Address by the Deputy Chief Minister Dr Joseph Garcia
I beg to move that the Bill for a European Union Referendum Act 2016 be read a second time. Mr Speaker a Bill of the same name was introduced in the House of Commons on 28 May 2015 in order to provide the basis for the referendum on whether the United Kingdom would remain in the European Union.
That Bill was presented by the Conservative Government in fulfilment of its manifesto commitment at the last General Election. The Bill was passed by the UK Parliament and received Royal Assent on 17 December 2015. There are three general points in that Act that are worth addressing individually. [1st general point – Timing of Referendum and PM’s letter to EU] The first is concerned with timing. Section 1(3)(a) of the Act provides a date by which the referendum must be held. That date is no later than 31 December 2017.
Honourable members will no doubt be aware that the Prime Minister has not disclosed possible dates for holding the referendum. What he has said is that he would not set the date until after the conclusion of negotiations on the changes that are being sought from the European Union. The UK’s position on the changes sought were set out in a letter to Council President Donald Tusk dated 10 November 2015, which is publicly available, and which I will paraphrase.In that letter the Prime Minister sets out 4 areas for reform-
1. Economic Governance
I will look at each of them in turn.
1. Economic Governance
What we seek, said the Prime Minister, are legally binding principles that safeguard the operation of the Union for all 28 Member States - and a safeguard mechanism to ensure these principles are respected and enforced.
These principles should include recognition that:
• The EU has more than one currency.
• There should be no discrimination and no disadvantage for any business on the basis of the currency of their country.
• The integrity of the Single Market must be protected.
• Any changes the Eurozone decides to make, such as the creation of a banking union, must be voluntary for non-Euro countries, never compulsory.
• Taxpayers in non-Euro countries should never be financially liable for operations to support the Eurozone as a currency.
• Just as financial stability and supervision has become a key area of competence for Eurozone institutions like the ECB, so financial stability and supervision is a key area of competence for national institutions like the Bank of England for non-Euro members.
• And any issues that affect all Member States must be discussed and decided by all Member States.
Point two was the question of competitiveness. On that he said that the United Kingdom would like to see a target to cut the total burden on business. The EU should also do more to fulfil its commitment to the free flow of capital, goods and services. The United Kingdom, said the Prime Minister, believes we should bring together all the different proposals, promises and agreements on the Single Market, on trade, and on cutting regulation into a clear long-term commitment to boost the competitiveness and productivity of the European Union and to drive growth and jobs for all.
On Sovereignty, the Prime Minister said that he wanted to end Britain's obligation to work towards an "ever closer union" as set out in the Treaty in a formal, legally-binding and irreversible way. He wanted a new agreement whereby groups of national parliaments, acting together, could stop unwanted legislative proposals from Brussels. He wanted to see the EU's commitments to subsidiarity fully implemented, with clear proposals to achieve that. The aim was to get at what the Dutch have said that the ambition should be "Europe where necessary, national where possible".
Mr Cameron said that the UK will need confirmation that the EU institutions will fully respect the purpose behind the JHA Protocols in any future proposals dealing with Justice and Home Affairs, in particular to preserve the UK's ability to choose to participate. National Security, he explained, was - and must remain - the sole responsibility of Member States, while recognising the benefits of working together on issues that affect the security of all of them.
The fourth point, Mr Speaker was immigration. The Prime Minister said that the UK believes in an open economy. But has got to be able to cope with all the pressures that free movement can bring - on schools, hospitals and public services. Right now, he claimed in the letter, the pressures are too great. He wanted to find arrangements to allow a Member State like the UK to restore a sense of fairness to the immigration system and to reduce the current very high level of population flows from within the EU into the UK.
The Prime Minister argued that it was possible to reduce that flow of people coming from within the EU by reducing the draw that the welfare system exerts across Europe. He proposed that people entering to from the EU must live in the UK and contribute for four years before they qualified for in-work benefits or social housing. There was also a need to end the practice of sending child benefit overseas.
Mr Speaker, these were the four areas for reform on which the Prime Minister sought agreement. At the start of a 10 week period which ends with the referendum itself, the Foreign Secretary must publish a report on the outcome of those negotiations between the United Kingdom and the European Union. The report must also include the opinion of the Government of the UK on what has been agreed. In the same timeframe, a second report must be published which contains information about the rights and obligations that arise under European Union law as a result of the UK’s membership of the EU. This report should also contain examples of countries that do not have membership of the European Union but which have other arrangements. A description of such arrangements for each country must also be given. Both reports must be laid before the UK Parliament. They will be available electronically as factual information to voters in the United Kingdom and in Gibraltar. The Referendum would then follow at the end of that final 10 week period.
[2nd general point – the referendum Question and answers]
Mr Speaker, having covered the background in this first general point, I move on to the second one which is the actual question to be put at the referendum. The UK Bill, when first printed provided that the question should be: “Should the United Kingdom remain a member of the European Union?”
However, the Electoral Commission was concerned with the balance of the question, which was considered as potentially being biased towards producing a “stay in Europe” result. The wording of the question was subsequently changed to: “Should the United Kingdom remain a member of the European Union or leave the European Union?”
The alternative answers to that question as they will appear on the ballot paper are—
“1. Remain a member of the European Union
2. Leave the European Union”.
[3rd general point – Gibraltar’s enfranchisement]
Mr Speaker, the third general point, and what concerns this House more directly, is that the Act makes provision for the enfranchisement of Gibraltar. The United Kingdom went to the polls on 7 May 2015 and the outcome was a majority Conservative Government. This meant that the EU referendum passed from being the policy of the Conservative Party to the policy of the UK Government and as such officials could commence to engage on the subject. It therefore became clear that the UK referendum on EU membership was going to be taken forward.
Mr Speaker, no effort was spared on our part to lobby for the inclusion of Gibraltar in the franchise. My Honourable Friend the Chief Minister raised this matter with London a number of times. The argument that the outcome of the in/out referendum would have a considerable impact on Gibraltar proved to be a compelling argument. The United Kingdom agreed to the inclusion of Gibraltar in their referendum. The Chief Minister asked me to chair a working group of officials. The first such substantive meeting between the UK and Gibraltar Governments took place by secure video-link on the 2nd of June last year, under a month after the UK election. There have since been several meetings in London which included officials from both Governments. I am sure that we will have a further debate on the merits but at this stage I wish to limit myself to stating that the Government is very pleased that Gibraltar has been enfranchised in such a clear and unequivocal basis, for which we must thank the Prime Minister, David Cameron and the Minister for Europe, David Lidington.
Mr Speaker, I move on now to the mechanics of the enfranchisement itself. The House will know by now that as is the case with European Parliamentary Elections, voters in the Referendum will be allocated to regions, and in the case of Gibraltar our vote will be taken into consideration alongside the votes in the South West region of England. As an aside, during the passage of the Bill in the House of Lords, in particular, the age for voting at the referendum became an issue. Without wishing to enter into that debate here as well, it should be noted that the age for voting at the referendum is now set at 18. In the European Parliamentary Elections legislative package Gibraltar’s legislation is effectively limited to the provision of the Gibraltar register. On this occasion HMGoG has not only been consulted, but we have actively participated in the drafting process both at a political and at a technical level. To that end our drafting team has over the last few months provided advice and feedback on the provisions in the UK Bill relating to Gibraltar. Similarly the Bill before this House today has been produced in close consultation and cooperation with the UK team. The Government is grateful for the access that has been given to our officials. Given the positive feedback we have had from the UK we hope that, should similar circumstances arise in the future, HMG will engage with Gibraltar and with our officials in the same positive manner. It was a pleasure to detect a genuine and positive desire to assist the enfranchisement of Gibraltar on the part of officials of Her Majesty’s Government in the United Kingdom once the political direction had been given. Mr Speaker, it is not always the case that proposed legislation emanating from the Westminster Parliament that has a bearing on life in Gibraltar is the subject of such close consultation. The UK side included the Foreign and Commonwealth Office, which wasand is the lead department, and the Cabinet Office.
Mr Speaker, I also want to place on record the Government’s thanks to the Gibraltar team, in particular, to the Attorney General Michael Llamas whose expertise on such matters is wellknown to all of us in this House, and to Paul Peralta and Nadia Sisarello-Parody who coped tirelessly with drafting work, with interminable meetings and voluminous e-mail correspondence all of which against the background of considerable pressure from tight deadlines. In our discussions with HMG one of the matters that we agreed to was to mirror the UK’s legislative framework and timetable. As far as the timetable is concerned, with amendments being moved in Westminster up until the very final moments our drafters have had a very tight window in which to operate. It is for that reason that the earliest opportunity that the Government had in which to publish this Bill was December 24th. The decision by my Honourable Friend the Chief Minister to abridge the amount of time in which the Bill could be taken by this House is a direct result of the requirement to meet the deadlines and the timetable set in the United Kingdom.
Mr Speaker, from an early stage, aware that those timings were always going to be tight, one of the earliest policy decisions that had to be taken was whether to create a new register for the EU referendum or to use an existing one. Whilst the prospect of a general election in late 2015 provided for an up to date register, the terms of the franchise for our own elections and the terms of the franchise for the EU referendum are both different. Our European Parliamentary Elections register, however, contained the majority of the eligible persons, including the Irish nationals to whom the UK Government extended voting rights. We therefore took the policy decision to use the European Parliamentary Elections Register as the basis for registration for this referendum.
[The Bill – clause by clause]
Turning to the specifics of the Bill, Mr Speaker, clauses 1 and 2 provide for the usual introductory matters. Clause 3 is a purpose clause, which as the heading suggests, sets out the context in which the Bill is to be construed. Clause 3(1) formally sets out some of the detail which I have already alluded to, namely that Her Majesty’s Government of Gibraltar has agreed to the participation in the UK’s referendum, and to the mechanism to make such participation possible. Subclause (2) explains the legal framework which is being applied and perhaps I can explain it better again in less technical legal terms.
Mr Speaker, the basis upon which persons in Gibraltar will be able to vote in the referendum is set out in the UK’s Act. That Act requires that a person be registered in the Gibraltar Register for European Parliamentary Elections. There is a test that needs to be met in order to be eligible. That test is that the person registered in the Register is either a Commonwealth citizen or a citizen of the Republic of Ireland. By relying on the European Parliamentary Elections Register, Gibraltar’s European Parliamentary Elections Act of 2004 is engaged. In the circumstances the Bill provides for the adaptation of the framework to accommodate the EU Referendum.
Clause 5 provides a power for the making of subsidiary legislation. This power is required in order to give the Government the tools with which to respond, in legislative terms, to any circumstances which may arise. If the Act is passed by the Parliament it is our intention to invoke these powers to make subsidiary legislation to provide for some procedural matters. These have adopted the working title “the Conduct Rules”. Unlike for the European Parliamentary Elections, the Gibraltar and UK Governments agreed that Gibraltar would also be passing this legislation.
The kind of issues that fall under the ‘Conduct Rules’ relate to matters such as-
- notices that will be published in connection with the poll,
- the official mark to be used,
- the issue of poll cards,
- the provision of polling stations,
- absent and postal voting.
- and the count.
Clause 6: Mr Speaker, as I have already explained, the UK Referendum Act 2015 requires that a person be registered in the Gibraltar European Parliamentary Elections Register. Given that reliance on the European Parliamentary Elections framework clause 6 “borrows” the European Parliamentary Election Act 2004, for the purposes of the referendum. This “borrowing” therefore requires that certain aspects of the 2004 Act be modified. This is necessarily a complicated process but we have attempted to bring as much clarity as is possible by inserting the amendments in the First Schedule and then actually setting out the legislation, as amended, in the Second Schedule.
Mr Speaker, I have given notice that at Committee Stage I will be moving for a number of amendments, and this will include the removal of clause 7. Clause 7 had been inserted at the specific request of HMG’s legal team but they have since asked for it to be removed. Clause 8 is required because the EPE Act 2004 is being “borrowed” and therefore an offence committed under that Act (as amended) is to be treated as an offence under the Bill and not the European Parliamentary Elections Act 2004. Clause 9 confers jurisdiction in Gibraltar where an offence is committed as a result of a breach of a UK enactment which has been specifically applied to Gibraltar for the purposes of the referendum. Clause 10 provides for the application of section 3 of the Criminal Procedure and Evidence Act 2011 in cases where there is a breach of both Gibraltar and UK legislation. Section 3 sets out the procedure to be followed where there is a contravention of 2 or more Acts, and this clause ensures that a UK Act falls within this procedure.
Mr Speaker, Clauses 11 to 37 are a series of offences and procedural matters that are set out in the UK’s Representation of the Peoples Act 1983. That Act does not apply to Gibraltar in the context of European Parliamentary Elections. Since it is relied upon by the UK (and modified by them for referendum purposes) we have reproduced the relevant provisions as a matter of Gibraltar law, and in compliance with our commitment to mirror UK procedures and UK law. The nature of the offences are those which are commonly found in elections, indeed most are included within the corpus of our own domestic elections laws. Offences under these clauses includes voting more than once, tampering with the ballot paper, issuing imitation poll cards, publication of exit polls before the poll closes and breaches of secrecy.
Mr Speaker I have given notice of a further amendment that I will be moving at the Committee Stage. That entails the insertion of a new clause 27A. Discussions with London have continued after publication of the Bill and in this instance we have been asked to insert this clause, which is aimed at broadcasts from outside Gibraltar and the UK which seek to influence the vote in Gibraltar.
Clause 38 is what is referred to as a sunset clause. As far as Gibraltar is concerned the Act will be spent once the referendum is over and this clause causes the Act to be repealed 12 months after the referendum. In other words, the Act will repeal itself. In the unlikely event that there are any proceedings or any rights that are enforceable at the time of repeal, those proceedings or rights shall subsist.
Mr Speaker I have already referred to the First Schedule and simply would restate that the purpose of it is to amend the application of the European Parliamentary Elections Act 2004 for the purposes of the referendum. The Second Schedule reproduces the entire European Parliamentary Elections Act 2004, as per the amendments effected by the First Schedule, and should be of practical value to any reader.
Mr Speaker, before I commend the Bill to the Parliament I would like to restate that this Bill is important because of the implications for Gibraltar that attend to the outcome of the referendum. It is extremely positive and a reflection of the level of regard that Her Majesty’s Government in the UK has for the rights of the people of Gibraltar that we have been included in what is the United Kingdom’s referendum even though we are not a part of the United Kingdom. The Bill also reflects the level of detailed and close cooperation that can and should exist between officials from both Governments.
Mr Speaker, I commend the Bill to the House.