Letter from the Lord Norton of Louth,
Chairman of the Committee, to the Lord Chancellor, the Lord Irvine
In my capacity as the Chairman of the House of Lords
Constitution Committee, I am writing to you in relation to the
European Parliament (Representation) Bill. This bill clearly raises
constitutional issues, both in relation to elections to the European
Parliament, and also in relation to the novel provisions which
will allow Gibraltarians to vote in UK elections.
The Committee would therefore welcome further clarification
on the following matters.
1. By clause 4(4), the Lord Chancellor must consult
the Electoral Commission before making an order that amends the
number of MEPs to be elected for the United Kingdom and in the
electoral regions. It does not however appear from the Bill that
the Lord Chancellor is bound to act on the advice of the Electoral
Commission. Are there circumstances in which the Lord Chancellor
would wish to depart from the advice of the Commission on any
consultation? If so, what might these be? And should there be
provision in the Bill for requiring any such difference of opinion
between the Lord Chancellor and the Commission to be reported
2. What are the criteria on which the Lord Chancellor
will base his decision to link Gibraltar to a particular electoral
region in England or Wales for the purposes of the European elections?
This new link also raises many practical questions about the conduct
of those elections. Will there be provision for United Kingdom
parties and Gibraltarian parties to campaign on an equal basis
within the chosen region? Will it be possible, for instance,
for candidates nominated by United Kingdom parties to conduct
meetings and distribute leaflets in Gibraltar, and vice versa?
And to what extent will the inclusion of Gibraltar in the electoral
region affect the existing legislation on the registration and
financing of political parties?
3. The Committee would like further information
on why an order made by the Lord Chancellor under clauses 10 and
11, which is itself subordinate legislation, should have the power
proposed by clause 12(3)(a) to confer power to make subordinate
legislation. On whom would such power be conferred? What are
the limits of that power? When is it envisaged that it would be
necessary to confer such a power? Would such sub-delegated legislation
be subject to procedure for ensuring parliamentary approval and
scrutiny? And would such sub-delegated legislation be required
to be exercised by statutory instrument?
4. The Committee notes that regulations made
by the Lord Chancellor under clause 19(1)(d)-(g) will have the
effect of determining which Gibraltarians are permitted to vote.
The Committee invites the Lord Chancellor to confirm that so far
as is possible the conditions for eligibility to vote (including
legal disqualifications) shall reproduce the conditions that apply
within the United Kingdom by virtue of primary legislation.
5. By clause 21, which proposes to insert a new
subsection into section 7 of the 2002 Act, the power to make regulations
is extended to confer jurisdiction on any matter connected with
the election of MEPs on any court in the United Kingdom and to
exclude such matters from the jurisdiction of any court in Gibraltar.
The Committee (a) seeks clarification of the way in which this
power is expected to be used; (b) asks why these regulations do
not provide for jurisdiction to be conferred on any court in Gibraltar;
and (c) questions whether there is a need to provide for jurisdiction
to be conferred on courts in Scotland and Northern Ireland (as
the phrase 'any court in the United Kingdom' provides).
6. As regards clause 23 (functions of Lord Chancellor
to be exercisable concurrently with the Secretary of State), to
what extent is it expected that these functions will be exercised
by the Lord Chancellor?
I would be grateful for a reply as soon as possible
and preferably by next Thursday, 20th February. This will enable
the Committee to gather further evidence on this subject and,
if they consider it appropriate, report to the House before the
Committee stage of the bill.
13 February 2003