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Lord Williams of Mostyn: Would the noble Lord allow me? Is he saying that it is the stance of the official Opposition that it would not be unlawful in international law and treaty obligations to seek to put this into effect?

Lord Henley: I am not saying that at all. I was somewhat guessing at the arguments which the noble Lord might put. The noble Lord will try to argue perhaps that there are technical reasons why we cannot do this. Some of those reasons might be legal ones and some others might be because of drafting, but I am quite sure that the lawyers in the Home Office and the Foreign Office will be able to resolve those problems. Of course I would rather that the noble Lord did not put forward those arguments, and indeed he may not do so, but I think it is right that this Chamber should send the appropriate message to the Government so that the

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Government can resolve this problem. This is an occasion when we can act here and I see absolutely no reason why we cannot do so.

The last point I wish to make is in response to the noble Lord, Lord Steel, who implied that should we act in this way it might affect the timetable of the Bill. I do not think that it will affect the timetable one jot. There is no hurry about this Bill. That is why we have seen some two-and-a-half months pass between the Second Reading and this Committee stage. Quite obviously the Government Chief Whip feels that he can get this Bill on the statute book at the right time and the official Opposition will co-operate with that, as we have; but I do not think that adding this amendment to the Bill will affect that timetable. I therefore hope that the noble Lord will be able to make sympathetic noises in response to what has been said. If he is not able to do that, I hope that my noble friend Lord Bethell will consider testing the opinion of the Committee.

6.45 p.m.

Lord Williams of Mostyn: It is important to understand the position in international law, which is why I put the question to the noble Lord, Lord Henley, to see precisely what the attitude of the official Opposition is towards what are our treaty obligations in international law.

I did not myself understand--no doubt it was due to my poor understanding--what the definitive position of the official Opposition was as regards, I repeat, treaty obligations in international law. I will return to them in a moment. I am grateful to the noble Lord, Lord Bethell, for the way he has put forward his case on the amendment and of course for the way in which he has over the years demonstrated that he wishes to safeguard, protect and further the interests of the people of Gibraltar. Of course those observations also apply to the noble Baroness and to the noble Lord, Lord Shepherd.

One's instinctive response is a feeling of sympathy, because I do not suppose that there is anyone in your Lordships' Chamber who does not value and have full regard to the friendship between Gibraltar and the United Kingdom over very many years. It is no coincidence that my noble friend Lady Symons, who has spoken so unambiguously so often about the Government's attitude towards Gibraltar, is sitting at my side.

Of course, there are arguments for allowing Gibraltarians to vote in European parliamentary elections, since Gibraltar, as has been said, is part of the territory where EU treaties apply and it has rights and obligations under them. I recognise that the inability of Gibraltarians to vote in EU elections is an area of deep concern to them, deeply and profoundly felt. Gibraltar does have an unusual status in the European Union. It is outside the Customs territory; it is exempt from VAT; it is not bound by the common agricultural policy; it is not bound by the fisheries policy; and it does not contribute to the Community budget. I believe these to be correct assertions of the factual and legal position.

Lord Bethell: I am sure that the noble Lord realises that Gibraltar is not the only territory in the Union which

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does not pay VAT. Ceuta, Melilla and the Canary Islands also are exempt from VAT, and the people who live there of course vote in European elections.

Lord Williams of Mostyn: I appreciate that. I am simply setting out what I believe to be the legal position as far as Gibraltar is concerned. Gibraltar has never participated in domestic elections within the United Kingdom. Those are the facts.

I come then to the legal questions and they are of two categories. The noble Lord, Lord Henley, identified them as such, raising questions first of all about what he called technical drafting matters. I do not dissent from his description; they really derive from the questions put by the noble Lord, Lord Waddington, and I am bound to say that given a degree of drafting skill, I imagine that those relatively minor matters, in the context of what we are discussing, could be attended to. That is about drafting and about constituencies.

I do not myself regard that to be at the heart of this matter. In fact, if I understand the noble Lord's amendment correctly, Gibraltarians would really be part of a Greater London region or a south-eastern region. I see him nodding, and I am grateful to find that I have understood his scheme correctly.

One speaker asked whether the present situation is in breach of the European Human Rights Convention. My advice is quite clear and unambiguous: it is not.

There was a further question from the noble Earl, Lord Carlisle, as to whether there had been what he would categorise as illegitimate pressure from another department--which I think he may have been using as soft words to describe the Foreign Office, as to whether the Foreign Office had somehow pressured the Home Office. Of course not. Equally, it would have been foolish for me to have come to the Committee without, at official and personal level, having taken the views of colleagues in the Foreign Office about the true status of the present legislation. This is not a domestic Act of 1979; it is a European Community Act of 1976. It relates to direct elections to the European Parliament. I repeat--I hope not disagreeably, because it is fact--that this matter cannot be resolved by domestic legislation. We do not have the capacity in law to do it.

Lord Waddington: While the Minister is on that point, I was not asking whether we, by domestic legislation, could give the Gibraltarians a vote in one of our regions; I was saying that we know that it was said in another place that the British Government took the view that the EC Act in 1976 on direct elections prevented the UK from acting unilaterally to extend voting rights to Gibraltar. Surely it is a different thing entirely, as distinct from giving voting rights to Gibraltar, to give individual Gibraltarians the right to vote individually in England. That is a different concept. That may not present the legal difficulty which would arise from creating an EC constituency, as it were, in Gibraltar and allowing people to vote in that EC constituency.

Lord Williams of Mostyn: I am most grateful to the noble Lord for his development of his theme, but that is

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not lawfully possible in the context of our international treaty obligations. As the noble Lord, Lord Bethell, pointed out, Annex 2 relates to direct elections to the European Parliament. It restricts the application of the Act to the United Kingdom of Great Britain and Northern Ireland. It excludes therefore other territories such as Gibraltar, the Channel Islands and the Isle of Man. It is not possible to do it.

Lord Bethell: I am sorry to interrupt again, but this is a crucial point. Is the Minister assured that legally he cannot act on this matter? Is he acting on advice? I have acted on advice. I have counsel's opinion, by some other legal authority, which states the opposite to what the Minister has said: that legislation can be enacted by the British Parliament to allow the Gibraltarians to vote next June. Is it not a fact that lawyers often disagree about points such as this?

Lord Williams of Mostyn: I think that I have a long history of knowing about lawyers' disagreements. I have had clear, unambiguous advice. I would not be justified in standing at this Dispatch Box without it. I assure the Committee that on plain legal advice the Government's view is that it is not possible to do this.

I deviate for a moment, if we are talking about legal advice. The noble Lord read out earlier--verbatim, I think--a letter from the noble Baroness, Lady Chalker, when she was Minister of State at the Foreign Office, which seemed to state virtually the same as I am stating, although, of course, for reasons of economy the noble Lord did not read the letter out in full. I am sorry that the noble Baroness is not still in her place, but I do not think that anyone could ever have sensibly regarded her as a pushover by anyone.

It is disagreeable for me to have to say these things, because I know it is not what people would wish or prefer to hear. I cannot sugar the pill. The Government are bound by international obligations. I repeat--the noble Lord and the Committee are entitled to hear this--that I can only emphasises that the legal advice which the Government have received is unambiguous and sets out the position that I have described. It would be an irresponsible government who sought to give in to a policy which they had every soundly based reason to believe would put them in breach of international obligations.

The rule of law, after all, is not merely domestic; it is international. The rule of law depends upon the ultimate validity that one has to be bound by it, even when it does not suit one's present desires, purposes or wishes.

I repeat--I believe that the noble Lord, Lord Steel of Aikwood, was right--that the only way for Gibraltarians to vote in European parliamentary elections is to amend the European Community Act 1976. To amend that-- I am sorry to repeat it--needs a proposal from the European Parliament, as the noble Lord, Lord Steel, pointed out, a unanimous decision in Council and then ratification by all member states. That is, unfortunately, the state of affairs.

There are therefore the real difficulties which we cannot overlook because we feel an instinctive sympathy for our colleagues in Gibraltar. We cannot put

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it on one side. Again--I do not want to lower the argument--a time for trying to settle these matters was in 1986 when Spain entered the European Community--now the Union. I am not pointing a finger at anyone, but that was an opportunity that was not then taken. I believe, for instance--I recognise the force and strength of everything said by the noble Lord, Lord Waddington--that when he was a senior member of the government during the relevant time, the advice which must have been given--I do not know, of course--to the Home Office and the Foreign Office must have been the same as the legal advice which I have recited, I hope, faithfully to the Committee today. There was the opportunity, which has now long since gone, in 1986 which might have made matters a little different in terms of what Spain might or might not have concluded about the position of Gibraltar.

The noble Lord, Lord Bethell, is entitled to my full response on this because of the care and patience with which he deployed his views and arguments. There is the case of Matthews v. United Kingdom. The applicant there has made a complaint that there is a breach of the Convention on Human Rights--to deal with the noble Lord's point specifically--and, in particular, an impeachment of the rights under Article 3 of Protocol 1, to which the noble Lord, Lord Bethell, referred. The matter has been referred to the court but the noble Lord will be aware--I think that he indicated this--that the Commission reported by a sizeable majority that there has been no violation of the convention.

It does not mean that we lack sympathy for the views expressed, not just in this place, but those that I can honestly say are fully known and have been fully ventilated not just in the Home Office for the purpose of these matters but in the Foreign Office over a long period of time since the Government came to power. It does not mean that we overlook those concerns, nor does it mean that Gibraltarians' interests are not represented. They are not represented as immaculately as the noble Lord and the noble Baroness would prefer. I recognise that. There have been voices--not least the noble Baroness's and the noble Lord's--which have spoken up for Gibraltar in the European Parliament in the past. I do not pretend to claim that that is the perfect answer to the desires of the Gibraltarians. I merely record it as I conclude my remarks.

I conclude in this way: I reiterate the sympathy which the Government have. I believe that everyone in the Committee who has spoken or who has been present share the sympathy. We will not put our hand to a course of action which we know on unequivocal legal advice will make us act unlawfully. That is wrong.

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