---

3 Feb 2003 : Column 44—continued

Tony Cunningham (Workington): The words "neo-colonial" or "colonial" were used several times in Committee. Does the hon. Gentleman agree that most of Britain's colonies were different from Gibraltar in that they all wanted independence from the United Kingdom? It is clear from what has happened over the past 12 months that Gibraltar wants to remain part of the United Kingdom.

Mr. Heath: Indeed it does. Gibraltar is proud of that distinction. However, it feels that it had won a degree of self-determination when the Gibraltar constitution order was signed in 1969. It felt that the House of Assembly was an important part of its constitutional arrangements and not something that could be ignored when a Government introduced a Bill such as this. I still believe that the Government wish to be fair to Gibraltar and I do not doubt the Minister's intentions. I accept her assurances that the government of Gibraltar in the wider sense, including the House of Assembly and those who speak on behalf of the people of Gibraltar, will be consulted. However, such an assurance does not appear in the Bill. It should, and my new clause would establish the principle.

Mr. Andrew Rosindell (Romford): Surely the point is that the territory of Gibraltar is not an equal part of the United Kingdom. It is a self-governing British overseas territory and therefore has no vote in deciding the Government of this country, so it is utterly wrong that it should not be consulted fully in all these decisions.

Mr. Heath: The hon. Gentleman knows that I concur entirely. That is why I tabled the new clause and the hon. Member for Stone tabled amendments. I hope that the Minister will explain what possible exception the Minister might take to a duty to consult the House of Assembly. It would be right and proper for her to accept the new clause.

Mr. William Cash (Stone): Excuse my slight croakiness, Mr. Deputy Speaker, but I am afraid that I

3 Feb 2003 : Column 45

had flu over the weekend. I will, no doubt, survive, but perhaps I should take the opportunity to save my voice a little this afternoon.

I agree in general with new clause 2 for the reasons outlined by the hon. Member for Somerton and Frome (Mr. Heath). As I said repeatedly in Committee, consultation is essential to the process to ensure that the people of Gibraltar are not treated in an imperialistic and colonialist fashion. It is, to say the least, extremely surprising that the provisions were not included in the first place. The Government did not seem to understand the sensitivities that that omission would arouse in Gibraltar. I am not suggesting that no discussions have been held between Ministers and the Chief Minister since the Committee stage began, but they have not been translated into amendments.

There is a slight problem with new clause 2. It could be said that it goes a little further than is strictly necessary, but I would not make an issue of that. Without any doubt, however, proper consultation with the Chief Minister and the House of Assembly is essential, as I repeatedly said in Committee. I am glad that the hon. Member for Somerton and Frome and I agree on that. Furthermore, I asked what consultation means. The manner in which the Bill was introduced is a good example of a serious lack of consultation as I shall define it. The Government of Gibraltar did not, so far as I know, see a copy of the Bill until it was introduced. A lot of feathers have been ruffled because of the lack of good manners in terms of the discussions that could have taken place.

I tabled an amendment that would have obliged the Government to have due regard to the views expressed and to give reasons for their decisions; the Minister suggested that that would be inappropriate. Without going through all the case law, it is clear from the best authority on the subject that, where there is a duty to consult, the courts have laid down the criteria for proper consultation. The consultation must be undertaken when the proposal is at a formative stage. We cannot say that that has happened. Case law also shows that sufficient reasons must be given for the proposal to enable an informed response to be given. Adequate time must be given for the response to the proposals. The product of consultation must be conscientiously taken into account when the ultimate decision is made. We have not got to the point of ultimate decision because the Bill is still going through its stages, but I ask the Minister to bear my comments in mind.

Tony Cunningham : Does the hon. Gentleman not agree that both the people and the Government of Gibraltar very much welcome the principle of the Bill?

Mr. Cash: That is precisely why we did not vote against the Bill on Second Reading. It gives the people of Gibraltar a great advantage, but it is our job in Committee and on Report to examine its nuts and bolts and point out areas that could be improved in the House and subsequently in the House of Lords. Where there is a duty to consult, fairness may require disclosure to an interested person of the advice on which the Minister proposes to rely. In a nutshell, will the Minister reassure us that a proper process of consultation, as prescribed by the courts, will be fully implemented?

3 Feb 2003 : Column 46

The Governor's role raises important questions. Clause 9(2) suggests that he should be given a role that exceeds the one ascribed to him under the constitution of Gibraltar. He has no say over elections there, as they are a defined domestic matter under the constitution. It is unacceptable that he should be consulted. We do not expect him to be consulted on Gibraltar's electoral region, which is exclusively a matter for the elected Government of Gibraltar to represent before the Electoral Commission. For reasons that have already been given, we therefore strongly urge the House to accept new clause 2 and amendment No. 29. Amendment No. 29 says that where legislation is passed in relation to the Bill

"or may be enacted by order that legislation shall not come into effect until the Lord Chancellor has consulted with the Government and Chief Minister . . . in particular as to whether it would be more appropriate (having regard to the Constitution of Gibraltar) for that legislation to be legislated by order or regulation on the one hand or by Ordinance of the House of Assembly in Gibraltar on the other hand."

We agree that consultation is necessary, and I trust that the House shares my belief that the nature of the exercise requires compatible electoral laws for the components of the new combined region, assuming that it is made up, for example, of the south-west and Gibraltar. Although the amendment that I tabled in Committee was not selected, I suggested that the words "and Gibraltar" should be added to the relevant list. However, that does not explain how we are to achieve the right balance between what is more properly legislated for in the House of Assembly and the extensive ordinances, order-making process and regulations set out in the Bill.

I refer the House to the full range of clause 11, which states:

"The Lord Chancellor may by order make such provision as he considers necessary or expedient in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region for the purposes of European Parliamentary elections."

It is difficult to think of a broader provision than that. The clause goes on to specify certain matters, such as the registration of political parties, control of donations, obligations to persons providing programme services and so on, and it includes various definitions.

5 pm

Clause 12 states that the orders under clauses 10 and 11, which create the combined region and provide those extensive powers, can be made by statutory instrument, and that such orders may make consequential, supplementary and other provisions, and

"may modify, exclude or apply with or without modifications",

and I shall focus on "modify" and "exclude",

"any provision made by or under an Act"—

the Minister has adjusted that slightly by reference to enactment, but I do not think that, for practical purposes, that makes very much difference—

"and any provision of the law of Gibraltar."

That provision must be read against the gamut of provisions in clauses 13 to 17 on electoral registration and voting in Gibraltar, which deal with the nature of the Gibraltar register, the Gibraltar franchise for European parliamentary elections, the entitlement to be

3 Feb 2003 : Column 47

registered in Gibraltar, a vast range of regulations that can be made in respect of all those matters and the potential exclusion or modification of Gibraltarian law.

To say that that is insulting to the people of Gibraltar would be an understatement. Their constitution already has powers to deal with those matters. We assume that it will be necessary to make certain calibrations and adjustments to be sure that proper weight is given to procedures that will enhance the democratic process.

I have pages and pages of Gibraltarian ordinances—I do not need to go through them—that deal with those very matters. What we need, and the reason I dealt with the amendments in the way that I did—with great respect to my hon. Friend, or rather to the hon. Member for Somerton and Frome (Mr. Heath)—

Bob Russell (Colchester): He can be a friend.

Mr. Cash: Indeed. When we have a drink together, that is perfectly okay. In fact, the hon. Member for Somerton and Frome is the Member of Parliament for the area from which my parents-in-law and my wife came, so I have a special interest in watching what he is up to.

The idea of consultation, expressed in the terms in which the hon. Gentleman's amendment is couched, does not go far enough. I seek to draw in all the provisions to ensure that a proper decision is taken as a result of consultation, which is the object of amendment No. 29. I agree with the hon. Gentleman that we should consult, as he proposes, but I believe that we should take the process a little further. I think he would agree that it is important that the consultation process should focus on where the legislation dealing with such sensitive matters should be passed. Should it be done in the House of Assembly, as it currently is, or should it be done here? I know that the Government of Gibraltar will be sensitive to these questions, in that they want to have proper consultation. Equally, they feel aggrieved because they were not brought into the process of discussions about this matter at an earlier stage.

Perhaps we could have a clear assurance from the Minister on the role of the Governor. In Committee she went further than the hon. Member for Somerton and Frome suggested; I think that she really said that it was not appropriate for the Governor to have the powers. I know about her democratic credentials, and if she has seen my letter in The Daily Telegraph this morning she will realise that, at any rate on this point about democracy and the unelected, we obviously have a certain amount in common.

What is important is to have assurances that the consultation process will mean not only talking to people about these matters, but proper consultation in line with the criteria laid down by the courts, which I have described. Moreover, the question of where the legislation goes through should be calibrated more in favour of Gibraltar, where it can be done efficiently and constitutionally. We need to be sure that we help the Gibraltarians to realise that they have not just been brought in as an afterthought. We know that the Government have not been entirely enthusiastic about the consultation process. They were somewhat driven

3 Feb 2003 : Column 48

into it by the Denise Matthews case. We are therefore a little wary about the manner in which the process will continue.

---