL COMMISSION RELATING TO METHODS OF ELECTION OF UNITED KINGDOM MEPS
  (1) Before making any recommendation as to the distribution of MEPs between the electoral regions under section 2, the electoral commission shall—

  (a) review the methods of election of MEPs currently used;

  (b) make an assessment of the efficiency of the methods of election in ensuring—

  (i) proportionality,

  accountability, and

  effectiveness of representation;

  (c) make such representations to the Lord Chancellor as it shall determine.

  (2) Any representation under this section must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor."
  The noble Lord said: Amendment No. 2 goes to the heart of the issue of Britain's representation in the European Parliament. It is a little more fundamental than any of the issues we might consider today. Therefore, if Members of the Committee will forgive me, I will spend a little more time on this issue than on others.
  The amendment suggests that the Electoral Commission should have a significant role in determining the precise method of election, while Parliament has set the basic principle that it is to be a system of proportionality.
  It is appropriate, in my view, that the independent commission looks at the detail in an impartial way—rather than leaving the matter entirely to politicians, who may be accused of acting in a partisan way when setting our electoral laws.
  Three years ago, there was cross-party support for the establishment of the independent Electoral Commission. Noble Lords and Members in another place all argued it was right that recommendations about electoral laws should be made independently from politicians who may be dependant upon those laws.
  It was agreed that the broad principles should be determined by Parliament, but that detailed proposals for their implementation should be made by the commission. Parliament retains its right to vote on the details, but at least people can see openly where politicians are departing from the recommendations of an independent commission.
  The principle of proportional representation was accepted in 1998, although the precise system was not agreed in the House of Lords. Since then, the Electoral Commission has been created and it should be appropriate for it to consider some of the details.
  It is, of course, very concerned, as all democratic politicians should be, with low and falling turnout in elections. The 23 per cent turnout in 1999 reduced the legitimacy of those elections. I do not believe that making every vote of equal value in those elections—in other words, introducing PR—was itself the problem. However, I believe that people bitterly resented the degree of party control represented by the closed lists. The system puts much power with the parties and not enough with the voters.
  The principle of PR was included in the programmes of the Labour Party, the Liberal Democrats and the Scottish and Welsh nationalist parties in the 1997 general election —parties that between them attracted well over 60 per cent of the vote and won over 70 per cent of the seats in the elected Chamber. So I do not think that it would be right to try to overturn the principle of proportionality. However, it would be right to allow the Electoral Commission to look at the details and perhaps conclude that, with minor adjustment to the system, we could make people feel a great deal happier about it.
  The issue of open or closed lists or a compromise system in which parties recommend lists and voters have at least the theoretical power to vary them could
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  be considered. Details such as the operation of the mathematical quota system to determine the allocation of MEPs would be much better looked at by the commission. I have no doubt that when this issue was dealt with in 1998 it was not dealt with satisfactorily by the then Home Office procedures. Therefore, let us see what the Electoral Commission might have to say and then let Parliament consider those recommendations. I beg to move.
  Baroness Scotland of Asthal: I cannot say that I am surprised to see this amendment, which was lost in another place, reappearing here. I sympathise and empathise with the reason that the noble Lord, Lord Rennard, felt it appropriate to raise it. I am aware of his anxiety to see a different voting system in place not just for elections in the European Parliament but for certain other UK elections. The new clause is an attempt to make a step towards that goal and it is therefore inappropriate in this Bill, whose focus is much narrower. Whatever the arguments for different voting systems, they go well beyond the scope of this Bill and, if they need airing at all, this is, in my view, neither the time nor the place to do that.
  The effect of the amendment would be to mire the Electoral Commission in a long and complex review of a system which Parliament put in place only five years ago after protracted and detailed debate. I remind Members of the Committee that to date there has been only one election under that system. That was successful. If the amendment were passed, it would delay the work of the commission on the redistribution of MEPs to a point which would threaten its delivery in time for the elections in 2004. This new clause is misconceived and out of place and I ask the noble Lord to withdraw it.
  Lord Rennard: I thank the Minister for that reply. I regret the narrow focus of the Bill. What has changed since 1998 is the establishment of the Electoral Commission. It is a shame not to use the commission to look at the first elections under the system in 1999. However, as a result of the procedure in this Committee, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 [Recommendations by Electoral Commission relating to changes in number of United Kingdom MEPs]:
  Lord Rennard moved Amendment No. 3:
  Page 2, line 28, at end insert—
  "( ) Northern Ireland is allocated at least three MEPs;"
  The noble Lord said: Amendments Nos. 3 and 4 deal again with maintaining a degree of consistency with the principle of proportionality and also with the effective representation of smaller regions.
  In the European Parliament, the number of MEPs allocated to each member state reflects largely the number of voters in that member state. But special provision is made for the smaller member states to have slightly greater representation than their voter numbers alone would suggest is their entitlement.
  This is necessary to ensure that the voice of smaller regions is not lost and that the basic principle of proportionality can be sustained. For this reason, it is right that Northern Ireland should continue to have three MEPs with only 1.2 million voters. With the STV system in Northern Ireland, this will ensure reasonable proportionality and allow Northern Ireland's voice to be heard effectively in the European Parliament.
  But the current proposals in the Bill could see the northern region, with almost 2 million voters, left with the same number of representatives in the European Parliament as Northern Ireland, but with a different voting system. The voting system that applies in the remainder of Great Britain is unlikely to maintain fair representation and proportionality within the region if there are only three seats. That could have a distorting effect on the proportionality of the result throughout the remainder of the country.
  Either the Labour Party, the Conservatives or the Liberal Democrats could lose out as a result—but, more importantly, the region would lose out and the principle of having MEPs broadly representative of the voters in the region is put at considerable and unnecessary risk.
  Four MEPs is the barest minimum number to have a reasonable chance of ensuring proportionality within a region. The problem of ensuring proportionality is made more difficult by the quota system. I do not propose to deal with the matter in detail, but let us refresh our memory of the debate in 1998.
  In determining which of the various quota systems that could be used for turning the votes cast into seats allocated, the then Home Secretary, Mr Jack Straw, chose the d'Hondt system and made much of the fact that this was the system used in many other member states using list systems and that it delivered a proportional result for them.
  In these members states, however, the lists are generally much larger than they are in Great Britain and much larger than the three to which the northern region could be reduced. This quota system certainly should not be used for list elections for as few as three elected places. So, if the quota system remains as at present, the minimum number of MEPs in each list should be four. That is the simple and fair purpose of these amendments.
  I would again ask the Government to consider them in the light of these comments and in particular my remarks on quota systems. I appreciate that this is a technical issue. I would therefore be very happy if the Government might agree, by way of a further amendment, to let the Electoral Commission determine how best to sustain the agreed principle of proportionality within and across the regions, as well as the effective representation of each region. I beg to move.
  Baroness Scotland of Asthal: The clause sets the minimum representation for any region after a redistribution exercise to three M EPs. The purpose of that is to ensure that there is fair representation while
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  preserving a minimum amount of proportionality. The amendments to the clause raise the minimum threshold for representation in any region-except for Northern Ireland—to four MEPs. I recognise the intention of the amendment to ensure that representation in any region— except Northern Ireland—does not fall below four. However, in my view, the amendment strikes at the principle of fairness which underscores this part of the Bill.
  Of course, we will have to wait to see what the Electoral Commission recommends when it completes its review, but I think it is fairly clear that the north-east region of England is the most likely region to be affected by this, at least for 2004.
  The North East—with an electorate of just under 2 million—currently returns four MEPs and this figure may well reduce to three under the Bill's provisions, depending on the Electoral Commission's recommendations. But if the noble Lord's amendment were to be accepted, the North East region would continue to return four MEPs at the expense of an MEP from another region. The North East would therefore be over-represented and that other region under-represented. Electoral equality—that is, the ratio between MEPs and electors—would diverge even more across the regions of the UK and the job of the Electoral Commission in trying to equalise that ratio would be increased in difficulty. The amendments would also significantly cut down the Electoral Commission's flexibility.
  The Bill is structured to achieve, as far as possible, equality of representation across the UK, with the proviso—a safety net, if you like—that no region should fall below three MEPs. I cannot see a strong argument to treat any region of the UK differently from any other. Indeed, I see strong arguments in favour of treating them all similarly. To single out Northern Ireland on the face of the Bill as specifically and uniquely qualified to receive lesser representation than any other region seems to me to be unjustifiable and we could not support it.
  The basis of this Bill is equal treatment—as far as is possible—for each region, while preserving the safety net of a minimum number of three MEPs for all. There are compelling arguments to share the reductions equally between all the regions of the UK and not to let some regions benefit at the expense of others, while recognising a sensible minimum level of representation. We believe that the Bill strikes the right balance in that regard and I hope that upon consideration the noble Lord will see the wisdom of that argument and agree to withdraw his amendment.
  4.45 p.m.
  Lord Rennard: I thank the Minister for that reply. It seems to contain inconsistencies, however. While saying, for example, that every region should he treated equally, it is said that Northern Ireland should be treated differently. We appear to be saying that in Northern Ireland, with 1.2 million voters, three MEPs would be quite reasonable and each MEP would represent 400,000 voters. However, we are saying that

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  as regards the northern region it would be wrong to suggest that there should be four MEPs for 2 million, where each would have 500,000 voters. There is clearly a difference between the treatment of Northern Ireland and the northern region.
  As Northern Ireland has the STV system, three is sufficient to ensure proportionality within the region. But under the regional list system, especially with the d'Hondt quota, four is the minimum required to ensure proper representation of the northern region, irrespective of the number of voters per MEP. On the basis I explained earlier, I ask the Government to consider whether the Electoral Commission should look at these technical issues of quota and the minimum number on a list to ensure proportionality. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 4 not moved.]
  Clause 2 agreed to.
  Clause 3 agreed to.
  Clause 4 [Order implementing changes in the number of United Kingdom MEPs]:
  Baroness Scotland of Asthal moved Amendment No. 5:
  Page 3, line 33, leave out subsections (3) and (4) and insert—
  "(2A) An order making an amendment to section 1 of the 2002 Act may be made before the provision making the relevant change has entered into force.
  (2B) If the relevant change is made by a provision of a treaty, an order making such an amendment may also be made before that provision has become part of the Community Treaties and, if the treaty requires ratification, before it is ratified by the United Kingdom.
  (2C) But no amendment to section 1 of the 2002 Act may be made so as to come into force—

  (a) if the relevant change is made by a provision mentioned in section (References to changes in Community law)(1)(b), before that provision has entered into force; and

  (b) if the relevant change is made by a treaty provision, before that provision has both entered into force and become part of the Community Treaties.

  (2D) In subsections (2A) to (2C) "the relevant change", in relation to an order under this section amending section 1 of the 2002 Act, means the change under Community law being implemented by the order."
  The noble Baroness said: The purpose of Amendment No. 5 is to enable action to be taken to debate and put in place, although not bring into force, the order necessary to effect the change in the number of MEPs and their redistribution in advance of the Community law provisions making the change coming into force. The order cannot, however, be made before the relevant treaty change or Council decision has been agreed or adopted.
  This power is needed because the Treaty of Accession which will set the number of MEPs for 2004 will not come into force until 1st May 2004; only five or six weeks before the election. Furthermore, if one of the accession states should fail to ratify the treaty, a Council decision under the protocol on enlargement annexed to the Treaty of Nice will make a pro rata correction to the number of MEPs which could also
  GC 36
  enter into force at a similarly late stage. For the same reasons, Amendment No. 5 will also enable a Clause 4 order to be debated and made, but not to come into force, before the Act amending the European Communities Act to include a relevant treaty provision has come into force.
  We expect, however, to know what the numbers will be shortly after all the referendums in ratifying states are completed in September 2003. Clearly, all those with an interest in elections will want to know what the position will be as soon as they can, so that planning for campaigning can begin and administrative arrangements can be made. We therefore expect to be able to debate and make the order well in advance of 1st May 2004, even though it will not come into force until that date.
  Amendment No. 5 therefore solves a small timing problem, and will enable the political parties' candidates and electoral administrators to proceed on a firm basis early in 2004.
  Amendment No. 6 simply moves two subsections displaced by Amendment No. 5 to a more logical place in Clause 5, consistent with similar provisions in Clauses 12 and 17. I beg to move.
  Baroness Rawlings: I am grateful for the clarification that the amendment provides and that the Minister has given. We support its inclusion in the Bill.
  Lord Goodhart: We, too, support the amendment.
  On Question, amendment agreed to.
  Clause 4, as amended, agreed to.
  Clause 5 [Section 4: supplementary]:
  Baroness Scotland of Asthal moved Amendment No. 6:
  Page 3, line 40, at end insert—
  "(2A) Such an order may make consequential. transitional or saving provision.
  (2B) Provision made under subsection (2A) may modify any enactment."
  On Question, amendment agreed to.
  Clause 5, as amended, agreed to.
  Clause 6 agreed to.
  The Schedule [Schedule 1A to the 2002 Act]:
  Baroness Scotland of Asthal moved Amendment No. 7:
  Page 15, line 1, leave out second "not" and insert "to"
  The noble Baroness said: The amendment simply attends to a fairly obvious typographical error. I hope that we need not spend any time correcting or debating it. I beg to move.
  On Question, amendment agreed to.
  The Schedule, as amended, agreed to.
  Clauses 7 and 8 agreed to.
  Clause 9 [Electoral Commission recommendation as to the electoral region to be combined with Gibraltar]:
  Baroness Scotland of Asthal moved Amendment No. 8:

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  Page 5, line 16, leave out "and the Chief Minister" and insert ", the Chief Minister and the leader of each political party represented in the House of Assembly"
  The noble Baroness said: Clause 9(2) requires the Electoral Commission to consult the Governor and the Chief Minister of Gibraltar before making its recommendation to the Lord Chancellor about which electoral region Gibraltar should be combined with for the purposes of the European Parliament elections.
  The choice of region with which Gibraltar will make up a combined region is a key element in achieving the enfranchisement of the people of Gibraltar, and one which the Government recognise will be very close to the hearts of the people of Gibraltar and the Government of Gibraltar. There will be many others too with a keen and legitimate interest in the matter, in both Gibraltar and the United Kingdom, but we do not think that it is necessary to have what purports to be a comprehensive list of consultees in the Bill.
  There are two very good reasons for that. The Electoral Commission intends to consult widely within both England and Wales and Gibraltar to enable it to receive views from as wide a range of interests as possible. In particular, it will wish to provide an opportunity for the people of Gibraltar to express views. Given the fine record that the commission has for coming up with an authoritative view on such important electoral matters, I am confident that that will be the case.
  The commission will not wish to be hamstrung by what might purport to be a comprehensive list. That brings me to my second reason for resisting an extension to the list of consultees, which is the danger that we miss someone by trying to make it comprehensive. Until the Electoral Commission begins its preliminary work, it will not necessarily be entirely clear who should be consulted.
  As my honourable friend the Parliamentary Secretary made clear in another place, we believe that the statutory list of consultees should be a balanced and representative one. Amendments Nos. 9 and 10 approach the subject with the same thought in mind.
  The noble Lord, Lord Goodhart, tabled Amendment No. 9, which would add the House of Assembly and representatives of political parties in Gibraltar, whom the commission might expect to seek registration so as to participate in the European Parliament elections. That is similar in some ways to the government amendment, but it would present a considerable difficulty for the Electoral Commission in trying to predict which parties might seek registration.
  While I am confident that the commission will want to be in touch with all the political parties that may wish to field candidates in the European parliamentary elections, I would not want to place it in a position where it had to be entirely accurate in its crystal-ball gazing in order to meet its statutory obligations.
  On the other hand, Amendment No. 10, tabled by the noble Baroness, seeks to add only the Government of Gibraltar to the existing list. The clause already
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  includes the representatives of the Government of Gibraltar. I hope that she will feel content with that. I beg to move.
  Lord Goodhart: Amendment No. 9, the second amendment in the group, is tabled in my name and that of my noble friend Lord Rennard. I am glad that the Government have taken up the point, and I am happy to accept the government amendment.
  Baroness Rawlings: I rise to speak to Amendment No. 10, which is in the name of my noble friends Lord Howell of Guildford and Lord Astor of Hever and is part of this grouping. We have long been urging the Government to ensure that the Electoral Commission widens its circle of consultation before deciding which regions should be combined with Gibraltar, and we fully support their decision to do so. It seems entirely fair that the commission should consult representatives from other political parties as it would in the UK.
  At that point, I would also like to ask the Minister whether she would make available at a later date, but possibly well before Report, the population statistics of Ceuta and Melilla, with which region they are combined and whether Gibraltar's enfranchisement is comparable.
  Baroness Scotland of Asthal: I will certainly use my best endeavours to do so. I do not know whether we have those figures, but I am sure that we can look for them. If they are available, I would be most happy to try to make them available to the noble Baroness.
  On Question, amendment agreed to.
  [Amendments Nos. 9 and 10 not moved.]
  Clause 9, as amended, agreed to.
  Clauses 10 and 11 agreed to.
  Clause 12 [Sections 10 and 11: supplementary]:
  Lord Goodhart moved Amendment No. 11:
  Page 6, line 28, leave out "subordinate legislation" and insert "by subordinate legislation provisions which are necessary or expedient in consequence of or in connection with the inclusion of Gibraltar in an electoral region"
  The noble Lord said: The amendment arises out of the fifth report of the Constitution Committee, a Select Committee of this House. Clauses 10 and 11 confer on the Lord Chancellor power to make orders. Clause 10 relates to the establishment of the combined region, and Clause 11 to the power to make consequential provision.
  Clause 12(2) states that orders under Clauses 10 and 11 are to be made by statutory instrument. Clause 12(3) contains a rather unusual power, because orders made under it may themselves confer a further power to make subordinate legislation. That legislation would not only be delegated but re-delegated legislation.
  The Constitution Committee was somewhat concerned about that, and on 13th February wrote to the noble and learned Lord the Lord Chancellor a

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  letter printed in appendix 1 to its fifth report of the present Session. In paragraph 3 of the letter, the committee raised the following questions:
  "On whom would such power be conferred? What are the limits of that power? When is it envisaged that it would be necessary to confer such a power? Would such sub-delegated legislation be subject to procedure for ensuring parliamentary approval and scrutiny? And would such sub-delegated legislation be required to be exercised by statutory instrument?".
  The noble and learned Lord the Lord Chancellor replied at some length on 19th February, and his letter is set out in appendix 2. I think that I need refer to only one sentence of it, in which he said:
  "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".
  In paragraph 4 of the report, following that exchange of correspondence, the Committee said:
  "This limitation is not, however, incorporated on the face of the bill. As it stands, we consider that this provision is very wide, and that it would be better were the power to be more narrowly drawn".
  The purpose of the amendment is to implement the views of the Constitution Committee, which we support. We believe that it did a service in drawing the issue to the attention of the House and the Grand Committee. We think that the amendment represents an improvement to the Bill. I beg to move.
  5 p.m.
  Baroness Scotland of Asthal: We certainly understand the concern that was outlined by the Select Committee and the noble Lord. However, I hope that I can reassure Members of the Committee that the amendment is not necessary, because the Bill already contains such a limitation.
  Clause 12(3)(a) is supplementary to Clause 11. Although Clause 12(3)(a) does not itself contain the limitation, the exercise of the power for the purposes of Clause 11 will be limited by its subsection (1). That subsection provides specifically that:
  "The Lord Chancellor may by order make such provision as he considers necessary or expedient in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European Parliamentary elections".
  Although Clause 12 is also supplementary to Clause 10, there will be no need to use the power in Clause 12(3)(a) to give effect to the purpose of Clause 10. My noble and learned friend the Lord Chancellor said in responding to the letter of the noble Lord, Lord Norton, which was referred to by the noble Lord, Lord Goodhart, that he had no intention of doing so.
  I hope that that explanation and reassurance satisfies the concerns that have been expressed by means of the amendment.
  Lord Goodhart: I am grateful to the Minister for raising that point. I think that she is right, but as the point was raised by the Constitution Committee, I thought it right and proper that it be aired in the Grand Committee. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Scotland of Asthal moved Amendment No. 12:
  Page 6, line 37, leave out subsection (5) and insert—
  "(5) Such an order may not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
  (5A)Subsection (5) does not apply to an order (not being an order which specifies the existing electoral region to be combined with Gibraltar) if it appears to the Lord Chancellor that by reason of urgency the order should be made without being approved in draft.
  (5B)Where an order is made without being approved in draft, by virtue of subsection (5A)—

  (a) it must be laid before Parliament after being made; and

  (b)if it is not approved by a resolution of each House of Parliament within the period of 40 days after the date on which it is made, the order shall cease to have effect at the end of that period."

  The noble Baroness said: The amendments in this group are all inspired by the Delegated Powers and Regulatory Reform Committee which recommended in its 11th report that the delegated powers in Part 2 of the Bill should all be subject to the affirmative resolution procedure. I take the opportunity at this stage to compliment the committee on its hard work. As regards the recent comments of the noble Lord, Lord Goodhart, he is right to raise the issues so that they are in the record for the purposes of clarity.
  In his response to the committee, the noble and learned Lord the Lord Chancellor accepted its recommendation and said that he would table amendments so that an appropriate level of parliamentary scrutiny would be ensured. Government Amendments Nos. 12, 14, 15, 19 and 22 seek to achieve that.
  The amendments relate to the delegated powers under Clauses 12, 17 and 20 of the Bill. They require the Lord Chancellor to use either an affirmative procedure, whereby a draft is laid and may not come into force until parliamentary debates have been held, or, in cases of urgency, an alternative but well-established affirmative procedure whereby debates may be held within 40 parliamentary sitting days after the instrument has been made.
  This procedure recognises the concerns that have been expressed that the detailed secondary legislation we will be making should receive the full scrutiny of both Houses and the Government's concern that we should not find ourselves in a position where, because of timetabling difficulties, we will not be able to put the final details in place to enable all parties concerned to prepare properly for the elections in June 2004.
  The timetable for making the necessary secondary legislation under the Bill will be tight and complicated. We shall need to consult the Government of Gibraltar on the practical details to ensure that the application of UK electoral law to Gibraltar for EP elections can work properly. We are also required to consult the Electoral Commission as the independent body which can give an authoritative view on what is proposed. Ideally, the secondary legislation needs to be in place by the autumn of 2003 so that electoral administrators,

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  political parties and electors alike can prepare effectively. This already dictates a fairly tight procedural timetable which is not assisted by the Summer Recess.
  I can assure the Committee that it is our firm intention to use the draft affirmative procedure wherever possible. Indeed, we shall probably combine the making of as much as possible of the legislation with the general European Parliament regulations that we would in any case be preparing in advance of next year's elections. But, as the amendments set out, for "reasons of urgency" there may be some cases where we need to decide to opt for the alternative affirmative procedure. I do not expect this to be used for the main tranche of secondary legislation precisely because it is by way of a reserve procedure, but it is necessary if we are to ensure that the application of the detail of UK electoral law can work effectively in Gibraltar.
  By way of further assurance, I should point out that it will not be possible to use the alternative affirmative procedure for the key order under Clause 10 which will specify the electoral region with which Gibraltar is to be combined.
  Amendments Nos. 13, 15 and 20, which have been tabled by the noble Lords, Lord Goodhart and Lord Rennard, are clearly intended as probing amendments which seek to introduce an affirmative resolution procedure. I hope that, having seen the Government's amendments and having heard how they will work, both noble Lords are reassured that we have responded appropriately to the concerns expressed in another place and by the Delegated Powers and Regulatory Reform Committee and are content. I beg to move.
  Lord Goodhart: Amendments Nos. 13, 15 and 20 are tabled in the names of my noble friend and myself. As the Minister rightly said, the amendments were tabled with the view to achieving the objective proposed by the Select Committee on Delegated Powers and Regulatory Reform. As the Government have effectively taken those recommendations on board. we are happy to accept the Government's amendments in lieu of our own. That also applies to the proposal to make it possible to use the urgency procedure for the affirmative resolutions, although, obviously, I hope that that will not be necessary.
  Baroness Rawlings: We on these Benches welcome these amendments, which will ensure that the important provisions of Part 2 receive an appropriate level of parliamentary scrutiny. We should be interested to know in which circumstances the Lord Chancellor envisages having to make orders "by reason of urgency". However, it is essential that we get these processes right, and they must be carefully thought through. I wonder whether making orders in circumstances of "urgency" will be the best approach, and I am interested to know why the Government believe it is necessary to plan for such circumstances.
  Baroness Scotland of Asthal: I had hoped that I had outlined the issue as we saw it. Of course we hope that there will be no need to use the affirmative procedure
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  by reasons of urgency, but, bearing in mind the fluid nature of the way in which issues arise, we think that this is a cautious and appropriate step to take. I agree with the sentiments expressed by the noble Baroness and the noble Lord, Lord Goodhart, in that we hope that such reasons of urgency will not in fact arise.
  The Deputy Chairman of Committees: There is a Division in the Chamber. Therefore, the Committee stands adjourned for 10 minutes.
  On Question, amendment agreed to.
  [The Sitting was suspended for a Division in the House from 5.11 to 5.21 p.m.]
  [Amendment No. 13 not moved.]
  Baroness Scotland of Asthal moved Amendment No. 14:
  Page 6, line 41, leave out "mentioned in subsection (5)" and insert "which specifies the existing electoral region to be combined with Gibraltar"
  On Question, amendment agreed to.
  Lord Goodhart moved Amendment No. 15:
  Page 7, line 1, leave out subsection (7).
  On Question, amendment agreed to.
  Clause 12, as amended, agreed to.
  Clause 13 [The Gibraltar register]:
  Baroness Scotland of Asthal moved Amendment No. 16:
  Page 7, line 12, leave out subsections (2) and (3) and insert—
  "(2) The Clerk of the House of Assembly shall (by virtue of his office) be the European electoral registration officer for Gibraltar."
  The noble Baroness said: Clause 13(2) makes provision for the appointment of an electoral registration officer for Gibraltar who will have the task of creating a register of European parliamentary electors in Gibraltar. That person is to be appointed by the governor of Gibraltar.
  In our initial discussions with the Government of Gibraltar, we asked about their arrangements for compiling the register and who was responsible. From this, it became clear that it would make sense for the same person who was appointed to compile the House of Assembly register to compile the European Parliament elections register for Gibraltar. Basically, why reinvent the wheel when there is someone available who has the necessary skill and expertise to do the job? To achieve the same results, in drafting Clause 13(2), we used exactly the same arrangements as are provided for in Gibraltar's House of Assembly Ordinance for the appointment of the House of Assembly electoral registration officer. In practice, it is likely that the Clerk of the House of Assembly will be the person the Government of Gibraltar will appoint to this position.
  When this matter was raised in Committee in another place, my honourable friend the parliamentary secretary gave an undertaking to reconsider the current drafting of the subsection, taking into account the views of the Government of Gibraltar. As a result of that further consideration, we

  GC 43
  have concluded that the Bill should adopt a simpler, clearer approach. and that subsections (2) and (3), which set out the proposed arrangements for appointing the European registration officer, should be dispensed with, to be replaced with a clear statement that the Clerk of the House of Assembly should hold that post. That, we hope, removes any doubt about who will be responsible for this work, both now and at future elections. I am sure that Amendment No. 16 will therefore find favour with noble Lords present. I beg to move.
  On Question, amendment agreed to.
  Clause 13, as amended, agreed to.
  Clauses 14 and 15 agreed to.
  Clause 16 [Regulations relating to sections 13 to 15]:
  Lord Goodhart moved Amendment No. 17:
  Page 8, line 29, leave out paragraph (d).
  The noble Lord said: In speaking to Amendment No. 17, I propose also to speak to Amendment No. 18.
  The amendments would amend Clause 16, which is consequential on Clauses 14 and 15. Clause 14 provides for the entitlement to vote in a European election in Gibraltar. Clause 15 provides for the entitlement to he entered on the register of voters.
  Clause 16(1)(d) gives power for the Lord Chancellor, by regulations, to prescribe the circumstances in which a person is legally incapable of voting in Gibraltar at a European parliamentary election. Clause 16(1)(g) gives power for the Lord Chancellor to impose a disqualification for registration in Gibraltar as a European parliamentary elector. In other words, Clause 16 gives power to deny registration to someone who would otherwise be entitled to register under Clause 15 and denies the right to vote to anyone who would otherwise be entitled to vote under Clause 14.
  In its 11th report, the Delegated Powers and Regulatory Reform Committee asked whether powers under paragraphs (d) and (g) of Clause 16(1) were proper for delegation at all. The noble and learned Lord the Lord Chancellor replied to the committee's query in a letter set out in Annex 4 to the 12th report. The reply is long but can be summarised by saying that the noble and learned Lord the Lord Chancellor pointed out as a precedent that legislation in the United Kingdom provides for secondary legislation to extend to European parliamentary elections disqualifications for voting or registration provided by other statutes for other elections.
  The committee remained unsatisfied by that reply and pointed out that for European parliamentary elections in the United Kingdom the main provisions for disqualification were set out on the face of statutes and that Clause 16 was not limited to making provision for Gibraltar which corresponded to that for the United Kingdom.
  The Government have accepted the committee's recommendation that any orders under any provision of Clause 16 should be made by the affirmative procedure. But I believe there is force in the argument
  GC 44
  that paragraphs (d) and (g) should be deleted and replaced either by a disqualification set out on the face of the Bill or by a restriction to a provision corresponding to that for the United Kingdom.
  The amendment does not seek to replace the wording of paragraphs (d) or (g) because, at this stage. no vote is possible. We tabled the amendment in this incomplete form so that we could hear the Government's response on the point of principle. I beg to move.
  Baroness Scotland of Asthal: I understand, of course, that Amendments Nos. 17 and 18 are probing in nature, and I shall try to give as full a response as I can to enable the noble Lord to consider whether the Government have satisfied the concerns that he has raised.
  Clause 16 enables regulations to be made supplementary to Clauses 13 to 15. The aim is that that provision will substantially correspond, so far as possible, to provision relating to European parliamentary elections under existing UK law, which will apply for the purposes of Gibraltar.
  Clause 16 therefore provides for regulations which will supplement the core principles set out in those clauses by mirroring detailed UK provision, adapted as necessary to take into account the particular circumstances of Gibraltar. The issues that will need to be addressed by Clause 16 are matters dealt with in UK law by primary and secondary legislation, much of which is applied indirectly in the case of European parliamentary elections by virtue of the fact that the franchise for European parliamentary elections is derived principally from the parliamentary franchise. As a result, these regulations will need to cover issues addressed by a large amount of legislation that is not set out in the European Parliamentary Elections Act 2002 and regulations made under that Act. For Gibraltar's purposes it has been necessary to establish a separate franchise which of course cannot depend on the parliamentary franchise.
  That means that all that primary and secondary legislation will need to be expressly dealt with under this Bill, and adapted where necessary to take account of the particular circumstances of Gibraltar, which can be done only after detailed consultation with the Government of Gibraltar. That would all of course mean that to try to divide up the issues dealt with under Clause 16 into matters which are dealt with extensively by primary legislation and secondary legislation in the UK, and then replicate the provisions of primary legislation with appropriate adaptations on the face of the Bill, would substantially compromise the timetable where our aim is to have the relevant measures in place in good time for the June 2004 elections. That will include, among other things, a canvass of Gibraltar electors in October 2003 by the electoral registration officer for Gibraltar in order to set up the Gibraltar register. Clearly, that means that the Bill and the relevant secondary legislation made under it will have to be in place by the end of the summer.

  GC 45
  Therefore, the nature of the Bill is such that the powers under it should be used as far as possible to provide for European electoral law applicable in Gibraltar substantially corresponding to that in the UK. That is effectively an implied limitation, leaving little scope to do otherwise. For that reason also, the matters addressed are more suited for delegated legislation than perhaps some of the original powers which they are intended to mirror.
  Accordingly, the Government's view is that these matters are suitable to be dealt with under delegated legislation and indeed it would not be feasible to attempt to do otherwise. However, Parliament will have the reassurance that it will be subject to an appropriate level of parliamentary scrutiny by way of the affirmative resolution procedure. We hope that that reassurance will suffice.
  5.30 p.m.
  Lord Goodhart: I am grateful to the Minister. She has not been quite as persuasive as she was in the case of Amendment No. 11. I take her point that for various reasons, including time, it may be desirable to deal with this matter by secondary legislation, rather than by a mixture of primary and secondary, which applies in the United Kingdom. However, I shall need to consider further whether I wish to bring the matter back on Report to try to include a restriction of the kind proposed by the Delegated Powers Committee; namely, a restriction to provision corresponding to that for the United Kingdom. For the time being, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 18 not moved.]
  Clause 16 agreed to.
  Clause 17 [Section 16: supplementary]:
  Baroness Scotland of Asthal moved Amendment No. 19:
  Page 9, line 25, leave out subsection (4) and insert—
  "(4) Such regulations may not be made unless a draft of the regulations has been laid before, and approved by a resolution, of, each House of Parliament.
  (5) Subsection (4) does not apply to any regulations if it appears to the Lord Chancellor that by reason of urgency the regulations should be made without being approved in draft.
  (6) Where regulations are made without being approved in draft, by virtue of subsection (5)—

  (a) the regulations must be laid before Parliament after being made; and

  (b) if the regulations are not approved by a resolution of each House of Parliament within the period of 40 days after the date on which it is made, the regulations shall cease to have effect at the end of that period."

  The noble Baroness said: I spoke to Amendment No. 19 with Amendment No. 12. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 20 not moved.]
  Clause 17, as amended, agreed to.
  Clause 18 agreed to.
  Clause 19 [Returning officers]:
  Baroness Scotland of Asthal moved Amendment No. 21:
  Page 10, line 7, leave out subsection (4) arid insert—
  "(4) In subsection (7) for the words from "the council" to "must" there is substituted

  (a) in the case of an electoral region other than the combined region, the council of a relevant area falling wholly or partly within that region; and

  (b) in the case of the combined region, the council of a relevant area falling wholly or partly within that region and the Government of Gibraltar,

  must"."
  The noble Baroness said: Amendment No. 21 is of a fairly technical nature. Therefore, it is worth my outlining briefly the purpose of the provision as a whole in Clause 19.
  Clause 19 provides for the returning officer for the Gibraltar part of the combined electoral region. In Gibraltar, the local returning officer will be the Gibraltar European Parliament electoral registration officer provided for—as we have already discussed today—under Clause 13. In the United Kingdom the local returning officer is usually a parliamentary acting returning officer, who is also usually the electoral registration officer for the local authority in which the constituency is situated. In the UK, Section 6(7) of the European Parliamentary Elections Act 2002 requires the local authority of the relevant area to place the services of its officers at the disposal of the returning officer.
  Clause 19(4) is intended to make similar provision to that in the 2002 Act so that the Government of Gibraltar place the services of their officers at the disposal of the Gibraltar local returning officer. It has been pointed out, however, that in its drafting subsection (4) as it stands fails to distinguish appropriately between the status of Gibraltar and that of a local authority.
  Amendment No. 21 remedies that situation, without altering the effect of the provision, and I commend it warmly to the Committee. I beg to move.
  On Question, amendment agreed to.
  Clause 19, as amended, agreed to.
  Clause 20 [Disqualification from office of MEP]:
  Baroness Scotland of Asthal moved Amendment No. 22:
  Page 10, line 28, leave out subsection (3) and insert—
  "(3) In section 13 of the 2002 Act (Parliamentary procedure for regulations and orders under that Act), after subsection (3) there is inserted—
  "(3A) An order under section 10(4A) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
  (3B)Subsection (3A) does not apply if it appears to the Lord Chancellor that by reason of urgency the order should be made without being approved in draft.
  (3C)Where an order is made without being approved in draft, by virtue of subsection (3A)—

  (a) it must be laid before Parliament after being made; and

  GC 47

  (b) if it is not approved by a resolution of each House of Parliament within the period of 40 days after the date on which it is made, the order shall cease to have effect at the end of that period.""

  The noble Baroness said: I spoke to Amendment No. 22 with Amendment No. 12. I beg to move.
  On Question, amendment agreed to.
  On Question, Whether Clause 20, as amended, shall stand part of the Bill?
  Lord Goodhart: My purpose in objecting to Clause 20 stand part is to raise a fundamentally similar point to that raised by Amendments Nos. 17 and 18. In the United Kingdom the disqualification of holders of certain offices from serving as a Member of the European Parliament operates by the combined effect of the House of Commons Disqualification Act 1975 and Section 10 of the European Parliamentary Elections Act 2002.
  The offices that lead to disqualification are set out in schedules. There is power to add to that list by statutory instrument or to designate some offices as not disqualifying the holder from serving as a Member of the European Parliament, even if disqualified from serving as a Member of the House of Commons.
  While statutory instruments have a role to play in the United Kingdom in deciding who is to be disqualified from office, the Delegated Powers Committee was not satisfied that the entire list should be left to secondary legislation. It remained of that view even after receiving the response of the noble and learned Lord the Lord Chancellor in the letter to which I referred in the earlier debate. We believe that it is appropriate not to leave the list to secondary legislation. I object to the clause standing part.
  Baroness Rawlings: I support the noble Lord, Lord Goodhart, in relation to Clause 20 stand part. It is my understanding that an order under Section 10 of the 2002 Act can only remove a disqualification, not impose one. A disqualification can be made to an order only under the House of Commons Disqualification Act 1975. Would it not be accurate, then, to include Gibraltar in both the 2002 Act and the 1975 Act? I understand that the Delegated Powers Select Committee advised that to be the case. I ask the Minister where the Secretary of State can in fact impose a disqualification under Section 10 of the 2002 Act?
  Baroness Scotland of Asthal: I note what the noble Baroness and the noble Lord say about clause stand part. Clause 20 amends the European Parliament Elections Act 2002 so as to give power to the Secretary of State, or the Lord Chancellor, to disqualify certain classes of individuals from being entitled to stand as MEPs, as the noble Lord, Lord Goodhart, said.
  As with all aspects of the Bill, our approach in the clause has been to ensure that we have the necessary powers as far as possible to apply UK electoral law to the Gibraltar part of the combined region in the same
  GC 48
  way as to the UK part of the region. Thus the power enables similar classes of individuals in Gibraltar in the UK to be excluded from being MEPs.
  The noble Lord, Lord Goodhart, outlined the case that it would be more appropriate for such provision to be made in the Bill rather than by delegated legislation. The Government do not agree. The list of those who are disqualified in the UK from serving as MEPs includes various classes of person, some of which could apply to Gibraltarians without further provisions—for example, those disqualified for being under 21—and some of which could not—for example, UK bankrupts.
  In short, the picture is not straightforward and it will be crucial to discuss in detail with the Government of Gibraltar how we can fulfil our intention to disqualify similar classes of people with a connection with Gibraltar to those that apply in the UK.
  As I said, the timetable for getting all the provisions in place to fulfil the UK's obligation to enfranchise the people of Gibraltar is very tight. We could not afford to delay the introduction of the Bill in order to enable such detail to be set out in it. However, thanks to other government amendments to which I have already referred, the power will be subject to the affirmative resolution procedure, which will enable the detail of the matter to be aired before both Houses.
  The noble Baroness was correct about Section 10 of the 2002 Act, which only removes disqualification. That was given simply as an example of delegated legislation that affects disqualification. I know that the Committee is aware of sensitivities in this area and of the need to take consultation with the Gibraltarians very seriously and carefully indeed. We wish to get that absolutely right, so that the synergy between the UK and Gibraltarian positions is properly mirrored and reflected. We shall have grave difficulty in doing so in the present timetable unless we take the course that we suggest. The affirmative resolution procedure will enable both Houses further to consider the matter once we have decided, after consultation with Gibraltar, on the most appropriate way forward. I hope that the noble Lord and the noble Baroness will be content with that explanation.
  Lord Goodhart: We shall consider what the noble Baroness has said and decide whether to return on Report to ask for the clause to be left out or amended. At present, I cannot give an undertaking that we will not do so.
  Baroness Rawlings: I thank the Minister for that full response. I hear what she has told us. We believe that that point is fair and reasonable. However, we may, like the noble Lord, Lord Goodhart, have further concerns and may want to return to the matter later.
  Baroness Scotland of Asthal: I commend the clause, as amended.
  Clause 20, as amended, agreed to.
  5.45 p.m.
  Clause 21 [European Parliamentary election regulations]:
  Baroness Scotland of Asthal moved Amendment No. 23:
  Page 10, leave out lines:38 to 42.
  The noble Baroness said: Again, I sense that Amendment No. 24, tabled by the noble Baroness, which would remove from Clause 21 the power to exclude matters from the jurisdiction of Gibraltar courts, is a probing amendment. I hope that I have understood that correctly. There was much discussion in Committee in another place of the same amendment. My honourable friend the Parliamentary Secretary explained the Government's intentions concerning jurisdiction in matters relating to European parliamentary elections and Gibraltar, but said that she was keen to examine the details further to see whether the Bill's provisions could be clarified.
  That we have now done. Taken together, Amendments Nos. 23 and 25 remove the provisions on jurisdiction from Clause 21 and insert a new clause dealing with that matter alone. The new clause makes it clear that Gibraltarian courts and UK courts can both have jurisdiction over certain matters that give rise to issues that are local to either Gibraltar or the United Kingdom part of the combined region, in order that the appropriate local court can be allocated to the matter.
  Further, matters that will affect the whole of the combined region, and the rest of the United Kingdom, can be allocated to United Kingdom courts—and thus the United Kingdom election court, dealing with election petitions, and the High Court, when, for example, dealing with claims that MEPs are disqualified, would deal with the new matters of substantive law that they usually deal with, once they are applied to Gibraltar under the Bill.
  It is also made clear that provision can be made so that the election court can include a judge of the Supreme Court of Gibraltar in addition to two UK judges. Necessary supplementary powers have been provided to treat the Gibraltar judges as High Court judges for those purposes only. We believe that the new clause is a substantial improvement on its predecessor and will provide the necessary flexibility and clarity to ensure that matters of jurisdiction are appropriately dealt with. I beg to move.
  Baroness Rawlings: We again welcome the amendments. The Chief Minister was concerned that the Government of Gibraltar's status would become ambiguous under the 2002 Act. However, I should appreciate clarification on the status of the Government of Gibraltar with regard to matters of electoral law. If they are to be treated as an entirely separate, unique entity, what will be their position in relation to returning officers, and so on? How do the Government envisage that two entirely separate entities—the relevant local authority and the
  GC 50
  Government of Gibraltar—will work together to represent the interests of the electors in the two areas? I look forward to hearing the Minister's reply.
  Baroness Scotland of Asthal: I have set out how we believe that the two will work together. I have tried to explain the division between the work that will be undertaken by the Gibraltarian courts and the UK courts the—separation of those matters—and that the United Kingdom courts will be responsible for dealing with all matters that affect the whole of the combined region. We accept that this is a new venture, but it has enabled us through the consultation to clarify with the Government of Gibraltar how those two issues will be appropriately dealt with.
  On Question, amendment agreed to.
  [Amendment No. 24 not moved.]
  Clause 21, as amended, agreed to.
  Baroness Scotland of Asthal moved Amendment No. 25:
  After Clause 21, insert the following new clause—
  "JURISDICTION OF COURTS
  (1) Subordinate legislation to which this section applies—

  (a) may make provision for a judge of the Supreme Court of Gibraltar to be appointed as an additional judge ( with the two judges acting under section 123 of the Representation of the People Act 1983 (c. 2) as applied for the purposes of European Parliamentary elections) for the trial of an election petition relating to the election of MEPs in the combined region; and

  (b) may, for the purposes of such an election petition—

  (i) confer the powers, jurisdiction and authority of a judge of the High Court on any Gibraltar judge who is so appointed; and

  (ii) make any other provision necessary to secure that a Gibraltar judge so appointed is treated as if he were a judge of the High Court.

  (2) Without prejudice to the generality of the power under which it is made, subordinate legislation to which this section applies may—

  (a) confer jurisdiction over any matter connected with the election of MEPs in the combined region on an election court constituted under section 123 of the Representation of the People Act 1983 (c. 2) (as applied for the purposes of European Parliamentary elections);

  (b) confer jurisdiction over any such matter (not being a matter within the jurisdiction of the election court) on—

  (i) one or more courts in the United Kingdom,

  (ii) one or more courts in Gibraltar (whether specified in the regulations or left to be determined by or under the law of Gibraltar); or

  (iii) one or more courts in the United Kingdom and one or more courts in Gibraltar.

  (3) This section applies to

  (a) an order under section 11;

  (b) regulation under section 16; and

  (c) regulations under section 7 of the 2002 Act."

  On Question, amendment agreed to.
  Baroness Scotland of Asthal moved Amendment No. 26:
  After Clause 21, insert the following new clause—
  "EFFECT OF STATUTORY POWERS ON CAPACITY OF GIBRALTAR LEGISLATURE
  (1) The capacity (apart from this Act) of the Gibraltar legislature to make law for Gibraltar is not affected by the existence of a power under this Part or the 2002 Act to make subordinate legislation extending to Gibraltar.
  (2) Subsection (1) does not affect the operation of the Colonial Laws Validity Act 1865 (c. 63) in relation to subordinate legislation made under such a power."
  The noble Baroness said: The new clause proposed in the amendment is intended to confirm expressly that the Gibraltar legislature can play a role in making legislation that relates to the European parliamentary elections provided for under the Bill. How that might be done was discussed in some detail in Committee in another place, and my honourable friend the Parliamentary Secretary undertook to consider whether there was a way in which we could achieve that on the face of the Bill.
  Generally speaking, the law relating to European parliamentary elections should operate throughout the United Kingdom and Gibraltar on the same basis so far as possible. Only the United Kingdom is able to make law for both parts. That means that Gibraltar's scope for legislation is unavoidably limited to consequential and supplemental measures. However, we want the Government of Gibraltar to play a role and, as we prepare secondary legislation, we shall work with them to identify areas where that will be possible.
  We have already considered some areas and how both Westminster and Gibraltar might be able to play a part in making the further legislation. For example, if we look at Clause 11, there are likely to be issues that could be addressed by the Gibraltar legislature, such as those relating to the regulation of political broadcasting in Gibraltar. However, equally, much of the UK law at issue under the clause, such as that relating to the registration of political parties, will need to be amended by further UK law or applied as part of the coherent and uniform system provided for by the Bill extending to both the United Kingdom and Gibraltar. Such matters will need to be dealt with by the Lord Chancellor under the powers in the Bill.
  The new clause clarifies the basis for the making of secondary legislation by both the United Kingdom and Gibraltar and it forms a sound basis for future decisions. It does not affect the Lord Chancellor's powers to make provision in exercise of his powers under the Bill, but it confirms that those powers in themselves do not remove the capacity of Gibraltar to legislate in areas where it would otherwise be able to do so. I commend the amendment to the Committee. I beg to move.
  Baroness Rawlings: It is entirely right that the legislature of Gibraltar should play a part in ensuring
  GC 52
  that electoral law is applied in its own territory. However, I should be interested to know what are the practical implications of this drafting. Would it not be possible for the Bill to make explicit provision about the mechanics of the electoral regime to be legislated for in Gibraltar? Could a situation exist in which the Government of Gibraltar replicate some provisions in a Gibraltar ordinance, whereas others would remain solely in UK statute? I should be interested to hear how the mechanics of this welcome amendment will work out.
  Lord Goodhart: Some concern arises in my mind in relation to Clause 20 and this new clause. There is a division between matters which are and are not broadly for Gibraltar law, although it is obviously desirable that, as nearly as possible, they should be in the same form as UK law—in particular, with regard to the qualification for registration and voting. However, there are other aspects in which it seems clear that United Kingdom law must control the matter to the exclusion of Gibraltar, particularly with regard to the disqualification of candidates. Obviously one cannot have a candidate who is disqualified in relation to Gibraltar but not in relation to the rest of the region to which Gibraltar is attached. Does the noble Baroness envisage any problems with the proposed new clause as regards that type of issue?
  Baroness Scotland of Asthal: I do not see a problem about that. Of course, there will be a need to consider UK law and Gibraltarian law and ensure that they mirror each other appropriately. That is what I alluded to earlier in connection with the consultation on the issue. As to whether Gibraltar can duplicate, that would usually not be an appropriate course legally, as it might provide for confusion of laws. The amendment will clarify the position and make it easier.
  I believe that I answered the noble Baroness's general question when I outlined how the law will work. As I hope that I said earlier, generally speaking, the law relating to European parliamentary elections should operate throughout the United Kingdom and Gibraltar on the same basis, so far as possible. As the noble Lord, Lord Goodhart said, only the United Kingdom can make law for both.
  Unfortunately, that means that the scope of Gibraltarian legislation is unavoidably limited, particularly in the case of provision in exercise of the powers which are part of the electoral process itself, such as the franchise and conduct of the election. Provisions in that respect will have to be made by the Lord Chancellor. As I told the noble Lord, Lord Goodhart, I believe, if I may say it colloquially, that we are all right on that one.
  On Question, amendment agreed to.
  Clause 22 [Financial provisions]:
  Baroness Rawlings moved Amendment No. 27:
  Page 11, line 16, leave out subsection (3).
  The noble Baroness said: In moving Amendment No. 27, I welcome yet another government amendment. As the Bill stands, it is wholly inappropriate and constitutionally retrograde for the UK Government to influence directly Gibraltar's Consolidated Fund. I am told that no legislative instrument has deployed or committed Gibraltar's public funds since well before the first modern constitution in 1964. We are relieved to see that the Government have made changes which will allow all expenses to be covered equitably, while permitting the Government of Gibraltar full decision-making powers.
  Baroness Scotland of Asthal: I very much welcome the support of the noble Baroness on the matter. The Committee will know that Amendment No. 27 would exclude the provision that allows other order and regulation-making powers under the Bill also to include financial provisions. I took that in the spirit which the noble Baroness has now explained—that is, as a probing amendment.
  In Committee in another place, my honourable friend the Parliamentary Secretary explained that Clause 22 enabled provision to be made for expenditure in relation to the holding of EP elections in Gibraltar. The full details of the financial arrangements were yet to be worked out, and she made clear that there would be further discussion with Gibraltar on the matter.
  Amendment No. 28 is the fruit of that discussion. The basic intention was, and remains, that the UK Consolidated Fund would pay for the Gibraltarian returning officer's expenses—the bulk of expenditure at an election—and that Gibraltar would pay for the local registration officer. Neither we nor the Government of Gibraltar have any problem with that. Clause 22 contained a certain amount of flexibility, including provisions for money to be paid into or out of the Gibraltar Consolidated Fund.
  Our further exploration of the issue with the Government of Gibraltar has helped to clarify exactly how the expenditure will be accounted for. We find that it is unnecessary to make such provisions in Clause 22. Instead, Gibraltar will use its own legislation to enable it to pay for the Gibraltar registration officer's expenses out of the Gibraltar Consolidated Fund. As a result of leaving it to Gibraltar to make their own legislation on the matter, in consequence it has also been possible not to include expressly the provisions in Clause 22(3)(a). With that, I hope that the noble Baroness has received the reassurance that she seeks.
  Baroness Rawlings: I thank the noble Baroness and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Scotland of Asthal moved Amendment No. 28:
  Page 11, line 16, leave out subsection (3) and insert—
  (3) Subordinate legislation to which this subsection applies may make provision—

  (a) for sums required to meet any expenditure (other than expenditure to be met from funds provided by Gibraltar) to be—

  (i) paid out or money provided by Parliament; or

  (ii) charged on and paid out of the Consolidated Fund; and

  (b) for the payment of sums into the Consolidated Fund."

  The noble Baroness said: I dealt with this amendment when I spoke to Amendment No. 27, in the name of the noble Baroness, Lady Rawlings. I beg to move.
  On Question, amendment agreed to.
  Clause 22, as amended. agreed to.
  6 p.m.
  On Question, Whether Clause 23 shall stand part of the Bill?
  Lord Goodhart: My noble friend Lord Rennard and I have tabled a purely probing objection to Clause 23, which, on the face of it, is very peculiar. It is unusual to see that all the functions of the Lord Chancellor under the Bill are exercisable concurrently with a Secretary of State. I wonder why that is. What function is it intended that the Secretary of State—and, indeed, the Secretary of State of which department—will exercise?
  It is clearly not intended to cover the possibility that at some future time the responsibility for European parliamentary elections might be moved from the Lord Chancellor to the Home Secretary. If that happened, no doubt it would be dealt with by the usual transfer of functions order. It must be intended for something different and I should like to have on record the reason why this strange provision appears in the Bill.
  Baroness Rawlings: I have some sympathy with the point made by the noble Lord, Lord Goodhart. The Lord Chancellor is unelected and yet he is responsible for a range of important provisions with regard to electoral arrangements. Whatever we may think about the transfer, responsibility for the provisions has already been transferred to the Lord Chancellor's Department.
  The noble Lord, Lord Goodhart, has made some important points and it is right that we should question the Lord Chancellor's responsibilities. I shall be interested to know whether the provision for concurrent powers between the Lord Chancellor and the Secretary of State is because much of the subordinate legislation which exists in electoral law is the responsibility of the Secretary of State.
  Baroness Scotland of Asthal: I hope to be able to shed a little light on these issues. Clause 23 exists to

  GC 55
  reflect the way in which responsibility for electoral law is currently allocated between government departments. It mirrors the position which currently pertains to all electoral law. Removing the clause without replacement would cause immense confusion about who could carry out what function and make further transfer of responsibilities for electoral law more difficult to achieve.
  As the Committee may know, following the machinery of government changes in May last year, the functions relating to electoral law previously exercised by the Secretary of State for Transport, Local Government and the Regions was split between the Office of the Deputy Prime Minister and the Lord Chancellor. Roughly speaking, this means that responsibility for local elections lies with the Office of the Deputy Prime Minister, and for Westminster and European Parliament elections with the Lord Chancellor's Department. To reflect this concurrent responsibility, the transfer of functions order which came into force on 25th November of last year allows for the various powers in, for example, the Representation of the People Acts and the European Parliamentary Elections Act 2002 to be exercised by either the Secretary of State or the Lord Chancellor or both.
  It is already therefore a recognised fact that it is within the Lord Chancellor's competence to exercise powers in relation to electoral law. The Bill reflects that by, for example, providing for him to lay orders before Parliament to implement the Electoral Commission's recommendations regarding the redistribution of MEPs and the region with which Gibraltar should be a part. At the same time, however, because the powers in the Bill will enable other related electoral legislation to be amended, it is appropriate to allow for the powers to be exercised concurrently with the Secretary of State for those functions for which he is responsible.
  I hope that the noble Lord, Lord Goodhart, does not regret asking his questions and that my explanation has given him a full answer.
  Lord Goodhart: I am grateful to the Minister for her helpful reply. I can see possibilities for confusion. As Gibraltar is a dependent territory, the Secretary of State for the Foreign and Commonwealth Office may also get involved. I only hope that the wires do not get crossed too often.
  Clause 23 agreed to.
  Clause 24 [Interpretation]:
  The Deputy Chairman of Committees (Baroness Ramsay of Cartvale): Before I call Amendment No. 29, I should inform the Committee that there is a mistake in the Marshalled List. The amendment should refer to inserting the words after the first "in" in page 12, line 6.
  Baroness Scotland of Asthal moved Amendment No. 29:
  Page 12, line 6, after -in" insert "or for"
  The noble Baroness said: This is a minor, technical amendment to ensure that the references in Clause 24(3) to law passed or made in Gibraltar also include references to legislation made for Gibraltar.
  The purpose of the subsection is supplementary to Clauses 12(4) and 17(3)(c). Those clauses provide that modifications can be made to relevant legislation in conjunction with the use of the power under Clauses 11 and 16 to make delegated legislation under the Bill. Those provisions are intended to refer to all legislation that may be affected, including any legislation applicable to Gibraltar. Clause 24(2) refers to Acts and subordinate legislation and subsection (3) was intended to catch other legislation applicable to Gibraltar. The amendment confirms that intended effect. I beg to move.
  Baroness Rawlings: We accept this technical amendment and welcome all the improvements that have been made to the Bill this afternoon.
  Lord Goodhart: As someone who sat through six days—I think it was—in Grand Committee on the Crime (International Co-operation) Bill, it is a great pleasure to have dealt with the whole of consideration in Committee in, after allowing for time out for a Division, an hour and a half.
  Baroness Scotland of Asthal: I thank both noble Lords and the noble Baroness for their expedition. Without their happy and helpful approach, none of that could have been achieved.
  On Question, amendment agreed to.
  Clause 24, as amended, agreed to.
  Clause 25 agreed to.
  Bill reported with amendments.
  The Committee adjourned at nine minutes past six o'clock.