Select Committee on Constitution Fifth Report

Appendix 1

Letter from the Lord Norton of Louth, Chairman of the Committee, to the Lord Chancellor, the Lord Irvine of Lairg

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 to Parliament?

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

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