Select Committee on Delegated Powers and Regulatory Reform Eleventh Report



This Bill has two main objects. First, Part 1 enables the number of members of the European Parliament (MEPs) representing the UK to be altered. Secondly, Part 2 enfranchises Gibraltar for the purposes of European Parliament elections. The latter object is to implement a ruling of the European Court of Human Rights.


There is a full memorandum from the Lord Chancellor's Department which identifies all the delegated powers. The memorandum is printed at Annex 3 to this Report.

Part 1: Changes in the total number of MEPs

The European Parliamentary Elections Act 2002 sets out the position for European Parliamentary elections generally. Under the 2002 Act, the total number of MEPs, and the allocation for each region, is specified in the Act itself. The Secretary of State has limited power (in Schedule 1 to that Act) to amend the distribution of numbers as between regions, to maintain an even ratio of MEPs to electors in the United Kingdom as a whole. There is no existing power in that Act to change the overall number of MEPs. Clause 4 of the bill enables the Lord Chancellor, by order subject to affirmative procedure, to change the total number of MEPs to be elected for the United Kingdom. The order also enables the number of MEPs to be elected for particular regions to be adjusted (a necessary consequence of changing the total number). The power may be exercised to "give effect to a change under Community law in the number of MEPs to be elected for the United Kingdom" (clause 4(1)).

The principal purpose of Part I is described in the Explanatory Notes accompanying the bill as being to establish a mechanism by which the numbers of MEPs representing the UK can be reduced consequent upon accession of new member states to the European Union, as agreed by the Treaty of Nice. The position is described in more detail in paragraphs 5 to 7 of the Explanatory Notes and paragraphs 1 and 2 of the Department's memorandum to the Committee.

The Treaty of Nice was the subject of Parliamentary approval by the European Communities (Amendment) Act 2002. The Committee considers that the changes in numbers of MEPs from the UK, to which reference is made in the protocol on enlargement annexed to the Treaty of Nice, are accordingly appropriate for subordinate legislation. But clause 4 is not confined to matters arising out of the Treaty of Nice. Reference is made in paragraph 4 of the Department's memorandum to the safeguard of a prior Act of Parliament required by section 12 of the European Parliamentary Elections Act 2002 for Treaties increasing the powers of the European Parliament. In the Committee's view the scope of clause 4 should be expressly limited to changes arising out of Treaties which have already been the subject of an earlier Act of Parliament.

Part 2: Gibraltar

Clause 10(1)(a) allows the Lord Chancellor, by order subject to affirmative procedure, to specify the existing region which will be combined with Gibraltar for the purposes of elections of MEPs. Clause 10(1)(b) enables an order to provide for the establishment of a combined region. If this order is made separately from the order under clause 10(1)(a) it is subject only to negative procedure.

Clauses 11 and 12 contain extensive associated provision. Powers under these clauses are subject only to negative procedure unless combined in the same instrument as the clause 10(1)(a) order, in which case the affirmative procedure applies.

Clause 11(1) enables the Lord Chancellor to make "such provision as he considers necessary or expedient in consequence of, or in connection with, the inclusion of Gibraltar in an electoral region". Clause 11(3) lists some of the matters which it is expected the order will include. But this is not an exhaustive list. Clause 12 further enlarges the powers under clauses 10 and 11, enabling the application of legislation to Gibraltar and the conferring of wide delegated power to make subordinate legislation (the case for which is argued at paragraph 40 of the Department's memorandum). Clause 12(4) confers (amongst other things) power to exclude the application of enactments.

Clauses 13 to 15 set out provisions for the Gibraltar register. Those provisions are subject to regulations under clause 16. Clause 16 sets out a number of matters about which the Lord Chancellor may make regulations, subject to negative procedure. (Clause 17(4) provides for the affirmative procedure where the regulations are combined with regulations under the European Parliamentary Elections Act 2002, but there is no obligation to combine.) Amongst the matters for which regulations under clause 16(1) may provide are prescribing circumstances in which a person is legally incapable of voting (clause 16(1)(d)) and imposing a disqualification from registration in Gibraltar (clause 16(1)(g)). Accordingly, the regulations can take away a person's right to register and vote apparently given to him or her by clause 15.

Clause 20 (by inserting subsections in section 10 of the 2002 Act) enables the Secretary of State, by order subject to negative procedure, to disqualify persons from the office of MEP. For the United Kingdom, disqualification provisions are set out on the face of the 2002 Act itself. Paragraph 57 of the Department's memorandum states the intention will be to try to have similar provisions as far as possible for Gibraltar as for the UK. But the power in clause 20 is not limited in this way.

The Committee deliberated on the provisions relating to Part 2 of the bill in depth. We are aware of the need for legislation to be in place in good time in order to enable Gibraltar to participate in the European Parliamentary elections in 2004. At the same time, we see force in the view that some of the powers under Part 2 are not the proper subject for delegation. We have in mind, in particular, delegated powers under clause 16(1)(d) (legal incapacity to vote), clause 16(1)(g) (disqualification for registration) and clause 20 (disqualification from office of MEP). If the House accepts such delegation, we consider, at the very least, that these powers should be subject to affirmative resolution. We also take the view that other powers in Part 2 which are delegated appropriately should be subject to affirmative resolution.


The Committee draws to the attention of the House its comments in paragraphs 19 and 25 above.


15.  This bill contains no delegated powers.

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