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Lord Henley: My Lords, perhaps I may make just a few comments before the Minister responds to my noble friend's amendment. In passing, I hope that I can also take up the invitation put to me by the noble Lord, Lord McNally, and respond to his remarks. I want to make it absolutely clear from these Benches that we support my noble friend Lord Bethell and that we will be supporting him in the Division Lobby should he wish to press the matter. That is why I added my name to the amendment when it was tabled.

I do not wish to rehearse all the arguments that my noble friend and others have put forward, together with those put forward by the noble Lord, Lord Stoddart, and others of his colleagues on an earlier occasion. I am sorry not to see those other colleagues present in the Chamber this afternoon. However, no doubt they will emerge in due course and I hope that they will support us in the Division Lobby.

For the reasons given, I believe that the citizens of Gibraltar (which, as others have put it, is culturally, economically, socially, legally and geographically part of the European Union) should have a right to vote. As has been said, it is outrageous that such an anomaly should have been allowed to continue for so long; indeed, ever since our accession to the European Union or, rather, ever since the time that we brought in direct elections for the European Parliament.

The noble Lord, Lord McNally, invited me to comment on the actions of the previous government, of which I was proud to be a member, and on the fact that we did not address the issue when legislation of this kind appeared before us. The point that we want to make is that, although we might have been remiss on those occasions, this is a suitable opportunity to address such matters. It is a suitable opportunity for the very reason that when we had the first-past-the-post system it was not possible to attach Gibraltar to a single constituency. I believe that the noble Lord will accept that it would look rather peculiar to attach Gibraltar to Fulham, for example, or wherever the Church might attach it in terms of its bishoprics. Here we have an opportunity to do so. We have divided up the country into regions and it would make very little difference to add Gibraltar to one or other of those regions.

There is one further point that I should like to address; namely, the question as to whether we would be complying with our international obligations. That point was put to me by the noble Lord, Lord Williams, on the last occasion when we discussed the matter. He made much of the fact that it was his opinion, and the opinion of those who advised him in the Government, that it would be a breach of our international obligations in that we would need to change the treaty--that is to say, the original European communities Act of 1976--and we would have to go through all the proper procedures in order to do so. As I understand it, we would need

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proposals from the European Parliament and a unanimous decision from the Council of Ministers, together with ratification by all member states.

The noble Lord was quite clear when he stressed that, in his opinion, it would be a breach of our international obligations. However, the noble Lord, Lord Bethell, has made it clear that there is a contrary view and that others have offered different legal advice which suggests that it would be within our powers to act in such a manner. If there is any uncertainty on the matter, I believe that that would be far better tested in the courts. Therefore, for the reason put forward by one of my noble friends, I think it would be quite right for us to take the opportunity to give the vote to the citizens of Gibraltar who are, after all, members of the European Union. Any of those who think otherwise and who think it is wrong that the people of Gibraltar should have that right to vote, can, should they so wish--and I would like to see them do it--challenge that right in the courts. I do not believe that it would be right for us to refuse to offer them the vote when we have the opportunity to do so on this occasion. For those reasons, both I and my noble friends on these Benches will be supporting my noble friend in the Division Lobby.

3.45 p.m.

The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, as the noble Baroness, Lady Hooper, said, we had a very full discussion on the matter on the last occasion. The matter was put to a vote by the noble Lord, Lord Bethell, but was defeated. I am speaking to Amendments Nos. 1, 12, 14, 15, 16 and 17, which have been grouped together. They are all reflections of the same fundamental theme which the noble Lord has developed. On the last occasion I said that we had considerable sympathy with the principle contended for, but I pointed out then, as I do now, that the Foreign Office Minister in your Lordships' House was sitting with me--as is the case today--and that that was not by any coincidence. The fact is that one has to distinguish the principle that will override here. It is not a question of Her Majesty's Government being "afraid to annoy Spain". It is not a question of Her Majesty's Government not being interested in the principle for which the Gibraltarians contend.

The noble Earl, Lord Carlisle, asked me for an indication of the Government's attitude. I repeat it. We believe that there are good arguments for allowing Gibraltarians to vote in European parliamentary elections, as Gibraltar is part of the territory where EU treaties apply and it has rights and obligations under them. It is not that the Government have a fear of the democratic process. The latter is quite a subtle thing. It is not something to be invoked simply when convenience is our friend. I believe quite deeply that part of the democratic process is that if you enter into solemn, binding, international agreements you ought to abide by them, because there is a wider democracy upon the world stage than that which is simply incorporated by local, domestic or European parliamentary elections.

I do not put this forward as my view; indeed I did not do so on the last occasion. What I said then, quite unambiguously, was that government had the clearest

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possible legal advice--I put in parenthesis that I presumed previous governments had had exactly the same unambiguous advice--and that to act as some of your Lordships had proposed would be a breach of our international obligations. On our advice, the 1976 Act is undoubtedly an instrument of treaty status which is binding in international law.

I recognise the principle to support the views of the Gibraltarians. However, the overarching principle, which I also demonstrate to your Lordships, is that we cannot act unlawfully. Noble Lords ought not to seek to press amendments--and I say this with great care--the immediate consequence of which would be that we would be acting unlawfully. Just as democracy is not the creature of our convenient moment, nor is the rule of law. The rule of law matters internationally as well as domestically.

I have listened to all the arguments put. Noble Lords were kind enough to say that although they were shorter today than earlier they were essentially the arguments deployed on that earlier occasion. Gibraltar has an unusual status in the Union. It is outside the Customs territory. It is exempt from VAT. It is exempt from the common agricultural policy. It is exempt from the fisheries policies. It does not contribute to the Community budget.

One or two questions were raised--I sympathise with them, in particular the question raised by the noble Lord, Lord Swinfen--as to the comparison between the "overseas territories" belonging, for instance, to our Dutch and French colleagues. Their history is entirely different and always has been. The inhabitants of Gibraltar have never--I reiterate what the noble Lord, Lord Swinfen, said--participated in our domestic elections. The position is quite different in respect of the Dutch and French dependencies. It is different for many historical reasons. Annex II to the 1976 EC Act on direct elections to the European Parliament is quite clear and unambiguous. It restricts the application of the Act--it is worth bearing this in mind because it is quite plain--to the United Kingdom of Great Britain and Northern Ireland only, to the exclusion of other United Kingdom territories such as Gibraltar but further including the Channel Islands and the Isle of Man.

If your Lordships were to press this amendment to a vote I would have to advise your Lordships' House that the Government cannot possibly accept it for the short, simple, overriding reason that to put this into our domestic law is to act unlawfully. No proper government can go along that route. I repeat that I have every sympathy for the points so carefully put by the noble Lord, Lord Bethell, and others who support his view, but what he wishes your Lordships to do is to try to direct Her Majesty's Government to break international treaty obligations. That we shall not do.

There is a specific subtext here to which the noble Lord, Lord Bethell, referred--as, I think, did the noble Lord, Lord Henley, in passing--which is the question of present challenge on the basis that the failure to extend voting rights to Gibraltar breaches the European Convention on Human Rights. That is the case of Matthews v. UK which is being brought at the moment.

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I remind your Lordships again that it has been referred to the court. At the preliminary stage the Commission voted by a sizeable majority that there had been no breach of the convention. The noble Lord, Lord Henley, mentioned the following point. As regards whether we can establish these matters of law, that is already under way. However, I repeat again--I make no apology for doing so--that we are advised perfectly plainly that to accept these amendments would be to act unlawfully. I repeat as respectfully as I can that we shall not do that.

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