European Parliament (Representation) Bill

Public Bill Committee, 14 January 2003.

Standing Committee A

Clause 8 - Combination of Gibraltar with existing electoral region

Bill Cash (Conservative, Stone)

I beg to move amendment No. 40, in

clause 8, page 5, line 5, at beginning insert 'Subject to section 10,'.

Clause 8 is extremely important. It reads:

''Gibraltar is to be combined with an existing electoral region in England and Wales to form a new electoral region (''the combined region'') for the purposes of European Parliamentary elections taking place after 1st April 2004.''

Inserting the phrase ''Subject to section 10'' at the beginning of that clause draws attention to the provisions of clause 10. Subject to my attempts to have him substituted by the Secretary of State, even more so after yesterday's debate on criminal justice, under clause 10

''The Lord Chancellor may by order . . . specify the existing electoral region to be combined with Gibraltar to form the combined region; and . . . make provision establishing the combined region.''

That is the essence of the point that I want to make and I have quite a lot to say about the manner in which clauses 10 and 11 and the supplementary arrangements set up under clause 12 will interact. In a nutshell, the effect of this apparently innocuous amendment would be to provide a more efficacious manner in which to combine Gibraltar with the existing electoral region.

One thing that has come to my notice has caused me a great deal of concern and I ask the Minister to give the House of Commons, let alone the Committee, an explanation. According to the reports—this may be of some satisfaction to the Government qua Government—up until June 2002 when the Home Office was dealing with the matter, things were proceeding in an extremely orderly fashion. Admittedly, there were serious disputes about the question of a referendum. Foreign Office Ministers were making all sorts of statements and there were counter-statements from Gibraltar. We know the history of that. The bottom line is that it was about whether the people of Gibraltar should be allowed to have their say on the extremely vexed question of relations with Spain.

I am not privy to what goes on behind the scenes in the Government; I can only put the most perceptive interpretation on it that I can, based on the information that I receive. The Minister may be able to explain why, when the Lord Chancellor's Department took over the arrangements, everything suddenly went completely off course, by which I mean that there was no further consultation. The Minister may say that she and the Minister for Europe had

meetings in December, but despite everything that the Government have said about pre-legislative scrutiny, the reality is that, at that point, everything went silent. There was no further consultation and, as I understand it, Gibraltar was not consulted about the proposals in the Bill at all. That seems unbelievable.

We are talking about citizens who will be voting in a combined region and whose democratic rights will be affected by the manner in which the arrangements operate. There is an established system of government in Gibraltar through the House of Assembly. There is a vast tradition of loyalty to this country, extending back to Rooke's famous taking of Gibraltar in 1702—I am sure that someone will correct me if I am wrong.

Paul Farrelly (Labour, Newcastle-under-Lyme)

1704.

Bill Cash (Conservative, Stone)

1704—the same year as Blenheim.

The fact is that, against that background, the people of Gibraltar, the Chief Minister and others in that territory are simply being snubbed—that is the only word that one can use. Let us imagine that a Bill was introduced that affected people in a similar fashion, but that was outside the domain of the foreign policy questions tied up with Gibraltar and Spain. I would imagine that if there were already an established electorate and an established form of government, it would be inconceivable for there to be no discussions. I may be entirely wrong: that may be how things have been going on for centuries.

I await with interest what the hon. Member for Somerton and Frome (Mr. Heath) has to say, but first let me give a direct example. Were not the ex-colonies, when they were brought to independence with the wind of change, consulted extensively about the manner in which they were to be governed? I expect the answer to be yes. I think it inconceivable that they were suddenly presented with a Bill that said, ''This is the way, and you're going to have to accept it.''

There is an important constitutional question in this regard, because after all the Lord Chancellor has been given, or has taken to himself—I am not quite sure about the relationship between master and pupil in these matters—a huge number of additional responsibilities relating to constitutional affairs. If he falls at the first hurdle, which is to consult properly people whose democratic rights are affected, that is just another accumulated mortal sin.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the hon. Gentleman: he raises an important point and it will be interesting to hear what the Minister says about the lack of consultation between the Lord Chancellor's Department and the Government of Gibraltar. He may be interested to know that there were no consultations with that Government before the beginning of last year, either. That is outlined in a memorandum from Mr. Caruana to the Foreign Affairs Committee that is included in its first report of the Session 2001–02, which states:

''No proposals have yet been put to the Gibraltar Government as to the manner and timing of the enfranchisement.''

There was a very short window of opportunity for the Gibraltar Government to comment.

Bill Cash (Conservative, Stone)

Without disrespect to the hon. Gentleman's colleagues, I must say that there seems to be symmetry in our approach to these seminal questions. We look at what is happening and why and arrive at a similar conclusion about the manner in which these constitutional issues are dealt with. I am most grateful to him for drawing attention to the matter, as I did not appreciate that the situation was so bad. As I said on Second Reading, it raises all sorts of questions about the panjandrums of the 21st century, who are very ready to criticise the United Kingdom's conduct in the 19th century and before. The Committee will have heard of Niall Ferguson's book, which is recommended reading for many people. Treating the people of Gibraltar, and the elected Government and Chief Minister in this manner is inexcusable.

People outside this Room will be more than interested to know the Minister's response. The Minister has a way of not replying to any of my questions. She has a brief, which she sticks to religiously, but there are some important questions that need answers. They must not be ignored because we are in the confines of this Committee. These are important matters that affect the manner in which the Government treat the people of Gibraltar. Some prominent, distinguished and vociferous members of the hon. Lady's party feel intensely about Gibraltar. They should hear the truth about what happened and we will press for that so that the situation can be remedied.

I made a similar point at the start of our proceedings when it appeared that the Electoral Commission had not been consulted on the Bill's proposals on boundary commissions and so on. The lack of consultation is astonishing coming from a Government who apparently put such a high premium on pre-legislative scrutiny, the openness of government and freedom of information. By any standards, there is a whiff of hypocrisy about it. I should like answers to my questions.

Against that background, we have an indication of the rationale and the thinking behind the Government's authoritarian approach. The Minister may say that the Government are doing Gibraltar a great service and providing them with the opportunity to vote in elections for the European Parliament. There are other territories whose view would be that if they were to allow themselves to be drawn into elections, other things might follow that they would find disagreeable. I refer in general terms to the imperial ambitions of the European Commission and all that goes with the Convention and so on. I have already made the point in this Committee, in the Standing Committee on the Convention, on the Floor of the House and in the Scrutiny Committee that I have reason to believe from documents that I have seen that places such as Gibraltar, not to mention the Isle of Man, Jersey and Guernsey, are unquestionably in the sights of the European Union's imperial adjutants. I have seen provisions that clearly show that, despite superficial protestations that it will not happen or even that they could not do anything about it, they will be swept into a broader European Union

without the necessary consultation and on a similar basis to what is taking place here. That is the problem.

The Denise Matthews case was the real reason why all this happened. If the Minister says that the hon. Gentleman should not speak about that case, because it was his Government who declined to do the right thing at the time and give her a vote, I agree. There is no virtue in trying to cover up past mistakes, of which there have been many. Indeed, all parties have made mistakes over an extended period. The European Court of Human Rights' ruling that the United Kingdom's failure to enfranchise Gibraltar for elections to the European Parliament constituted a violation of article 3 of the second protocol was about one essential point—that article 3 requires elections to be by universal suffrage.

As I said on Second Reading, the Prime Minister no doubt found himself between the Rock and a hard place. On the one hand, there is his so-called visionary attitude towards European integration, which he said only at the beginning of January was political, as if it could ever have been anything else. I should love to be able to enlarge on that, Mr. Cook, but I shall not do so. On the other hand, there is the fact that the European Court of Human Rights had ruled that electors in Gibraltar had an absolute right to be combined with the United Kingdom for the purpose of the European elections. There is an apparent element of contradiction there. In view of the way in which those discussions went and the background to the referendum dispute, when 98 or 99 per cent. of the people of Gibraltar expressed their views on a referendum, it would not be helpful or wise for this or any Minister, or any member of the Committee, assuming that it was possible to stir them from their silence, to suggest that the Government had somehow done the people of Gibraltar a good turn. They have not. In those circumstances it will be more than interesting to hear what the Minister says about the way in which all that happened.

David Heath (Liberal Democrat, Somerton and Frome)

On a point of order, Mr. Cook. I seek your guidance. The comments of the hon. Member for Stone (Mr. Cash) on the amendment have gone fairly wide.

Frank Cook (Labour, Stockton North)

I have allowed that.

David Heath (Liberal Democrat, Somerton and Frome)

I just want an indication of whether you intend to have a debate on clause stand part, Mr. Cook, in which case I shall sit down and allow the Minister to reply, or whether you would wish a wider debate to take place on this group of amendments.

Frank Cook (Labour, Stockton North)

I have been lenient so far in order to allow the hon. Member for Stone to explain fully and comprehensively the point that he sought to explore. He has certainly been allowed to do that and he came close to the mark on more than one occasion. It would not be in my mind to permit a clause stand part debate after such a discussion, so if the hon. Member for Somerton and Frome wishes to take the Floor, he may do so.

Bill Cash (Conservative, Stone)

Further to that point of order, Mr. Cook, I need to know how the Minister will respond. If I wait till clause stand part, that will be too late.

Frank Cook (Labour, Stockton North)

The hon. Gentleman has moved an amendment, which I am about to put to the Committee. I have already said that, in view of the length and range of his introduction to that amendment, I do not intend to allow a clause stand part debate. He will, I am sure, have the opportunity to listen to the Minister and to come back into the debate, as he invariably does.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful for your guidance, Mr. Cook. I hope that I have not caused difficulties elsewhere by having sought that guidance.

The amendment seeks to put clause 8 in the context of clause 10. I should like to associate myself with some of the comments that the hon. Member for Stone made in deploring what appears to be a lack of consultation with the Government of Gibraltar on such matters. I must say that I find the Government's position on the enfranchisement of Gibraltar inexplicable. Year after year after year, since the Matthews judgment, they have waited to do anything at all. They first declared that Spain had an absolute veto on the constitutional change, then had second thoughts and declared that Spain did not have such a veto. All the while, they could have been talking to the Chief Minister and the House of Assembly in Gibraltar about how enfranchisement could take place, but they failed to do so.

That displays an attitude to the overseas territories that, I am afraid, is pervasive across the Government. I do not think that that helps our relationship with the dependent territories, as they were formerly called, which rely on the United Kingdom Government for overseas relations and much domestic legislation. Having said that, it is important to understand the Government's thinking on enfranchisement. The Bill contains a very limited provision and the amendment is of limited scope, but following Second Reading, the Minister was kind enough to write to the hon. Member for South Norfolk (Mr. Bacon) explaining the differences that the Department recognises between Gibraltar's position and that of the other Crown territories in that regard.

I should be most grateful if the Minister could provide me with a note, from her Department or from the Foreign and Commonwealth Office, on the perceived differences between the position of Gibraltar, as a territory in the European Union that is justified in wanting to ensure representation in the European Parliament, and the analogous territories of other member states. I am thinking of the Départements et Territoires d'Outre-Mer, where the position is clear, the Faroe Islands, where it is perhaps less clear, Greenland, which had an MEP until it chose by referendum to leave the territory of the European Union in 1985, the Netherlands Antilles, Aruba and a country that is now seeking re-admission to the European Union—Malta, which at the time of its independence in 1955 was offered three MPs in the Westminster Parliament. That might be held to have set a precedent for the future representation of Gibraltar, were the Government minded to consider that.

A short note setting out the Government's understanding of the constitutional differences between those areas would be of great help in understanding clause 8 and the amendment to relate that to clause 10. We would all then be aware of the Government's thinking. I state plainly my view that clause 8 should go further in providing for the representation of Gibraltar in the UK legislature. The reform of the House of Lords may provide such an opportunity and we can return to the matter at that point. The issue is beyond the scope of the Bill, which is why we cannot debate it further or put down appropriate amendments at this stage.

It would be helpful to know the Government's position. Clearly they have set their mind against the idea, but I remind the Minister that the people of Gibraltar have made it very plain that they will reject a conjunction of administrative arrangements without a conjunction of political arrangements. There can be an integration of both, but there cannot be an integration of one without the other. If that is to be the future status of Gibraltar and if we are to see a closer rather than a more distant tie between it and the UK, implicit in the arrangements must be an enhanced representation of the people of Gibraltar within the European Parliament and the UK legislature.

Yvette Cooper (Labour, Pontefract and Castleford)

The amendment would make clause 8 subject to the order in clause 10. That is slightly odd because clause 8 sets out a principle; it does not set out any of the detail of the implementation. The clause sets out the very clear principle that Gibraltar should get the vote as part of an existing electoral region. It is right that that should be in primary legislation and not subject to an order because it is effectively the key principle of this part of the Bill. It implements the UK's obligations as a result of the judgment in the case of Matthews v. UK. There is no realistic alternative to combining Gibraltar with an existing region because the size of Gibraltar, which has an electorate of about 20,000 people, compared with regions that have electorates of several million, means that it would be inappropriate for it to have a region of its own; we have to combine Gibraltar with an existing region.

The principle is straightforward and we should discuss it as part of the process of going through the Bill in Committee rather than make it subject to a future order. The order deals with the question of which existing electoral region is to be combined with Gibraltar. Provision is also made for further detailed amendments to electoral law in order to make the election fair and capable of working in practice. The principle is straightforward and should be embedded in primary legislation.

Opposition Members have raised concerns about the consultation of the Government of Gibraltar. I will set out what has taken place. Of course the views of Gibraltar must be incorporated in the process and I will return to that point in more detail in relation to other amendments. It is not the case that there has not been consultation with Gibraltar; on the contrary, there has been extensive discussion with Gibraltar over a long period. The Home Office dealt with the issue

until June 2001, not until June 2002, as the hon. Member for Stone claimed. In June 2001 the issue passed to the Department of the Environment, Transport and the Regions, and in May 2002 it passed to the Lord Chancellor's Department. Consultation and discussions took place under each of those Departments. Officials met the Government of Gibraltar in January and June 2002, wrote to them again in April and November 2002 and met them again in December 2002.

Extensive discussions have taken place and Government officials have set out the overall approach at several stages in the process. There have been detailed discussions, most recently in December once the Bill was finally published. We are currently considering some of the issues raised by the Government of Gibraltar at that meeting, and there is a case for looking at further amendments as a result of the points that they raised.

We will discuss those issues at a later stage in the process. At this stage, there is not a case for amending the clause because it contains the fundamental, underlying principle in the Bill, which should be clear in primary legislation. There are other issues on which we are keen to take account of the views of the Government of Gibraltar and to ensure that proper consultation takes place over the next few months, as it has done previously.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for explaining the process as she sees it. Will she share the Government of Gibraltar's views with members of the Committee to allow us to understand any objections or suggestions that they may have and to interpret any amendments that are brought forward at a later stage?

Yvette Cooper (Labour, Pontefract and Castleford)

The Government of Gibraltar are keen to ensure that they and the House of Assembly have the chance to discuss some of the issues. A series of issues surrounds amendments and changes to electoral law to ensure that Gibraltar is part of the register and has the same rules on donations to political parties as other members of the region. There have been discussions with the Government of Gibraltar about the role that the House of Assembly can play in the process, which discussions should take place in Gibraltar and which should take place in Westminster. We are still looking at the detail because many of the discussions relate to the legal position, such as the issue of where laws apply. As I understand the Government of Gibraltar's position, they are content with the overall approach in the Bill and are understandably keen to ensure that they and the House of Assembly should have a continuing say as the detailed process of implementing the Bill takes place.

The amendment is therefore unnecessary. The hon. Gentleman asked whether I would write to him on the relationship between Gibraltar and other parts of the European Union, and I will be happy to do so. As he will know, I discussed other Crown dependencies and British overseas territories in a previous letter, but I will be happy to write to him on the broader issues.

Bill Cash (Conservative, Stone)

Before the Minister finally sits down, will she be kind enough to tell us exactly what consultations on the Bill took place with those in Gibraltar to whom she has referred? She should bear it in mind that elections in Gibraltar are ''a defined domestic matter'' under its constitution. The mechanics, which she has described, are, despite the so-called rule of uniformity, matters that clearly go to the heart of the way in which the people of Gibraltar express their wishes in their elections.

Yvette Cooper (Labour, Pontefract and Castleford)

No one is pretending that the mechanics are simple. We are combining Gibraltar with an existing region of the UK. We have a series of laws and regulations, which do not currently apply in Gibraltar, constraining the way in which elections take place in the UK, such as the rules governing donations to political parties. It is for the House of Assembly, those who live in Gibraltar and the Government of Gibraltar to determine elections to the House of Assembly. If they are to be part of a combined region, however, the rules that apply to Gibraltar need to be the same as those that apply to the rest of the combined region in order to ensure that elections to the European Parliament are fair. That situation is not simple, and no one is pretending that it is. It will require some complex changes, which will need to apply to European parliamentary elections, but not other elections, in Gibraltar.

The Bill's general approach has been set out to the Government of Gibraltar. As soon as it was possible to discuss its full details with them, we did so. As I have said, officials had detailed discussions in December on the Bill's provisions. In the light of those discussions, we are considering whether further amendments can be brought forward. We will discuss such amendments at a later stage, but they do not relate to the clause, which simply sets out the principle behind the Bill. I therefore oppose the amendment.

Bill Cash (Conservative, Stone)

I hear what the Minister says. We have had a thorough debate and appear to be making some progress because, irrespective of errors in the past and the lack of meaningful consultation, amendments may come forward and discussions are likely to take place. The hon. Member for Somerton and Frome has asked for a paper, which I have no doubt will help to illuminate the matter. Because the amendment was a probing amendment to get a better understanding before the Minister deals with other matters later in the Bill, I am prepared to withdraw it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of the debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9 - Electoral Commission recommendation as to the electoral region to be combined with Gibraltar

Bill Cash (Conservative, Stone)

I beg to move amendment No. 42, in

clause 9, page 5, line 16, leave out 'the Governor and'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No.7, in

clause 9, page 5, line 16, leave out from 'Governor' to end of line 17 and insert

'Chief Minister and the House of Assembly of Gibraltar, and representatives of political parties established in Gibraltar which it expects to seek registration under section 11(3)'.

Amendment No.43, in

clause 9, page 5, line 17, at end insert

'and the Leader of the Opposition in Gibraltar'.

Bill Cash (Conservative, Stone)

The amendment's importance is reflected by the hon. Member for Somerton and Frome's rowing in with his own suggestions, which we can discuss when we move further forward.

Basically, clause 9 provides for the Electoral Commission's role in recommending the electoral region to be combined with Gibraltar. It states that before 1 September 2003, the Electoral Commission is obliged to

''consider which of the existing electoral regions . . . should be combined with Gibraltar''

and

''report its conclusions . . . to the Lord Chancellor.''

Those conclusions must include the existing region with which Gibraltar should be combined. It goes on to say:

''Before determining what recommendation to make'',

which would occur after the Electoral Commission has made its consideration of the existing electoral regions with which Gibraltar might or might not be suitable to combine,

''the Electoral Commission must consult''—

in other words it is under an obligation—

''the Governor and the Chief Minister of Gibraltar.''

That point was discussed on Second Reading.

There is a provision in the Bill—it appears in many Bills—that deals with the question of consultation. It means that due regard should be paid to the views of the person being consulted and that reasons should be given for the eventual decision. Having said that, that clause also states:

''The report required by this section must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor.''

In that context, I have repeatedly stated that there should also be proper debate.

On the role of the Governor, I have suggested in my amendment that the word ''Governor'' should be deleted. That is because—this relates to elections, citizens' rights and so forth—the clause provides for the Governor to be consulted about the constituency

with which Gibraltar should be combined. I cannot think of a good reason why the Governor should be interested, as an unelected, appointed representative of the United Kingdom Government, in being consulted about whom the people of Gibraltar should be combined with. It might seem on the surface that, as he is the Governor of Gibraltar, it would be nice to keep him informed, but we should consider the democratic implications. The unelected Lord Chancellor, the unelected Electoral Commission, and now the unelected Governor are all taking the prime role in determining whether the people of Gibraltar should be joined with one constituency or another.

It does not take much imagination to realise that that is not a democratic way of going about things. I hesitate to mention that we have already discussed the gamut of concerns about the manner in which the order-making powers are being made and so on. I have also said that I believe that the report presented by the Electoral Commission should be debated by Parliament on a substantive motion. It is not difficult to appreciate that the suggestion that some of the other people should be excluded but the Governor himself should be included is extremely unfortunate.

In amendment No. 43, I propose that the leader of the Opposition in Gibraltar should be consulted, too. In a similar situation in the United Kingdom, we might expect the Leader of the Opposition to be consulted, albeit on Privy Council terms, in relation to a major change in the electoral system. Therefore, there is a powerful case for consulting not only the Chief Minister but the leader of the Opposition.

The hon. Member for Somerton and Frome goes further in amendment No. 7. He wants the House of Assembly in Gibraltar to be added,

''and representatives of political parties established in Gibraltar which it expects to seek registration under section 11(3).''

Clearly, it is for the hon. Gentleman to develop his argument and I shall be interested to hear what he says. However, consultation with the Parliament, although it is not a huge Parliament, is quite difficult. Unfortunately, its Members are not elected as such. They are elected, but not to perform what I believe is the role of the Chief Minister and the leader of the Opposition in this context, who have the main responsibility—I put it no higher than that—for considering such matters.

I do not believe that the Governor, being unelected, should be at the centre of the consultation process about the sensitive matter of Gibraltar's democracy. Nobody would doubt for a minute that he would not be informed about what was going on, but it is unnecessary to provide for formal consultation in the Bill. I imagine that he takes his instructions from the Government anyway, because that is the basis on which governors and governors-general operate. To say that they take their instructions from the Government is probably going too far because they operate on behalf of the Queen, who takes advice from her Government, which often means the same thing. I was involved in the dispute when the Americans invaded Grenada and, without going into great detail, I was asked by a certain body of people to give a constitutional opinion on whether the Governor-

General had exceeded his powers. The role can become controversial.

Andrew Rosindell (Conservative, Romford)

A governor is often appointed and is often a career civil servant from the Foreign Office, as is, I believe, the present Governor. Does my hon. Friend agree that it would be absurd to expect, for example, a lord lieutenant or deputy lord lieutenant of a county to be consulted on parliamentary constituency boundaries? Surely, there is no justification for such consultation when elected representatives such as the leader of the Opposition are not consulted.

Bill Cash (Conservative, Stone)

My hon. Friend's point concerning the leader of the Opposition is right, but we shall get into deep water if we compare governors with deputy lieutenants. It is important to focus on the important aspect of the relationship between a governor and the Government in the United Kingdom and his constitutional role to understand the reasons why consultation with him under the Bill is unnecessary and could produce unsatisfactory results. The avenues exist and they can be left to existing constitutional arrangements. It is much more important that the Chief Minister and the leader of the Opposition should be consulted.

David Heath (Liberal Democrat, Somerton and Frome)

I shall speak to amendment No. 7 in my name and that of my hon. Friend the Member for Colchester (Bob Russell) who, unfortunately, has had to attend a meeting of the Select Committee on Home Affairs. I know that he wanted to be here.

The hon. Member for Stone raised an important issue in his amendment about the role of the Governor. It would be anomalous if the Governor were described as a simple functionary of the Foreign and Commonwealth Office in that that would mean that the Government were consulting themselves. In this instance, the Governor has a wider constitutional role. The hon. Member for Romford (Mr. Rosindell) has a point in saying that the Governor is effectively the Crown in the context of an overseas territory. The Governor carries out the functions of the Crown and, following the recommendation of the Secretary of State, is an appointment of the Crown. It is an odd Bill that requires the Executive to consult the Crown on matters of electoral law and there could be strange constitutional ramifications. It would be hard to envisage any context in which the Governor could express a personal view or a view that could be construed as controversial in any way in those circumstances without bringing into question large parts of the constitutional settlement. That would be a worrying turn of events in relation to what is a minor provision.

Bill Cash (Conservative, Stone)

Relying on such reports as I have come across and in the context of discussions and rows over the referendum when the Governor took a position, the consequences for his popularity were such that this might not be the most sensitive provision to put in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

That may well be, but I return to my principal thesis. The proper people to speak for the

people of Gibraltar are those elected by the people of Gibraltar, not those appointed by the Foreign Secretary. It is extraordinary that provision has not been made for consultation with the elected Members of the Gibraltar House of Assembly. The Chief Minister may well speak for the people of Gibraltar and consult with the Assembly. In the case of Mr. Caruana, I have no doubt that that would happen, but that is not the point. The legislation should require consultation with elected Members en bloc.

It is a small House of Assembly elected on a rather strange franchise. I shall not bore the Committee with detail about how the number of seats is calculated, but it is not as one would expect for a normal legislative body. All sides of political opinion within Gibraltar should be heard and be seen to be heard, which is why I tabled the amendment.

I would go further. The House of Assembly currently constitutes representatives of three parties. As well as the main Opposition, the Liberal party, led by Dr. Joseph Garcia, holds two seats and I see no reason to exclude someone who holds two seats in the House of Assembly. A more basic question is relevant. Each of the political parties that might be expected to seek registration—this is the purport of my amendment—has a legitimate view on the operation of electoral arrangements.

In this country, political parties are always consulted about such matters. Indeed, huge consultation takes place not only over the Government's proposals for the political process, but the secondary proposals of the Electoral Commission that flow from them. Consultation is enshrined in several examples of legislation passed by the Government, so why should it be any different because it is Gibraltar? Why do we treat the people of Gibraltar as if they have no valid opinion of their own on these matters?

Identifying the electoral region for combination is a relatively minor matter in the context of the whole. At least anecdotal evidence suggests that the people of Gibraltar would prefer to be combined with the south-west region. The Select Committee on Foreign Affairs expressed that view in its 11th report of the 2001–02 Session. A footnote states:

''We note that during our visit to Gibraltar, a preference was expressed for the South West region.''

That may be the outcome, but it is not for me, or the House to judge. It is up to the Electoral Commission to bring forward a recommendation. Preferences should be expressed first by the House of Assembly en bloc and, secondly, by the political parties.

I am not sure whether any properly formed political parties are not currently represented in the House of Assembly. I admit my ignorance, but it is logical and reasonable to assume that there may be. There may even be a pro-Spanish party, although it would be unlikely to engender many votes in the present state of affairs in Gibraltar. Even the views of such a party, if it exists, should be heard.

Andrew Rosindell (Conservative, Romford)

I might be able to help the hon. Gentleman. In fact, there are two Liberal parties, two Labour parties and one Social Democrat party—but no Conservative party—in Gibraltar. Is the hon. Gentleman suggesting that all five of the political parties be consulted, or only those that are elected to represent Gibraltar in the House of Assembly?

David Heath (Liberal Democrat, Somerton and Frome)

The process for registration of political parties laid out in the Bill indicates that all political parties that aspire to registration and to taking part in the process should be consulted. However, it is reasonable to assume that the weight attached to the views of the House of Assembly is likely to be greater than that attached to the views of a party that has not succeeded in attracting electoral support.

I was not aware that there were two Liberal parties in Gibraltar. However, I have observed that in many European countries there are two Liberal parties, of which one is always in government. That seems to be an excellent state of affairs, along with there being no Conservative party, which also has its attractions. However, I will not pursue that matter further.

A basic principle of consultation is that it should take place with those who represent the people at whom the legislation is targeted. At present, only two individuals bear the responsibility for providing that input. The first of those is the Governor, who, for reasons that we have already discussed, may not be an appropriate person to consult. The other is the Chief Minister, whose views are certainly of importance. However, his views would be of even greater value if there were a requirement to consult with those who may not hold identical political views to his.

That is the purport of amendment No. 7, and I believe that the Government would be well advised to accept one or both of the amendments.

Yvette Cooper (Labour, Pontefract and Castleford)

I am happy to agree to the principles behind the amendments, but I will ask the hon. Member for Stone to withdraw the amendment. I will explain the reasons for that request.

The Electoral Commission should consult widely, and has said that it intends to do so. It has a record of taking this sort of issue and the obligation to consult very seriously. I agree with Opposition Members that the Electoral Commission should consult Members of the House of Assembly, the political parties and the leader of the Opposition in Gibraltar, or, as the hon. Member for Romford suggested, the leaders of the several Opposition parties. I am also persuaded that to list the Governor in the Bill as one of only two named consultees is inappropriate, and gives the wrong balance to the Bill.

Many of those points were raised with us by the Government of Gibraltar when our officials met Peter Caruana, the Chief Minister of Gibraltar, and his colleagues just before Christmas to discuss a number of issues affecting the Bill. One of the issues they raised was the reference to who should be consulted under clause 9(2). The Chief Minister's view was that the Bill should refer to the Government of Gibraltar, and that it should not expressly refer to the Chief Minister or to

the Governor. We gave the Government of Gibraltar an undertaking that we would consider how their suggestions could be acted on. I am sympathetic to the points that they raised.

We intend to table further amendments on this matter at a later stage in the Bill. We said to the officials when we met them before Christmas that it would not be possible to prepare such amendments in time for the Committee stage, given the drafting requirements and the need for consideration. I am sympathetic to the principle of consulting Members of the House of Assembly and will also consider that issue. However, my one proviso is that we should not aim to compile an exhaustive list, because we will forget someone. The list in the Bill should be as narrow as possible, but we should make it clear during discussions in Committee and in the Chamber that we believe that political parties should be consulted, and that there should be a wide-ranging discussion.

I believe that the Electoral Commission will take that issue seriously and will want a wide-ranging consultation. There should be some reference in the Bill to provide the reassurance to the Government and people of Gibraltar that their views will be taken seriously, but we should avoid an exhaustive list.

Given those points and our intention to return to the matter at a later stage of the Bill's passage, I ask the hon. Member for Stone to withdraw his amendment.

Bill Cash (Conservative, Stone)

I am grateful to the Minister for the constructive way, at last, in which we are beginning to make progress on some of the points that we have made. It is important to put on record that the Governor is the representative of the British monarch, by whom he is appointed, and is responsible for matters directly relating to external affairs, defence, internal security and other matters not specifically defined as domestic matters in Gibraltar's constitution. I made the point that elections are defined as a domestic matter under our constitution, so we were moving into territory that would have caused a direct conflict between the Gibraltar constitution and arrangements that arise under the Bill.

The Governor is the head of the Executive who administer Gibraltar, usually by acting on the advice of the Gibraltar Council. I am a bit mystified by the Gibraltar Council, on which I do not think that we need to elaborate, but I understand that it is not one of the most active bodies, although we may receive further information on that in due course. The Gibraltar Council includes the Chief Minister, who has been acknowledged in the Bill already, and the Governor's formal assent on behalf of the Crown is required for all legislation passed by the Gibraltar House of Assembly, although it is generally automatic.

That is all that I need to say. I am grateful to the Minister for her comments, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon

had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 9 ordered to stand part of the Bill.

Clause 10 - Establishment of combined region

Bill Cash (Conservative, Stone)

I beg to move amendment No. 46, in

clause 10, page 5, line 24, at end insert

'the name of which shall include the words ''and Gibraltar''.'.

In certain respects, the amendment is important, but it is also interesting. I hope that Committee members at one point or another, through sheer willpower, will bring themselves to say something about at least one provision. However, I see from the fact that the Whip is shaking his head that they have not the slightest intention of doing so. We are keeping well to the programme resolution, and if I restricted my remarks, we would finish in about an hour and a half. However, I am certain that if we were to do that, as the hon. Member for Somerton and Frome would agree, we would not have properly considered the Bill.

The amendment is important for many reasons. Let us imagine that we have a combined region that is called, for the sake of argument, the south-west. As the hon. Member for Somerton and Frome noted, that is the likely suggestion. We do not know for sure, and extensive discussions are needed with the Electoral Commission before we find out. I do not think that a huge battle is going on in the United Kingdom about the issue. There are preferences—both the west midlands and Northern Ireland have made suggestions—but those are matters that we are happy to leave to subsequent discussions and the consultation process. However, I most emphatically would not be happy, for reasons to which I have already referred, if the name of that region, as provided for in the Bill—I think that section 1 of the European Parliamentary Elections Act 2002 specifies the names of the electoral regions—did not have the words ''and Gibraltar'' with the name of whichever region is to be conjoined with Gibraltar.

I shall put my point in temperate language, because the last thing that I want to do on a matter of such importance is to antagonise the Minister or make it personal. That is far from my thoughts and intentions, so I shall explain my point gently. The people of Gibraltar have been given an opportunity through the Denise Matthews case. They are good honest citizens who now have a chance to take part in elections in a given area. We do not have the faintest idea—or at least, I do not—for whom they will all eventually vote. There will be a candidate, but I do not know whether there will be a Gibraltarian candidate—I should think that that is unlikely. However, within the framework of the electoral system, when the election happens they will have absolutely as much right as you or I over what goes on in their constituencies. They will be citizens like we are, exercising that right.

Gibraltar is being added into the process in special circumstances, with many constitutional and practical implications. I shall emphasise the practical because constitutional matters, important though they can be in defining parameters, make no sense at all if they are not related to practicalities. I am not interested in constitutional theology, but in a proper, fair and balanced conclusion arising from discussions. That is what constitutional matters should be about, and in that sense this is essentially a constitutional issue, because the people of Gibraltar are real people who ought to be recognised.

To add the words ''and Gibraltar'' to the name will give an opportunity for those people's concerns and the matters relative to their daily lives to be reflected in the elections. Simply to throw them into the pot and then say, ''Right, you're now part of the south-west region'' would be geographical nonsense and rather extraordinary, although I concede that the situation is unusual.

Mark Hendrick (Labour/Co-operative, Preston)

As this is such an important constitutional issue, would the hon. Gentleman want to call for a referendum across the whole United Kingdom on it?

Bill Cash (Conservative, Stone)

I am not going to bother to answer that. The important question is whether the Bill gives the people of Gibraltar a reasonable opportunity to have their daily practical lives and interactions reflected when the elections take place. I do not think that anyone with the slightest understanding of the situation could fail to appreciate that point. It is very simple, and concerns the day-to-day lives of those people.

The measure is an important step for those people. Simply to be rolled into a region called the south-west, the west midlands or whatever it might be would make them appear completely unrecognised—I do not like to use the word insulting—and would emphasise my point about what the Government have done. I simply do not agree with their reasons, although I suspect that I know who was behind what they did, which might have had a rather Hispanic connection. We shall see in due course. I may be entirely wrong, but if that were the case, I certainly would not agree with what was done on that and many other related issues.

My point is important. I shall be interested to see how the Minister reacts to it. I do not think that adding ''and Gibraltar'' would be difficult, and it would not only give enormous satisfaction to the people of Gibraltar but would recognise the territoriality of the issue and at the same give an enormous amount of pleasure and satisfaction to people in this country who feel strongly that Gibraltar should be supported.

David Heath (Liberal Democrat, Somerton and Frome)

I do not believe that any long, complicated arguments need to be made in support of the amendment. It reflects amendments that I attempted to make to part 1 of the Bill, which the Minister said were premature at that point. I understand her saying that at the time, but such amendments cannot be premature now.

Recognising the existence of Gibraltar in the context of a combined region will be a beneficial

move. The hon. Member for Stone said that there was not overwhelming competition between the electoral regions to determine which should be chosen for the purpose by the Electoral Commission and recommended to the House, but on Second Reading there appeared to be a spirited application on behalf of Northern Ireland, which is the one area that is excluded by the Bill, and I believe that there were comments from a sedentary position about Scotland as well.

It might be helpful if the Minister would give the reasons for the Government's conclusion that neither Scotland nor Northern Ireland would be appropriate regions for the incorporation of Gibraltar. I can readily see why in the case of Northern Ireland, but I find it slightly more difficult to understand why Scotland could not be considered. Perhaps she would be kind enough to put on the record the Government's reasoning in this instance.

Andrew Rosindell (Conservative, Romford)

You will know of my interest in the subject of Gibraltar, Mr. Cook—indeed, it was only a year ago that you and I were there—and you will know the strength of feeling among the British people on the Rock. I hope that hon. Members will try to understand why the people of Gibraltar are so passionate about the Bill.

They are British as we are British. They feel pride in their heritage, history and culture, as our constituents and we do. Yet despite joining the European Union—the European Economic Community, as it was in the early 1970s—at the same time and under the same accession treaty as the United Kingdom, they have been denied the right to speak on issues that affect them. I ask all Members to consider whether they would tolerate their constituents' being denied the democratic right to vote and speak on issues that affect them in the European Parliament or in this place.

I hope that there will be a greater understanding of the passion that is felt among Gibraltarians. My hon. Friend the Member for Stone referred to the recent referendum in Gibraltar. I was there at the time. For the record, I wish to declare an interest, having visited Gibraltar on several occasions as a guest of the Government of Gibraltar.

You will know, Mr. Cook, how determined the people of Gibraltar are to retain their Britishness and their sense of belonging to the United Kingdom. It is good news that at long last the Bill has come before Parliament. Very shortly, the people of Gibraltar will have a vote in European Parliament elections, at least. However, the Minister will acknowledge that the Government have not sought to allow that. It has been forced upon the Government. I do not believe for one moment that the Government would be introducing the Bill had the matter not been resolved by law.

Shamefully, Labour and Conservative Governments have ignored the people of Gibraltar for all this time. It is good news that the Bill is before the House, and the people of Gibraltar will get a vote in European elections. It would add insult to injury if the name of Gibraltar were excluded from the name of the region in which the Rock is to be included. I hope

that the Minister will consider that vital point of my hon. Friend the Member for Stone. It is very insulting to Gibraltarians that they are being given the vote reluctantly and the name of Gibraltar is not acknowledged in the name of the region.

Of course, Gibraltar is not geographically part of any region in the UK. It is not part of the south-west, London, or Northern Ireland. It is a peninsula attached to Spain. However, it is British, and will be included in European elections in the UK. How can it not be recognised in the name of whichever constituency it may be a part? The name must surely be given prominence and recognition in the Bill. If it is not, the people of Gibraltar will rightly feel hurt. I hope that the Minister will seriously consider the matter.

I know that the Government are reluctant about the Bill, but if they are going to give the people of Gibraltar the right to vote in the elections, let them do that with a good heart. I ask the Government to do it as if they really want to, even though deep down they perhaps did not want to do it in the first place. They should give Gibraltar the recognition the people of the Rock deserve by including the name of Gibraltar in the name of the region that it is included within.

Yvette Cooper (Labour, Pontefract and Castleford)

I understand that there is strong feeling among some that the amendment should be passed. However, I ask that it should be resisted. The clause enables the Lord Chancellor to make an order to create the region following a recommendation from the Electoral Commission. The amendment would provide that the name of the combined region should include Gibraltar. I know that some hon. Members feel strongly that that should be the case, but we believe that the amendment is unnecessary and disproportionate to the achievement of the aims of the Bill.

The creation of the combined region and the requirement under clause 13 for there to be a register in the Gibraltar area for those eligible to vote in the European Parliament elections will ensure that the people of Gibraltar are enfranchised. Eligibility will be defined as it is in the United Kingdom. Clause 15(1) states clearly that a person is entitled to be registered in the Gibraltar register if on the relevant day he is resident in Gibraltar.

Adding Gibraltar to the title of the region will serve no further purpose as far as the franchise is concerned. It would not change the reality. In addition, schedule 1 of the European Parliamentary Elections Act 2002 lists the electoral regions of England and the areas that comprise those regions. They are defined geographically and if Gibraltar is to be combined with an English region for the purposes of the franchise, it will be added to the list of areas once the decision has been reached as to which region it should be combined with. If it is to be combined with Wales, there will need to be a provision that will include Gibraltar within the area of that region. That and the provisions for the franchise that I have already mentioned will make it clear that those who are eligible to vote and resident in Gibraltar will be enfranchised to vote in the elections. Gibraltar will be designated geographically as an area forming part of the chosen

region. Adding Gibraltar to the title will therefore add nothing to the reality of the franchise.

I understand that it seems preferable to Gibraltar to have its name in the title of the electoral region and I understand why some people feel strongly about that. We have to recognise that those in other parts of the region involved could see including Gibraltar in the title as disproportionate, given the size of the electorate in Gibraltar relative to the size of the electorate in some of the other geographical areas that may be included in the combined region. For example, the Isle of Wight has an electorate of 104,000 people, whereas Gibraltar has in the region of 20,000 voters.

Andrew Rosindell (Conservative, Romford)

I understand the Minister's point, but surely she would accept that the Isle of Wight is very clearly part of the UK, whereas Gibraltar is not, although it would like to be. There is a clear difference between talking about an island off the shores of the UK, which is part of the UK and therefore already part of a recognised region, and Gibraltar, which is not geographically or politically part of any recognised region. Gibraltar is an overseas territory in its own right and a member of the European Union in its own right, via the accession treaty of the UK. If we give the people of Gibraltar the right to vote and include them as part of an electoral region, there can be no question but that the name of that electoral region should reflect the fact that Gibraltar is included in it.

Yvette Cooper (Labour, Pontefract and Castleford)

Of course, Gibraltar is in a very different situation from the Isle of Wight. Nevertheless it is right to consider the size of the electorate. As I said, Gibraltar has in the region of 20,000 voters. Although electors in the combined region will recognise that it is right that Gibraltar's interests and concerns be taken into account, it is important to understand that they will be concerned if candidates or the media pay a disproportionate amount of attention to those interests. Gibraltar will be one part of the region and we must consider its size relative to the size of the region: it has 20,000 voters, whereas an average region has 3.7 million voters. Of course, it is right that people should be aware that Gibraltar is part of their region and that can be addressed through normal publicity and documentation in an election campaign, without any risk of skewing the political debate and focusing on one part of the region, rather than addressing all of the region.

The Bill makes it clear that Gibraltar will become part of a combined region and that people in Gibraltar should be able to vote in the European Parliament elections; we simply have to ensure that there are free and fair elections on the same basis for all voters covered as part of the system. The Bill does ensure that, although I understand that some people will take a different view. Those are the reasons why we have come to our decision on the name of the region.

Andrew Rosindell (Conservative, Romford)

If the Minister refuses to include Gibraltar in the name of the region overall, will she consider including Gibraltar within Gibraltar? That would mean that election publicity in Gibraltar made

it clear that it was, say, ''London and Gibraltar''. That name would be used only on the Rock, for those purposes, and not in the rest of the region.

Yvette Cooper (Labour, Pontefract and Castleford)

Certainly literature distributed in Gibraltar would make it clear that Gibraltar was part of the region. As I have said, it is possible to ensure that publicity and documentation provided during an election campaign make clear the different component parts of the region. Therefore, I shall look further at the hon. Gentleman's points, while maintaining that the overall title of the region must remain as in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I just want to jog the Minister's memory. I wondered whether she would have an opportunity to say why not Northern Ireland or Scotland.

Yvette Cooper (Labour, Pontefract and Castleford)

I forgot that the hon. Gentleman had raised that point. We discussed this matter on Second Reading. The reason is primarily one of logistics—getting all the secondary legislation in place in time for the 2004 elections. Different kinds of secondary legislation will have to be drawn up if Scotland or Northern Ireland is involved, because of the different ways in which some of the details of electoral law apply in those two regions. Therefore, it would not be possible to start drawing up the programme of secondary legislation until the Electoral Commission had decided which region Gibraltar was to go into. If we confine the regions available to the Electoral Commission to choose from to England and Wales, the process of drafting the secondary legislation required can begin in advance of it taking that final decision, because, no matter which region we are talking about, the provisions are likely to be broadly the same. Therefore, it is a practical consideration, which is determined simply by the need to put secondary legislation in place in time for the 2004 elections.

Bill Cash (Conservative, Stone)

I have not heard such a poor defence of an argument for a long time. It was driven by bureaucratic claptrap relating to names, sizes and proportionality, combined with a concern that, by including the words ''and Gibraltar'', we would perhaps offend Spain's sensitivities. I suspect that that has a great deal to do with not including the words that I have suggested.

One has only to look at the rest of the United Kingdom, where it is clear that highly recognisable regions have constituencies described by reference to two places. Some members of the Committee may have such constituencies. I now represent the constituency of Stone, but there was a time when it was Stafford and Stone, because that part of the geographical area was considered sufficiently important historically and in terms of community and territory. That is why so many constituencies have double names. I believe that some in Scotland even have three names. That is much better from the point of view of the people who live there, because it gives them a sense of contiguity with the electoral process and a sense of identity. Therefore, I entirely repudiate the Minister's arguments.

With respect to regionality, I have seen maps—I am not saying that they are official, although they have semi-official status—on which parts of Normandy are incorporated for the purposes of European electoral and development regions into the south-east of England. We know the arguments about regionality with respect to Northern Ireland and Ireland, and that raises a pivotal question with respect to relations between the north and south of Ireland.

The problem is partly that the relationship between name and place does not recognise distance. Therefore, the fact that Gibraltar would be added in to, say, the south-west is without prejudice to the fact that it could easily be with, say, Northern Ireland or Scotland. However, the significance is that Gibraltar is composed of people who are citizens and who have an absolute right to be recognised as an identifiable part of whatever combined region is created.

Gibraltar is not part of the United Kingdom because it is not integrated into it. There are jurisdictional consequences and implications for the executive, judicial and legislative areas. Gibraltar is not jurisdictionally part of the United Kingdom for those or any other purpose. Clause 8 recognises that it will be combined with another region, not integrated into or included in it. The word ''combined'' has been carefully selected to ensure that the language of integration is avoided. We must bear that important point in mind. The Bill completely ignores Gibraltar's constitutional autonomy and jurisdictional separateness and treats it for executive, judicial and legislative purposes as an integrated part of the United Kingdom. I trust that the Minister will take that on board as the discussion continues, because there will be further stages and the Bill will go to the House of Lords.

Gibraltar's legislature is given no role in the legislative process. Its Executive is treated like a United Kingdom local council, as we see in clauses 19 and 21. The competence and jurisdiction of its judiciary is to be excluded. The provisions, therefore, are intrinsically colonial in nature and mentality and, by excluding Gibraltar from the name of the combined region, the Bill effectively puts the seal on that.

Both the people and the territory, not just the people, should be enfranchised. That is the overriding principle for Gibraltar. If we are to enfranchise the territory, we must accommodate its legal and constitutional status and institutions. If we do not do so, has Parliament really enfranchised the territory or merely included its people in a United Kingdom constituency? If the latter is the case, the Government will have been driven, against their will, as with the previous Government through the Denise Matthews case, to recognise a principle laid down by the European Convention. However, for reasons that I have given, they do so de minimis and without proper consultation and do not recognise what amendment No. 46, by including the words ''and Gibraltar'', would demonstrate.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 48, in

clause 10, page 5, line 28, after 'Commission', insert

'who shall consult the Boundary Committee of their Commission and/or the Boundary Commissions'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 52, in

clause 11, page 6, line 19, after 'Commission', insert

'who shall consult the Boundary Committee of their Commission and/or the Boundary Commissions'.

Amendment No. 61, in

clause 16, page 9, line 13, after 'Commission', insert

'who shall consult the Boundary Committee of their Commission and/or the Boundary Commissions'.

I remind hon. Members that we have already touched on the issues in the amendments but have not discussed them specifically, so I anticipate and will insist on a tight debate.

Bill Cash (Conservative, Stone)

I entirely endorse your comments, Mr. Cook, and will do my best to comply. We have discussed the principle and it is important for the Minister to be given the opportunity to reply.

I simply want to put on the record that the amendments relate to clauses 10, 11 and 16. In each case, the object of the exercise is to ensure that the Electoral Commission has an obligation to consult in the context in which I used the word earlier, but also, as a matter of principle, properly to consult on matters that arise in the context of those clauses. That is a slightly different state of affairs from that which we discussed previously in that we were discussing the Lord Chancellor's order-making powers. We are now dealing with the impact on Gibraltar and the different places in the combined region. There is a list in section 1 of the European Parliamentary Elections Act 2002, so we know what it comprises and that questions relating to Northern Ireland and Scotland and so on need to be taken into account. The amendment is a spur to the Electoral Commission so that we can be sure that the whole process is dealt with as comprehensively as possible.

Yvette Cooper (Labour, Pontefract and Castleford)

Many of the same arguments apply to the amendment as to the earlier groups of amendments that we discussed, and the same issues apply to Gibraltar as to making a decision about the number of MEPs.

First, nothing in the Bill prevents the Electoral Commission from consulting the boundary committees and commissions should it so choose. Secondly and perhaps more importantly, it is not clear what relevance the considerations of the boundary commissions or committees will have in the choice of which region Gibraltar should be included with. The boundary commissions for each country of the UK make decisions only about Westminster parliamentary boundaries and that has no relation to parliamentary regional boundaries, so it is not clear how their considerations would apply to the decision on which region Gibraltar should be combined with. The boundary committees will not consider anything that is likely to have an impact on the boundaries of the regions and, therefore, on which region Gibraltar should be part of during the next couple of years. As I set out in the earlier discussion, recommendations to change county boundaries can be made only if there is express instruction from the Secretary of State. There is no such instruction to recommend changes to those county boundaries so that is not under consideration and it is not likely to change before the 2004 elections.

Bill Cash (Conservative, Stone)

The Minister has a rather engaging habit of answering some questions by simply stating the position, rather than giving a reason for her argument. The fact that the Secretary of State has the role of issuing instructions with regard to county regions does not answer the question whether there are issues relating to the role of a boundary commission or committee with respect to the area of that county and its possible impact on others. She seems to be saying that there is no mechanism, other than through local government and with respect to normal general elections, to allow the boundary commissions to be involved.

Yvette Cooper (Labour, Pontefract and Castleford)

I am saying that the Electoral Commission can consult the boundary commissions and committees if it chooses to, but it is not appropriate to include in the Bill that it must, because it is not clear that there is anything that the boundary commissions or committees are currently considering that is relevant to the Electoral Commission's decision. The boundaries of the regions are not about to change. They are clear. They are not currently being considered by the boundary committees or the boundary commissions. Indeed the boundary commissions would never look at anything that was likely to impact on the boundaries of the European parliamentary region, because they just look at the Westminster parliamentary boundaries.

I would be happy to accept the amendment if the boundary commissions were considering something that was fundamental to the decision about which region Gibraltar should be combined with, but they are not doing anything at the moment that is central or even relevant to that decision. If the Electoral Commission takes a different view or if the boundary commissions or committees themselves take a different view it will be open for them to be consulted as part of this process. That is right.

However, I do not see the need to put them in the Bill as consultees when I have not heard any argument why they would add something significant and substantial in the next period, given that the decision about which region Gibraltar has to be combined with has to be taken in time for the 2004 elections.

That is another significant issue. Even if the boundary committees were considering changes to county boundaries that would have a knock-on effect on the regional boundaries, the Electoral Commission would still have to take its decision at one point. It could not simply anticipate what might happen in the future if decisions have not been taken. For those reasons we should reject the amendments. I completely accept that consultation on which region Gibraltar should be combined with should be as wide as possible. The Electoral Commission would accept that too. It would take its responsibilities very seriously. However, I do not see the need to add the reference to the boundary commissions or committees to the Bill.

Bill Cash (Conservative, Stone)

In the light of those remarks and in the hope and belief that the Minister's views will be communicated to the Electoral Commission, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Power to make consequential etc provision

Bill Cash (Conservative, Stone)

I beg to move amendment No. 50, in

clause 11, page 5, line 34, at end insert

'; provided that no such order shall be made until the Secretary of State has consulted the Chief Minister of Gibraltar as to what matters may be legislated in the House of Assembly in Gibraltar and what matters may be legislated in Parliament and thereafter such matters as the Secretary of State may by order prescribe to be legislated in the House of Assembly may be so legislated.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 55, in

clause 12, page 6, line 44, after 'Commission', insert

'and the Chief Minister of Gibraltar'.

Amendment No. 59, in

clause 16, page 8, line 43, at end insert—

'provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated'.

Amendment No. 62, in

clause 17, page 9, line 16, after 'section 16', insert

'; provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated.'.

Bill Cash (Conservative, Stone)

We had a wide-ranging discussion about the relationship between Gibraltar and the United Kingdom and the Governor, and the constitutional implications of that, but we did not consider what lies behind it, which is the manner in which the order that is made by the Lord Chancellor will impact on the relative functions of the House of Assembly as compared with this House. The point that I made

about the constitutional status of Gibraltar is not just theological; it is also about the manner in which legislation is passed by reference to the wishes of the people of Gibraltar. On the last provision but one, I made it clear that there are serious concerns, which we express and which are felt in Gibraltar itself, about the intrinsically colonial nature and mentality that lie behind the measures. This amendment is also directed at that point.

As I said, it is not only the people who are being enfranchised; the principle of overriding importance for Gibraltar is that both the people and the territory are enfranchised. If one enfranchises the territory, one must inevitably accommodate its legal and constitutional status and institutions. Otherwise, one is simply left with tagging on the people. That is not an intrinsic part of a proper constitutional process, but a de minimis operation that does not reflect the wishes of the people in terms of their legislative decision making. After all, the people who are elected to the House of Assembly in Gibraltar are elected as representatives of the people of Gibraltar.

The albeit small population of Gibraltar has created the most enormous stir about what has been going on in that part of Europe. They have resolutely refused to accept being part of Spain. The fact that there happen to be only a few of them, as with so many rebellions, does not mean that they cannot make a disproportionately large impact on the extent to which the democratic process moves forward. I can think of one or two personal examples, but I can also think of some of the problems coming up for the Government over the war in Iraq.

It would be a great mistake to imagine that, just because the people of Gibraltar are not numerous, they could not and have not demonstrated that they can punch above their weight. They have done extremely well, and I pay tribute to the Chief Minister, Mr. Caruana, for the manner in which he has conducted the defence of his people's interests. That is a remarkable illustration of my point.

All comes down to what happens when the legislation is considered. I was glad to hear the Minister say that, as we proceed, opportunities may arise for further amendments and for reconsidering the balance between what should be determined in the House of Assembly and what in the UK Parliament. I have already argued that under the constitution order now in force in Gibraltar, elections are an internal domestic matter. We debated that earlier and no controversy remains: it is a fact. The question of what should be legislated in the House of Assembly and what in this Parliament goes to the heart of the constitutional balance between the UK and Gibraltar.

It is unexceptionable that when the order-making power is processed, a proper degree of consultation—the amendment refers to the Secretary of State, but the Lord Chancellor may be more likely in the current circumstances—must take place. No order should be made by the Lord Chancellor until he has

''consulted the Chief Minister of Gibraltar as to what matters may be legislated in the House of Assembly in Gibraltar and what matters may be legislated in this Parliament and thereafter''—

this is important—such matters as the Lord Chancellor

''may by order prescribe to be legislated in the House of Assembly may be so legislated.''

Without the amendment, consultation might take place, but someone could argue that it was ultra vires because the UK Parliament introduced the Bill, overriding the proper functions of Gibraltar. It would not then be open to the House of Assembly to make the legislative arrangements that flowed from the order—and we want to avoid that.

Amendment No. 55, which relates to clause 12, would include the Chief Minister of Gibraltar in consultation with the Electoral Commission. Under clause 11, the Lord Chancellor has extraordinarily wide powers: he may

''by order make such provision as he considers necessary or expedient''—

one cannot go much further than that—

''in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European Parliamentary elections.''

The width of those powers and the uncertainty about whether the House of Assembly would be allowed to legislate—as a territory with a right to make its own electoral law under its own constitutional arrangements, I believe that it should—make it necessary to establish where the line will be drawn between this House and the House of Assembly.

Amendment No. 59 relates to clause 16 and deals with regulations under sections 13 to 15, which make a stack of provisions for electoral registration and voting in Gibraltar. That goes to the heart of the issues that I have raised about where the line should be drawn.

The Lord Chancellor's list of regulations in clause 16(1) run the gamut of electoral law. If Gibraltar is to be part of a combined region, I understand the Minister's point about the necessity of there being a degree of compatibility with our electoral law; it would be extraordinary if that were not the case. We do not have the time, nor is it necessary, to go into detail about every permutation that could arise, but the people of Gibraltar, the Chief Minister and those who are familiar with their constitutional arrangements know where the line can be drawn with regard to the law. Therefore, I take the Minister's word that she will guarantee that any amendments that may be proposed to strike a balance between what will properly be dealt with in Gibraltar and what will be dealt with in the UK Parliament will be debated before the Bill completes its passage through this House, certainly on Report, as the final decision on the Bill should not be left to the House of Lords, which is an unelected body. The matter should be resolved in the spirit of proper consultation between Government and Opposition Front Benches. Perhaps the hon. Member for Somerton and Frome may care to comment on that. There is time to deal with the matter and we should be given the opportunity to

consider and assess the amendments on the Floor of the House of Commons, not be bounced along on Lords amendments.

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief as time is short. It is important that there is clarity in the legal and constitutional arrangements between the United Kingdom Parliament as a legislative body and the Gibraltar House of Assembly, which has some, but not all, the characteristics of a devolved legislation. Were it to be part of the United Kingdom devolved administration we would have a clearer idea what powers were exercised and at what level. If we were in doubt we could call in the Advocate-General to advise us. It would give substance to Advocate-General's Question Time, which it sometimes lacks. In the case of Gibraltar we have no such apparatus.

It is therefore important that before we legislate on the matter we ensure that the measure we finally approve has no possibility of being challenged as ultra vires, either in respect of the powers that we arrogate to this legislature or those maintained by the House of

Assembly and the courts in Gibraltar. There is an element of doubt, and it would be sensible if the Minister could state with greater clarity where the dividing lines lie.

Yvette Cooper (Labour, Pontefract and Castleford)

As the hon. Member for Stone explained, the amendments relate to the use of the powers in part 2, especially in clauses 11 and 16, to make secondary legislation. The Bill provides only the basic framework for the enfranchisement of Gibraltar: it sets out the creation of the combined region, the electoral register for Gibraltar, and the franchise. It is right that those central, important elements should be in the primary legislation. In practice, however, there is a range of existing electoral law that currently applies to the whole of the UK and other areas in the combined region that need to be applied in Gibraltar too, modified or adapted as necessary.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 11 - Power to make consequential etc provision

David Taylor (Labour/Co-operative, North West Leicestershire)

I remind the Committee that with this we are discussing the following:

Amendment No. 55, in

clause 12, page 6, line 44, after 'Commission', insert

'and the Chief Minister of Gibraltar'.

Amendment No. 59, in

clause 16, page 8, line 43, at end insert—

'provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated'.

Amendment No. 62, in

clause 17, page 9, line 16, after 'section 16', insert

'; provided that no such regulation shall be made until the Secretary of State has consulted in accordance with section 11(1) and it has been determined in which legislature which matters are to be legislated.'.

Yvette Cooper (Labour, Pontefract and Castleford)

It is a pleasure to welcome you to the Chair, Mr. Taylor.

The amendments set out provisions in respect of consultation before the orders could be made. I shall say why the clause is as drafted. We put most of the detail in secondary legislation, because many of the provisions that need to be changed in order to allow Gibraltar to participate and be part of the same region in the European parliamentary elections are already in secondary legislation. It was therefore appropriate to make the changes through further secondary legislation. Moreover, much of the complicated detail would not be appropriate in the Bill. That is why we are making the changes by order.

We are aware from the meetings and the correspondence with the Government of Gibraltar in the past year that they welcome the opportunity in the Bill to give the people of Gibraltar a say in European democracy. They made it clear, too, that they recognise that because they will be treated as part of an elected UK region for these purposes, it is essential

hat UK electoral law is applied as uniformly as possible to Gibraltar. The Government of Gibraltar and the House of Assembly want to play their part in ensuring that the necessary legislation is put in place and that the system works effectively. There is scope within the existing provisions for that to happen. Discussions are still taking place and consideration is still being given to the changes that it might be possible to make through changes to Gibraltar law by the House of Assembly and the Government of Gibraltar. What changes will need to be made to the detail of UK electoral law through this Parliament is also being considered. However, we are keen that whenever possible changes can take place through the House of Assembly and Government of Gibraltar in Gibraltar.

At our last meeting with the Government of Gibraltar on 17 December the officials had a constructive and detailed discussion about the scope of the provisions. The meeting considered whether it was possible to include something in the Bill to reflect more clearly the fact that Gibraltar, too, would contribute to the creation of the legislation. We have given an undertaking to consider the matter, and if necessary we will introduce amendments at a later date.

Bill Cash (Conservative, Stone)

The Minister will no doubt be familiar with the situation in the Falklands, where such a contribution has not only been invited by the Government but has been acted upon. Some people would regard it as peculiar if that applied to the Falklands but not to Gibraltar.

Yvette Cooper (Labour, Pontefract and Castleford)

As I have clearly said, we believe that if it is possible for the Government of Gibraltar and the House of Assembly in Gibraltar to make the changes, it would be better for them to do so. That would be appropriate, as it is their law, and because it would mean that this House could confine itself to the issues that are relevant to UK law and to the business of the House.

The amendments ask for consultation with the Chief Minister of Gibraltar on which matters may be legislated in the House of Assembly in Gibraltar and which may be legislated in Parliament. That discussion and consideration is already taking place. We do not need to wait for the Bill to make that happen. As I said, we want the Government of Gibraltar and the House of Assembly to be able to legislate whenever possible. The amendments are unnecessary because they refer to work that is currently under way.

I also made it clear that we are prepared to consider further amendments, in the light of the Chief Minister's request, to see whether the Bill could include anything else to ensure that it is clear to everyone that the Government of Gibraltar are playing a role in the process.

Bill Cash (Conservative, Stone)

The Minister indicated that discussions are being held and that some progress, albeit imperceptible and undisclosed, has been made. As she says, this is a complicated matter. However, there is also a matter of principle, which gravitates around the fact that subsidiary legislation, such as the order-making power and the amendments made to the 2002

Act, enables the Lord Chancellor to make direct legislative provision for Gibraltar on such domestic matters as the registration of parties, party donations and broadcasting, which are all in the clause.

Under clause 17(3), the part would be taken to modify, exclude or apply

''any provision of the law of Gibraltar''.

I have also suggested that proposed new section 7(4A)(c) under clause 21 be excluded altogether.

Clause 16 will enable the Lord Chancellor to do many of the things that one would reasonably expect Gibraltarian legislation to do. There is an understanding in Gibraltar that Gibraltarian legislation would have to be agreed with London to ensure uniformity of regime throughout the combined region, so there is no suggestion that the Gibraltarians will want to do something that is completely inconsistent with the uniformity of law, which the new region and new Gibraltarian voters will need.

None the less, the powers that are being taken to modify, exclude or apply any provision of the law of Gibraltar are draconian. Such powers have not been taken for 50 years. This is a backward step, which shows the reluctance with which the Government have proposed the provision. They were driven to propose it because of the Denise Matthews case, the spirit in which the matter has been conducted, and the failure adequately to consult the Chief Minister and others in Gibraltar. The Minister seems to dispute that, but that will be on the record and I will get further and better particulars of the degree of consultation that she claims has taken place. They certainly did not see a copy of the Bill before it was produced. People in the Falklands were invited to produce proposals for their constitutional changes and they were given a fair wind. One is bound to ask why, in relation to the important and immediate problem of Gibraltar, the Government takes such a position on that issue. The answer to that problem lies in the Brussels process and the dispute with Spain.

Under no circumstances could I believe that Parliament would ever countenance the idea of acquiescing in Spain's demands. The ramshackle discussions on the issue of sovereignty, which bit the dust, have been scuppered by the democratic wishes of the people of Gibraltar. The issue is whether the constitution would be made by a balanced and tolerant consultative process between the parties—one could say through a process of natural justice, which I advocate—and whether it would cater appropriately. That has been stated categorically by the Chief Minister in his discussions with me, which would indicate that the questions can be resolved if there is the will to do so. I have to say, without being the slightest bit curmudgeonly, that the de minimis approach adopted by the Government is too negative. Let us our raise our eyes to the hills and question whether it is possible to be a little more constructive and recognise the fact that the people of Gibraltar have a right to be properly consulted.

The Minister may know about the Gibraltar constitution order 2001. The present situation, which is directly relevant and important, is that the prescribed constitutional arrangements would be overridden by the exclusion, modification or application of law by the order-making powers, and that is geared to arrangements that currently exist under the Gibraltar constitution order 1969.

The draft Gibraltar constitution order was prepared by the House of Assembly and arose out of the discussions that took place at the same time as the Anglo-Spanish discussions, which were put in place by Mr. Caruana. The object of those was to modernise the constitutional relationship of Gibraltar with the United Kingdom. As a result of much detailed consideration, the Gibraltarian select committee on constitutional reform completed its draft in December 2001. That was submitted to the House of Assembly and Opposition parties for comment, published on 23 January 2002 and approved by the House of Assembly on 23 February. That draft has not been given a fair wind by the UK, despite what happened in the Falklands. It is outrageous that when Gibraltar brings forward such proposals it is faced with a complete blockage. I have no doubt that the Minister will receive advice presently with regard to some of those points, since pieces of paper are being passed around the Room.

The amendments contain the very points that one would have hoped and expected to have been dealt with by the Lord Chancellor, when he voluntarily made his proposals, and in consultation with the Chief Minister and others in Gibraltar, including the Leader of the Opposition. The key words, on which I shall concentrate, are that

''The Committee's amendments''—

the ones proposed by the people of Gibraltar—

''are 'such as would maximise the self government of Gibraltar by the people of Gibraltar, whilst retaining British sovereignty and close links with Great Britain'.''

Nothing could be more constructive and helpful than that.

I want to correct an extremely seriously mistake that I made this morning. I confess to having made the most serious historical error when referring to the conquest of Gibraltar by Admiral Rook. I was corrected when I said that it happened 1702—I was told that it was 1704—but it is much worse that. It was not a colony by conquest, but a colony by cession—[Hon. Members: ''Utrecht.''] Because of the treaty of Utrecht. I am glad to have received a unanimous shout of approval from the entire Committee. Without elaborating, it does make a difference.

The Select Committee's report continues:

''The Committee's approach has been guided by its unanimous view that reform of the constitution should achieve both a suitable modernisation of the relationship with the United Kingdom . . . and that these reforms should, when and if accepted by the people of Gibraltar in a referendum, bring about its decolonisation of Gibraltar through the exercise of the right of self-determination by the people of Gibraltar, and Gibraltar's de-listing from the UN's list of Non Self-Governing Territories under Article 73(e) of the Charter.''

Self-governance, in effect, is a recurring theme of the amendments, so one can hardly be surprised at the degree of concern, which I share, at the disproportionate imbalance in the centre of gravity of the proposals before Parliament today.

That imbalance clearly indicates not only a massive reluctance to accept the principles that the Government have been driven to put into the proposals, but that they have no understanding of the aspirations of the people of Gibraltar for a greater degree of self-government—with the caveat that they want to retain British sovereignty. Their wish for close links with Great Britain lies at the heart of the problems that I put to the Committee.

It is terribly important that we recognise that, when the Government legislate in that way, they create unnecessary problems. It does not help. It will not resolve the issues. I offer a word of advice to the Minister. We should return to a more constructive and useful discussion between the Government and the people of Gibraltar. I sense from what she says—I am not being negative in contending this—that the proposal is for a greater degree of open and fair discussion, on complementary terms, between the Chief Minister and the Government. As we make our way through the rest of the proposals, and in subsequent stages, it would be very helpful to get that on the right footing,

I hope that the Committee will be rewarded with some movement. From what the Minister has said, we are seeing a slight glimpse of that. She has not yet gone far enough, but perhaps as we proceed we will get further and better indications that the people of Gibraltar, the Chief Minister and others are being properly heard.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall not respond to the wider issues that the hon. Gentleman raised about the constitutional status of Gibraltar, because the Bill does not address that. I shall also resist the temptation to respond to the hon. Gentleman's historical accounts.

Mr. Cash rose—

Yvette Cooper (Labour, Pontefract and Castleford)

May I tell the hon. Gentleman what I will respond to before he comes back?

There are important issues about which detailed provisions—secondary legislation in this House—should be implemented in Westminster and which should be implemented in Gibraltar. That is under discussion with the Government of Gibraltar, because we are very sympathetic to their point of view. We are keen that as much as possible is done in Gibraltar. The broad principle should be that if changes to Gibraltarian law can implement the Bill and make it possible to hold European elections in both Gibraltar and a UK region, that should happen in Gibraltar. However, if it were necessary to amend a UK law such as the Political Parties, Elections and Referendums Act 2000 to allow that to happen, that must be done in Westminster, because it could not happen in Gibraltar.

Discussions about the changes that can be made in each place continue and will take a little longer to resolve. We also want to listen to the Government of

Gibraltar about whether more could be put in the Bill to ensure that that process occurs. That might not be necessary, but we are sympathetic to their concerns and we are considering that. The hon. Gentleman's amendment is unnecessary.

Bill Cash (Conservative, Stone)

May I pick up the Minister on an important point? We are making progress and hearing that there will be further discussions. Will the Minister give us an undertaking that the discussions will take place before Report or get so far under way that I can be assured that the matters will be discussed on Report, if necessary? The issue is at the heart of the Bill and it would be useful to know that.

Yvette Cooper (Labour, Pontefract and Castleford)

I would expect further discussion of the subject on Report, although I cannot guarantee that we will know the exact issues that will be addressed through secondary legislation in this place and those that will be addressed in Gibraltar by that time. That is partly because the details of electoral law that require amendment are complex and technical. An immense number of amendments might be required to ensure that the same electoral law and circumstances apply in Gibraltar as in the United Kingdom. We intend to do things as speedily as possible, and we have the ultimate deadline of the 2004 election. Everything has to be in place before then. Our aim is that anything that requires an amendment to the Bill will be resolved in time for consideration on Report, but the given complex nature of the issue, I cannot give the hon. Gentleman the guarantee that he wants. I can assure him only that we intend to allow the Government of Gibraltar to make their own decisions and pass their own legislation whenever possible. However, it will be necessary—we should not kid ourselves that it will not be necessary—for this House to pass secondary legislation.

Bill Cash (Conservative, Stone)

In the light of the Minister's remarks, the matter is sufficiently open to allow us to assume that we can return to it on Report. Assuming that we can accept that as an undertaking, I propose that we do not press the amendment on the grounds that we are making constructive progress. I look in the direction of the hon. Member for Somerton and Frome (Mr. Heath), and he concurs. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 53,

in clause 11, page 6, line 21, leave out subsection (6).

I have nothing to add to the wording on the amendment paper. I admit that this is no more than a probing amendment. I was not at all sure of the provision's purpose, so I thought that it would be useful to hear what the Minister had to say.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman poses a good question. I discussed the matter with my officials, to ensure that I understood it.

The power in clause 11 allows for consequential changes that may be needed to different parts of electoral law in order to implement the core changes at the heart of the Bill. Powers are set out in other parts of the Bill. For example, clause 16 sets out order-making powers for establishing the register for

Gibraltar. However, consequential amendments may be required under clause 11 to deal with issues that affect the register, such as donations.

Subsection (6) makes it clear that it is possible to make consequential amendments, even in areas for which powers are set out in other parts of the Bill. In other words, the power to make the consequential amendments as set out in subsection (1) is not restricted by the fact that under clause 16 there are also order-making powers in respect of the Gibraltar register and the manner in which it is to be maintained, and so on. Provisions in other parts of the Bill do not prevent the making of consequential amendments under clause 11(1).

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister explain the purpose of clause 16 if the power is available under clause 11?

Yvette Cooper (Labour, Pontefract and Castleford)

It is true that the Bill could have been written such that the main principle was set out in clause 8, with everything else done through secondary legislation, but we chose not to do that. We thought that certain issues that are fundamental to any system of elections, such as establishing the franchise and aspects of the registration process, were important and should be part of primary legislation. That is why clause 16 deals with registration and makes the central issues very clear for Parliament. Clause 11(1) concentrates on issues listed in clause 11(3), paragraphs (a), (b) and (c), such as donations and registration of political parties. They are not set out in the same detail.

We tried to get a balance between the more detailed concerns, which can be dealt with through secondary legislation, and the principal concerns that required setting out in primary legislation.

Bill Cash (Conservative, Stone)

In a nutshell, this is an all-singing, all-dancing, Monty Python gobbling-up clause. Clearly, it is intended to cater for any contingencies that might arise. If there were any uncertainty as to whether adequate power had been taken, the Lord Chancellor, in his typical fashion, would guarantee to be able to exercise plenipotentiary powers as they arose under the provisions of this part of the Bill, which, after all, affects the people of Gibraltar, their domestic elections, their democracy, their self-government and all the other matters that we have discussed. Although it is a short provision, it is quite extensive.

I should like to reserve judgment on this provision. I hope that allowing this through does not allow more to go through the back door than would be wise. I issue a word of caution. We need to consider this matter carefully against the background of what I have said already. In the circumstances and looking at the expressions of those behind and to the left of me, we are prepared to withdraw the amendment. However, we reserve judgment on exactly what the provision really means. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Question proposed, That the clause stand part of the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

The clause allows the Lord Chancellor to make provisions that 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. The Bill makes provision for the whole corpus of UK electoral law that applies for the purposes of election to the European Parliament to apply for these purposes also to Gibraltar. The clause, with the help of the supplementary powers in clause 12, will allow that to happen in relation to the registration of political parties under the Political Parties, Elections and Referendums Act 2000 and other Acts.

It is important to make it clear that this is not an open-ended power. It applies only in connection with issues that are in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European parliamentary elections. It applies to some of the details surrounding the registration of political parties, but it does not provide powers for unrelated matters, such as the UK registration system or the voting age. It is further limited by clause 12(4), which ensures that the orders made here are limited by the rest of the Act. They can amend other Acts, but not the other clauses in this Bill. The clause allows for the implementation of the earlier clauses in the Bill to ensure that we can have European elections in Gibraltar by 2004. It is therefore important.

Bill Cash (Conservative, Stone)

We do not need to add anything to what has been said on this. We have had an extensive debate. We have been given an assurance on the seminal amendments to determine where the centre of gravity should be in the balance between the House of Assembly and the UK Government. We have been promised that there will be an opportunity for debate on Report. We have the gravest concern about the clause, but that said, in the light of what we have heard, it would not be right, on balance, to divide the Committee on clause stand part.

David Heath (Liberal Democrat, Somerton and Frome)

In introducing the stand-part debate, the Minister helpfully expressed the limits of the application of clause 11. I was developing the view that clauses 13 to 16 were for illustrative purposes only, and that clause 11 gave a rather free rein to a Minister to whom we do not usually like to give a free rein, for various reasons. However, she has reassured me.

There are still concerns about the way in which the democratic arrangements in Gibraltar will be brought into play. When we discussed that this morning, the Minister kindly said that she had been in dialogue with the Chief Minister and the rest of the Government of Gibraltar, and that they had expressed concerns. I ask her to go a little further and to share with members of the Committee, perhaps before Report, any written submissions that she has received from the Chief Minister about aspects of the Bill, so that we are fully apprised of what concerns remain outstanding for Gibraltar. That said, I am more than happy to allow

this clause to stand part of the Bill, with a view to discussing it at a later date.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Sections 10 and 11: supplementary

Bill Cash (Conservative, Stone)

I beg to move amendment No. 54, in

clause 12, page 6, line 33, leave out subsection (4).

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss amendment No. 63, in

clause 17, page 9, line 22, leave out from 'Kingdom' to end of line 25.

Bill Cash (Conservative, Stone)

We now come to points that are fairly similar to those that we have already discussed, because clause 12 relates to matters supplementary to clauses 10 and 11.

Clause 12 states that an order under clause 10 or 11 will be empowered to

''modify, exclude or apply, with or without modifications . . . any provision made by or under an Act (including any provision which is modified by or under this Act or which confers power to make subordinate legislation) . . . and . . . any provision of the law of Gibraltar.''

We have probably covered this subject extensively enough, because it raises the very questions that we have just discussed. However, there is grave concern in Gibraltar about any order made by the Lord Chancellor as a consequence of decisions taken by a Government who are going through with the Bill not with any great enthusiasm, but because they have been driven to it.

Even if we appreciate the point made by the Minister in respect of the previous clause that there has to be some degree of complementarity among the laws applying in the combined region, in Gibraltar and in the United Kingdom, we are none the less talking about a draconian power, which, as I understand it, has not been exercised for 50 years. At the very worst, an order could be made to exclude

''any provision of the law of Gibraltar.''

This is a pretty draconian and an extremely insulting provision. It certainly bears no relation to the good working relationship with the many thousands of electors in Gibraltar through their elected representatives in the House of Assembly and the legislature. Imagine if we were put in a similar position and somebody else—I hesitate to mention the European Union—came along and unilaterally knocked out our legislation. In the context that I have described, the difference is that there is at least a superficial indication that it is all part of a democratic process. In this case, it is simply a question of whether or not it is appropriate in a modern world for a Government, who have been moving towards greater human rights, democracy and constitutional correctness—I am not referring to the Government; I am talking about the Governments of the United Kingdom over the past 50 years—to recognise the integral and intrinsic rights of, in this case, the people of Gibraltar.

There was a more proactive invitation to accommodate the wishes of the people of the Falklands, but in this particular case to modify or exclude

''any provision of the law of Gibraltar''

is, by any standards, extremely draconian and offensive. I do not know what the Minister will say about it, although there is no doubt she will tell us that it is necessary. That would not be an answer, but I have got used to that in Committee. One or two of her recent comments have been moderately constructive, which is why I withdrew some amendments. In that constructive spirit, I hope that she will indicate that those offensive words can be removed, which would be a step in the right direction. The words are unnecessary, but we will hear what she has to say.

Clause 17 refers to the power to make regulations on a vast number of electoral matters. The Committee will know that I have already mentioned internal domestic reserved matters under the existing constitution of Gibraltar, which has been endorsed by the United Kingdom. If it has already been decided that electoral matters, which are matters of internal domestic concern, should be determined by the people of Gibraltar through their House of Assembly—they are such matters under British, let alone Gibraltarian, law—the provisions in clause 17(3), and in particular clause 17(3)(c) should be knocked out. Clause 17 states:

''This section applies to regulations under section 16 . . . such regulations may''.

Because our approach is not curmudgeonly or negative—we are open-minded and tolerant—we understand that such regulations should make consequential, supplementary provisions. Indeed, we even accept that they may make a provision extending or applying to Gibraltar or any part of the United Kingdom. However, we gib at the regulations on electoral matters, which are matters of internal, domestic law and therefore, by definition, questions of law for the United Kingdom under the 1969 Order in Council as well as for Gibraltar. Clause 17(3) states that those regulations may

''modify, exclude or apply . . . any provision made by or under an Act or any provision of the law of Gibraltar.''

I have the sense that the draftsman, whom I can observe through the prism at my disposal, is exceedingly intelligent and perceptive. He realises that there are a lot of bear traps here and that it is a problem to achieve symmetry between the legislative arrangements required. But I fear that he has taken the route of overkill. The consequence is that we have ended up with a Bill that goes too far in shifting the centre of gravity when a more constructive and medium position will ultimately be arrived at—I hope as a result of these discussions.

That is not just a technical question of legislative drafting. It is about good relations based on sensible democratic understandings between people faced with a difficult question. That is the key point. These days we have fallen into the trap, when faced with a difficulty, of trying to blast it out of the way and

obliterate it, when a constructive and sensible approach would be based on discussion.

We have discussed the matter sufficiently. I wait to hear what the hon. Member for Somerton and Frome has to say—he has nothing to say.

Yvette Cooper (Labour, Pontefract and Castleford)

We should resist these amendments. The hon. Member for Stone has made important points about the power to change the law of Gibraltar. I want to set out exactly what the power is and why the amendments are inappropriate. The power set out in clause 12(4) does not allow Parliament to make any change to the law of Gibraltar. It applies only to areas where the law of Gibraltar is affected in consequence of or in connection with its inclusion in an electoral region for the purposes of European parliamentary elections. It would not give us powers relating to its other elections, for example. It would not give us power through this order to change the Gibraltarian law on unrelated issues.

Our intention would not be to change existing Gibraltarian law through orders of the Westminster Parliament. Such changes should be made by the Government of Gibraltar. We expect the Government of Gibraltar and the House of Assembly to amend their existing laws. For example, the provisions may relate to areas where there is already some Gibraltarian law and where it may be appropriate for amendments to be made by Gibraltarian law, and it will be possible and appropriate for Gibraltar to make those changes. There may be issues under section 95 of the Representation of the People Act 1983, which provides for the use of schoolrooms for candidates' public election meetings. Existing Gibraltarian law may prevent schoolrooms from being used for such purposes. We would then expect the Gibraltarian Government and the House of Assembly to address that matter through amending their law rather than by seeking to do so in the Westminster Parliament.

Where decisions are taken, we would expect them to be a matter for discussion with the Government of Gibraltar. There should be a flexible approach. It is important to maintain this power in the Bill. Until we can explore with the Government of Gibraltar all the complex detail of UK electoral law and how it can best be applied to Gibraltar, we cannot afford to risk finding that once the Bill has been enacted it is beyond our vires to make the necessary changes in secondary legislation.

There are examples in election registration of provision for extensive modifications of pre-existing election legislation in that way. It could also, for example, enable amendments to be made through order in the Westminster Parliament if the Government of Gibraltar thought that that would be easier. This might be done in the case of complex technical details that may already be the subject of change by means of orders in the Westminster Parliament; it may be simpler to include in them provisions that affect Gibraltarian law as well.

It may also cover areas in which the UK Parliament has a considerable stake. For example, matters that, if

not amended in Gibraltar, would have a significant effect in the UK. Among these are company registration and donations to political parties. If the amendments were not made in Gibraltar a company registered there could make donations to UK parties without any of the provisions of the Political Parties, Elections and Referendums Act 2000 applying. There are issues, which, even though they concern amendments to Gibraltarian law, will, as a result of the creation of a combined region, have a significant affect on the UK. For those two reasons it is important to retain the power in the Bill to amend Gibraltarian law, even though it is our intention that wherever possible the changes should be made in the House of Assembly in Gibraltar by the Government of Gibraltar.

David Heath (Liberal Democrat, Somerton and Frome)

I accept the intention of the hon. Lady: she would like the changes to be effected through the Gibraltarian House of Assembly and pass into Gibraltarian law in that way. However, the effect of the provisions will be to repatriate to the UK Parliament the right to change Gibraltarian law unilaterally, and that is a retrograde step.

I accept entirely that there must be conformity for electoral purposes between Gibraltarian law and that of the United Kingdom to ensure that there is no electoral malpractice or inconsistencies that would be detrimental to the electoral process, and I see no evidence to suggest that the Government of Gibraltar would not wish to comply immediately with any request of the United Kingdom Government. I am at a loss to understand why that should be affected by the process—and this a matter of process—of an order introduced into this House in order to change what is properly the concern of the Government of Gibraltar. I am afraid that the hon. Lady has yet to convince me—she might have convinced the hon. Member for Stone; I am not sure—that the provision is necessary. Its effect is retrograde as it deletes the degree of devolved administration in Gibraltar, and it means that the UK Parliament is arrogating to itself powers that it previously gave to Gibraltar, and there is no obvious reason why that should be done.

I could understand the Minister including in the Bill a provision to require conformity between the laws of Gibraltar and those of the United Kingdom before the franchise could be extended. That would have been a proper provision, but it would have left the responsibility for making law in the place where it should be—the House of Assembly of Gibraltar. The Minister has not yet persuaded me of her case, but I will reflect on what she said. It may be that the Member for Stone wishes to press his amendment. Although I understand the reasoning and the good intentions behind the Minister's reply, it raises more questions than it answers.

Bill Cash (Conservative, Stone)

There has been an interesting exchange. The Minister said that discussions will take place and gave a general indication that Gibraltar would be likely to legislate for itself. However, she implied that that would be the case only until a situation arose in which there were provisions, such as those relating to political donations or other matters that she mentioned, with which we could not entirely trust

the Gibraltarians to comply. The Government do not really trust the Gibraltarians. That may be the cause of the problems that we have experienced throughout our consideration of the Bill. It probably also has a lot to do with the problems that the Government have experienced in respect of the Anglo-Spanish discussions and the Brussels process.

Underpinning all this, I can imagine the legal adviser presenting his instructions to the parliamentary counsel drafting the Bill and saying that they should bear in mind that those people cannot be entirely trusted. I also imagine him saying that Gibraltar has a sort of colonial status, and that the UK Government had not wanted any of this to happen in the first place, but had been driven into it by that wretched court in Strasbourg, which they normally thought was a good institution but which had done them a great disservice on this occasion because it had fouled up the UK's relations with Spain. I imagine that legal adviser asking the parliamentary counsel, when drafting the Bill, to make sure that they gave the Government enough power to be able to insist on what they wanted.

The hon. Member for Somerton and Frome rightly made the point that this matter could have been dealt with in some other fashion, perhaps by primary legislation or by including a provision in the Bill requiring conformity. He was right to emphasise that using a statutory instrument for the purposes of what I described as Cardinal Wolsey's revenge again demonstrates a degree of constitutional paranoia, which has tended to bubble up to the surface repeatedly as we have considered the Bill. It is not just belt and braces, but a sort of straitjacket, which is quite a different thing.

I confess that I am in a quandary. On the one hand, I want the Government to follow through on what they have to say, and to do so by Report, but on the other, I am deeply concerned about the draconian character of the provisions. I must also take into account the fact that the Minister is putting the best gloss on the situation.

The provision is restricted to modifying the laws of Gibraltar in respect of elections to the European Parliament. However, if I were in the position of the Chief Minister of Gibraltar, I would ask myself whether, if the UK Government are prepared to go this far for elections, they would go further for something much worse in the pipeline, such as relations with Spain. Psychologically, I regard it as an extremely dangerous weapon. However, because I have had a welcome assurance that there will be discussions, and because I have heard that—all things being equal—these matters will be legislated for in Gibraltar, I am inclined to believe that we can return to the question on Report in the light of those discussions.

I urge the Minister to accelerate the discussions, so that we know which position to adopt before Report. On balance, I feel that the provisions are so offensive that I am bound to ask the Committee to divide, albeit without prejudice to discussions that may take place on Report. I may seek guidance on the question

because it is important to the people of Gibraltar. If we divide, I trust it will not prevent us from moving an amendment on the matter on Report. Could I ask for advice on that point before we do? I think that the Committee senses that the question is important enough for us to develop the argument a little further.

David Taylor (Labour/Co-operative, North West Leicestershire)

It is not possible to guarantee which amendments the Speaker may select on Report. I cannot give the hon. Gentleman the guarantee he seeks.

David Heath (Liberal Democrat, Somerton and Frome)

The amendment would remove all of subsection (4). An amendment might be tabled on Report that would remove subsection (4)(b), which is the critical element in the provision. That might allow for a further discussion at that stage if necessary. Let us hope that it is not.

Bill Cash (Conservative, Stone)

On balance, I shall withdraw the amendment because the Minister has been specific about discussion and internal legislation. I do not need to repeat what I have said already. We will be able to employ some mechanism if on Report we experience any difficulties in dealing with the matter, which is the Bill's central provision for the people of Gibraltar, who are my prime concern. We have to protect their position. They are not here and cannot participate in the proceedings. The onus on us is therefore greater. Having made strong points, I believe that my course is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 56, in

clause 12, page 7, line 4, leave out subsection (8).

The amendment is an extremely interesting one.

Fraser Kemp (Labour, Houghton and Washington East)

Fascinating.

Bill Cash (Conservative, Stone)

As the Whip says, it is fascinating. The provision it deals with is most unusual. I have never come across it before, but I stand open to correction. I have a slight interest in it for two reasons. First, I have not the foggiest idea why it is included. Secondly, I was the legal adviser to the ship repairers on the famous Aircraft and Shipbuilding Industries Bill in 1977. I was in private practice before I entered Parliament, and I was the chap who identified the hybridity in the Bill and had to argue the case—which we won—in the House of Lords. I should explain briefly—I am sure that you will allow me that indulgence, Mr. Taylor. The Lord Chancellor at the time, Lord Elwyn Jones, was one of the senior members of the Committee that was set up by the then Labour Government. When I got to my second to last point in the Moses Room, he gave me the most enormous wink, indicating that on that point I had won the day. I hope that you will forgive me for that little diversion, Mr. Taylor.

Hybridity is an important constitutional principle that takes up many pages of ''Erskine May''. In essence, it exists when a category is created in a Bill and a class is created within the category and the different classes within that framework are treated differently. Some people believe that it involves being adversely affected, but it is not as simple as that. It depends on whether the classes within that category are treated differently. I am paraphrasing pages and pages of learned matter, but hybridity is a

fundamental principle of British constitutional and parliamentary law. Incidentally, it is also includes matters involving private interests. It is a question not only of public Bills where there is no private interest, but of a private interest being involved and a distinction being drawn between different categories within a class.

However, what I cannot immediately understand is why it is thought that an order made under the Bill could be hybrid. As far as I recall, hybridity applies only to affirmative resolutions, so only those parts of the Bill with order-making powers in statutory instruments requiring affirmative resolution could be hybrid. The consequences of establishing hybridity are horrendous from the Government's point of view—they are so democratic—because they enable the people affected to petition if the appropriate Clerks or the Speaker decree that the Bill is hybrid, and the order would have to go to a Select Committee for consideration. That is my recollection of the position, unless it has changed. I am looking at the Clerk, who is looking at me. I would be happy to receive further and better particulars because my memory is becoming a bit dim with the years, but it is curious that the House of Lords has a procedure for hybrid instruments whereas the House of Commons does not. That arises from page 587 of ''Erskine May''.

The curiosity about the provision in the Bill is that it refers in subsection (8) to standing orders of either House of Parliament when, in fact, it seems that we would not expect the House of Commons to be involved at that stage. The standing orders of each House are different in that respect. I recall, for example, that the Speaker can declare hybridity, after appropriate procedures have been gone through, after Second Reading or in Committee. It does not have to be done at any particular time during a Bill's time in the House of Commons, but there comes a point, at certain later stages of a Bill's passage, when the procedure could not be followed through because a Select Committee could not be set up in either House of Parliament.

Even if the drafting is defective and needs to be rectified, the real question is whether the provision is required at all. Why has it been included? What mischief, as the Government see it, are they seeking to avoid? By my terms, it would not be a mischief but an opportunity, under our normal constitutional procedures, to guarantee that people who were adversely affected—or differently affected—in the class had the opportunity to state their case.

If we were to apply that principle to other Bills or hybrid instruments, and knocked out the procedure, we would probably have a substantial row on the Floor of the House. People would be outraged by the idea that hybridity should simply be shunted off into exterior darkness, but that is what the Bill is doing in respect of matters pertaining to the democratic rights of the people of Gibraltar. The procedures stipulated in orders made under clauses 10 and 11, with all the wide powers that they will contain, including the exclusion of provisions in Gibraltar's laws, make me

nervous. I am not a very nervous person, but I am concerned because I see that the Government have anticipated all sorts of difficulties, which they want to avoid and which they are determined to get round, to the point of excluding the right of petitioners, under our normal constitutional procedures, to take the action necessary to defend themselves.

What is sauce for the goose is sauce for the gander. If the provision is passed, the next thing we will hear is that a similar provision could be applied to other legislation. I was the person responsible—with others, I am happy to say—for what happened to the Aircraft and Shipbuilding Industries Bill, in which I was very much involved, as the Committee will have gathered, so I have a particular interest in ensuring that we do not have a repeat performance of that now. If this provision had, in a slightly different shape, been in that Bill back in the 1970s, those industries would have been nationalised. I see the Whip smiling with satisfaction at that idea, but I have to tell him that I was very glad to prevent that happening on that occasion, with some help from my friends.

David Heath (Liberal Democrat, Somerton and Frome)

I rise only to observe that this provision contains the sort of wording that makes those who want legislation to be intelligible to the average citizen despair. I really look forward to the day when we can draft Acts of Parliament that are understood by those whom their provisions affect.

Yvette Cooper (Labour, Pontefract and Castleford)

Clause 12(8) is included in the Bill, in effect, as a precaution to ensure that the 2004 timetable can be met. As the hon. Member for Stone has said, provisions in ''Erskine May'' apply—[Interruption.] I have a copy of page 587, which was deftly supplied to me by officials when the hon. Gentleman started speaking. They clearly expected that he would leap into intricate detail when faced with such an issue.

Those procedures apply where orders are regarded as being hybrid, as the hon. Gentleman has set out, and treat private interests in different ways. The different procedures are given in House of Lords Private Business Standing Order No. 216. They exist for a good reason: to ensure that private interests are treated fairly. However, as the hon. Gentleman says, the procedures take some time and provide for quite extensive consideration that can take many months. Given our time scale—we have to ensure that the Bill is implemented before the 2004 election—that could have quite significant consequences.

We are not setting out with the intention of making different provisions for the same categories of people, or of introducing hybrid orders. However, we need to provide for circumstances in which a provision might be ruled hybrid through a technicality. For example, the provisions relating to permissible donors to political parties registered to contest European parliamentary elections will also need to apply in Gibraltar. In practice, it may not be possible to have exactly the same class of permissible donors in Gibraltar and the UK, although clearly that is our intention.

We will aim to avoid differences when possible. However, such differences are conceivable, because the

orders have not yet been drafted, as the detailed consideration has not yet taken place. In the end, there may be minor differences that will give rise to orders being regarded as hybrid, although only technically.

Bill Cash (Conservative, Stone)

I in no way want to introduce a note of flippancy, but is it possible that the Minister has in mind that the donations might be payable in euros?

Yvette Cooper (Labour, Pontefract and Castleford)

That is not an issue that I had considered, although given the hon. Gentleman's interests, I should have anticipated his question. I assure the hon. Gentleman that that was not a consideration.

Effectively, this is a precautionary measure only. If one of the orders were ruled hybrid on a technical basis, it would be subject to an elongated procedure that might be appropriate and right under normal circumstances, but that would make it very difficult or impossible to implement the Bill—or at least important clauses of it—under the current circumstances, with the 2004 deadline looming ever closer. Given the ticking clock, we regarded the provision as an appropriate precaution, although we do not expect to need to use clause 12(8) when drafting the orders. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Bill Cash (Conservative, Stone)

I am sorry to disappoint the Minister. She is being candid, and I am grateful for that, but by being so, she has exposed the greater reasons for objection that I feared might exist. I said that I was nervous about the provision; I also referred to Wolsey's revenge. In relation to the timetable, Hon. Members might remember that Wolsey only managed to avoid being executed by dying en route to London, having been summoned by the king. We are being told that any unfairness that emerges from the provisions of an order of the Lord Chancellor should be allowed to persist, simply because it would be inconvenient and inexpedient from the point of view of time to prevent it. That is the most unacceptable reason that can be given. I understand the concern—particularly given that we are not against part 2 in general—to get all the ducks in a row so that we can move forward with the Bill, but we must do so in the right fashion.

We have given a range of reasons why we have been concerned about other matters, but if it emerges that a provision is drafted in a way that produces hybridity, we should not be constrained by the time factors. I can think of many occasions when some of the most important events in parliamentary history have been frustrated because something that was wrong in principle has been resisted by the Opposition, or even by the Government Benches. The Maastricht treaty is one example. Opposition was set up against it at an exceedingly inconvenient time. The same may apply to the question of war with Iraq, unless opposition is crushed by the power of government—and, believe me, that is real power.

In the context of these provisions, serious constitutional issues could arise. We cannot anticipate them, because we do not know how the order will be drafted, what it will contain and so on.

David Heath (Liberal Democrat, Somerton and Frome)

Is it not important that the Committee remind itself that the original judgment from the

European Court of Human Rights on this matter was in February 1999? The time constraints are manufactured by the Government to delay introducing legislation for the enfranchisement of Gibraltar until the last possible moment before the 2004 elections.

Bill Cash (Conservative, Stone)

I congratulate the hon. Gentleman on a perceptive comment. He is right: all these things are artificial in the sense in which he has described them. What is not artificial is the fact that the Lord Chancellor is taking these powers against the background that we have already discussed. The short point is that we shall seek to divide the Committee on the amendment.

Yvette Cooper (Labour, Pontefract and Castleford)

Although the subsection is in place, there will still be clear constraints and protection for private interests. The aim of the Bill is to establish a level playing field between Gibraltar and the rest of the region with which it is to be combined. Article 3 of protocol 1 to the European Convention on Human Rights, which refers to free and fair elections, will clearly apply. Gibraltar will be treated in the same way as the rest of the region. The only reason to include the subsection is that, otherwise, minor differences in the treatment of certain private interests might give rise to a hybrid order on a technicality. That must be balanced against the overwhelming public interest to ensure that the main provisions of the Bill are in place in time for the 2004 elections.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.

Clause 13 - The Gibraltar register

Bill Cash (Conservative, Stone)

I beg to move amendment No. 57, in

clause 13, page 7, line 13, after 'Gibraltar', insert

'who shall be ordinarily resident in Gibraltar, following consultation with the Chief Minister of Gibraltar.'.

The amendment is pretty straightforward. The clause specifies that there must be

''a register of European Parliamentary electors in Gibraltar . . . maintained by the European electoral registration officer for Gibraltar.''

It continues:

''The Governor shall appoint a fit and proper person to be the European electoral registration officer for Gibraltar (and may at any time revoke such an appointment).''

The appointment

''must be published in the Gibraltar Gazette.''

We have already discussed some of the constitutional functions that the Governor performs and the Conservatives are not suggesting that he would not be the right person to appoint a fit and proper person to be the European electoral registration officer for Gibraltar. However, the person who is appointed should be ordinarily resident in Gibraltar. We should not just parachute in somebody from Whitehall to perform further supernumerary and directed activities. This is all part of the same problem—the straitjacket problem—that returns again and again in relation to the Bill.

It would be inconceivable to have an electoral registration officer who was not ordinarily resident in Gibraltar. It is not as if Gibraltar does not have elections; there are people who know how to do such things. Even if there were any doubts about how matters should be dealt with in relation to the complementarity between the electoral legal systems that we have discussed, we have ironed out all these matters in extensive discussions. It would be inconceivable to have a person who was not ordinarily resident in Gibraltar. The fact that the idea is not specifically excluded suggests that the Government are not saying that it would not be a person ordinarily resident in Gibraltar. However, the Conservatives think that such a person should definitely be selected. That is the balance of the argument.

The question is important to the Government of Gibraltar, so we also suggest that any appointment should follow

''consultation with the Chief Minister''.

The clause states that the Governor

''may at any time revoke such an appointment''.

I find that especially odd. It is offensive because it could give draconian power to the Governor. It is almost as if it were anticipated that the Gibraltarians will get up to constitutional mischief. They have already caused us a great deal of trouble with Spain and they could get into a situation such as the one we just heard about with regard to political donations, so we must ensure that they cannot raise questions in the normal fashion through Select Committee procedure. One way or another, they have all the potential of being thoroughly troublesome.

To put the icing on the cake, whoever will be made a fit and proper person to the be the European electoral registration officer—

Sitting suspended for a Division in the House.

On resuming—

Bill Cash (Conservative, Stone)

I think I had finished what I was saying. I was merely making the point that for the Governor, who is unelected, to have the power to determine who the European electoral registration officer for Gibraltar should be, if that person were not an

ordinary resident of Gibraltar, without consulting the Chief Minister, seems to be over-egging the pudding.

If the Governor has the power to revoke such an appointment without giving reasons, that smacks of colonialism at its worst. It is like something Viscount Curzon might have done. It is almost beyond belief. The objection is coming from the Tory side. Will the Committee wake up sufficiently to recognise that I am a Tory shadow Attorney-General addressing a mostly Labour Committee that is totally silent on every aspect of the Bill? Labour Members should reflect on the fact that they are putting through ultra-colonial powers. It is inconceivable, if I step back for a minute and think about it.

The hon. Member for Somerton and Frome made intelligent observations about the Bill. His questioning added to the proceedings. This is not just an exercise in negative investigation. The people of Gibraltar have no voice in the Bill's parliamentary consideration. That is an inevitable consequence of the constitutional relationship between Britain and Gibraltar. Gibraltarians understand and accept that. They have said that, as far as they are concerned, the sovereignty of the United Kingdom is not in question and have made it clear that a balance should be struck between the functions of the two Houses. All that is fair.

We are not talking about the shadow Attorney-General and/or the Opposition trying to be difficult on a party political matter. This is a matter of objectivity in defence of the rights of people who are not here. Any remarks that I make can only be addressed vicariously by way of reply through the people of Gibraltar. I may be wrong, but for the purposes of European elections, in which I happen to be involved in my constituency, the region to which Gibraltar is combined may not turn out to be the one to which it becomes engaged—or married.

Gordon Marsden (Labour, Blackpool South)

Divorced.

Bill Cash (Conservative, Stone)

I have just heard the word, ''divorced''. It is wonderful to hear that word from a Labour Member. I pay my respects to some of the hon. Members who have contributed from time to time.

The important point is that subsection (2) is, by any standards, draconian. It is no good to say, ''Oh well, we know that it will be exercised responsibly.'' We do not know that it will. Our job, on behalf of the people of Gibraltar, is to question whether the wording is correct. A power that allows the Governor of Gibraltar to revoke the European electoral registration officer's appointment without giving any reasons smacks of ultra-colonialism. That that provision should come from a party that purports to be democratic is a great shame. We find the Labour party repeatedly to be intrinsically undemocratic on constitutional matters.

I cannot say any more than that. I say with regret that the provision is not democratic, and I am bound to put that on record. I hope that the Minister will change subsection (2) in line with the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I concur with the hon. Member for Stone that it would be advisable for a person who is

normally resident in Gibraltar to act as the electoral registration officer. I hope that the Minister will be able to give assurances about that. I also noticed the rather draconian provision that to revoke such an appointment was in the hands of the Governor.

Usually, I assume that normal employment practices would be maintained. However, I have two reasons to be concerned. First, there is no provision for remuneration for the post. I assume that that will come in secondary legislation. The Minister may be able to confirm that. The financial provision later in the Bill allows money to be paid from the Consolidated Fund for Gibraltar, presumably for that purpose.

Secondly, a Secretary of State would execute that function. We are clear that employment law applies to Secretaries of State. I am less convinced that it applies to the Crown, in the person of the Governor. Can the Minister confirm that there is no strange procedure by which a governor of a colony—as Gibraltar is clearly identified under the terms of the Bill—is outwith normal employment law? So long as that is not the case, there would have to be proper grounds for revoking such an appointment, should a decision be made to do so.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Member for Stone is so enthusiastic in his desire to brand the Bill colonial that he has not checked his facts. Clause 13(2) has been drafted to mirror the arrangements that are provided for the appointment of the House of Assembly electoral registration officer. It was felt important to ensure that the same person could, were it thought appropriate, hold the two positions. The person appointed to compile the House of Assembly register could also be appointed to compile the European Parliament electoral register, because the job is sufficiently similar. If someone has the expertise to do that job, why reinvent the wheel and create an entirely different job?

To achieve the same results, clause 13(2) establishes the same arrangements as those that are in place for the appointment of the House of Assembly electoral registration officer. Those arrangements are provided for in Gibraltar's House of Assembly ordinance, which was passed by the House of Assembly. In effect, therefore, that decision was made in Gibraltar, not by this House. All that we have sought to do in clause 13(2) is to mirror entirely the arrangements that the House of Assembly chose for its own registration requirements.

I should be happy to reconsider the matter if the House of Assembly and Government of Gibraltar wanted to change the arrangements for compiling the House of Assembly register. We have no particular view on that or stake in it; the intention was only to mirror Gibraltar's arrangements. If the Government of Gibraltar feel strongly about the matter and want us to reconsider it in time for the Report stage, we will be happy to do so, but the principle that we should attempt to mirror the arrangements that Gibraltar has chosen to put in place for its elections is perfectly sensible. That explains the drafting of that subsection.

The amendment would create a disparity between the arrangements for this register and those for the House of Assembly register.

Adrian Bailey (Labour/Co-operative, West Bromwich West)

Does not my hon. Friend the Minister agree that to include the amendment against the wishes of the Gibraltarian House of Assembly would be profoundly colonialist in thrust and intention?

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend makes a fine intervention. Clearly it is right to ensure that the views of the Government of Gibraltar and the House of Assembly are taken into account. I shall happily reconsider the subsection should they believe that their arrangements should be amended. Until we have a view from them to that effect, the current drafting will remain.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is having a little fun at the expense of Opposition parties here, and I do not blame her. However, an ordinance from the House of Assembly in Gibraltar applies only to Gibraltar. This provision applies to the United Kingdom and Gibraltar. The applicability of the two is different, so they are not directly comparable. I accept entirely, however, her view that it is helpful to have the same wording where possible.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman is right that the ordinance applies only to Gibraltar, but the intention here is purely practical. It should be possible for Gibraltar to appoint the same person to do both jobs, because that option will cause much less stress for those involved.

Bill Cash (Conservative, Stone)

When was the House of Assembly ordinance passed?

Yvette Cooper (Labour, Pontefract and Castleford)

The advice, which officials are rapidly passing to me, suggests that it was passed at least before 1984, although we have not heard any proposals for it to be changed. If the House of Assembly wishes to change it, we will be happy to discuss changing the clause accordingly, but the matter rests in its hands for the time being.

Bill Cash (Conservative, Stone)

Actually, the matter rests in the hands of Parliament for the time being. I was suspicious that the arrangement might have existed for some time, and 1984 is about 20 years ago. At that time, the relationship between the United Kingdom and Gibraltar, and indeed other overseas territories, was substantially different.

I have not had an opportunity to go through the constitution order of 2001, which sets out the House of Assembly's ideas on the future constitution of Gibraltar, but the bottom line is that it is highly likely that it was to be implemented by the United Kingdom along similar lines to those used in the Falklands in terms of methodology and consultation. I suspect that the Minister's debating point will evaporate because the House of Assembly would ensure that arrangements were made which brought the whole thing up to date.

The Minister mentioned in passing that there should be consultation with the Government of

Gibraltar as well as with the House of Assembly. The amendment states:

''following consultation with the Chief Minister of Gibraltar'',

who is, for all intents and purposes, the Government of Gibraltar. We therefore anticipated her point in the amendment.

The Minister has not dealt with the intrinsic question. The hon. Member for Somerton and Frome has pointed out the lack of symmetry between the arrangement vis-à-vis Gibraltar and the way in which the order-making power will affect the United Kingdom in its relations with Gibraltar. She has also failed to answer this fundamental point: a person should not simply be faced with a possibility of revocation at short notice. We have been through that, and all I can say is that I cannot regard the matter as one that should simply go through unchallenged. She has not appreciated our points and has not come up with satisfactory solutions. I therefore propose to divide the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Clause 15

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief. I wanted to make two inquiries of the Minister about the entitlement to be registered.

First, there does not appear to be any provision in the Bill—in other words, in primary legislation—to avoid dual registration in Gibraltar and an electoral region of the United Kingdom. I am not sure whether that is intentional or whether it will be covered by regulation at a later date.

Secondly, what is the position of royal naval personnel who may from time to time be stationed in Gibraltar, either alongside or in the port?

Yvette Cooper (Labour, Pontefract and Castleford)

I am not in a position to give the hon. Gentleman detailed answers to his questions. I am happy to write to him and give him the answers. If he has further questions, clearly we can consider the matter again on Report.

Overall, the clause ensures that the conditions for entitlement to be registered on the Gibraltar register

are similar to those applicable in the United Kingdom and provide similar conditions for registering as an overseas elector for ex-residents of Gibraltar as apply to British citizens in respect of the United Kingdom.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.

Clause 16 ordered to stand part of the Bill.

Clause 17 - Section 16: supplementary

Bill Cash (Conservative, Stone)

I beg to move amendment No. 64, in

clause 17, page 9, line 26, leave out from 'regulations' to end of line 29 and add

'may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament'.

The amendment covers ground that we have covered before with respect to the subject matter of the regulations under clause 16. Clause 17 states that a statutory instrument containing such regulations shall be subject to annulment. I have just said something that surprises even me. I am astonished that a provision of this importance should be subject to the annulment procedure. It is obvious that it should be subject to affirmative resolution at the very least. The people of Gibraltar have no opportunity to participate in the debates in the Committee, on the Floor of the House or in the other place. Again it comes back to the Government's overbearing attitude.

I am truly astonished—I say that not out of synthetic concern—at the bloody-minded arrogance, if I may use the word, that lies behind the provision.

Tony Cunningham (Labour, Workington)

That is three words.

Bill Cash (Conservative, Stone)

Yes, it is. It is three words, and each one is meant equally. It is astonishing that a matter of this importance should be subject to annulment. [Interruption.] I see the hon. Member for Newcastle-under-Lyme (Paul Farrelly) tittering a bit at the back.

I hope that he appreciates that it is a matter of great importance, relating to people who could affect his constituents or mine, if we were to translate the territory of Gibraltar to an equivalence with our own constituencies. We would be truly concerned if these procedures were applied to our constituents. The hon. Gentleman has been a good constituency Member of Parliament in relation to a matter on which he and I worked together closely recently. He was anxious to protect the part of his constituency that was affected by certain development proposals. I am sure that if the situation of the Gibraltarians were translated to his constituency, he would not be sitting at the back of the Room and tittering. I am making an important point.

Paul Farrelly (Labour, Newcastle-under-Lyme)

The hon. Gentleman has known me for only a short time, but I guarantee that I have never tittered in my life. I may have tottered a few times. For the record, I was nodding in agreement with him that bloody-minded, being hyphenated, counted as one word, but he seems to be bloody-minded about people who agree with him.

Bill Cash (Conservative, Stone)

I am delighted to hear that, as on a previous occasion, despite our political differences, we

agree on such an important matter. It is not important in the way that some parts of the Bill affecting Gibraltar could be described as lying on tectonic plates, but it is an extraordinary procedural aberration to make the provisions subject to annulment.

The Government have a huge majority in the House of Commons. If they get their act together and apply the constructive dialogue that we have asked for, sometimes perhaps a little abrasively, but, in general, in a good-humoured and constructive fashion, they will get the centre of gravity in the Bill right. They must not go down this colonial route, which should stir some thoughts in the minds of Labour Members. To say on top of that that these order-making powers should be subject to the annulment procedure is quite extraordinary.

I think that I understand the reasoning behind the provision. Many of the regulations will contain provisions that could give rise to the hybrid instrument procedure—I trust that the Minister's advisers are listening—which is applicable only to statutory instruments. I happen to know a little about it. That affects the extent to which the provision would operate in practice. It is therefore part and parcel of my objections to clause 12(8).

Clause 17(1) states:

''This section applies to regulations under section 16.''

Therefore, the hybrid instrument procedure may not be excluded for the purposes of clause 12, and we need to look into that further. Having said that, I stand by my general comments about the need to ensure that all the statutory instruments in clause 16 are subject to affirmative resolution, not only those containing regulations under the European Parliamentary Elections Act 2002, which, as clause 17 says,

''are subject to approval in draft under section 13(2) of that Act''..

I have made my point. If I have been a little vehement about it, it is because I cannot imagine that the regulations could go so far in procedural terms as to exclude the affirmative resolution. I simply do not believe what I read.

Yvette Cooper (Labour, Pontefract and Castleford)

Clause 16 contains a regulation-making power that gives full effect to clauses 13 to 15. It fills in the details about the Gibraltar register, the franchise and the entitlement to register in Gibraltar. As drafted, regulations under that clause are subject to the negative resolution procedure unless they are to be made with the European parliamentary elections regulations, which is what clause 17(4) sets out.

It will be necessary to make new regulations under section 7 of the European Parliamentary Elections Act 2002 for the United Kingdom generally for the 2004 elections. That would be the case even if Gibraltar were not being enfranchised, in order to address such matters as the rolling register, universal absent voting and so on. That is why we intend that most of the secondary legislation that needs to be made under clause 16 to cater for Gibraltar's inclusion in the elections should be made in the same instrument. That makes sense. It is for the convenience of everyone and ensures that electoral registration and returning

officers in the United Kingdom and Gibraltar have all the necessary detail in one place. In practice, the regulations will be subject to a debate in both Houses under the affirmative resolution procedure, because we intend that the regulations under clause 16 should be broadly included in regulations that include the European parliamentary elections regulations as set out in clause 17(4).

The reason for allowing the negative procedure to apply to further regulations that might be required under clause 16 was simply to enable issues that we have not yet anticipated to be included with the European parliamentary elections regulations, such as those involving minor amendments or smaller details that had not previously been considered. It makes sense to be able to consider them through the negative procedure.

Bill Cash (Conservative, Stone)

Has the Minister finished?

Yvette Cooper (Labour, Pontefract and Castleford)

I have not completely finished.

Bill Cash (Conservative, Stone)

I must come back to that by way of reply later. It may require a little more than an intervention would allow. I am astonished by the way in which the Minister is presenting the case.

Yvette Cooper (Labour, Pontefract and Castleford)

I am grateful for the hon. Gentleman's intervention of astonishment. He has not asked any question to which I should respond.

We intend to combine these regulations with the European parliamentary elections regulations, which would enable them to be dealt with by the affirmative procedure. We consider it appropriate to allow for further detail to be addressed through the negative resolution procedure. Many of the issues relating to the register are important and therefore should be considered as part of the affirmative procedure, which is why we shall take them with the European parliamentary elections regulations. However, some issues are likely to be minor and to contain details that may need to be followed up. That is why clause 17 has been drafted as it has.

I am happy to consider the matter further, to ensure that the House gives appropriate consideration to any orders that are put forward. However, we must bear it in mind that the orders must be in place in time to meet the 2004 deadline.

Bill Cash (Conservative, Stone)

I remain astonished, for this reason. I listened with care to what the Minister said, but it bears no relation to what is in the Bill. I accept that, under the bureaucratic intentions behind the arrangements, the power to make regulations subject to affirmative resolution under the 2002 Act may be thought to be a convenient vehicle for dealing with these questions. I am looking at the Bill and I see that regulations under clause 16, not the 2002 Act, are stipulated under clauses 13 to 15, which takes us back to a huge swathe of stuff in the Bill: it is three pages of provisions. The regulations made under clause 16 apply to a vast array of potential changes. The Minister blithely tells us that the intention is that most of that will be done under the 2002 Act. She referred to minor points, as I am sure the transcript will reveal. That is not exactly what I would regard this behemoth as achieving.

Furthermore, the Minister lightly passes over the fact that under clause 17 the supplementary arrangements relating to the regulation-making power in clause 16—this goes back to a question that we discussed earlier—include the modification, exclusion or application, with or without modifications, of any provision

''made by or under an Act''—

any Act—

''or any provision of the law of Gibraltar.''

In other words, it is open sesame, yet we are told in response that the clause is only to deal with minor points and that all will be dealt with by affirmative resolution under the 2002 Act. It simply defies belief that I should be given an answer of that kind.

Either the Bill means what it says and can be used, or it does not. The Minister tells us by way of a parenthesis that the 2002 Act is likely to be used. In the light of my concerns about the draconian and colonial way in which the Government are treating the Gibraltarians in this context, even she, smiling as she is at the moment, must realise that I am not likely to take on trust her assertion that such a matter will simply be dealt with under the 2002 Act.

However, I always look to the future with optimism and I trust that the serious question that I have raised about the difference between annulment and affirmative resolution will be resolved along the lines of my amendment. The idea that the United Kingdom Government, using their majority in the House, will bring in an order through the unelected Lord Chancellor to exclude provisions of any Act in relation to the subject matter of the Bill, or any provision of the law of Gibraltar, by annulment procedure is unthinkable.

I am sure that somewhere in the heart or bosom of the Labour party somebody is prepared to say ''This is not the right way to go about it''. We are not just sitting here in a Committee. Some thousands of miles away, or however far it is to Gibraltar, there are people who will be affected by the Bill. They do not have the benefit of being heard. For heaven's sake, is it not possible for somebody, even privately when we finish these proceedings, to say to the Minister, ''I don't agree with a great deal of what the shadow Attorney-General says on a number of matters, but on this one I think he has a point''? If the Government do not have a point to consider in the light of what I have just said, I feel very sorry for them.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.