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European Parliament (Representation) Bill

THESE NOTES REFER TO THE EUROPEAN PARLIAMENT (REPRESENTATION) BILL      AS INTRODUCED IN THE HOUSE OF COMMONS ON 21ST NOVEMBER 2002 [BILL 7]       EUROPEAN PARLIAMENT (REPRESENTATION) BILL            EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the European Parliament (Representation) Bill as introduced in the House of Commons on 21 November 2002. They have been prepared by the Lord Chancellor's Department in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     These notes should be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY 3.     This Bill extends to the whole of the United Kingdom (UK) and Gibraltar. 4.     The two principal purposes of the Bill are: a)     To establish a mechanism by which the numbers of Members of the European Parliament (MEPs) representing the UK can be reduced consequent upon the accession of new member states to the European Union (EU), as agreed by the Treaty of Nice. b)     To enfranchise Gibraltar for the purposes of European Parliament elections, as of 2004, following a ruling of the European Court of Human Rights, which the UK has accepted. [Bill 7-EN]     53/2 BACKGROUND Changes in total number of United Kingdom MEPs 5.     The Treaty of Nice (March 2001) provides for the EU to be enlarged eventually to include a total of 27 Member states - 12 new ones. As a consequence, there will be an enlarged European Parliament of a maximum 732 MEPs, with representation roughly divided between each member state according to its population size. Existing member states are obliged to make reductions in the number of their MEPs to make space so that accession states have fair representation in the European Parliament. The UK will be entitled to a final minimum of 72 seats - a reduction of 15 from the current 87 seats. 6.     Reductions in current member states' representation will take place, as new member states accede. It is intended to implement some reductions to account for the first tranche of accession states for the European Parliamentary elections in 2004. Primary legislation is required to provide for this change under UK law. 7.     This Bill: establishes a mechanism by which the UK can adjust the number of MEPs; provides an order-making power to enable this and future changes; provides for the Electoral Commission to undertake reviews and report their recommendations about the numbers of MEPs representing electoral regions in European Parliamentary elections; and provides order-making powers to implement changes following their recommendations. Gibraltar 8.     Gibraltar is an overseas territory of the UK. It exercises self- government except in matters of defence, internal security and foreign affairs, which are reserved to the UK. The Treaty Establishing the European Community (the EC Treaty) applies to Gibraltar by virtue of its Article 227(4) which provides that the EC Treaty applies to European territories for whose external relations a member state is responsible. However, certain provisions of the EC Treaty do not apply to Gibraltar, as set out in Article 28 of the UK's Act of Accession 1972, and Gibraltar is not a separate member state. 9.     Under European Community (EC) law, elections to the European Parliament are governed by the EC Act on Direct Elections of 1976 (EC Act 1976). Annex II to this Act states that "The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom". Gibraltar forms part of Her Majesty the Queen's Dominions, but is not part of the United Kingdom. For this reason, when provision was originally made in the UK for European Parliamentary elections (by the European Parliamentary Elections Act 1978), Gibraltar was not included. 10.     In 1999, the European Court of Human Rights considered the case of Matthews v UK (28 EHRR 361). Ms Matthews had claimed that the exclusion of Gibraltar from enfranchisement in the European Parliamentary elections was a breach of human rights. The Court ruled that the European Parliament formed a part of Gibraltar's legislature and held that the UK was bound by its conventions to secure the right for the people of Gibraltar to elect the European Parliament. The UK accepted the judgement of the Court and its obligation to secure the enfranchisement of Gibraltar. 11.     The UK tabled an amendment to the EC Act 1976 in March 1999, but such an amendment requires unanimity in the EU and Spain objected. In November 2001, the Government announced to Parliament that the UK would act unilaterally to enfranchise Gibraltar by means of UK domestic legislation. This Bill will provide for the entirety of UK electoral law, as it applies to European Parliamentary elections, to be applied to Gibraltar for those purposes, modified as necessary to ensure practical application. TERRITORIAL APPLICATION: WALES 12.     The whole Bill applies to Wales. The nature of the application of Part 2 to Wales will depend on whether it is selected as the existing electoral region to be combined with Gibraltar to form the combined region under clause 8. There is no effect on the National Assembly for Wales.      COMMENTARY ON CLAUSES Part 1: Changes in total number of United Kingdom MEPs Clause 1: Electoral regions in the United Kingdom 13.     This clause replaces section 1 of the European Parliamentary Elections Act 2002 (2002 Act), and sets out the existing position in a way which makes subsequent changes to the total number of MEPs - and the numbers of MEPs for each region - more easily achievable across the UK as a whole. It is simply a drafting change which, whilst recognising and preserving the existing electoral regions, (that is, Wales, Scotland, Northern Ireland and the English regions) allows the numbers of MEPs representing any or all of them to be altered at a later date. It does not itself change the numbers of MEPs in any region. Clause 2: Recommendations by Electoral Commission relating to changes in number of United Kingdom MEPs      14.     Clause 2 establishes a mechanism for reviews of the distribution of MEPs in the UK to take place when a change to the numbers has been agreed or is anticipated. The European Commission will inform the UK what their representation will be (the total number of UK MEPs) for the European Parliamentary elections in 2004, and subsequently. The point at which the notification will be made depends on the progress of accession negotiations and ratification. It will then be for the UK to take action to ensure that no more than that number are elected for the UK as a whole, though their distribution between the UK electoral regions is a matter for the UK alone. 15.     Subsections (1) and (3) therefore give the Lord Chancellor the power to require the Electoral Commission to make recommendations within a specified period about the distribution of MEPs according to a total number (or numbers) specified by him. That number will be the number agreed at a European level, or one the Lord Chancellor anticipates will be agreed. It is possible that the timing of the accession ratification process will be such that the Lord Chancellor will need to ask the Electoral Commission to begin work on calculations before a final number has been agreed. Provision has therefore been made for him to ask for calculations to be made for one or more different numbers, depending on the final outcome of discussions. 16.     Subsection (4) sets out the considerations that the Electoral Commission must take into account when making their recommendations. Clause 3: Section 2: meaning of "elector" 17.     This clause defines the electorate to be used by the Electoral Commission when calculating the new distribution and in making their recommendations. Clause 4: Orders implementing changes in the number of United Kingdom MEPs 18.     Clause 4 gives the Lord Chancellor the power to make an order giving effect to a recommendation made by the Electoral Commission by altering the total number and distribution of UK MEPs. The order must be made within twelve months of the recommendation. Clause 5: Orders under section 4: supplementary 19.     Clause 5 makes supplementary provision to the order making power under clause 4. It provides that the draft orders implementing the recommendations of the Electoral Commission by amending section 1 of the 2002 Act are to be approved by both Houses of Parliament before they can be made, but that if a draft order is rejected or withdrawn it can be amended by the Lord Chancellor with the consent of the Electoral Commission and re-laid for approval. The Electoral Commission can only consent to an amendment if satisfied that they would have been able to recommend the charge made by the order. Orders making consequential, supplementary, incidental, transitional or saving provisions, which do not also amend section 1 of the 2002 Act, are subject to the negative resolution procedure. Clause 6 and Schedule: Periodic reviews of distribution of MEPs and Schedule 1A to the 2002 Act      20.     This clause inserts a new section and Schedule into the 2002 Act and deals with the periodic reviews formerly undertaken by the Secretary of State about a year before each election. The inserted Schedule provides for this periodic exercise to take place on the same basis as the re-numbering exercise provided for by clause 2. That is, the whole of the UK will be considered at the periodic reviews (not just the English regions) and the principles set out in clause 2(4) will apply. 21.     The new Schedule requires the Electoral Commission to carry out the periodic reviews rather than the Secretary of State. However, the Commission will not be required to carry out a periodic review if a review under clause 2 has recently been concluded, or has begun, or is expected to begin shortly. A similar process for making recommendations and for making subsequent orders applies to periodic reviews as to clause 2 reviews. 22.     The new Schedule 1A to the 2002 Act refers throughout to the Secretary of State rather than the Lord Chancellor. That accords with the wording of other provisions of that Act, which are expressed to confer functions on the Secretary of State. It should be noted, however that Transfer of Functions (Transport, Local Government and the Regions) Order 2002 provides for the Lord Chancellor and the Secretary of State to have concurrent powers in relation to these functions. Clause 7: Consequential amendments 23.     Clause 7 makes consequential amendments to the 2002 Act in consequence of Part 1 of the Bill. Part 2: Gibraltar Clause 8: Combination of Gibraltar with existing electoral region 24.     The 2002 Act divides the UK into 12 electoral regions for the purpose of European Parliamentary elections. The average electorate for the regions is 3.7 million people. Gibraltar's electorate is only about 17,000 people and so it is inappropriate for it to form a region on its own. Clause 8 therefore provides that Gibraltar should be combined with an existing electoral region in England or Wales for the purposes of European Parliamentary elections taking place after 1 April 2004. That region is referred to in the Bill as the combined region. 25.     The choice of region is restricted to the 9 English regions and Wales which forms a region on its own. The necessary legislative and administrative arrangements must be in place by the time of the next European Parliamentary elections in 2004. Clause 9 : Electoral Commission recommendation as to the electoral region to be combined with Gibraltar 26.     Clause 9 requires the Electoral Commission to consider which electoral region Gibraltar should be combined with. They must report their conclusions to the Lord Chancellor along with a recommendation on which region has been chosen. Subsection (2) requires the Electoral Commission to consult only the Governor and Chief Minister of Gibraltar before making a recommendation, but it is expected that the Electoral Commission will wish to consult widely before making a recommendation, perhaps publishing a preliminary recommendation for consultation.      Clause 10 : Establishment of combined region 27.     Clause 10 enables the Lord Chancellor to give effect by order to the recommendation of the Electoral Commission as to which electoral region Gibraltar should be combined with and to create the combined region. He is required to specify the region recommended by the Electoral Commission under clause 9, unless in accordance with clause 12(6), following rejection of or withdrawal of a motion for approval of the order, he substitutes a different region after consultation with the Electoral Commission. Section 1 of the 2002 Act provides for England to be divided into nine electoral regions and for Wales to constitute one region. Schedule 1 to the 2002 Act sets out the constituent areas of each English region. Subsection (1) therefore provides for the order to specify the recommended region once known and includes power to amend the provisions for electoral regions in the 2002 Act to include Gibraltar in the geographical description of the combined region. It is normal practice (and in many cases a requirement by virtue of section 7 of the Political Parties, Elections and Referendums Act 2000) when considering making subordinate legislation on electoral issues for the Electoral Commission to be consulted, and subsection (3) makes it a requirement that the Lord Chancellor should do so before making an order under this power. Clause 11: Power to make consequential etc provision 28.     The underlying approach of the Bill is that Gibraltar is to be treated as if it were as much a part of the combined region as the other areas of the region. The Bill therefore makes provision for the whole corpus of electoral law that applies for the purposes of elections to the European Parliament to apply for these purposes to Gibraltar. Following closely the pattern of the 2002 Act it makes specific provision for some matters, for example, the franchise, or amends the 2002 Act for others, for example, the returning officer, and provides enabling powers to provide for the conduct of the elections by applying with modifications the provisions of the existing electoral law for UK parliamentary elections. 29.     Clause 11 enables the Lord Chancellor to make provision surrounding the creation of the combined region. The aim of that as far as possible electoral law for European Parliamentary elections will apply in the same way throughout the combined region. Subordinate legislation may be made, with the help of the supplementary powers in clause 12, to apply the UK legislation about European Parliamentary elections, with modifications if necessary, for the purpose of allowing European Parliamentary elections to take place in Gibraltar. Where necessary, to allow for inclusion of Gibraltar in the UK system, amendments to UK law may also be made. In certain circumstances it may also be appropriate to adapt Gibraltarian law. Certain particular areas of law which may be affected are specified in subsection (3) but the use of the powers is not limited to those areas. For instance, provisions relating to elections in the Political Parties, Elections and Referendums Act 2000 other than those mentioned in clause 11, may also be adapted to take Gibraltar's involvement into account. The Electoral Commission are to be consulted before the Lord Chancellor exercises such powers. Clause 13: The Gibraltar register      30.     Clause 13 makes provision for an electoral register of Gibraltarian European Parliamentary electors. In the UK, the electoral registers for European Parliamentary elections purposes are the following: the register of Parliamentary electors, the register of local government electors (in respect of peers), and the register of those entitled to vote by virtue of European Union citizenship under the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001. Gibraltar will need its own register, governed by similar rules and conditions to the UK registers and the powers to make regulations in clause 16 will be used to provide those rules and conditions. The electoral registration officer for the Gibraltar register is to be appointed by the Governor of Gibraltar. The provisions are similar to the Gibraltarian House of Assembly Ordinance for appointment of the registration officer for the purposes of House of Assembly elections. In practice, the Governor may, if he so wishes, appoint the same officer to be the local returning officer for European Parliamentary elections purposes. Clause 14: Gibraltar franchise for European Parliamentary elections 31.     Clause 14 sets out the franchise for voters in European Parliamentary elections in Gibraltar. It is very similar to the UK franchise. For example, electors are required to be Commonwealth citizens or citizens of the EU. Section 8 of the 2002 Act makes provision for the franchise at European Parliamentary elections. It cannot be applied to Gibraltar directly as, for example, Gibraltar will have a different register. Accordingly, the clause disapplies section 8, for the purposes of voting in Gibraltar, and makes equivalent tailored provision to Gibraltar. As in the UK, additional detail will be set out by way of further provision and this will be done by regulations under clause 16. Clause 15: Entitlement to be registered in Gibraltar 32.     Clause 15 provides conditions for entitlement to be registered on the Gibraltar register. Subsection (1) is very similar to the rules for the UK electorate relating to the registers that are used for UK purposes in European Parliamentary elections. Subsection (2) makes provision so that Commonwealth citizens qualifying for registration as overseas electors can also register to vote whilst overseas. By virtue of that paragraph and the regulation-making powers under clause 16, the Lord Chancellor may prescribe similar conditions for registration as an overseas elector as apply to British citizens in respect of the UK. Subsection (5) reflects the conditions in the Gibraltarian Immigration Control Ordinance as to rights to enter or remain in Gibraltar.      Clause 16: Regulations supplementing sections 13 to 15 33.     This clause provides for the detail required to give full effect to clauses 13 to 15 to be made in regulations. For example, subsection (1)(e) enables detailed provision to be made concerning residence. Regulations under subsection (1)(h) will enable individuals to register before they are 18 in order to vote once they are 18, as is the case under the relevant UK registers. In the UK certain individuals are disqualified for registration, such as those convicted of corrupt or illegal election practices, and the Lord Chancellor, under subsection (1)(g), will be able to make similar provision for the Gibraltar register. Subsection (3) identifies certain particular provisions which are likely to be applied with modifications. For instance, in the UK convicted persons in UK penal institutions are not entitled to vote and the Lord Chancellor may apply a similar provision to Gibraltarian convicted persons detained in penal institutions in that country. Clause 17: Section 16: supplementary 34.     Clause 17 is supplementary to clause 16. It is to ensure that the provisions in these clauses are wide enough to do everything that is required and confirms that existing UK or Gibraltarian legislation may be modified or applied with or without modifications. Clause 19: Returning officers 35.     Clause 19 provides for the returning officer for the Gibraltar part of the combined electoral region. In UK European Parliamentary elections there are two types of returning officer: the regional returning officer and the local returning officers. Local returning officers are usually a Parliamentary acting returning officer, within the meaning of section 28 of the Representation of the People Act 1983, who are themselves usually the electoral registration officer for the local authority in which the constituency is situated. Their functions, and those of the regional returning officers, are set out in European Parliamentary Elections Regulations 1999. 36.     The regional returning officer's task is, broadly, to co-ordinate the work of and collect the results from the local returning officers. In Gibraltar, the local returning officer will be the Gibraltarian European Parliamentary electoral registration officer, appointed under clause 13. The regional returning officer for Gibraltar will be the regional returning officer for the combined region, selected by the Lord Chancellor under section 6(2) of the 2002 Act from acting returning officers in the UK part of the combined region. Clause 20: Disqualification from office of MEP      37.     Clause 20 amends the 2002 Act so as to give power to the Secretary of State to disqualify certain classes of individuals from being entitled to stand as MEPs. The Secretary of State may use this power so that similar classes of individuals in Gibraltar to those who are disqualified in the UK are also disqualified from being MEPs. For example, in the UK persons disqualified include those disqualified from being a member of the House of Commons, and that includes civil servants. The Secretary of State may wish to provide that similar people in Gibraltar should be disqualified. (On the functions of the Secretary of State under the 2002 Act, see paragraph 22 above.) Clause 21: European Parliamentary election regulations 38.     Clause 21 adds to the powers under section 7 of the 2002 Act to make regulations concerning European Parliament elections. The present regulations made under that provision are the European Parliamentary Elections Regulations 1999. They apply much of the body of law relating to Parliamentary elections with modifications to make appropriate provision for European Parliamentary elections. They include, amongst other matters, provision relating to the procedures for conduct of such elections, election campaigns, election offences and challenges to the result. The power is amended so that different provision can be made for Gibraltar and the UK or different electoral regions such as the combined region and the other regions. This may be necessary, for instance, so that election offences can be tried in Gibraltar. Equally, provision may be made so that challenges to the result of an election based on events taking place in Gibraltar will be tried by the UK courts. Provision may be made so that certain UK courts, such as the election court, can sit in Gibraltar. Part 3: Supplementary Clause 22: Financial provisions 39.     Clause 22 makes provision, in accordance with rules of Parliamentary practice and procedure, relating to the effect that the Bill will have on public funds. Subordinate legislation made under the Bill may have the effect of increasing the amounts that are payable out of public funds under other legislation and this is authorised by this clause, even where the provision has the effect that payments out of UK public funds are to be made in respect of certain provisions that are particular to Gibraltar. The provision also allows payments into public funds with respect to events in Gibraltar. Clause 23: Functions of Lord Chancellor exercisable concurrently with Secretary of State      40.     Clause 23 makes provision to the effect that any of the UK Secretaries of State could also exercise the powers that are specified in the Bill to be exercisable by the Lord Chancellor. After the Transfer of Functions (Transport, Local Government and the Regions) Order 2002 comes into force, responsibility for European Parliamentary elections will be transferred to the Lord Chancellor, although the Secretaries of State will also retain powers under that legislation. Who in practice will make any particular provision of subordinate legislation is likely to depend upon which Minister of the Crown has been entrusted with handling the relevant of law. Under this Bill an approach consistent with the Transfer of Functions Order has been taken (see also paragraph 22). FINANCIAL EFFECTS OF THE BILL 41.     Part 1 of the Bill has no financial implications. 42.     Part 2 may result in some minimal extra administrative costs for the regional returning officer conducting the election in the combined region which includes Gibraltar. These costs relate to the addition of 17,000 extra voters to the electorate of that region. It is likely that the regional returning officer (who will be based in the UK part of the combined region) will require all ballot papers, forms, signs and envelopes used in the elections to be in a common format throughout the region. The cost of printing these extra materials, or their delivery to the local returning officer in Gibraltar is not likely to be significant. 43.     As in the rest of the electoral region the expenses of the local returning officer engaged in conducting the election in Gibraltar will be met from the Consolidated Fund and these, which we estimate will be a maximum of £20,000, will be additional to the cost for the rest of the UK. 44.     Additionally each candidate at the election is entitled to have an election address sent postage free to every elector in the region. In the UK this service is currently provided by the Royal Mail and the cost of providing this service to the electors in the Gibraltar part of the combined region will be negotiated with the Royal Mail in advance of the European Parliamentary elections in 2004. PUBLIC SERVICE MANPOWER 45.     The Bill will not lead to any changes in the staff of Government Departments and their agencies or local authorities. SUMMARY OF REGULATORY APPRAISAL 46.     No Regulatory Impact Assessment is needed for this Bill as there will be no direct or indirect regulatory burdens on business, charities or the voluntary sector. COMMENCEMENT 47.     The whole of Parts 1 and 3 and clauses 8 and 9 of the Bill will come into force in the UK as soon as the Bill receives Royal Assent, but will be brought into force for the purposes of Gibraltar by commencement orders: Part 1 requires the Electoral Commission to conduct periodic reviews of the distribution of MEPs in the United Kingdom and enables the Lord Chancellor to require the Commission to make recommendations as to the appropriate distribution of MEPs as a result of the accession of new States to the European Community. Clauses 8 and 9 requires the Electoral Commission to make a recommendation to the Lord Chancellor by 1 September 2003 as to which European Parliament electoral region Gibraltar should be a part of. Part 3 contains supplementary provisions. 48.     The other clauses in the Bill which provide for or depend on the making of secondary legislation to, for example, apply UK law affecting European parliamentary elections to allow for the inclusion of Gibraltar in the UK system, will come into force by commencement order, and it is proposed that they should do so within two months of Royal Assent. 49.     This prompt commencement is necessary so that the Electoral Commission can make their recommendations in good time, and the necessary secondary legislation can be put in place shortly afterwards to enable electoral administrators and political parties to prepare adequately for the next European Parliamentary elections in 2004. EUROPEAN CONVENTION ON HUMAN RIGHTS 50.     The provisions of this Bill have been considered in relation to Article 3 of the First Protocol, Article 1 of the First Protocol and Article 14. The provisions in Part 2 of the Bill engage Article 3 of the First Protocol in that they define who is entitled to the right to vote in European Parliamentary Elections in Gibraltar. However, the conditions placed on that right are those which are generally accepted as being compatible with the Convention right to vote. 51.     Clause 11 of the Bill gives the Lord Chancellor the power to make provision for the control of political donations to registered parties in Gibraltar (which is intended to reflect the provisions of the Political Parties, Elections and Referendums Act 2000 in this regard). This will represent a restriction on the free use of property, and as such, it will engage Article 1 of the First Protocol. However it is considered that any such controls are permissible under Article 1 as being justifiable in accordance with the general interest. 52.     Article 14 provides that the rights and freedoms set out in the Convention shall be secured without any discrimination. As provisions in the Bill fall within the ambit of Articles 1 and 3 to the First Protocol, they must also comply with Article 14. To the extent that these provisions do subject people to differing treatment (by, for example, attaching conditions to eligibility for the franchise which will not be met by all inhabitants of Gibraltar) it is considered that this treatment has an objective and reasonable justification, being in pursuit of a legitimate aim, and proportionate to that aim. 53.     The Lord Chancellor's Department is of the view that there is no contravention of any of these Articles. Indeed this Bill is, in part, being brought forward to remedy the breach of the Article 3 of the First Protocol found by the European Court of Human Rights in Matthews v UK ((1999) 28 EHRR 361). 54.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). On 11 November 2002 the Parliamentary Secretary, Lord Chancellor's Department made the following statement:      In my view the provisions of the European Parliament (Representation) Bill are compatible with the Convention Rights.