No. 58/98
Date: 30 March 1998
A Bill is presently passing through the British Parliament to change the system of British voting at European Parliamentary Elections from the present "constituency" system to a "regional list" system. This change greatly facilitates the inclusion of Gibraltar in a UK Region for EU voting purposes.
The Government of Gibraltar identified this as an ideal opportunity to take up the matter of Gibraltar`s continuing disenfranchisement. To this end, in November 1997, the Chief Minister wrote, to all MPs in the House of Commons. Many replies, overwhelmingly favourable were received. In addition the Chief Minister met with MPs of all parties to highlight and brief them on this issue. As a result an amendment to the Bill was moved in the House of Commons. 183 MPs voted in favour of the amendment to enfranchise Gibraltar. This represents a very large measure of support. 315 MPs (including the majority of Labour MPs in support of the British Government`s position) voted against.
The Bill begins to passage through the House of Lords on 9th April 1998. The Government will renew its lobby on this issue there. The Chief Minister has written to all Members of the House of Lords seeking their support to an amendment that will be moved there by Lord Bethell, and probably others. The Chief Minister is also planning a visit to the House of Lords to brief Peers directly on this issue.
The position of the British Government on this issue is now as follows. The matter of elections to the European Parliament is governed by an EC instrument called the 1976 Act on Direct Elections. That document says that the United Kingdom will apply the provisions of the Act "only in respect of the United Kingdom". The UK Government has, since 1976, taken the view that "only in respect of the United Kingdom" excludes Gibraltar, and so, provision for voting in Gibraltar was not made by the 1978 Act of Parliament that introduced European Parliamentary Elections in the UK.
This is the Bill that is now being replaced. Since 1978 the electoral system applied in the UK for Euro elections has been the UK`s traditional "constituency" system. The new bill changes that to a regional list system, ie the UK is divided into large geographical regions. Each region is allocated a number of MEPs, all of whom represent the whole of the Region. This greatly facilitates the enfranchisement of Gibraltar by incorporating the
Gibraltar vote in a UK region. The present UK Government argues that the 1976 Act of Direct Election (which is an EU Agreement) saying that the UK will apply the provisions only in respect of the UK continues to prevent it from including Gibraltar in the new, changed, voting arrangements now before Parliament in the new Bill. The UK Government maintains that amending the 1976 Act on Direct Elections will require unanimity amongst Member States, and therefore Spanish consent which is unlikely to be forthcoming. UK Government says that it has internal legal advice to the effect that this is an obstacle to enabling Gibraltar residents to vote.
The position of the Gibraltar Government is as follows:
(1) We believe that the UK Government`s legal advice is incorrect. We are fortified in this view by a recent ruling of the European Commission of Human Rights in a case brought by a citizen of Gibraltar against the UK Government precisely on this issue. The Commission ruled by a majority of 11 to 6 that the complaint was not well founded on the technical ground that the provision of the Human Rights Convention relied upon by the Applicant was only applicable to national legislatures and not to supra national representative bodies such as the European Parliament. The majority did not therefore consider the facts or merits of the arguments in the case. However the minority (all consisting of EU Member State Commissioners, including the UK Commissioner and the highly distinguished authority on EU and Public International Law, Professor H Schermers) found that:
(1) The European Parliament had now developed into a Parliament to which the Human Rights Convention applied.
(2) The failure of the UK to make arrangements to enfranchise the people of Gibraltar constitutes a breach of UK`s obligations under the Human Rights Convention.
(3) The 1976 Act on Direct Elections (that is the EU Agreement on
Euro Election) is not an obstacle to UK`s compliance with her
obligations under the Convention, as claimed by UK, because the
UK is free under the Act to make provisions for citizens of
Gibraltar to vote in a UK mainland constituency (now region).
In other words, the UK can, acting unilaterally and consistently
with its obligations under the 1976 Act, extend the right of
franchise to Gibraltar by integrating the Gibraltarian vote in
the vote of a UK region at elections to the European
Parliament.
(2) In any case the UK Government should test the issue legally
by seeking a declaration on the matter from the ECJ.
(3) In any event, HMG should initiate the necessary political procedure to obtain an amendment of the 1976 Act on Direct Elections, leaving Spain to adopt the democratically disreputable position of insisting on Gibraltar`s continuing disenfranchisement, if she chooses to. It would certainly be a less unsatisfactory position if our continued disenfranchisement were actually attributable to a Spanish veto, which is not the case at present.
LETTER FROM CM TO ALL MEMBERS OF THE HOUSE OF LORDS
Dear
You may be aware that the European Parliamentary Elections Act 1978 made no provision for Gibraltar to take part in elections to the European Parliament. Accordingly, even though Gibraltar is an integral part of the European Union (under Article 227(4) of the Treaty of Rome) the 30,000 British Gibraltarians and other EU Nationals resident in Gibraltar, are the only EU Nationals who have no right to vote at Euro-Elections. This is in stark contrast to citizens of Spanish territories in North Africa and some French territories even further away who do vote. The people of Gibraltar have long felt aggrieved by this serious democratic deficit. The position is now even more anomalous following extension of the co-decision procedure, which gives the European Parliament a far more extensive role in the process of legislation which Gibraltar is subsequently required to transpose into our own laws and to implement.
As you know the European Parliamentary Elections Bill has now been passed by the House of Commons. It makes provision for the elections to the European Parliament in Great Britain to be conducted using a regional list electoral system. Again no provision is made for Gibraltar, which would therefore remain disenfranchised. Amendments moved in the House of Commons to include provisions enfranchising Gibraltar were defeated by 315 votes to 183. Amendments will be moved in the House of Lords when the Bill reaches Committee Stage.
The Government has attempted to draw an analogy in this context between the positions of Gibraltar, the Channel Islands and the Isle of Man (the latter of which are also excluded) by referring to "British Territories to which the Treaties apply to varying extents". Such an analogy is erroneous. Under the EC Treaty Gibraltar is an integral part of the EC, while Channel Islands and Isle of Man are not . EC Directives and Regulations, generally apply to Gibraltar. They do not apply to the other mentioned territories.
The position of the British Government is that the EC Act on Direct Elections of 1976 prevents UK from acting unilaterally to extend voting rights to Gibraltar. Even if this is true, it does not prevent the UK from enfranchising Gibraltar by including the Gibraltarian vote in a UK Region for EU voting purposes.
On behalf of the Government and people of Gibraltar I seek your support for the enfranchisement of Gibraltar by the inclusion of the Gibraltarian vote in a UK mainland Region, thus correcting the current anomaly whereby a British territory that is part of the EU by virtue of the UK`s membership is disenfranchised by the UK itself from this most fundamental of democratic exercises.