HL Deb 27 March 2003 vol 646 cc956-65

3.28 p.m.

Report received.

Clause 3 [Recommendations by Electoral Commission as to the distribution of United Kingdom MEPs]:

Baroness Rawlings moved Amendment No. 1: Page 3, line 4, leave out "or anticipated change

The noble Baroness said: My Lords, the amendment is designed to set out an important principle; namely, that a power as important as that affecting the franchise for the European Parliament should not be exercised by order, unless and until legislation to effect such a change has been agreed in the European Community. The clause allows the Lord Chancellor—while negotiations continue on the final numbers for each country and before any agreement is reached on the matter, still less any change in Community law—to order the expenditure of public money to investigate a range of possible outcomes as regards changes to our existing electoral arrangements.

In general, it is best to proceed on the basis of what the law is, not what it might be. I should therefore be grateful to the Minister if she could advise the House of the circumstances in which this power might be used by the Government.

I am prepared to accept that there may be many exceptional circumstances. There is the firm background of the Nice treaty. There is the impending accession of a large number of countries and the approaching date of elections to the European Parliament. Against that background, it is reasonable to explore changes in the franchise arrangements as envisaged under the Bill. But that could be treated as a special case. Exceptional circumstances do not justify permanent powers.

Is the view of the Minister that there might be a change in the law at some time in the future a justifiable pretext for taking a permanent power to incur spending on an investigation of possible electoral futures? I am not sure that it is. Therefore, I hope that the Minister will give some indication of where and when this power will he used and will explain the safeguards that there will he on the use of such an open-ended power. I beg to move.

3.30 p.m.

Baroness Scotland of Asthal

My Lords, this amendment will limit the circumstances under which the Lord Chancellor can take action to instruct the Electoral Commission to commence its redistribution work. I am grateful for the way in which the noble Baroness has put it; namely, that this is a probing amendment. The effect of the amendment would prevent the Lord Chancellor from asking the Electoral Commission to work on an expected number of MEPs.

Although we expect to be reasonably certain of the final numbers of MEPs for the 2004 elections by September 2003—by which time it is expected that all the accession states will have held their referendums—it is likely that the final figure will not be certain and fixed by Community law until it is too late for the Electoral Commission to finish its work and for the necessary implementation to take place. Clearly, that will simply limit flexibility and possibly prevent the work being completed in time. There can be no objection to beginning work early when a change is anticipated so that we can be quick off the mark when the final decision is made.

Furthermore, the Electoral Commission will be able to make recommendations, which would suit different possible numbers, to enable a review where the final position is uncertain. But it is only the recommendation which matches the final number fixed under Community law which can be reflected in the order.

Allowing work to commence on the expected number is simply prudent planning. I hope that that is an explanation with which the noble Baroness will feel able to be content.

Baroness Rawlings

My Lords, I am grateful, as ever, to the Minister for her courtesy in her reply and for all the briefing that she sent me. I thank her for such a detailed reply. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

Baroness Rawlings moved Amendment No 5: Page 3, line 17, at end insert— ( ) After the first issuing of a notice by the Lord Chancellor under subsection (1) after the coming into force of this Act, no further notice may be issued until the Lord Chancellor has invited the Electoral Commission to carry out a full review of the method of election of MEPs, including specifically the issue of whether it is the most effective means of allowing electors to choose the individual candidate or candidates of their choice from among all those standing for election, and the report of the Commission has been laid before both Houses of Parliament.

The noble Baroness said: My Lords, in moving this amendment, I do not pretend that the wording is perfect. But the point behind it is extremely important. It follows on from the spirit of an amendment moved by the noble Lord, Lord Rennard, in Grand Committee—an amendment with which this side of the House had a great deal of sympathy, but which was swatted away by the Minister as not relevant to the present Bill.

With respect, the issue is entirely germane to the present Bill which is about the representation of the United Kingdom in the European Parliament. Those of us who believe profoundly in the importance of the European Parliament, as I do, are deeply concerned by the degree of cynicism and alienation that surrounded the methods of election used in the last European elections. I do not believe that it is in the long-term interests of true representative democracy or the standing of the European Parliament to perpetuate that system of election.

The closed list system, used cynically, deprives the electorate of what this amendment asks that they should have; namely, an effective means of choosing an MEP of their own choice from among candidates set before them. Surely that right is the very essence of representative democracy.

As is well known, we on this side are not in general terms enthusiasts of PR systems. But the fact is that it is possible to have a PR system which allows electors to choose an individual MEP. Sadly, the Government chose a system in 1999 which deliberately deprived the electorate of that right. Instead, they placed the selection of MEPs in the hands of the central apparat of the various political parties through the notorious closed list system.

To its great credit this House, on six occasions, stood against that undemocratic system. Indeed, it never agreed to the imposition of closed lists. They were imposed by use of the Parliament Acts. No less an authority than the noble and learned Lord, Lord Donaldson of Lymington, has added his voice to those who argue that an Act such as this. passed by only one House of Parliament, is of questionable legality. But that is not the issue before us today.

However, I question whether this discredited and anti-democratic system can be allowed to continue indefinitely without question, as the Minister appeared to imply in Grand Committee. There is no one outside the ranks of the Government and their most robotic supporters outside Parliament who thinks that it should.

Amendment No. 5 is not a device to interfere with or to hold up progress towards treaty implementation or towards the next European elections. Doubtless, that change will be levelled, but it would be wrong. Nor is it a frivolous amendment. It addresses an issue of major concern. It simply states that at a certain point in the future after the first order issued under this Act, but before any subsequent order, the Electoral Commission should be required to conduct an investigation into the nature and application of the closed list system and into whether it properly allows the public to choose their MEPs.

It also asks that the report of the Commission should be debated in both Houses of Parliament. That is not an unreasonable proposition or an unreasonable expectation to have of the Government. Indeed, I believe that there would be agreement with this objective on all Benches of this House. I do not think that this House which fought so hard and for so long against closed lists should give up that fight.

I hope that the Government will listen and that the Minister will give an undertaking that there will be a full review of the validity of the closed list system. If not, I shall be tempted to return to the matter at Third Reading. Indeed, given any encouragement from noble Lords on the Liberal Democrat Benches, I might be tempted to test the opinion of the House. I beg to move.

Lord Goodhart

My Lords, indeed, that was a challenge. I am pleased to welcome the conversion of the noble Baroness, Lady Rawlings, to those who support a more democratic system of election than either the closed list or first-past-the-post systems. The Liberal Democrats were strongly opposed to the closed list system, which is probably the worst system invented for elections in multi-member constituencies. We have always taken the view that the single transferable vote system (STV) was clearly the best in these circumstances. Failing that, an open list system, which would enable voters to regulate the order in which members came on that list, was very much preferable to the closed list system.

Therefore, I support the idea of the Electoral Commission looking at this issue, although, on this occasion with no advance warning, I would not necessarily press the noble Baroness to divide the House. Certainly, it is a proposal that we should welcome and which we might well look at favourably.

Earl Russell

My Lords, I am in full agreement with all that my noble friend Lord Goodhart has said. Quite often we discuss the decline of interest in politics, but at Question Time this afternoon we discussed an increasing interest in politics. I think the common factor here is that interest in politics no longer can be translated automatically into support for a party.

A great many noble Lords in this Chamber feel very passionately about one or more political causes which have supporters in all three parties. Often those people wish to cast their votes, just as much as anyone else would wish to do so. But they cannot do so by voting for a party; they can do so only by voting for individuals who happen to have an attachment to that cause for which they stand.

That is something for which elections by a closed list system makes absolutely no allowance. Only if you can vote for the candidate because of the causes for which that candidate stands can you express your opinion. So getting away from the closed list is something which might do a good deal to revitalise interest in elections. Furthermore, it would lead to the point where, instead of having representation of the parties, we would have representation of the people. After all, that is what it is all about.

Baroness Scotland of Asthal

My Lords, this debate has echoed the vigour with which the matter was pursued when it was debated in 1999. It was right for the noble Baroness to remind noble Lords that on six occasions it was sent back to another place. But we know that, ultimately, it became the law of our country through the democratic processes we have all accepted and adopted. The will of the people, as expressed through those democratic processes, was therefore heard and upheld.

All I can say is that these are hotly contested issues about which people feel passionately. However, if I may speak frankly, the place for such discussion and debate is not as part of proceedings on this Bill. We have held only one election under the Act. By all accounts it was a successful election and marked just the beginning of the road. Of course in years to come further deep discussions may take place over whether that voting system is the one we want to adopt in the long term, but it is not for today and it is not for this Bill.

The amendment attempts to question the current voting system. Whatever the arguments, they go way beyond anything that could be done here. The effect of the amendment would be to engage the Electoral Commission in a long and complex review of a system which Parliament put in place only five years ago. As noble Lords will no doubt recall, that was a difficult and trenchant examination.

The Electoral Commission has a tight job to do in time for the elections in 2004. We think it appropriate for the commission to concentrate on that task. It would not be right to impose a requirement for a review of the system before going any further.

I know how tempting it is for the noble Baroness to say that she may seek to press the matter, but on this occasion I invite her to resist.

Baroness Rawlings

My Lords, I thank the Minister for her reply. I shall not detain the House today. We have tried to persuade the Government that this is an important matter. Perhaps it can be addressed on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord Goodhart moved Amendment No. 6: Page 5, line 34, at end insert — ( ) The name of the combined region shall be the name of the existing electoral region followed by the words "and Gibraltar.

The noble Lord said: My Lords, this is a short and largely self-explanatory amendment which has been tabled in response to a letter from a person registered as a voter in Gibraltar. The names of the electoral regions are listed in subsection (3) of new Section 1 of the European Parliamentary Elections Act 2002. If the Electoral Commission were to so recommend, the Lord Chancellor could then decide that Gibraltar could be added to, say, the North East region for the purposes of the election, the North East being the region with the smallest number of voters per seat. That could take place, but it would not mean that Gibraltar would become a part of the north-east of England, because plainly it is not.

In order to explain what is the constituency, it would be more rational to say that the constituency is the constituency of the North East region of England and Gibraltar. I beg to move.

Baroness Scotland of Asthal

My Lords, Clause 9 provides the basic building block for the enfranchisement of Gibraltar—the creation of a combined electoral region consisting of Gibraltar and one of the existing regions of England and Wales. Clause 10 goes on to enable the Lord Chancellor to make an order to create that region following a recommendation from the Electoral Commission. The amendment would provide that the name of the combined region should include "Gibraltar". We believe that such an amendment is both unnecessary and disproportionate for achieving our shared aim of enabling Gibraltarians to vote. Of course I note the enthusiasm with which the noble Lord, Lord Goodhart, alighted on the North East to be the chosen area, but that is something which the commission will have to consider with a great deal of care.

The creation of the combined region and the requirement under Clause 14 for there to be a register in the Gibraltar area of the region of those eligible to vote in the European parliamentary elections will ensure the franchise of the people of Gibraltar. Eligibility to vote will be defined in the same way as in the United Kingdom; that is, by reference to residence in that part of the electoral region. Furthermore, Clause 15(1) of the Bill states clearly that, among other criteria, a person is entitled to be registered in the Gibraltar register if, on the relevant date, he is resident in Gibraltar.

Adding Gibraltar to the title of the region raises an interesting issue because the average electorate in an electoral region for European Parliament elections is 3.7 million people. While it may seem preferable for reasons of transparency to have the name of Gibraltar in the title of the electoral region, that could equally be seen by those living in other parts of the region to be disproportionate, given the size of the electorate in Gibraltar relative to some of the other geographical areas that may be included in the combined region.

Perhaps I may give an example. The Isle of Wight has an electorate of some 104,000 people, while Gibraltar has around 20,000 voters. But the Isle of Wight does not have its name in the title of the region and I would have some sympathy with its voters if Gibraltar were to become part of the same region—the South East region—its name included in the title and thus a disproportionate amount of attention from candidates and the media attached just to the concerns of the Gibraltar part of the region. While all the electors in the combined regions will need to be aware of the component parts of the region, that can be achieved more than adequately through the normal publicity and documentation that is provided during an election campaign, without the attendant dangers of deflecting the political debate unfairly away from the needs of the region as a whole.

During the debate on a similar amendment in another place, my honourable friend the Parliamentary Secretary acknowledged that literature distributed in Gibraltar would need to be clear on this matter. We shall be considering how best that can be achieved when the detailed implementation of the provisions contained in the Bill begins.

We should not forget that while it is our firm intention that the people of Gibraltar should be enabled to vote in the European parliamentary elections, those elections and the electoral system are for the whole of the United Kingdom. We must be seen to be enabling free and fair elections to take place on the same basis throughout all the geographical territories covered by the system. We believe that the way in which Part 2 of the Bill has been formulated achieves that for all concerned and that therefore the amendment is not appropriate.

Perhaps I may remind noble Lords that, in relation to the regions, it has become the practice to set out in a table in legislation which areas are included in each combined region. Thus the names of the various areas will be made clear in the table. As it does for all other regions, we think that that will suffice.

Lord Goodhart

My Lords, we on these Benches have always been in favour of the small battalions and in this context Gibraltar is certainly a small, but worthy one. The difference between Gibraltar and the Isle of Wight is that the latter is part of the south-east region whereas Gibraltar is not part of any of the regions to which it might become attached for the purposes of this Bill. However, I have made the point and I do not intend to take it any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Regulations relating to sections 14 to 16]:

Lord Goodhart moved Amendment No. 7: Page 9, line 34, leave out "includes anything" and insert "is provision

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 8 and 9. These amendments are intended to pick up comments made by the Delegated Powers and Regulatory Reform Committee. In its eleventh report the committee doubted whether secondary legislation was appropriate for establishing the right to vote, the right to register a vote as a voter or the right to serve as an MEP in Gibraltar.

The report pointed out that the corresponding disqualifications in the United Kingdom were mostly dealt with by primary legislation although in some cases it was brought in by secondary legislation referring to primary legislation in another Act of Parliament. The report pointed out that the disqualification under what are now Clauses 17(1)(d) and (g) and Clause 21(1) are not limited to making provision corresponding to provision in the United Kingdom.

The Government delivered a full reply to that, but the committee was not persuaded and repeated the comments I have already mentioned in its twelfth report. The effect of these amendments is not to require primary legislation, but to do the next best thing, which is to limit the powers under Clause 17(1)(d) and (g) and Clause 21(1) to the making of provision corresponding to that in the United Kingdom. That means that it will not require primary legislation, but that disqualification must be limited to grounds for disqualification established by primary legislation in the United Kingdom. That seems to be more appropriate than the apparently much wider powers which the Bill now gives to the Government to legislate by regulation. I beg to move.

Baroness Scotland of Asthal

My Lords, I believe that when we debated this issue in Grand Committee the noble Lord said that he was minded to consider the matter further and possibly return to it at Report stage. He has kept his promise.

The noble Lord has made clear the purpose of these amendments is to try to restrict the enabling powers in Clauses 17 and 21 of the Bill. Amendment No. 7 seeks to restrict the powers in Clause 17(1) to provisions which correspond to those which are made in regulations under Section 53 of the Representation of the People Act 1983. Such a restriction is neither necessary nor practical given the context within which we are working.

Clause 17 enables the Lord Chancellor to make regulations supplementary to Clauses 14 to 16 of the Bill, which relate to the provision of a Gibraltar register for European parliamentary elections, the franchise and the entitlement to be on the register. These regulations will set out the details for these matters and that detail will as far as possible be the same as that in the equivalent UK provision, adapted where necessary to reflect the position in Gibraltar.

For the benefit of the House I should also explain that the matters to which I have referred are dealt with in UK law by both primary and secondary legislation. However, much of that legislation applies only indirectly in the case of the European Parliament elections because the franchise for European parliamentary elections is derived principally from the United Kingdom parliamentary franchise. As a result there is a large amount of primary and secondary legislation which is applicable to the UK franchise and which is not set out in the European Parliamentary Elections Act 2002 or the regulations under that Act.

It has been necessary to provide for the establishment of a separate franchise for Gibraltar as clearly there is not a UK parliamentary register to rely on. So all the primary and subordinate legislation will need to be dealt with specifically under the Bill and adapted where necessary to suit Gibraltar's circumstances. We will of course need to consult with the Government of Gibraltar to be sure that we get it right. This provides some idea of the enormous task that this would present if we were to try to establish on the face of the Bill precisely all the issues dealt with under Clause 17 and then to replicate the UK provisions with appropriate adaptations for Gibraltar.

Our aim is to have all the necessary legislation in place by as early a date as possible and no later than the autumn, so that all those involved in preparing for June 2004 elections have plenty of time beforehand to make the necessary preparations. This would not be possible if more substantive amounts of detail were to be included on the face of the Bill.

The overall approach of this legislation is to treat the Gibraltar electorate in the same manner as voters in an existing UK constituency. Enfranchisement, therefore, is based on UK electoral law and the Bill will enable replication of the relevant UK rules for Gibraltar as far as possible. Similar groups of people will be enfranchised and covered by similar rules to those already in place in the UK.

Perhaps I may give one example. Clauses 15 and 16 of the Bill enfranchise Commonwealth citizens who qualify by satisfying the relevant immigration provisions and also residency requirements. Clause 17 gives the Lord Chancellor the power to make regulations concerning residency requirements and the definition of qualifying Commonwealth citizens. For maximum consistency across the combined region these regulations will effectively match the UK requirement and ensure that all voters in Gibraltar are treated in a fair and equal manner to the remaining voters in the combined region.

I hope that that clarifies the situation for the noble Lord. It is entirely in line with the commitments we have made, including our public notification to the European Council in February 2002. There may be those who are concerned about the powers being too wide, but the implied limitations within the Bill itself ensure that that cannot be the case.

It remains our view, therefore, that all these matters are suitable to be dealt with under secondary legislation and indeed that it would be impractical to attempt to do otherwise. To restrict the powers in Clause 17(1) only to matters addressed by the regulations under Section 53 of the Representation of the People Act 1983, which are largely matters of detail and procedure, would mean that all other provisions that need to be made under Clause 17(1) would need to be made on the face of the Bill. I cannot believe that that is the noble Lord's intention.

I take Amendment No. 8 as intending to confirm that the matters addressed by subsection (3) are not challenged. However, I respectfully say that it is not right to refer to those provisions as being without prejudice to the generality of subsection (2), as subsection (3) includes a number of matters which are clearly distinct.

As to Clause 21, it enables the Lord Chancellor to extend the classes of those disqualified by Section 10 of the European Parliamentary Elections Act 2002 from being an MEP to include also persons having a connection with Gibraltar. The intention is to do this by both extending existing UK provisions so that they apply to Gibraltarians in similar circumstances, and also to include similar, but distinct, classes of people in Gibraltar to UK classes where UK classes cannot easily be applied to Gibraltarians.

Amendment No. 9 would restrict the power in Clause 21 so as to disqualify from being an MEP only classes of persons who are disqualified from being a member of the House of Assembly of Gibraltar. As with Amendments Nos. 7 and 8, Amendment No. 9 would restrict the power too far.

I hope that those explanations will satisfy the noble Lord that we have responded in a proportionate manner and will reassure him and the House that the powers in Clause 17 relate to matters which are suitable for delegation and which are limited in their scope by the very nature of the Bill.

Lord Goodhart

My Lords, I am grateful to the noble Baroness for the full explanation that she has given. Indeed, it goes somewhat beyond the explanation given in the letter from the Lord Chancellor to the Delegated Powers and Regulatory Reform Committee to which I referred.

I accept that there would perhaps be excessive rigidity in amendments on the lines that I have proposed, and that the Government's intentions are indeed proportionate to the purposes which it will be necessary to achieve in order to introduce Gibraltar into the European elections system. Therefore, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 21 [Disqualification from office of MEP]:

[Amendment No. 9 not moved.]