European Parliament (Representation) Bill

House of Commons, 28 April 2003.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I draw the House's attention to the fact that privilege is involved in Lords amendment No. 17. If the House agrees to this Lords amendment, I shall ensure that the appropriate entry is made in the Journal.

Before Clause 2

Yvette Cooper (Labour, Pontefract and Castleford)

I beg to move, That this House agrees with the Lords in the said amendment.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to take Lords amendments Nos. 2, 3 and 20.

Yvette Cooper (Labour, Pontefract and Castleford)

This small group of amendments relates to part 1 of the Bill. As hon. Members who were involved in the Bill in Committee will recall, we discussed the limited circumstances in which the order changing the number of Members of the European Parliament could be made. As I said in Committee, our intention has always been that that should apply pursuant only to our treaty obligations. The Delegated Powers and Regulatory Reform Committee asked that the scope of the clause

"should be expressly limited to changes arising out of Treaties which have already been the subject of an earlier Act of Parliament".

That is what amendment No. 1 does. It defines "Community law", which is referred to particularly in clause 4, to mean in this context treaties that have been the subject of an Act of Parliament amending the European Communities Act 1972 to include such treaties and Council decisions or other Community instruments made under such treaties. That clarifies the position and ensures clear safeguards for Parliament.

Amendment No. 2 was inserted to enable action to be taken to debate and put in place the orders necessary to change the numbers and distribution of MEPs in advance of those Community law provisions, and if necessary in advance of their incorporation into UK law.

John Redwood (Conservative, Wokingham)

I am glad that there has been some movement, but is not the Minister being a little economical with the truth? This is a climbdown. It was not clear during the original debate that the provision was limited to those areas where treaties had already been the subject of the proper debate and parliamentary scrutiny that is required for the passage of an Act, and the worry was that it would be back-door legislation without proper scrutiny.

Yvette Cooper (Labour, Pontefract and Castleford)

We have always made clear our intention to ensure that we could implement not only decisions made under treaties, but Council decisions that were pursuant to treaties. That is why the orders are necessary. We have responded to the Delegated Powers and Regulatory Reform Committee—

Bill Cash (Conservative, Stone)

The hon. Lady is being a little disingenuous. She may recall that not once, but two or three times, I raised the question of protocol A to the Nice treaty—I am sure that she remembers every detail of it. That was some time before the Delegated Powers and Regulatory Reform Committee made its recommendations, and I am somewhat surprised that she should overlook the fact that although the matter was hotly debated, she has only partially addressed the points that I made.

Yvette Cooper (Labour, Pontefract and Castleford)

I hope that the hon. Gentleman's remarks suggest that he will therefore support the amendments. We have responded to the Delegated Powers and Regulatory Reform Committee. Moreover, as we clearly explained in Committee, the problem with the amendments that he tabled is that we could not be sure that they would apply not only to the explicit wording in the treaty, but to Council decisions pursuant to the treaty. As I remember, we discussed that in considerable detail. We have ensured that the provision is framed in such a way as to cover not only the explicit wording of the treaty, but Council decisions that are pursuant to it. That is important.

Amendment No. 2 enables debate to take place in advance, but it is important to recognise that it does not allow the orders to be brought into force until the conditions set out in amendment No. 1 apply and, in effect, until the Community law provisions come into force. That is necessary because the treaty of accession that sets out the number of MEPs for 2004 will not come into force until 1 May 2004, which is only five or six weeks before the election. Furthermore, if one of the accession states should fail to ratify the treaty, a Council decision under the protocol on enlargement annexed to the treaty of Nice will make a pro rata correction to the number of MEPs, which could enter into force at a similarly late stage. We expect, however, to know what the numbers of MEPs will be shortly after all the referendums in ratifying states are completed in September this year. It is important that everyone with an interest in the elections—those who are involved in the administrative arrangements, electoral returning officers and those who are involved in the parties in terms of campaigning and candidates—can plan with some sense of what the arrangements will be for 2004. We therefore expect to be able to debate and to make the order well in advance of 1 May 2004, even though it will not actually come into force until that date or the date on which the Council decision comes into force. The amendment solves the timing problem to allow electoral administrators, candidates and parties to proceed on a firm basis early in 2004.

Amendment No. 3 is simply a consequence of amendment No. 2, which moves two subsections displaced by amendment No. 2 to a more logical place, and amendment No. 20 corrects a typographical error.

I commend the amendments to the House.

Bill Cash (Conservative, Stone)

I have already made one of the points that I intended to make in response to the Minister. She is indeed being disingenuous, as I suggested. We debated the provision significantly in Committee and on Report, but it is still no more than a partial response to the points that we made, which at that time were resisted by the Government. Before the Delegated Powers and Regulatory Reform Committee made its recommendations, the Minister was not prepared to accept the points that I made. I have here protocol A of the Nice treaty, which deals with the enlargement of the European Union, and which, in article 2, sets out the provisions concerning the European Parliament. The Minister rightly says that it is perfectly possible that a number of countries may decide—they would be wise to do so—to vote against the proposals in a referendum, but the fact remains that article (2)(3) states:

"If the total number of members referred to in paragraph 2 is less than 732, a pro rata correction shall be applied to the number of representatives to be elected in each Member State, so that the total number is as close as possible to 732, without such a correction leading to the number of representatives to be elected in each Member State being higher than that provided for in Article 190(2) of the Treaty establishing the European Community".

However, it then goes on to say:

"The Council shall adopt a decision to that effect."

In other words, protocol A already prescribes the manner and vires of the decision.

The amendment, which refers to an anticipated change in Community law, states:

"In this Part 'change under Community law' . . . means a change made by . . . a treaty provision that is part of the Community Treaties; or . . . any provision of a Council Decision, or of any other instrument, made under a treaty provision that is part of the Community Treaties."

The provision to which the Minister refers is specific: it is a decision under article 2(3) of protocol A. It therefore surprises and concerns me that she is not prepared to stick to the words of the treaty and refer in terms to the fact that the decision on which she relies is already prescribed.

The amendment to clause 4 constitutes another substantial change, which is partly a response to points that I made in Committee and on Report, to the timing of an order. We had extensive debates, which we do not need to repeat. Although I am prepared to concede that some progress has been made, and that it is the job of Government and Parliament to respond to reasonable points that the Opposition and other parties make, the provision is exceptional and objectionable. It is objectionable because it tries to deal with the fundamental point of principle that I have made throughout the proceedings on part 1.

The Lord Chancellor and the Minister as his vicarious representative on earth have provided that an order making an amendment to section 1 of the European Parliamentary Elections Act 2002, which prescribes procedure and the number of seats allocated to each member state,

"may be made before the provision making the relevant change has entered into force."

It may be highly convenient for those who have regard to the diktats and decrees of Brussels and the order-making powers that are incumbent on Ministers in the European Communities Act 1972 to say that the requirement to debate such matters, or at least to do so at the right time, is a waste of parliamentary time and that we have to be more realistic about that in a modern world.

As the Minister said in Committee, those who do not have a majority in Committee do not win votes. She also suggested that the outcome would be based on a European decision, and that we would not win our case on that, either.

John Redwood (Conservative, Wokingham)

Is not the Bill's great irony the fact that it genuflects to democracy by offering us elected offices to put before the British people but does so in such an undemocratic way that there can be no proper democratic debate or discussion, and that the Community cannot work out a timetable for agreement that leaves us time to undergo a proper democratic process?

Bill Cash (Conservative, Stone)

I agree with my right hon. Friend. The problem emerges in all sorts of other arenas such as the Convention on the Future of Europe and proposals that pre-empt proper democratic decision making by this Parliament, thereby reducing it to rubble. We are expected to accept all that for reasons such as: it will happen anyway; it is good for us. The sort of discussion that we would expect at the right time will be precluded.

John Bercow (Conservative, Buckingham)

I wish to underline the significance of the point that my right hon. Friend the Member for Wokingham (Mr. Redwood) made. Will my hon. Friend comment on what he believes that the Government intend to be interpreted or connoted from the words "anticipated change"? For how long does it have to be anticipated? What forum will be the subject of the anticipation? Who will anticipate it? The words are so spectacularly imprecise that they are constitutionally perilous.

Bill Cash (Conservative, Stone)

I personally believe that the provisions are not only perilous but damaging to the democratic process. As we said in Committee and on Report, the anticipated change depends on events that have not yet occurred. The proposal and the mandates are therefore based on a hypothesis. For example, we do not know how many countries will agree to the changes. We do not know whether they will be agreed in Poland. [Interruption.] The Minister for Europe had to eat humble pie over several European matters recently, including the common foreign and security policy. He now makes another of his famous predictions. Poland represents a significant number of seats in the European Parliament, and it is possible that it will reject the proposals.

As my hon. Friend the Member for Buckingham (Mr. Bercow) said, a range of obstacles has to be overcome before the final decisions can be made under the decision to which I referred earlier. It is not right to make provision in advance of decisions on a hypothesis that renders nugatory and makes a laughing stock of the parliamentary process.

Amendment No. 2 refers to proposed new subsection (2C), which would provide that

"no amendment to section 1 . . . may be made so as to come into force... if the relevant change is made by a provision . . . before that provision has entered into force".

Despite the gobbledegook and wrapping up in ribbons, there is an attempt to provide that the Government will legislate in embryo and enable their wishes on "anticipated change" to be effected under the order-making power. However, they appreciate that matters may not turn out in the way in which they would like; hence in response to the Opposition's demonstration of the constitutional black hole into which they were moving on Report and in Committee, they simply tried to provide that

"no amendment . . . may be made so as to come into force"

unless the provisions that I mentioned were in force. That stretches the parliamentary process to the point of incredulity.

The amendments are unprecedented, undesirable and unnecessary. I therefore do not intend to ask my colleagues to vote for them. However, I propose to divide the House on only the first amendment in the group. My comments on the others should be perceived in the light of the vote against it; otherwise we could be here for much longer than the time for which the programme motion that the Government have imposed on us provides. I am sure that they do not want to keep us here to the last minute.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Member for Stone (Mr. Cash) is in danger of not accepting a yes, however guarded, hedged around with circumstances or faltering, for an answer. The Minister might have been a little more explicit in acknowledging that the proposal in amendment No. 1 was pressed upon her both by me and by the hon. Gentleman in Committee and on Report, because we were concerned about the rather nebulous way in which the Bill was originally drafted.

I am not entirely satisfied even now that the Bill is sufficiently explicit. I cannot for the life of me understand why the Government are being so coy about this. The Bill implements the treaty of Nice, protocol A, article 2, paragraphs 1, 2, 3 and 4. Why do they not just say that? Most of us would be extremely happy—I cannot speak for the whole House because some may not be—to see enacted an explicit measure bringing into effect what the Lord Chancellor on behalf of the Government proposed as a result of a treaty signed by Her Majesty's Government and debated by the House. Instead, we have these vague and imprecise terms that allow suspicions to be formed that there is a range of other secret treaties or obligations that have yet to see the light of day and which the House will be refused the opportunity to debate fully simply because of the way in which the Bill is worded.

As I say, I do not believe that that is the case, which is why I am so irritated by the way in which the Government have chosen to address the issue. I believe that they are simply trying to ensure that the Bill to allow for enlargement is introduced in good order. As I told the hon. Gentleman in Committee, I do not for one moment buy the notion that a Minister of this Government, even the Lord High Chancellor, would deliberately reduce the United Kingdom's capacity to be represented in the European Parliament in the absence of a reduction in the overall size of the European Parliament. That would be a nonsensical position. However, it seems odd that the Government persist in legislating in generalities rather than in specifics, which is effectively what is being done here.

I shall support amendment No. 1 because it improves the Bill, and I shall recommend that my right hon. and hon. Friends do so too. I am partly reassured by the fact that amendment No. 2 will not come into force without the various treaty provisions coming into force. That squarely addresses the point made by me and by the hon. Gentleman in Committee and on Report. But it prompts the question of the necessity for pre-emptive legislation other than specifically in the context of the Nice treaty. Again, I ask the Minister why on earth the Nice treaty is not specified. The first part of the Bill is effectively a ratification process for the Nice treaty, so why on earth do we not make that explicit?

The remaining amendments simply regularise and improve the Bill and, in one case, correct a glaring error that, despite our best endeavours, we seem to have missed in Committee. I am glad that that has now been corrected.

I welcome the Government's somewhat reluctant acknowledgement of the force of the arguments that were put at an earlier stage in the proceedings. It is a shame that we have to have the recommendation of the Delegated Powers and Regulatory Reform Committee to make the point that was quite adequately made by both Opposition parties in discussions on the Bill. It would have been more generous of the Government to have acknowledged that and to have simply said that they had taken our advice and put it into the Bill.

John Redwood (Conservative, Wokingham)

I share the worries of Opposition Members that this is only a partial recantation by Her Majesty's Government. It is a pity that the Minister did not come in a more humble spirit and say that a mistake had been made and that the debate led by my hon. Friend the Member for Stone (Mr. Cash) had made an impact. It would be so much better if Ministers practised what they sometimes preach. I thought that the idea of Parliament was to bring to bear on issues the collective mind of the elected representatives of this country, and where good points were made, from wherever they might come, that Ministers should listen to them and take them on board. That was how I tried to conduct myself as a Minister. There were times when I accepted amendments in Committee and was happy to do so because I did not think that Ministers and the civil service had a monopoly on wisdom when it came to drafting such measures. In this case, it was a material point that went to the heart of democracy: the right of this House to have a prime discussion and primary legislation on matters that Ministers certainly think are of major importance—the question of how many representatives there should be in the European Parliament as it develops, how they should be chosen and the areas that they might represent.

The Bill shows that Ministers have little ability to influence the pace and nature of debate in the EU. Surely Ministers should explain our democratic system to our partners on the continent and explain that, as a matter of courtesy to the House of Commons, they should agree not merely the general outlines, but the actual numbers of MEPs in good time for the House to debate and legislate with primary legislation before the elections are called. It is bad manners on the part of the Community not to offer Britain, and for all I know several other countries with similar democratic traditions, the time and space to debate these important matters in the traditional way rather than having to hurry through cobbled-together legislation and then having to change that under protest and under pressure because some of the legislation fell foul of the usual procedures and ways of conducting business.

Ministers say that through this device we can anticipate the number of MEPs that may be required. I do not know whether that comes from the Foreign Office tradition that thinks that the Beano is a stronger source of authority than some of the European documents that it wishes to dismiss when we try to debate them, and whether we have to look in the pages of the Beano to see how many MEPs might be needed and legislate on the back of that, or whether Ministers have in mind something more substantial before bringing before the House the exact number of MEPs that they wish to see.

John Bercow (Conservative, Buckingham)

Does my right hon. Friend agree that there is a danger that the inclusion of the words in the Bill "anticipated change" could themselves act as a self-fulfilling prophecy? That is to say that the very fact of including the words and predicting the scenario could force the pace of events within the Community in a direction that it might otherwise have not have taken.

John Redwood (Conservative, Wokingham)

It could have that impact, or we could end up legislating twice. We might anticipate wrongly and the House would have to deal with an embarrassing correction from Her Majesty's Government.

I urge Ministers, first, to accept tonight that they have given some ground, and rightly so. That would be sensible, accepting their role in democratic debate. Secondly, I would like Ministers to assure the House that, when negotiating such matters in future with our partners in the EU, they will try to obtain more space and time so that we can go through our usual democratic processes and not feel rail-roaded and dealt with rather shabbily, as we do tonight.

Yvette Cooper (Labour, Pontefract and Castleford)

I knew that I would need my copy of the Nice treaty. When the hon. Member for Stone (Mr. Cash) gets a chance to speak about Europe, it is always useful to have a copy ready to hand.

I am slightly puzzled by the concerns of the hon. Member for Stone about this issue, because he seems to think that the Council's pro rata decision under the Nice treaty is already prescribed, if various states fail to ratify. Yes, the way in which the Council will need to make such a decision is prescribed; it has to be a pro rata decision. That was among the many points that I made when we discussed this in Committee. It will have to make a pro rata adjustment. The Council's decision is pursuant to the treaty, but given that the numbers in question are not on the face of the treaty, it is important to clarify that the numbers—the final end point in terms of the numbers of MEPs that we shall have—and the Council's decision, should a pro rata adjustment need to be made, are both covered in the Bill. It will be possible to introduce an order that will implement the Council's pro rata decision under the treaty of Nice if such a decision is needed.

The hon. Gentleman seems to be complaining that this is referred to in the Nice treaty. We have always said that this is about the decisions that are pursuant to that treaty, which has been debated in this place and incorporated in UK law by this Parliament. That should surely constitute the safeguard that the hon. Gentleman is asking for. He is concerned that Parliament has not had a chance to debate these issues, but the fact that it has debated the Nice treaty and incorporated it in UK law should surely be the answer to his concerns.

Bill Cash (Conservative, Stone)

The hon. Lady might recall that I tabled 240 amendments to the legislation incorporating the Nice treaty. Her answer does nothing to contest the argument that I am presenting, which is that the provisions in subsection 1(a) and (b) of proposed new clause 1 are too wide. They refer to

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

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

The Minister must realise that that is so wide that it is not confined to the protocol under the Nice treaty; it is wider than that. Perhaps I can offer her a suggestion. She knows that the European constitution is coming up, and that it will be wrapped up with the latest articles that have just been put forward and which include a whole range of provisions for consolidation of treaties and the tabling of amendments. That is probably therefore what this is all about—

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order.

Yvette Cooper (Labour, Pontefract and Castleford)

Madam Deputy Speaker, I thought that it would not be long before we strayed into such territory, but that is not the subject of the Bill and I will not debate those issues now.

Yes, the hon. Gentleman did table an immense number of amendments to the legislation incorporating the Nice treaty, but the fact that he does not like the treaty does not mean that Parliament did not get the chance to debate it. He might not like Parliament's decision, but the UK Parliament decided to incorporate the treaty of Nice in UK law, and he should stop trying to use Parliament as a cover for the fact that he simply does not like the treaty or the European Union. That was most telling in his opening remarks, in which he said that if people were wise, they would vote against the provisions. I think that that probably sums up where a lot of this is coming from.

The hon. Gentleman raised some concerns about amendment No. 2. Let me try to spell this out again. The order cannot come into force until the Community law provisions come into force. It cannot be implemented until those relevant decisions come into force. It is, however, sensible to be able to debate the matter in advance. Of course we can anticipate now that 78 is the number of MEPs that the Copenhagen Council and other discussions that have taken place across Europe have allocated not just to the UK but to other countries as well, if all countries ratify. We shall also have the ratification decisions by September this year. Conservative Members seem to be asking for us to wait until 1 May 2004—when the treaty of accession comes into force and at which point elections will be just five or six weeks away—to tell the electoral administrators, candidates and political parties how many MEPs there are going to be. They are suggesting that, in the interim, we should simply leave them to guess on the basis of what they read in the papers, while we give them a nudge and wink and say, "Well, it will probably be 78, but we cannot have a debate about it in Parliament. Everybody is capable of reading the papers, and electoral administrators up and down the country will be capable of working out that the anticipated number is 78 but, no, Parliament just cannot do it."

Conservative Members seem to be suggesting that we should take that position. That is just not sensible when a whole load of people across the country have to organise an election. They have a hard enough job as it is; an immense amount of work goes into such organisation. Surely we should be able to say, very sensibly, that we can debate the order now, when we are able to, and give those people warning as to what we expect to take place. The order cannot come into force until the Community law comes into force, but it is sensible that we should be able to have that debate in advance.

The hon. Member for Buckingham (Mr. Bercow) has an obsession with the word "anticipation". The term "anticipated changes" allows the Lord Chancellor to refer anticipated changes to the Electoral Commission and to ask for its advice and recommendations. If necessary, the Lord Chancellor can refer a series of options on which it can make recommendations. Again, this prevents us from having to wait until the treaty of accession or other treaties come into force, possibly at a very late date, before we can even ask the Electoral Commission to advise us on the distribution of MEPs.

John Bercow (Conservative, Buckingham)

Any idea that the Lord Chancellor should be entrusted with the responsibility for determining what constitutes anticipation in these circumstances is scarcely reassuring to most right hon. and hon. Members on both sides of the House. May I ask the Minister, however, to agree to the principle of consistency in these matters and, therefore, to tell the House how she reconciles the decisions under the treaty of Nice that have necessitated the Bill and the amendments to the order-making power with the prior inclusion in the treaty of Amsterdam of the protocol on the principles of subsidiarity and proportionality, because there is obviously a direct read-across?

Yvette Cooper (Labour, Pontefract and Castleford)

I should have brought my treaty of Amsterdam. I knew that I was taking a risk by just bringing a copy of the treaty of Nice to the House this evening. The treaty of Nice sets out the clear and simple issue, which the Bill is trying to implement, of changing the number of MEPs in order to allow the accession states fair representation in the European Parliament. We cannot simply unilaterally decide how many MEPs we want to send to the European Parliament this year—they would arrive there and there would not be any seats for them. Clearly, the number of MEPs that each nation is entitled to send has to be negotiated and agreed across Europe. Those decisions then have to pass through the appropriate incorporation into UK law, and the House decided to incorporate the treaty of Nice in that way. The treaty set out a simple principle, which does not need the treaty of Amsterdam or any other treaty that the hon. Member for Buckingham chooses to throw into the debate to explain it.

Hon. Members have asked whether there will be a debate on these matters. There has already been a debate on the treaty of Nice, and there will be a debate on the treaty of accession, which will set out the number of MEPs for 2004, when the legislation to incorporate the treaty of accession will come before the House. My hon. Friend the Minister for Europe, who is on the Front Bench, has responsibility in those matters.

The hon. Member for Somerton and Frome (Mr. Heath) is right: the amendments improve the Bill and I hope that Conservative Members will recognise that and will have the sense to vote for them.

Clause 9 — Electoral Commission Recommendation — As to the Electoral Region to be Combined with Gibraltar

Yvette Cooper (Labour, Pontefract and Castleford)

I beg to move, That this House agrees with the Lords in the said amendment.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to deal with Lords amendments Nos. 8, 11, 12, 14, 15 and amendment (a) thereto, 16, 17 18, and 19.

Yvette Cooper (Labour, Pontefract and Castleford)

All these amendments are concerned with provisions in the Bill relating to the role of the Government of Gibraltar in the preparation for, and conduct of, the European Parliament elections in Gibraltar. They stem from the very constructive debate that took place at previous stages in this House, in the other place and with the Government of Gibraltar. As I explained in Committee and on Report, we were keen to introduce amendments that address the concerns raised in Committee and by the Government of Gibraltar. It was important to consult them before doing so, and we have brought forward amendments in the other place with that in mind.

Lords amendments Nos. 14 and 15 deal with issues relating to the jurisdiction of the courts. They move the original provisions into a specific clause on jurisdiction, and set out more clearly that the powers are concerned with conferring jurisdiction on Gibraltar and the UK courts, not simply on the latter. Our intention remains, as we explained in Committee, that issues that would normally be dealt with in the UK by magistrates courts, the Crown court or county courts will be dealt with locally by the courts in Gibraltar, but that issues that tend to be dealt with by the High Court or the election courts—issues that might involve the result of an election in the region as a whole—will be dealt with by the UK courts. These amendments set out more clearly that that is possible. Also included in the clause is an express reference to a power to provide for a judge from the supreme court of Gibraltar to have a role on the elections court should a case need to come before it, and should such action be regarded as appropriate in those circumstances.

John Redwood (Conservative, Wokingham)

Are the Government of Gibraltar entirely happy with these amendments, or do they still have reservations and criticisms?

Yvette Cooper (Labour, Pontefract and Castleford)

I have a letter from the Government of Gibraltar, and if the right hon. Gentleman will give me the chance, I will find it while other Members are speaking and read it to him later, so that the Government of Gibraltar can speak in their own voice. Certainly, we have had considerable further discussion with them.

I draw hon. Members attention to amendment (a), which I have tabled, to Lords amendment No. 15. It corrects an error in the new clause, the intention of which is to enable the conferring of jurisdiction on the courts to be made under either regulations or an order. The current reference is limited to "regulations", and the amendment corrects that error.

Amendment No. 16 confirms expressly that the Government of Gibraltar can play a role in making legislation that relates to the European parliamentary elections provided for under this Bill. In fact, we expect the Government of Gibraltar and the House of Assembly to pass some of the necessary legislation, and we expect to work with them closely on some of the follow-on subordinate legislation that will be needed.

Amendment No. 4 adds the leaders of the political parties in the House of Assembly to those who will be consulted by the Electoral Commission. Amendments Nos. 8 and 11 apply to the returning officer. We had established that the returning officer should be appointed by the Governor of Gibraltar in the same way that the House of Assembly's electoral registration officer is currently appointed, as we understood that the same person would be appointed to both posts. However, amendment No. 8 adopts a similar approach by simply stating that the clerk of the House of Assembly should hold the post of electoral registration officer for Gibraltar. I understand that the Government of Gibraltar are content with that amendment.

Amendment No. 12, which is more technical, improves the distinction between the status of Gibraltar and that of a local authority. Clause 19 is about providing for the Government of Gibraltar to place at the disposal of the electoral returning officer for the European Parliament elections the services of their officers. It is a parallel provision to that within the UK, and it was important to distinguish appropriately between the status of Gibraltar and that of a local authority.

Amendment No. 17 refers to clause 22, which makes financial provision for expenditure arising from the Bill's provisions. The basic intention in respect of financing of the European parliamentary elections in Gibraltar is that the UK consolidated fund will pay for the Gibraltar returning officer's expenses, and Gibraltar will pay for its local registration officer. Gibraltar will use its own legislation to enable it to pay for the latter expenses, so the amendment removes from clause 22 any provision for this purpose, as it is no longer necessary.

Amendments Nos. 18 and 19 are minor, technical amendments that ensure that certain references in clauses 24 and 25 are correct.

Bill Cash (Conservative, Stone)

Anyone listening to the Minister might be forgiven for assuming that the Government and the people of Gibraltar are entirely satisfied with the proposals, and that there are not in fact several important matters that have effectively been glossed over—a process that we got used to in Committee and on Report.

The Minister has an extraordinary capacity for making light of matters that are hotly debated and controversial and that go to the heart of many issues that the Gibraltar Government, and the people of Gibraltar as a whole—as reflected in the referendum—feel very strongly about. The cursory and arrogant manner in which the Minister disposed of those questions is consistent with the criticisms that I made of the whole Bill—that Gibraltar matters are being dealt with in an imperialistic and colonialistic fashion. One would not have expected it—or, at least, not in the past—of the present Government. They surprise us all the time—sometimes in a way that is more to our liking than at other times.

One central question is the overriding concern of the Gibraltar Government to make it clear that the territory of Gibraltar, not just its electorate, is being enfranchised. It is argued that it is all about individual electors and the electorate, but if a significant proportion of my electorate were to be excised from parliamentary representation and I said that it was not both territorial and electoral, I would be severely criticised. The Government are playing games with the notion of the electorate. What is happening is part of a process and, in practice, despite the constitutional fictions presented by the Government, the territory is being enfranchised. To enfranchise a territory, it is necessary to do so through its constitutional mechanisms and institutions.

The ambivalence and ambiguity of the Bill is highlighted by the Government's refusal to include Gibraltar in the name of the constituency. I tabled an amendment to that effect, which was debated in earlier proceedings. It is perfectly logical, as with so many constituencies in the United Kingdom, to have double or even treble names to reflect the territorial aspect of the electorate in question. It defies belief, and surprises and disturbs me, that there is no recognition of the fact that Gibraltar is by any standards an important part of the history of this country and strategically still of immense importance. I hope that nothing in the constitutional proposals—I must not go into detail—will in any way lead to a change in the status of Gibraltar. As I said, it is illogical that the name of one of the two territories of the combined region should not be reflected in its name.

The Minister explained that in terms of relative size and numbers, an issue that cropped up during the debate. However, we believe that Gibraltar should be included in the constituency name because the reality is territorial as well as constitutional. I do not believe in constitutional theology, only in the relevance of constitutional frameworks in the context of practical results. The current state of affairs shows how the Government have failed to combine the practice with the constitutional arrangements that they are proposing.

Amendment No. 4 poses a serious problem. The Government have partially responded to the representations that I made in Committee and on Report. Originally, the process of discussion and consultation was too limited, but the amendment would allow for the Chief Minister and other political leaders to be involved in the process of consultation with the Electoral Commission in respect of the electoral region to be combined with Gibraltar. That is a step in the right direction, but, unfortunately, the Government have insisted that consultation with the Governor should be included, which causes difficulties that I will explain.

Elections are fundamentally a political and democratic event. They are, under the Gibraltar constitution, a defined domestic matter. That is important, as the Minister well understands. Indeed, elections fall within the competence of the Gibraltar Government and the House of Assembly. In no sense whatever does the Governor represent the people of Gibraltar. The Minister knows that the Governor represents the Crown: it is a prerogative appointment, so—in constitutional practice—the Foreign Office represents the reality of the position of the Governor.

Andrew MacKinlay (Labour, Thurrock)

They are bad losers on that question.

Bill Cash (Conservative, Stone)

I passed through Thurrock this afternoon and I was thinking about the hon. Gentleman as I drove up the A20. I wondered whether he would be present in the debate. I concur with what he said. In no sense does the Governor represent the people of Gibraltar and neither do they feel represented by him. The difficulty with the amendment is that its provisions are democratically inappropriate and irrelevant.

John Redwood (Conservative, Wokingham)

It is important to note that a duty to consult does not mean a duty to agree. We have seen how Gibraltar has been bamboozled in the past when consultation has produced good advice, but it has been ignored.

Bill Cash (Conservative, Stone)

I am grateful to my right hon. Friend for making that point. He is absolutely right—I have made the same point on several occasions in earlier proceedings—that consultation means no more than listening to what people have to say. A framework may be in place to ensure that people are listened to carefully, but it does not go beyond that. We are glad that some movement has taken place, but dissatisfied in respect of the substantial points that I have made.

We agree with amendments Nos. 8 and 11 and we are glad that they have been accepted. Amendments Nos. 14 and 15 relate to clause 21, and amendment No. 15 would insert a new clause entitled "Jurisdiction of courts". The election court's decision would impact on the election result for the entire combined region, so we must expect it to have jurisdiction over that whole region. That could be achieved by UK legislation bestowing the requisite jurisdiction in respect of the UK part of the region, and by Gibraltar legislation bestowing it similarly in respect of the Gibraltar part. As a result, between the two pieces of legislation, the court would have jurisdiction over the whole.

No one suggests that the Gibraltar court should have jurisdiction to dispose of the issues for the entire region. That would be ridiculous, because Gibraltar is only part of a combined region. It has been proposed that the UK election court should constitute the election court for Gibraltar, but that it should be appointed under Gibraltar legislation.

That seems a reasonable suggestion. It has been proposed that a Gibraltar judge should join the election court, which is an acceptable and sensible step in the right direction. However, that does not alter the fundamental point that I have already made about the essence of jurisdiction.

It is suggested that the court would also be Gibraltar's election court, pursuant to local constitutional provision. It would thus become a Gibraltar institution, in the same way as the Judicial Committee of the Privy Council, even though that is a United Kingdom court. There would thus be a better way of dealing with the jurisdictional problem posed by the new clause. Glad as we are that some movement has been made in that respect, it is, unfortunately, not possible to accept the proposed mechanism for ensuring that the election court's jurisdiction extends to Gibraltar. Regrettably, that problem remains on the table and has not been resolved, despite some movement in the right direction.

Lords amendment No. 16 would insert a new clause on the effect of statutory powers on the capacity of the Gibraltar legislature. I regret that the Minister did not go into detail about that extremely important provision. Unfortunately, the amendment fails to deal with the fact that Gibraltar's legislature should play a legislative role that recognises the relevance of its territorial institutions. In fact, the proposals would go in the opposite direction by giving United Kingdom subsidiary legislation supremacy over Gibraltar primary legislation. That is a serious problem. It would have been far better, even with a provision for consultation between the Lord Chancellor and the Chief Minister, if the Gibraltar House of Assembly had been given power to legislate on any provision required to give effect to the Act in Gibraltar.

Such a mechanism could have been employed by using Gibraltar's legislative procedures in consultation with the Lord Chancellor. I would anticipate no difficulty in producing the right result, because the Gibraltarians are, above all, practical and reasonable people. They appreciate the necessity of provisions, in the right context, so that Gibraltar would not be attempting to legislate for the whole of the combined region. However, when provisions affect their territory, institutions and status, it seems insensitive, to say the least, that the matter should be dealt with by giving UK subsidiary legislation superiority over Gibraltar primary legislation.

Furthermore, after the provisions have gone through, I do not expect the people of Gibraltar to sit back and say, "That's fine." It is fair to say that they retain considerable residual suspicion as to Spanish aspirations towards Gibraltar. I hope that I do not misinterpret anything that was done in respect to Iraq in imagining that there might be some degree of co-operation in the determination underlying the process of bringing Gibraltar back into Spanish territory. That remains of deep concern to the people of Gibraltar and none of the amendments—

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. I hope that the hon. Gentleman will now address his remarks to the amendment.

Bill Cash (Conservative, Stone)

I understand your point, Madam Deputy Speaker, as I know that you understood mine, so I do not need to press the matter.

Lords amendment No. 17 relates to clause 22. Again, I am happy to acknowledge that, as a result of representations that we made in Committee and on Report, the Government have moved towards our proposals. The people of Gibraltar do not have a direct voice in this House so, to a great extent, they have had to rely on Members of Parliament to make their case for them.

Henry Bellingham (Conservative, North West Norfolk)

Although the Bill is obviously a step in the right direction, does my hon. Friend agree that Gibraltar also needs at least one MP in this House?

Bill Cash (Conservative, Stone)

My hon. Friend makes an extremely valid point, with which many people will agree. If people have the right to elect a Member of the European Parliament, there seems no logical reason, given the territorial point that I have made repeatedly and by virtue of assimilation in the legislative process of the EU, not to recognise the fact that Gibraltar is affected by the legislation of the European Parliament so its people, too, should have representation in this House. I have no difficulty with that proposition. I do not know whether my hon. Friend is thinking of going over to Gibraltar; I am sure that, as the Member for North-West Norfolk he would be welcome, although I do not think he has it in mind to become the Member for Gibraltar—

John Bercow (Conservative, Buckingham)

Norfolk would revolt.

Bill Cash (Conservative, Stone)

Indeed, although I am sure that my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) would also be a powerful advocate for Gibraltar.

Although concessions have been made on clause 22, a difficulty remains: the extent of payments that the Gibraltarians would be expected to make was not entirely clear from the Minister's comments. Perhaps she could amplify that point when she replies to the debate.

There was much concern and discussion of the fact that, in effect, the Gibraltarians were being instructed as to how they should deal with their own funds. Much of the heat has been taken out of that situation by the redrafting of the proposals, but it is not yet clear exactly how much the Gibraltarians would have to pay from their own funds. The provision is rather general as to that, so I should be grateful if the Minister could amplify her earlier remarks.

On territoriality, in UK law a mixture of status plus residence in an electoral region is needed to create eligibility to vote. It has been suggested that, in the case of electors in Gibraltar, such residence would have to be in the territory of Gibraltar. I was given to understand that the requirement would be clear from Gibraltar's inclusion in the schedule listing the geographical parts of the relevant region.

I can find no such reference in the Bill or the amendments, although I looked several times because I had been given to understand that that had been suggested. I had hoped that it would be set out, if not in the schedule to the Bill, certainly in the list of regions in clause 1, but I am afraid that I have not come across that, so I remain puzzled. Perhaps the Minister will refer to that issue as well. Those are the main points that I wished to make. We are partially satisfied; we are glad that there has been some movement in our direction, but, regrettably, not enough.

David Heath (Liberal Democrat, Somerton and Frome)

It is a pleasure to return to the subject of Gibraltar and the inadequacies of the British Government in recognising the fact that Gibraltar is part of the territory of the European Union. As has been ascertained by the European Court of Justice, the European Parliament is responsible for part of Gibraltar's legislation, yet the people of Gibraltar have been denied enfranchisement. The Bill will finally correct that anomaly; indeed, it is worse than an anomaly, it is an affront to the people of Gibraltar, and the change is long overdue.

In totality, I broadly support the amendments because, as the hon. Member for Stone (Mr. Cash) said, they represent a move in the right direction on a number of points, which he and I have put to the Minister on various occasions during the consideration of the Bill. However, I agree with him that the amendments do not by any means represent 100 per cent. of what we would have liked to be included in the legislation. Many hon. Members have been surprised at the lack of real consultation with the Government of Gibraltar and the failure to understand some of the points that they have made.

I accept that, since we first raised the issue, there has been significant dialogue with the Government of Gibraltar, and the Minister was kind enough to send hon. Members a copy of the observations that the Government of Gibraltar sent to her Department on 27 January 2003, in a facsimile message from Mr. Ernest Montado, the chief secretary to the Government of Gibraltar. He raised two substantive points and seven separate points that he asked the Government to consider. Even more helpful was the fact that the Minister provided not only a copy of that transmission to me and, I presume, the hon. Member for Stone, but an addendum consisting of the ticks and observations that presumably civil servants or perhaps the Minister herself made to indicate support or otherwise for the position adopted by the Government of Gibraltar.

First, the Government of Gibraltar raise the important point of the naming of the joint constituency, which I will not go into because it is outside the scope of these amendments. Lords amendment No. 4, which relates to clause 9, repeats the observation of the hon. Member for Stone that the reference to consultation with the Governor should be deleted. Interestingly, that was one of the references in the original message that was ticked as being okay. It obviously turned out to be not okay later, and I fail to understand why.

The Governor is one of two things. First, he represents the Crown in Gibraltar, and it is entirely inappropriate that the Crown should be a consultee to what is essentially a political process. If one sets aside the fact that the Governor represents the Crown, the other thing that the Governor represents is the Foreign and Commonwealth Office, as an appointee of the Secretary of State for Foreign and Commonwealth Affairs. So we have the extraordinary position of the Government consulting their own appointee on legislation that they wish to introduce.

Andrew MacKinlay (Labour, Thurrock)

The Governor is appointed without consultation.

David Heath (Liberal Democrat, Somerton and Frome)

As the hon. Gentleman says, the Governor is appointed without consultation. Of course the Lord Chancellor is appointed without consultation, so the appointed Lord Chancellor discusses with the appointed Governor what should be the electoral arrangements for Gibraltar. I find that entirely inappropriate. Having said that, I cannot bring myself to vote against an amendment that will extend the consultation to the leader of each political party represented in the House of Assembly because that clearly improves the Bill.

In Committee and on Report, I put the argument to the Minister that the consultation should include not just the Chief Minister, but the representatives of each political party in Gibraltar for the purposes of transparency and balance, so although Lords amendment No. 4 does not go far enough—the word "Governor" will not be deleted—it is welcome nevertheless.

However, has the Minister seriously considered the fact that the Bill proposes consulting only on the electoral area in which Gibraltar will be placed, not on the electoral arrangements and those for registration and all the others matters that will pertain in Gibraltar following the Bill's enactment? It seems extraordinary that, when a similar Bill was introduced for the United Kingdom, consultation with the various political parties in this country was required, but that is not considered necessary for Gibraltar. The arrangements for political registration, registering gifts and donations and all the other points of electoral law with which we have become familiar will be determined by diktat. I ask the Minister to explain why that is the case in the context of Lords amendment No. 4.

The second point that Mr. Montado made was in reference to clause 11, about which he said:

"this can be achieved by Gibraltar legislation (or at least with parallel legislation)."

Again, that point is ticked, but no amendment to clause 11 has been proposed; nor has one been proposed to clause 14, which was not quite given a tick—a question mark was put by Mr. Montado's suggestion that the provisions in clause 14 could be achieved by local legislation.

We should applaud the provisions relating to the clerk to the House of Assembly being the returning officer. That was requested by the Government of Gibraltar, and I am grateful to the Government for acceding to that request.

The Government of Gibraltar have made a further suggestion about clause 13(4), asking that the Government should consider adding the words,

"any provision of this Ordinance which empowers the Lord Chancellor to prescribe . . . may with the Lord Chancellor's agreement be done by the legislature of Gibraltar".

The hon. Member for Stone was making that point and, interestingly, the annotation made by the civil servant or the Minister was not only a tick, but the words, "Should have been in?" Well, that suggestion should have been in, but it turns out that it was not in, and it is still not in. That is an omission.

I welcome the Lords amendments to clause 19 that separate references to the Government of Gibraltar from the references to a local council. Those references in the original text were quite extraordinary. I welcome the changes to the position of the court of Gibraltar. To an extent, I share the reservations of the hon. Member for Stone, as we are being asked to allow the court of Gibraltar to be involved in part of the procedure, but by no means all of it, although it relates to matters that affect people in Gibraltar. A better balance could have been reached, but nevertheless I am happy that the amendment has been included.

The last point that I want to make relates to finances—a matter that we explored at length in Committee because a number of us, including the hon. Member for Stone and myself, thought it quite improper for legislation passed in the House to require the expenditure of funds from the Consolidated Fund for Gibraltar without any reference to the Government of Gibraltar. That expenditure would essentially be made by diktat, given that definite devolved powers were given to the Government of Gibraltar under previous legislation.

It seemed to me that that was entirely wrong. The Government have now accepted that and have put it right with amendment No. 17, which I welcome. It is a pity that there was not a little more co-operation and dialogue in relation to what the Government intended and to what the Government of Gibraltar were clearly happy to accede—they are delighted with the prospect of enfranchisement for the people of Gibraltar and they want to co-operate in that regard—instead of the process that has been adopted.

In sum, this group of amendments are welcome. They all move in the right direction, although some do not go far enough. I fear, however, that that is as good as we are going to get at this stage in the Bill's progress. I shall not recommend that my right hon. and hon. Friends vote against any of the amendments, as there are none with which I disagree; I would simply like a few more—[Interruption.] My right hon. and hon. Friends have all gone to win council seats—there are plenty around—as hon. Members will discover on Thursday.

The Minister should have gone further. She should have listened earlier to the people of Gibraltar, and she should have acceded more fully to their requests. Clearly, however, the Bill is better as a result of these amendments than it was when it left the House of Commons, having been the subject of so many fruitless hours of discussion on points to which the Government did not accede.

John Redwood (Conservative, Wokingham)

It is typical of this Government that they did not consult properly in the first place and did not listen. Even now that they have consulted—after a fashion—the Minister was still unable when I intervened on her during her opening remarks to tell me whether the Government of Gibraltar were satisfied with the amendments. As the hon. Member for Somerton and Frome (Mr. Heath) pointed out, the Government of Gibraltar are clearly not entirely satisfied with the amendments. It is no wonder they are so unhappy: they have seen this Government do them down over the sensitive issue of sovereignty, in respect of which this Government ignored the strong advice from Gibraltar; we have seen them done down over the issue of taxation and tax status by being brought into a net to which they do not wish to belong in order to damage their economy; and this same Government who fail to stand up for Gibraltar are now not listening to it carefully enough in relation to these sensitive amendments. I hope that at this late stage the Minister will admit that she has not stood up for Gibraltar on these issues, and that she will reconsider the matter, as the amendments are not sufficient to meet the legitimate concerns of the people and Government of Gibraltar.

Yvette Cooper (Labour, Pontefract and Castleford)

I assume that the hon. Member—[Hon. Members: "Right hon."] I apologise. I assume that the right hon. Member for Wokingham (Mr. Redwood) made his strong views clear to his right hon. and hon. Friends in the Government of whom he was a part before the 1997 general election, who supported the current constitutional position of Gibraltar and who failed to enfranchise the people of Gibraltar for the European parliamentary elections. I think that I also caught him saying—although I may have to check Hansard—that this Government were the first to stand up for Gibraltar. I think that those were the words that he used, and I thank him for those kind words.

John Redwood (Conservative, Wokingham)

I certainly did not intend to say that, and I trust that Hansard heard me correctly. I said that this Government have not stood up for Gibraltar, that they will not do so, and that the Minister has shown again tonight that she cannot do so.

Yvette Cooper (Labour, Pontefract and Castleford)

I am afraid that what I heard the right hon. Gentleman say, after complaining that previous Governments had not done enough for Gibraltar, was that this Government, who are the first to stand up for Gibraltar, have not gone as far as he would have chosen to. Clearly, he and the Hansard reporter will need to argue over the record this evening.

I know that some hon. Members want to change the constitutional status, and this Bill does not do that. It has never pretended to do that, and it should not do that. It cannot resolve every constitutional debate that hon. Members want to have about Gibraltar and its future. The Bill is designed to give the people of Gibraltar the vote for the European Parliament. The hon. Member for Stone (Mr. Cash) referred to the issue of the name, which we have discussed in Committee, as he said, and we made it clear that it would be disproportionate to do as he suggests, given the numbers of people—

Bill Cash (Conservative, Stone)

Will the Minister give way?

Yvette Cooper (Labour, Pontefract and Castleford)

I will, although the point is not covered by the amendments that we are discussing.

Bill Cash (Conservative, Stone)

On the question of territoriality, the point remains important. In the 18th century, we had constituencies that were under the high water mark that still returned Members of Parliament. We now have electors who are allowed to elect people to the European Parliament, but, according to the Government, they are not entitled to any territorial claim. That sounds most odd.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman said, "I do not believe in constitutional theology." I will therefore refrain from getting into a debate with him about constitutional theology, and point out again that the constitutional status of Gibraltar is not a part of this Bill.

The hon. Member for Somerton and Frome (Mr. Heath) raised the issue of the Governor and consultation of the Governor. The Governor is listed as one of the consultees, which is an aspect of the current constitutional status of Gibraltar. The hon. Gentleman is right that this issue relates to the consultation by the Electoral Commission, and we maintained throughout the Committee stage that we are committed to consulting the Government of Gibraltar, exactly as we have done not simply throughout the passage of the Bill but prior to the Bill being laid before Parliament. We will continue to do so, and we will need to do so in relation to the detailed secondary legislation that will be required in time for the 2004 elections.

David Heath (Liberal Democrat, Somerton and Frome)

It would be helpful, for the record, if the Minister were to set out her expectation that the Electoral Commission will also consult with parties other than the Government of Gibraltar on electoral registration, on donations to parties and on the range of issues that are not explicit in the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

The Electoral Commission has always set out that it will consult widely on all the issues for which it has responsibility, and has always done so. My experience of the Electoral Commission is that it is always keen to consult widely and to ensure that all its work is properly based on a wide and effective consultation.

John Bercow (Conservative, Buckingham)

With reference to subsection (2) of amendment No. 16, and the reference to the status of subordinate legislation, can the hon. Lady tell the House what is the direct application of clause 63 of the Colonial Laws Validity Act 1865?

Yvette Cooper (Labour, Pontefract and Castleford)

I fear that I am supposed to have brought not only the treaty of Amsterdam but an entire constitutional history of the nation to be able to answer the hon. Gentleman's questions.

The hon. Member for Stone referred to a series of issues about the courts and the role of the different courts as set out in the amendment. As I explained in Committee, the secondary legislation will provide in more detail for the way in which the courts will deal with particular issues that they consider. I am advised that the hon. Gentleman's proposal with regard to the election court is not possible. I am keen, however, to consider the issues and questions that he has raised to determine whether, as we set out the detail in secondary legislation, we can accommodate further concerns that he has not had the chance to raise.

John Bercow (Conservative, Buckingham)

Will the hon. Lady give way?

Yvette Cooper (Labour, Pontefract and Castleford)

I will deal with these points first.

The hon. Member for Stone and several other hon. Members raised the issue of allowing secondary legislation to be made in Gibraltar whenever possible. Throughout the Committee stage we maintained that such legislation should be made in Gibraltar wherever possible. However, we are constrained by the fact that in many cases the legislation will need to apply not only to Gibraltar but to the combined region as a whole, so it can be made only by the UK Parliament. The legal position, therefore, means that many legislative changes will need to be made in this place, although we have always said that we will consult the Government of Gibraltar.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister give way?

Yvette Cooper (Labour, Pontefract and Castleford)

I will, but I have other points to answer.

David Heath (Liberal Democrat, Somerton and Frome)

We have plenty of time, so the hon. Lady need not be too concerned. Does she not accept that there are many instances in which parallel legislation has to be introduced in both this Parliament and the Scottish Parliament to achieve the same objectives, and that does not prove to be an obstacle to the proper administration of law in this country? There is no particular reason why Gibraltar could not have introduced parallel legislation to bring its electoral arrangements into accord with those in the UK, while maintaining the principle that Gibraltarian law is made in Gibraltar, not in this House.

Yvette Cooper (Labour, Pontefract and Castleford)

That may prove to be the case in some legislative areas. We had a detailed discussion about that in Committee, and I do not want to return to that now. It will be possible for Gibraltar to introduce further legislation in certain areas, and we are certainly happy to support that, but in other areas the legal position will mean that as Gibraltar operates as part of the combined region, legislative changes will need to be made in this House. We have made great efforts to accommodate the concerns of the Government of Gibraltar on this issue, but the legal position means that we simply cannot do so entirely.

On amendment No. 17, the hon. Member for Stone asked for clarification about the UK Consolidated Fund and asked who would pay for what. The fund will pay for the Gibraltar returning officer's expenses for conducting the election in Gibraltar. That will represent the bulk of the expenditure at the election. That leaves the Government of Gibraltar to pay for the expenses of the Gibraltar-European registration officer. Effectively, then, the registration process will be paid for by the Government of Gibraltar, in an arrangement parallel to those for elections to local authorities throughout this country. The Government of Gibraltar have indicated that they are content with that.

John Bercow (Conservative, Buckingham)

Will the Minister give way?

Yvette Cooper (Labour, Pontefract and Castleford)

I cannot resist the opportunity to give the hon. Gentleman the chance to entertain us.

John Bercow (Conservative, Buckingham)

I am delighted, because I have always paid homage to the hon. Lady as the intellectual hotshot and rising star in the new Labour firmament. Before she goes rushing helter-skelter on to the gravamen of amendment No. 17, I want her to explain the proper application of clause 63 of the Colonial Laws Validity Act 1865 in amendment No. 16, the parentage of which is hers, not ours.

Yvette Cooper (Labour, Pontefract and Castleford)

I appreciate that the hon. Gentleman would like to give the House the opportunity to debate in great detail the constitutional history of Gibraltar and its relationship with this country, but that is not relevant to the Bill.

The new clause in amendment No. 16 confirms that the Bill does not remove the power of the Gibraltar legislature to make legislation that is not contrary to the provisions made by or under the Bill. Hence the reference to the Colonial Laws Validity Act 1865, which provides that any colonial law, which would include law made by Gibraltar, is void to the extent that it is contrary to law made by or under a UK Act of Parliament in relation to that colony, which includes Gibraltar. Accordingly, the amendment does not affect the Lord Chancellor's powers to make provision in exercise of his powers under the Bill. I trust that the hon. Gentleman is suitably enlightened and that if he has any further concerns he will conduct his own research into the Colonial Laws Validity Act. I am sure that he will not only write to me but entertain the House with his views on various historical provisions.

Finally, the hon. Member for Wokingham—[Interruption.] I keep forgetting that he is the right hon. Member for Wokingham. The right hon. Gentleman referred to the views of the Government of Gibraltar, and I said that I would read to the House the letter that the Chief Secretary wrote to the Lord Chancellor's Department. It said:

"Thank you for your letter of the 25 March 2003 explaining further the approach which you have adopted in addressing our concerns.

We acknowledge that you have done your best to accommodate us within the constraints of your own position on the issues raised. I can assure you that we will, of course, continue to work together on the detail of the legislation that may be required to complete all the necessary arrangements for Gibraltar's inclusion in the 2004 elections for the European Parliament."

I have responded to hon. Members' points, and I hope now that Conservative Members will now feel able to support the amendments, which were welcomed by Conservative Members of the Lords. Indeed, Baroness Rawlings, who led for the Conservatives on the Bill, said at the conclusion of the debates:

"The Bill is very good news for the people of Gibraltar. We wish it well."—[Official Report, House of Lords, 7 April 2003; Vol. 647, c. 14.]

I hope that hon. Members in this House will adopt the same point of view and vote in support of the amendments.

Clause 12 — Sections 10 And 11: Supplementary

Yvette Cooper (Labour, Pontefract and Castleford)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this we may discuss Lords amendments Nos. 6, 7, 9, 10 and 13.

Yvette Cooper (Labour, Pontefract and Castleford)

This group of amendments is inspired by the Delegated Powers and Regulatory Reform Committee, which recommended in its 11th report that the delegated powers in part 2 should be subject to the affirmative resolution procedure. In his response to the Committee, the Lord Chancellor accepted its recommendation. He said that he would table amendments, and amendments Nos. 5 to 7 and 10 and 13 are intended to achieve this purpose.

The amendments apply to the delegated powers under clauses 12, 17 and 20. They require the Lord Chancellor to use either an affirmative procedure, whereby a draft is laid and may not come into force until parliamentary debates have been held, or, in urgent cases, an alternative but well-established affirmative procedure whereby the debates may be held within 40 parliamentary sitting days after the instrument has been made.

The procedure recognises the concerns that have been expressed that detailed secondary legislation should receive the scrutiny of both Houses, and the Government's concern that we should not find ourselves in a position where, because of timetabling difficulties, we will not be able to put the final details in place to enable all parties concerned to prepare properly for the elections in June 2004. As we set out in Committee, there are time constraints, given the imminence of the 2004 elections and the immense amount of work that will have to be done. The Government of Gibraltar must be consulted on some of the practical details to ensure that the application of UK electoral law to Gibraltar for the European Parliament elections can work properly. We are also required to consult the Electoral Commission as the independent body that can give an authoritative view on what is proposed. There is a tight timetable and a great deal of work must be done.

Our firm intention is to use the affirmative procedure wherever possible. We have stated that we intend to combine, where possible, the making of as much as possible of the legislation with the general European Parliament regulations, which we would in any case be preparing in advance of next year's elections. The amendments set out the possible situation where for "reasons of urgency" there may be some cases where we have to opt for the delayed affirmative procedure. We must ensure that, in the run-up to the 2004 elections, we are not unable to provide appropriate information to those who need to conduct the elections.

John Bercow (Conservative, Buckingham)

I am sure that the Minister will agree with the general proposition that these important matters must not be discussed in the abstract. To lend some verisimilitude to the argument that she is advancing in support of subsection (5B), can she depict for the House a practical example of the circumstances in which that subsection would be suitably applied?

Yvette Cooper (Labour, Pontefract and Castleford)

The difficulty that we have with election law is its complexity. Sometimes concerns can arise at a relatively late stage that need to be addressed. Such concerns might not have been anticipated. That is the nature of the detailed legislation that we are addressing. If we were able to anticipate problems that might arise at a late stage, we would be able to resolve them early on and take them through the normal affirmative procedure. It is important that we have a fall-back position should problems arise at a late stage in the process, perhaps through consultation with the Electoral Commission or through consultations with the Government of Gibraltar.

We are considering a procedure that has been used before. For example, section 85 of the Northern Ireland Act 1998 provided for the use of the delayed affirmative procedure where reasons of urgency were involved. The procedure has been invoked in other Acts.

We are in an unusual situation. The 2004 elections are looming. That is effectively the deadline. It is the time when the Bill needs to be in place so that the elections can be conducted properly. It is therefore appropriate that the delayed affirmative procedure is in place. However, as we have always said, we are keen to ensure that the process can be used, wherever possible, alongside the European Parliament regulations. It would therefore go through the affirmative procedure anyway.

Bill Cash (Conservative, Stone)

It is always interesting to hear the Minister responding to the representations that have been made to her from whatever quarter. She has a slight tendency not to want to give the impression that she is giving anything away. There is a bottom line to the way in which she puts her concessions to bed, as it were. The reality is that the Government were forced into this position. They do not want to tangle with the distinguished Committee in the House of Lords that deals with regulatory reform. A list of the Members in question would perhaps indicate the extent to which the Government are determined not to fall out with them. The members of the Committee are distinguished in their own right.

There is always the suggestion, however, that when the matter comes back to the House there will be deference to the House of Lords, but grudging acquiescence in any political concession that might be made to the Opposition or to the opposition of the Liberal Democrats. That has been a consistent theme. It is rather regrettable because, as has already been said, the purpose of parliamentary procedure is to ensure that there is a proper debate. Provided that the points are well made, it does not matter where they come from. The concession should be made with good grace and it should not have to be wrung out of the Minister in question. In this instance, I have to say that that usually has to be done.

I am not at all convinced by the arguments that the Minister has advanced about urgency in relation to the timetable and about the Lord Chancellor retaining the power to be able to make the order without approval in draft. I would like the Minister to tell me whether that was agreed by the Delegated Powers and Regulatory Reform Committee in the House of Lords. Has the hon. Lady conceded in principle that all the orders should be subject to the affirmative resolution procedure? In earlier proceedings in this place I tabled a stack of amendments that had the effect of insisting that these matters should be dealt with through the affirmative procedure.

Notes have just arrived from a certain quarter that may help to elucidate the Minister's answer to my question. The analogy that she made with Northern Ireland legislation does not bode well for the degree of urgency that is dealt with in the Bill. The Bill provides a procedural timetable, whereas in respect of Northern Ireland the problem is more prolonged and vexatious and is usually associated with some emergency or other. I should be rather surprised if a proper analogy could be made with the precedent in Northern Ireland legislation or in relation to Orders in Council affecting Northern Ireland. No doubt the hon. Lady will explain that when she replies.

A further point arises under clause 12, to which amendment No. 5 refers. Subsection (8) contains a rather peculiar provision, which states:

"If, apart from this subsection, an order to which this section applies would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed as if it were not such an instrument."

The drafting is questionable, not least because I think I am right in saying that in the House of Commons there is no equivalent to the treatment of an order as a hybrid instrument in the House of Lords. In the House of Commons, there are procedures in respect of the Clerks of Private Bills and there are special procedures in respect of the examiners of Bills as to whether a Bill is hybrid or not. There is a different procedure in the House of Lords. I believe that the drafting of the Bill is defective, as there is no parallel between the two Houses in respect of hybridity.

That is a drafting question. The essential question, which lies at the heart of my concerns, is the provision whereby an order to which the section applies would be treated for the purposes of the Standing Orders as a hybrid instrument. In such circumstances, it is treated as though it were not such an instrument. It is astonishing that the Government can use a Bill to ride roughshod over the Standing Orders of Parliament. They are saying that it does not matter a hang whether an instrument is a hybrid instrument or not.

Procedures that were built up over two centuries or more have been used to safeguard the rights of the subject with respect to a hybrid Bill or hybrid instrument—that is, in a nutshell, where there is a class affected by an order or a Bill, and the members of that class are treated differently in relation to their specific private interests. Where that arises and there is a difference within that group or class, the Bill is declared to be hybrid. For practical purposes—here is the rub—the Bill must be referred to petitions and the Select Committee procedure with leading counsel and all the rest of it.

I can understand that the Government might be nervous about such a matter. Indeed, I was the legal adviser on the Aircraft and Shipbuilding Industries Bill in 1977, when we proved hybridity in the Bill. The flagship Bill disintegrated in a puff of smoke and the Government fell. [Interruption.] The Government Deputy Chief Whip says that that was two years later. It was a chain reaction.

Hybridity is an essential part of the procedures and safeguards for the subject that have built up over many years. I see the copy of "Erskine May" on the Table. Pages and pages of it are devoted to this special subject. However, along comes the Minister and introduces a clause that states that were such a situation to arise in respect of Gibraltar, and the inconvenience of the Standing Orders of either House of Parliament produced a hybrid instrument or provision, it will no longer be regarded as such.

That raises a serious question, because I doubt whether it is proper constitutional practice for Acts of Parliament to override what you, Mr. Deputy Speaker, Mr. Speaker or Parliament have decided to be an applicable Standing Order. That is a dangerous path for the Government to take and the Minister stands accountable to answer for it.

I am extremely worried—as I imagine you are, Mr. Deputy Speaker—that Acts of Parliament could override Standing Orders. One could think of almost any Standing Order offhand that could be overridden simply by an Act. That could relate to the Consolidated Fund or whether the privileges of the House had been breached. The Government could override Standing Orders by using their large majority to provide that they would no longer apply or not apply in a specific context. I hope that you would regard that as a matter of gravity and take soundings on it, Mr. Deputy Speaker. I hope that you will be good enough to note what I say and perhaps let me have your view on the extent to which the unprecedented provision is in the framework of the constitutional treatment of Standing Orders.

I am effectively making a point of order, but the irony is that I do not have to make a point of order because I am talking about the Bill. That is pretty odd and I would be grateful if a person in your Office, Mr. Deputy Speaker, or one of the Clerks would tell me the extent to which the provision is precedented. However, we need not divide the House on the matter. It is important but it can be allowed to mature through correspondence in due course. It will be interesting to hear the Minister's reply, and perhaps her advisers will give her a note so that we may have further elucidation.

David Heath (Liberal Democrat, Somerton and Frome)

One could reach two assumptions: either the Delegated Powers and Regulatory Reform Committee has taken careful cognisance of remarks made in Committee and on Report and has been persuaded by the arguments of the hon. Member for Stone (Mr. Cash) and me, or the points that we made were so self-evidently correct that it could do nothing but agree. Whichever is true, we are glad that it made its recommendations and that the Lord Chancellor has acceded to them.

I was simply going to concur with the hon. Gentleman's sentiments and the Lords amendments, but he made a small peroration on hybridity. I was desperately worried that he would be out of order by doing that because the amendments do not relate to it. However, I realised, as you would, Mr. Deputy Speaker, that clause 12(8) qualifies the rest of the clause and therefore qualifies the amendments that we are debating. The hon. Gentleman was clearly in order to express his concerns about the Humpty-Dumpty provision in subsection (8) that will allow the Government to decide what any word shall mean. If they choose to decide that a word means the opposite of what it clearly does mean, they will legislate for it to mean the opposite. That is the purport of subsection (8).

Bill Cash (Conservative, Stone)

The hon. Gentleman will recall, having echoed "Through the Looking-Glass", that the final phrase following the question about the meaning of words is

"which is to be master—that's all."

David Heath (Liberal Democrat, Somerton and Frome)

Indeed; who are the masters now?

I do not wish to pursue that line of debate any further except to say that it raises questions about the procedures of this place. I do not think that the Government have successfully dealt with the salient points raised by the hon. Member for Stone. However, they are not the subject of the amendments, with which we agree and which we asked for in Committee, although they were apparently tabled as a result of the intervention of the Delegated Powers and Regulatory Reform Committee and not as a result of any arguments from our good selves that may have struck home. None the less, we must modestly accept the procedure by which we have achieved our result and welcome the amendments.

Yvette Cooper (Labour, Pontefract and Castleford)

I should like to deal first with the points made by the hon. Member for Stone (Mr. Cash) about hybridity, which we discussed previously in the House. He pressed to a Division amendments relating to the issue, but they were not accepted. The issue is not the subject of the amendments before us and was not raised by the Delegated Powers and Regulatory Reform Committee.

The hon. Gentleman asked about precedents. Section 26 of the Local Government Act 1992 is a precedent and contains a similar measure. Clearly, he did not manage to do to that measure what he managed to do to the Aircraft and Shipbuilding Industries Act 1977, although I guess that it was not for want of trying to sabotage his Government's measures in one way or another at that time.

Hon. Members asked further questions about the delayed procedure. One aspect of the procedure is that it would allow orders to be made during a recess when there is an important need for electoral administrators or others to get on with the work in question. Parliament would then debate the matter afterwards.

The provisions are sensible measures that allow us to do what many hon. Members and the Delegated Powers and Regulatory Reform Committee have asked for and give greater parliamentary scrutiny to the issues involved. They also ensure that we can meet the timetable. We need to do so to ensure that those who live in Gibraltar can vote in the European parliamentary elections in June next year.

I welcome what I think was support for the amendments from the hon. Member for Stone, as well as the support of the hon. Member for Somerton and Frome (Mr. Heath). I assume that the hon. Member for Stone is still planning to vote against them, as he has previously argued that orders should be more clearly limited to treaty provisions and to debates in the House, but then proceeded to vote against provisions that achieve exactly that. He has also argued that we should conduct more consultation with the Government of Gibraltar and do more to address and respond to their concerns, but he voted this afternoon against provisions that do exactly that. I presume that the fact that he expressed support for the amendments means that he will proceed to vote against them.

Bill Cash (Conservative, Stone)

Will the hon. Lady give way?

Yvette Cooper (Labour, Pontefract and Castleford)

I shall give the hon. Gentleman one last chance to clarify his position.

Bill Cash (Conservative, Stone)

The issue is very simple. The Government have moved somewhat in our direction under the intense pressure that we exerted both in Committee and on Report, and also thanks to our noble Friends in the House of Lords. We have made progress, and Liberal Democrat Members have also contributed to the pressures exerted on the Government in that respect, as have the Chief Minister and others in Gibraltar who have played such a magnificent part in the proceedings. However, this has been only a partial success and it is not over yet by a long way.

Yvette Cooper (Labour, Pontefract and Castleford)

One has to question the logic of the hon. Gentleman's position if he can describe an amendment as progress, then choose to vote against it to try to defeat it. Presumably he would rather we ditch all the so-called progress and return to the Bill as it was when it left this place, despite his anxieties about it at that time. I know that he is always keen to vote against progress whenever he can, but I urge him not to vote against the progress made in this final group of amendments. I ask him to join hon. Members from other parties to ensure that the whole House supports not only the amendments, but the whole Bill. It is a good Bill that extends democracy, and it is right that we should wish it well so as not only to include the accession states in the 2004 elections, but to extend the franchise to the people of Gibraltar.

Lords amendment agreed to.

Lords amendments Nos. 6 to 14, 15 and Government amendment (a) thereto agreed to.

Lords amendments Nos. 16 to 20 agreed to [one with Special Entry].