European Parliament (Representation) Bill

Public Bill Committee, 7 January 2003.

Standing Committee A

European Parliament (Representation) Bill

Yvette Cooper (Labour, Pontefract and Castleford)

I beg to move,

That—

(1) during proceedings on the European Parliament (Representation) Bill the Standing Committee shall, after its first sitting on Tuesday 7th January at 4.30 pm, sit on Tuesdays and Thursdays at 9.25 am and 2.30 pm;

(2) the proceedings to be taken at the sittings shall be as shown in the second column of the Table below and shall be taken in the order so shown;

(3) the proceedings which under paragraph 2 are to be taken at any sitting shall (so far as not previously concluded) be brought to a conclusion at the time specified in the third column of the Table;

(4) paragraph 2 does not prevent proceedings being taken (in the order shown in the second column of the table) at any earlier sitting than that provided for under paragraph 2 if previous proceedings have already been concluded.

SittingProceedingsTime for Conclusion of Proceedings 7th JanuaryClauses 1 to 6, the Schedule and Clause 7--- 9th JanuaryClauses 1 to 6, the Schedule and Clause 75.30 p.m. 14th JanuaryClauses 8 to 25, new Clauses, new Schedules and remaining proceedings on the Bill--- 16th JanuaryClauses 8 to 25, new Clauses, new Schedules and remaining proceedings on the Bill5.30 p.m.

I welcome you to the Committee, Mr. Cook, and look forward to serving under your chairmanship.

The programme motion was agreed at the meeting of the Programming Sub-Committee on 16 December. We changed the proposals in response to concerns raised by Opposition parties and I hope that the motion satisfies those concerns.

Bill Cash (Conservative, Stone)

I also want to say that it will be a pleasure to serve under your chairmanship, Mr. Cook. I have no comments to make on the programme motion.

David Heath (Liberal Democrat, Somerton and Frome)

I can be equally brief. I welcome you to the Chair, Mr. Cook, and look forward to the time that we shall spend examining the Bill in this Committee. The Programming Sub-Committee was extremely helpful in securing a little more time for those parts of the Bill that may need closer scrutiny and I am happy to accept the programme motion.

Question put and agreed to.

Frank Cook (Labour, Stockton North)

I remind the Committee that there is a financial resolution in connection with the Bill and that copies are available in the Room.

I also remind hon. Members that adequate notice should be given of amendments. As a rule, I do not intend to call starred amendments, including any that may be reached during an afternoon sitting.

Clause 1 - Electoral regions in the United Kingdom

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 1, in

clause 1, page 1, line 9, at end insert 'and Gibraltar'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take amendment No. 2, in

clause 2, page 2, line 24, at end insert 'and Gibraltar'.

David Heath (Liberal Democrat, Somerton and Frome)

These amendments are the equivalent of gently knocking up across the net before the start of a match. They should not detain us long.

I said on Second Reading that the architecture of the Bill was wrong in essence, in that it is more logical to deal with enfranchisement of Gibraltar for European Parliament purposes before changing the basis on which that representation takes place, which is encompassed in part 1. Had I had a free hand and unlimited time to propose amendments, I might have tried to reconstruct the Bill in its entirety, but that probably would have been inappropriate. If part 2 finds favour with the Committee and we allow for the representation of Gibraltar within one of the regions of England, Wales or, indeed, Scotland or Northern Ireland within the compass of the Bill, part 1 clearly will include the territory of Gibraltar. It seems to be a minor drafting error not to include it in clause 1. That is the intention of our small amendment.

It would be so encouraging to start this Bill with agreement throughout the Committee and to add those words to the Bill.

Bill Cash (Conservative, Stone)

It struck me that the words ''and Gibraltar'' could be added, but the amendments have not yet been accepted. Until the decision has been taken under part 2 of the Bill, it would be invidious to include the words ''and Gibraltar'' at the beginning. However, the long title says:

''to make provision for and in connection with the establishment of an electoral region including Gibraltar for the purposes of European Parliamentary elections''.

On balance, the inclusion of the words probably would not do any harm at this stage, but I suspect that that could be left to later when we have considered the question of Gibraltar at greater length in part 2 of the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

I agree with the principle of the amendment. However, adding the words ''and Gibraltar'' has a curious effect that has an impact on the timing, so I would resist the amendment.

If the words ''and Gibraltar'' were added and the electors of Gibraltar included, the redistribution calculations done by the Electoral Commission before the 2004 elections would also need to include Gibraltar. Therefore, those calculations would have to wait until a decision had been taken on the region and the Gibraltar electorate registered on the new Gibraltar register. Given that the decision on the region is unlikely to be made before October 2003, the Gibraltar register is unlikely to be ready until December 2003. The work on redistribution would then not be complete until well into 2004, which would cause a difficulty with the elections. Because of the timing of the Bill, the commission's work on its two elements must take place concurrently, and the Bill has been drafted to allow that.

Once the Bill is fully implemented, Gibraltar will form part of one of the regions of England or Wales and automatically will be included in any future redistribution calculations. The electorate of Gibraltar—20,000 at the maximum—will have a limited impact on the redistribution calculations for regions of several million. For example, London has

5 million voters and the south-west 4 million. Therefore, the amendment would have virtually no impact on the outcome of the calculations but a significant impact on the timing of their completion.

I entirely accept what the hon. Member for Somerton and Frome (Mr. Heath) is trying to do but, for practical considerations, I ask him to seek to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am almost persuaded by the Minister's emollient tone. Given that clause 2(2) allows for an expected change under Community law, it would not be beyond the bounds of reason for the Electoral Commission to anticipate what will be agreed by the passing of the Bill; that the electorate of Gibraltar will be included in any redistributive formula. I should have thought that that would allow the work to continue. It is certainly not a matter that I wish to press today, but it may be worth revisiting later in the Bill. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 11, in

clause 1, page 1, line 9, at end insert 'which total number shall not be altered by order or otherwise unless and until—

(a) referendums have been held in each of the states whose governments have agreed to accede to the European Union and which in accordance with their constitutional arrangements are required to hold a referendum before accession and in each such state the electorate has voted in the affirmative to accede to the European Union; and

(b) following the conclusion of all such referendums the Select Committee on Foreign Affairs and the European Scrutiny Committee in the House of Commons and the Foreign Affairs Committee in the House of Lords have separately or jointly considered and reported on the matter and the House of Commons and the House of Lords have debated the said report or reports on a substantive motion.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 12, in

clause 2, page 2, line 16, after '(1)', insert 'Where following the debate or debates held under section 1(1) of the 2002 Act the question as to whether the total number of MEPs to be elected for the United Kingdom may be altered is determined in the affirmative,'.

Amendment No. 20, in

clause 4, page 3, line 20, after '(1)', insert 'Where following the debate or debates held under section 1(1) of the 2002 Act the question as to whether the total number of MEPs to be elected for the United Kingdom may be altered is determined in the affirmative,'.

New clause 2—Expiry of Act—

'.— Part I of this Act shall cease to have effect if the electorate of any of the states whose government or governments have agreed to accede to the European Union (where such state or states are required by law to hold a referendum before such accession) votes in such a referendum to decline accession to the European Union.'.

Bill Cash (Conservative, Stone)

The Bill is based on a hypothesis; those who propose it hope that there will be accession by all the states that are applying for it. There is no guarantee that that will happen. In Poland, for example, there are serious doubts about whether there will be accession. Those who have at their fingertips the table that sets out the proposed number of seats that would be allocated to each state that

accedes will notice that Poland has as many as 50 seats allocated to it. That is a substantial number. In relation to the proposed 27 member states, it would be approximately two per state.

There are other question marks. We can see in an article in The Times today that Mr. Paksas has been returned in the elections that took place in Lithuania yesterday. Mr. Paksas is a gentleman who sounds thoroughly Eurosceptic. One could say the same of Vaclav Klaus. In The Times some time ago, Mr. Roger Boyes, who wrote the article to which I referred, said that if there were a marriage bureau for politicians in Europe, it would not be difficult to imagine that Mr. Vaclav Klaus and Mr. Bill Cash might come up on the same data computing record. A shift is taking place within Europe and we cannot guarantee what will happen in any of the referendums. For example, there are serious question marks in relation to Malta and although it appears that there is enthusiasm in Hungary, who is to say what will happen there?

My point is that the Bill is based on a hypothesis and it is extremely unusual to present a Bill to Parliament that is based on something that might happen. I reflected that sentiment in the obverse case that I am putting forward. The Bill is based on the hypothesis that there will be accession and that the referendums will go through. We must consider the matter from the point of view of the United Kingdom, irrespective of party political interests. We are dealing with a question of national interest.

The revised provisions for section 1 of the European Parliamentary Elections Act 2002 stipulate that there will be 87 Members. Those are 87 reinforced by the new provisions of clause 1 and that number will remain static unless and until the appropriate accession arrangements go through, which in turn is dependent on the referendums.

There is a substantial issue of principle that has to be addressed. A number of countries might say yes in a referendum, but if a sufficient number say no, there will be a substantial case for a revision of the whole deal. An element of proportionality comes in here. I do not want to choose any one country as an example because I might be accused of diminishing its importance. If one country had far fewer Members available to sit in the European Parliament under the proposals, there are those who would argue—I am not saying that I am one of them—that it would not matter that much because the whole system would not really be out of kilter.

On the other hand, if a country had a substantial number of Members—we could use the example of Poland or the Czech Republic; I can think of others—

Andrew Rosindell (Conservative, Romford)

Estonia.

Bill Cash (Conservative, Stone)

Estonia perhaps. I mentioned Lithuania. If a country had a substantial number of Members, the question would arise of the impact on the UK. The proposals mean that we would be downgraded. I shall deal with the wording of the Bill in a moment but, under the Nice treaty, we would start out with 87 members. That is set out in section 1 of the 2002 Act and in the new section proposed in clause 1 of the Bill. However, the figure is due to drop in stages to 72,

dependent on accession by all the proposed member states.

Therefore, one must ask two simple questions. First, what is the nature of the mechanism that is provided to correct any imbalance that would arise if there were too many, or even any no votes? Secondly, does the mechanism allow for an increase in the number of MEPs for the United Kingdom or any other member state? I shall stick with the United Kingdom, because it is of primary interest to us. As we are all affected by what goes on elsewhere in the European Union, we would want to know that the mechanism ensured an uplift for the United Kingdom should Poland, for example, vote no.

In essence, amendment No. 11 reflects those points. The object is to add to proposed new section 1, which states,

''There shall be 87 members of the European Parliament ('MEPs') elected for the United Kingdom'',

the words

''which total number shall not be altered by order or otherwise unless and until—

(a) referendums have been held in each of the states whose governments have agreed to accede to the European Union and which in accordance with their constitutional arrangements are required to hold a referendum before accession and in each such state the electorate has voted in the affirmative to accede to the European Union''.

I take responsibility for any imperfections in the drafting. Opposition Members have limited resources and do not have the services of parliamentary counsel. Therefore, I have to draft my amendments.

The measure must be in accordance with our constitutional arrangements. I understand that all the states—certainly, many of the larger ones—will have referendums. The Minister may correct me on that. I see that one of her advisers is shaking his head—that always worries me. Is the suggestion that there will be no referendums? I am certain that that is not the case. I would be interested to know which countries, if any, will not have referendums, not that that affects the principle of my argument.

I see that several of my colleagues on the European Scrutiny Committee are in the Committee. It is enjoyable to join them in a slightly different context, although we shall not deal with some matters in any depth. For reasons that are germane to issues that have already been discussed and on the basis of proposals that have been put forward, under the amendment, the total number would not be altered unless and until referendums had taken place, the electorate in each state had voted to accede and,

''(b) following the conclusion of all such referendums the Select Committee on Foreign Affairs and the European Scrutiny Committee in the House of Commons and the Foreign Affairs Committee in the House of Lords have separately or jointly considered and reported on the matter and the House of Commons and the House of Lords have debated the said report or reports on a substantive motion.''

The total number would not be altered unless both paragraphs (a) and (b) had been complied with. First,

there would have to be the referendum that is provided for in each of the states, and they would have to vote yes. Secondly, when those referendums had been concluded the matter would be referred to the appropriate Select Committees.

In the amendment, I use the expression,

''which total number shall not be altered by order or otherwise''.

It does not use the word ''reduced'', as does the Nice treaty. That is an interesting point. After all, if every state said yes, one would find, on the basis of compliance with the Nice treaty and all that flows from it, that there would be a reduction, but if a number of states said no, there would still be a reduction. That said, it appears that the draftsman, who has been extremely diligent, has picked up something from the protocol to the Nice treaty that suggests that there could be a temporary increase, which would be an extraordinary state of affairs.

Mark Hendrick (Labour/Co-operative, Preston)

The hon. Gentleman will be aware that Romania and Bulgaria are due to enter the European Union in 2007 and that the seats that are to be allocated to them will be held by other member states even though there will be a consequent reduction as a result of the 2004 accession. Subsequently, there will be a proportionate downgrading, given the weightings of the individual member states that accede in 2004, to make those places available to Romania and Bulgaria. Is it not the case that if any state does not get through the referendum, there will be a proportionate upgrading from the seat allocations that were planned for 2004?

Bill Cash (Conservative, Stone)

That is a pretty fair point. It illustrates some of the uncertainties that exist in the procedure because it is based on the hypothesis that there will be yes votes in all the states and that other states will subsequently enter in stages. The manner in which the mechanism functions must be carefully considered. In later amendments, I deal with the nature of the change—or anticipated change—under Community law. We do not need to go into that at this stage, but it is relevant, because the manner in which the order-making power will operate is germane to the mechanisms that are provided under the treaty—or their absence or lack of precision.

Tucked away in the protocols is a protocol entitled ''Protocol on the enlargement of the European Union'', article 1 of which is headed, ''Repeal of the Protocol on the institutions''. It states:

''The Protocol on the institutions with the prospect of enlargement of the European Union . . . is hereby repealed.''

Article 2 is entitled, ''Provisions concerning the European Parliament''. It states:

''On 1 January 2004 and with effect from the start of the 2004–2009 term, in article 190(2) of the treaty establishing the European Community and in article 108(2) of the Treaty establishing the Atomic Energy Community, the first subparagraph will be replaced by the following''.

It then sets out the number of representatives that each of the member states will have allocated to them. It stipulates that the number or representatives shall be as follows: the United Kingdom will have 72 and Germany 99. That is why I made reference during the debate, as I have on many occasions including during

debates on the Nice treaty, to the disproportionate number of seats granted to Germany.

Tony Cunningham (Labour, Workington)

The hon. Gentleman said ''disproportionate''. My understanding of the situation was that Germany had 87 delegates. The big four—Britain, Italy, Germany and France—all had 87. Only when East Germany was included, with its additional population making Germany much bigger, did it get a number of other seats. I do not accept the word ''disproportionate''.

Bill Cash (Conservative, Stone)

First, may I thank the hon. Gentleman for his Christmas card?

Proportionality and the extent to which it will impinge through the powers of co-decision is an important and relevant point. We are talking about not just numbers, but alliances, aggregates and votes. It does not take much imagination for us to imagine what might happen if people started monkeying around with the number of seats that were made available in the United Kingdom Parliament. It can have significant knock-on effects. The same applies to Scotland following the passing of the Scotland Act 1998. The proposals to reduce the number give rise to deep concern.

I take the point about proportionality. If I made that point, I would also say that one had to give regard to the realities of the use of power in the European Parliament, especially regarding co-decision, which I criticised strongly at the time of the Maastricht treaty. The then Prime Minister said that that would be the proper direction. I never believed that it was, and I still do not believe that it is. Leaving that aside, there is the possibility for the aggregation of votes. Germany will get 99 delegates under the new proposals and may attract votes because of Realpolitik. The alliances that will be built up in the central core of Europe under the system of enhanced co-operation will be extremely important. When the German votes are aggregated with the votes of countries dependent on her economically or politically, one ends up, as I said in the Second Reading debate, in Berlin. That is where the problem could become apparent.

I have always been extremely careful in the way that I have expressed that argument. I have been forthright, but I have also welcomed our German friends to the Councils of Europe here, and in the Reichstag during the past few years. I have spoken several times in the Reichstag by its invitation, and we had some extremely interesting debates. I said then that a disproportionate amount of power being exercised at the centre of gravity under the concentric circles plan is not in Germany's interests any more than it is in the interests of Europe or the United Kingdom.

I should add that, in numerical terms, I understand the point made by the hon. Member for Workington (Tony Cunningham) on proportionality. However, the issue concerns not only numbers, but power, which is a particularly important point.

Tony Cunningham (Labour, Workington)

The hon. Gentleman's argument is based on a false premise. What evidence does he

have of all 99 German MEPs—there were 87 of them when I was a Member of the European Parliament—voting together? When I was there, there were German Christian Democrats, Social Democrats and Greens who all voted in different ways. I do not share the idea that all German MEPs will, along with Polish MEPs, form a bloc in the centre of Europe to dominate the European Parliament.

Bill Cash (Conservative, Stone)

That is fair enough. However, one could say exactly the same thing about any member state, including the United Kingdom. Conservative Members of the European Parliament will certainly not vote with Labour Members of the European Parliament. However, rainbow coalitions such as the European People's party, on which I have had a lot to say in the past and will have a lot to say in the future, are created in the European Parliament.

Tony Cunningham (Labour, Workington)

Far too left wing.

Bill Cash (Conservative, Stone)

The hon. Gentleman says, ''Far too left wing'', but I agree with certain ingredients of the manner in which the European People's party proceeds. I certainly do not agree with it, however, on federalism or matters relating to the social agenda, on which it agrees with other Members of the European Parliament. The key point is that although one cannot reduce the exercise to questions of numbers, we all have to acknowledge that, as with any parliamentary arrangement, there are splits in the European Parliament.

The key question is where the centre of gravity will be. I do not have a crystal ball; the nearest that I have is the Bill and the treaties. Having studied the European issue for a long time, I know that the tendency will be towards moving further and further down the route to a German Europe. Thomas Mann once said that there would either be a European Germany or a German Europe; I suspect that it will be the latter. We need to take account of that and ask whether it is in Germany's interest.

I acknowledge that the protocol is an international agreement for the purposes of section 2 of the European Communities Act 1972, and that it can be regarded as binding on the United Kingdom. I should like to know why the protocol does not say that it is subject to arrangements on the accession question, which would include referendums in all member states. As I read it, we would expect to see the figures set out in it only when the referendums have taken place. It states that

''The number of representatives elected in each Member State shall be as follows''.

Why does it not say that that will be subject to the referendums taking place? If we have 87 representatives now, with the figure dropping to 72 only when the process has been completed, it is necessary to say that that process will be subject to the referendums having taken place. That is one of the reasons why I am querying the proposals.

Article 2 of the protocol states:

''Subject to paragraph 3, the total number of representatives . . . for the 2004–2009 term shall be equal to the number of representatives''.

I should have expected it to be stipulated that that process is subject to the referendums, and not merely subject to paragraph (3), which is important.

Paragraph (3), the crucial part of the mechanism, states:

''If the total number of members . . . is less than 732''.

The Government initially said that come hell or high water there would not be more than 700 members. Magically, in the course of what was no doubt a long night of negotiations, the figure was changed. I remember the hon. Member for Somerton and Frome rightly picking me up by saying that he was surprised that I had not remembered that the matter was under article 189.

Paragraph (3) states:

''If the total number of members . . . is less than 732, a pro rata correction shall be applied to the number of representatives to be elected in each Member State so that the total number is as close as possible to 732, without such a correction leading to the number of representatives to be elected in each Member State being higher than that provided for in Article 190(2) of the Treaty establishing the European Community and in Article 108(2) of the Treaty establishing the European Atomic Energy Community for the 1999–2004 term''.

That is a little bit cheeky because the mechanism provided is not subject to referendums and will operate even if the referendums do not produce affirmative votes in each case. The mechanism slides over those issues by using a lot of verbiage. It provides for a system based on the assumption that there may be referendums that produce negative rather than affirmative votes. That is how one would get to a point at which the figure was less than 732.

Mark Hendrick (Labour/Co-operative, Preston)

Is the hon. Gentleman not confirming my point? A treaty that was drafted on the basis that some referendums would be lost would seem to defeat its own object.

Bill Cash (Conservative, Stone)

No. The important point about referendums is that Governments make treaties. Our Government made the Maastricht treaty and negotiated much of the Amsterdam treaty. However, we had nothing to do with Nice treaty and voted against it. I recollect that some of us voted against the Maastricht treaty, in spades. The Government made their decision, which came back to Parliament for ratification in accordance with constitutional requirements. The other day, I was glancing at the record of an interesting series of debates, which took place around that time, in which the question of whether referendums were justified arose. The key point is that referendums are necessary where there are substantial grounds for believing that the Government have done something that does not automatically and necessarily have the full support of the electorate.

Mark Hendrick (Labour/Co-operative, Preston)

Referendums are held where they are within the constitution, and they would be held on those types of matters. They have nothing to do with public opinion; it is a matter of the constitution and law in particular member states.

Bill Cash (Conservative, Stone)

That is precisely why I very carefully used the word ''necessarily''. I also mentioned the constitutional requirements of each member state. Of

course, a referendum would have to be provided for under the constitutional arrangements of any one country, although in the United Kingdom, referendums are not prescribed as part of our constitution. Their use is growing and, by virtue of the Political Parties, Elections and Referendums Act 2000, they are now endorsed as a means of government. To that extent, they are now part of our constitutional machinery but—just to answer the hon. Gentleman's point—it to me rather extraordinary that Governments, who are the elite in each country, should arrive at a decision on such a matter and not then have a referendum.

How is the mechanism to be arrived at? The end of paragraph (3) of the protocol says:

''The Council shall adopt a decision to that effect.''

That is really quite curious. Let us refresh our memories on clause 2 and the explanatory notes. Clause 2 establishes the following mechanism:

''The Lord Chancellor may by notice require the Electoral Commission to make a recommendation to him as to the distribution between the electoral regions of—

(a) a total number of MEPs specified in the notice; or

(b) if the notice specifies more than one total number of MEPs, each of the total numbers''.

In other words, the Lord Chancellor will present, on any reasonable footing, a series of mathematical permutations to the Electoral Commission; the process is based on a hypothesis, which is based on the referendum question, which, in turn, is based on the protocol that I have just partially described.

My point is that paragraph 14 of the explanatory notes says:

''Clause 2 establishes a mechanism''—

if we can call it that, because it is an order-making power or, rather, a notice combined with an order-making power—

''for reviews of the distribution'',

which is different from the total number,

''of MEPs in the UK to take place when a change to the numbers has been agreed or is anticipated.''

The next part of the notes is what we need to concentrate on, and I want to ask the Minister why this point is not included in the Bill. It says:

''The European Commission will inform the UK what their representation will be (the total number of UK MEPs) for the European Parliamentary elections in 2004, and subsequently.''

Thus, the Lord Chancellor, when arriving at the point at which he gives the notice to the Electoral Commission under clause 2(1), is in effect under instructions from the European Commission. We here have a situation in which an unelected Lord Chancellor gives notice—in other words, orders—to an unelected Electoral Commission, based on orders received from above, from an unelected European Commission. Moreover, as I pointed out, the genesis of that is the protocol, by which the Council of Ministers ''shall adopt a decision'' without any let or hindrance, or any reference to the referendums, on the total number of members where it is less than 732. What procedure will govern the adoption of that decision? Is it unanimous or by a majority vote? What

is the mechanism within the mechanism? We have what I would describe as an extremely curious clock, and I am not convinced that it strikes accurately. Some serious questions arise on that point alone.

There is to be an order-making power. According to the explanatory notes provided by the Lord Chancellor's Department,

''The European Commission will inform the UK what their representation will be''.

Why is that not spelt out in the Bill?

To move on to amendment No. 12, it will be seen that its effect on clause 2 would be to say that the Lord Chancellor was not able to give such notice effectively where the debate that I propose should be held has produced a negative result in either House. That is consistent with the later provisions in the Bill dealing with motions that are rejected or withdrawn by leave of either House. Therefore, there is nothing inconsistent in the pattern that I am adopting, other than that, in this instance—for reasons that I have given—I should have expected debates to be held following the results of those referendums. If there were an affirmative vote in all member states, there would not be much to discuss, but if there were a negative vote, there would perhaps be a great deal to discuss, including the points that I have already made about the nature of the mechanisms and the manner in which the Council arrives at its decision.

I go further with respect to that provision and say that it is highly presumptive to stipulate in a protocol:

''The Council shall adopt a decision to that effect.''

If the protocol said that the Council ''may'' adopt a decision, I would at least have a little confidence that there would be some discussion, but it is clear that it is a requirement—an obligation—that the United Kingdom, in signing the protocol, presumably agrees with. I find that odd and rather disturbing.

David Ruffley (Conservative, Bury St Edmunds)

I am following my hon. Friend's argument closely. Is the logic of what he is saying that the European Commission will go into a corner with its computers and all its spreadsheets, do some number crunching, come up with some figures and proffer those to the Council of Ministers, which will be almost honour-bound and obliged to rubber stamp that number crunching?

Bill Cash (Conservative, Stone)

The answer is yes. That is one reason why many of us have grave reservations about the way in which this system functions. We all know, for example, when we arrive at the House on a Monday afternoon after the Prime Minister has been to a summit that the presidency conclusions, which miraculously appear at about 11 o'clock on a Monday morning with a statement in the afternoon have already been agreed and topped and tailed before we have even started the discussions. That is how the European Union functions; it is very peculiar.

Mark Hendrick (Labour/Co-operative, Preston)

The hon. Gentleman's argument is absurd. Can anyone imagine a situation, whereby after a referendum in, say, Poland, that resulted in a no vote, and after the Commission had considered it and

decided that Britain was entitled to more seats in the European Parliament, the Lord Chancellor would object to Britain being offered more seats? Is that what the hon. Gentleman is saying?

Bill Cash (Conservative, Stone)

If the arithmetic turned out in a way that was satisfactory to the United Kingdom—that is why I suggested that the Select Committees should examine the situation—ultimately one would have to say, ''That is the best result that we could get, but it has been considered by our Parliament, not merely put up by a mechanism that has predetermined the outcome.'' We would be able to consider the situation and arrive at a decent conclusion. After all, that is why we are here now. My underlying point, however, is that the Committee's proceedings are to some extent completely otiose. I suspect that the Minister's response to our amendments may be, in effect, ''I am terribly sorry. These are most interesting amendments, but thank God we have enough Members of Parliament on our side of the Committee to make sure that those chaps opposite will not be able to get anything through.'' I can see from the formidable array of Labour Members that, irrespective of any points that I make, Conservative Members do not have a cat in hell's chance of getting any amendments accepted. However, it is not a matter only of numbers, but of superior law, because such matters have been predetermined. That is part of my objection to the proposals, which is why I have dwelt on the mandatory nature of the Council decision and asked questions about the mechanism that will lie behind it when the system is adopted.

Amendment No. 20 deals with the same point in a more substantial fashion with regard to clause 4. Clause 4 comes very high in the pecking order of my objections to the proposals. In later amendments, I propose knocking out the Lord Chancellor and inserting the Secretary of State, but I shall enlarge on that at the appropriate time. My decision may have been further enhanced by some of the noble Lord's recent utterances about burglaries.

Frank Cook (Labour, Stockton North)

We can deal with that when we come to it.

Bill Cash (Conservative, Stone)

Indeed.

Amendment No. 20 would insert into clause 4 a similar provision for a corrective. It would be a corrective not only as described in the protocol in terms of numbers or the gravitational shifts of power that are implicit in the powers of co-decision and the way in which alliances can be built up—so that Germany ends up with more than others—but with regard to the democratic way in which we deal with the matter in our procedures in the House.

I have already made the point that the process starts with the European Commission. The explanatory notes state:

''The European Commission will inform the UK what their representation will be''.

I do not want to be curmudgeonly about this but, interestingly enough, and for reasons that completely escape me—I am sure that they do not escape the Minister—that point does not really relate to clause 4, which in my opinion is the more important provision,

but to clause 2 only. Under clause 4, the Lord Chancellor, taking orders from the Council and the European Commission—the Electoral Commission has only to be consulted, which we will come on to later—may make an order to

''give effect to a change under Community law in the number of MEPs to be elected for the United Kingdom by amending . . . section 1(1) of the 2002 Act''.

We shall later come to the use of the words,

''give effect to a change under Community law'',

so I shall not go into that at this stage, but I put a marker down that that is important in relation to the manner in which we expect orders to be made in this House or in the other place.

Clause 5 contains supplementary arrangements, again to be discussed later, which specify the manner in which the power to make those statutory instruments is to be exercised and the procedures that will be available; negative for some orders, but affirmative for the more important ones. Clause 5 uses—surprise, surprise—the words:

''If a motion for the approval of a draft order is rejected by either House or withdrawn by leave of the House''.

Do I hear myself correctly? Are these provisions not set in concrete? Yes, that is implicit in the procedural arrangements prescribed in clause 5. We have an acknowledgment that there is a democratic procedure to be followed, but not much opportunity for it to be followed through. We are all tied and bound not only by the Government's majority, which we must accept, but by the superior law that some of us do not find it so easy to accept. Some would reject that altogether as a mechanism in law that makes a mockery of such provisions as those in clause 4.

If the Lord Chancellor, in making an order, can have it rejected or withdrawn, I suppose that it follows that there is a concession of some description here. The superior law that I have described—the Council and the European Commission making decisions and informing the Lord Chancellor that he has to do something—could in fact be rejected under this Bill. The Minister has previously said to me that we will not be able to get the amendments through, which I understand. I have been grappling for many years with the problem of how to achieve a position in which we as a Parliament could reject a provision of Community law. Can she tell me how we would arrive at such a position under this order-making power?

David Ruffley (Conservative, Bury St Edmunds)

My hon. Friend continues to make trenchant and insightful points. Has he seen a provision of the kind that he has just described in other comparable legislation on Europe in this House?

Bill Cash (Conservative, Stone)

No. I should explain that much that is here is quite novel. To some extent, I am examining the parameters of the Bill and the order-making power not from the point of view of precedent or previous argument, but, in effect, from a new standpoint.

There is something slightly analogous in the provisions regarding the third pillar in the Anti-

terrorism, Crime and Security Act 2001. They contained a complete jump, without even reference to an order-making power, giving the Secretary of State the power to implement third-pillar decisions directly using secondary legislation. However, I do not want to develop that argument, because the analogy is not a particularly good one. First, that Act did not achieve its objectives in the same way that this Bill does. Secondly, its subject matter was terrorism and crime, which are incidents of law, rather than the essential democratic process.

This Bill is about not only questionable constitutional practice, as I would describe it, but constitutional law, namely, how many Members of the European Parliament there should be. Let us cut straight through to the bone: this is about people voting in ballot boxes about their futures. This Committee is examining how that process is to be authorised. For various reasons, many of which I have given, there is substantial doubt over the constitutional efficacy of how that is being authorised here.

The process is based on presumptions about the extent to which we have to accept laws that have already been decided and that have not been properly debated in this House. The Bill involves a hypothesis that certain things will happen in relation to referendums in other countries, over which we have no control. It involves the question of whether the Lord Chancellor will be acting in a manner consistent with normal constitutional practice. The Bill certainly seems to include a novel use of a power, so that deserves serious questioning, for a start. The later provision that uses the words

''give effect to a change under Community law''

raises extremely big questions about what those words really mean, and the Lord Chancellor's ambit in that regard, as I said on Second Reading.

I am not putting my points, I hope, for the benefit entirely of my hon. Friends, who are with me. I look to the perspicacity of the hon. Member for Somerton and Frome, which I have become used to. If we sometimes disagree, at other times we arrive at similar conclusions. I listen carefully to what he says and I hope that, sometimes, he listens to what I say.

To Government Members, I say that we all have an interest in this Bill. It is about not just party-political interests, but the number of MEPs that the whole United Kingdom can have. I want to re-emphasise that point. Although we will divide on party lines, I am bound to put it to Government Members that, in accepting these provisions, they are engaging in an exercise that is certainly unusual. As far as the public are concerned, it is totally unknown, on the principle that the best way to keep a secret is to make a speech in the House of Commons, and the best way to guarantee it is to make a speech in Committee. Therefore, it is extremely unlikely that anyone will hear about what is being discussed. If I were in their shoes, I would be concerned.

I doubt whether the broadsheets would give me space to examine some of the points. I put it to Government Members that there are important questions that must be considered. I look forward to

hearing the Minister's answers. She has no doubt received substantial advice, and there may be simple answers to my questions. I would be grateful if she gave me a reply. If she cannot do so now, I would be grateful if she responded to my points in writing at a future date.

David Heath (Liberal Democrat, Somerton and Frome)

We are now into the meat of the Bill. Let me preface my remarks by saying that I hope that there is common ground in the Committee. We must establish an appropriate mechanism for implementing the changes in the constitution of the European Parliament—constitution meaning make-up rather than rules of engagement—that will allow for enlargement to take place. We want enlargement to take place, which has been a common view in all parties for a long time. It is inevitable that institutional change will take place in order for that to happen.

We are examining whether the mechanisms in the Bill for implementing the changes in the size of the European Parliament will be effective and meet the requirement of sensible changes to our electoral system, and the proper desire for accountability and representation in this country. We must examine the way in which the Bill is constructed and the trigger points for the actions that the Lord Chancellor will accrue when the Bill receives Royal Assent.

I assure the hon. Member for Stone that I always listen carefully to him. Although we do not agree on several issues, he takes much time and great care in presenting his arguments. Often he hits upon important points. He is right to say that there are no clear trigger points for the mechanisms in the Bill to be set in motion. That is a curious omission. The Lord Chancellor decides, at his discretion, that there is a need to consult the Electoral Commission and asks it to come up with proposals for the distribution of seats for the European Parliament.

The Bill is silent about the point at which the proposed distribution comes into effect—when the Bill effectively comes into force. To find that out, as the hon. Member for Stone correctly said, one must look at the explanatory notes, where one finds a rather peremptory point in paragraph 14:

''The European Commission will inform the UK what their representation will be''.

I know how that must have made his hackles rise. It seems that the European Commission is taking upon itself powers that it might not have. If we look at the background to the explanatory notes and the treaty obligations, we see why it is phrased in that way. I am pleased that I brought along a copy of the Nice treaty. I thought it might be useful source material for this discussion. I did not bring a copy of the Amsterdam treaty, so we cannot have a prolonged discussion about the figure of 700 in article 189 of that treaty, but we know that that was the genesis of the proposal.

I share the hon. Gentleman's disappointment that the process of negotiation between Amsterdam and Nice did not reach the figure of 700, which was a sensible cap. I know some of the arguments adduced in favour of smaller countries to ensure that they have minimal representation, but it was a typical Euro

fudge. The figure could not be reached, so a new figure of 732 was introduced as a compromise.

I have listened carefully to the hon. Gentleman and believe that he is trying in the amendments to provide a sort of trip-wire, so that the system ratchets back a few slots if some applicant countries, particularly some of the larger ones, that we expect to accede shortly do not do so because of their referendum decisions or for any other reason. There may be other reasons why they do not reach the point of signing the treaty of accession.

There are two possible reasons for having such a mechanism in the Bill. One is to prevent the Lord Chancellor or any other Minister from taking it upon themselves unilaterally to reduce British representation in the European Parliament. It is hard to find a reason why a Minister, even the Lord Chancellor, would do that, but I understand the point that it would be possible, without any change enforced by the European Union.

Mark Hendrick (Labour/Co-operative, Preston)

It is clear from the treaty before the hon. Gentleman that it is based on all countries successfully acceding in 2004, so the number of seats allocated to the United Kingdom is a minimum. If the Lord Chancellor becomes involved at any stage in having to change that number, it will be due to a failure of one or more referendums in other countries, so there will be an increase. The point that the hon. Gentleman and the hon. Member for Stone are making is superfluous because we would not lose seats. We would gain seats.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is not right. If he cares to read the Bill, he will see that it is possible for the Lord Chancellor to trigger the change on any basis that comes into his head as is his want. I do not believe that he would do that and it would be nonsense for the British Government to decide unilaterally to reduce the number of British places in the European Parliament.

Mark Hendrick (Labour/Co-operative, Preston)

Exactly.

David Heath (Liberal Democrat, Somerton and Frome)

We are discussing the Bill before us, not a Bill that the hon. Gentleman and I would like. Our job in Committee is to examine the words in the Bill.

Bill Cash (Conservative, Stone)

To anticipate a future argument, the words ''change under Community law'' do not confine the argument to the Nice treaty, let alone any other treaty.

David Heath (Liberal Democrat, Somerton and Frome)

That is absolutely right and I was about to come to that point.

The first reason for having a failsafe mechanism is in case of such an action by the Lord Chancellor, which, as I said, I discount as a probability, but must accept as a possibility.

The second reason is that some hon. Members do not accept the terms of the Nice treaty and what our Government agreed to in that treaty, so they are not prepared to accept the automaticity in protocol A and declaration 20 on the enlargement of the European Union, which sets out the number of European Parliament seats for each member country. That was a proper argument at the point of ratification of the treaty. I have a long-standing argument that the

procedures of this place do not allow the opportunity properly to debate treaty ratification other than in areas that directly change British law. Obviously, we have the right to debate Bills that bring British law into accordance with our treaty obligations, but we do not have the right to debate areas that are dealt with under Royal Prerogative by the Government. That is wrong and makes the House appear absurd because important issues are not debated. However, that has been the situation for many years and, sadly, I fear that it will continue to be the situation for some time to come.

Bill Cash (Conservative, Stone)

I share the hon. Gentleman's concern. As I understand it, the Joint Committee on Human Rights has been considering the matter. I do not know whether the hon. Gentleman is on the Committee, but I know from a colleague who is that the issue has been raised as a serious point. We need to pursue the matter in the House from the point of view of the interests of the House as a whole.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the hon. Gentleman's support. I have raised the issue intermittently during my time at the House and I intend to raise it again because it is important. In relation to matters of life and death or constitutional importance, the House should have the power of debate and agreement and the ability to withhold consent if the Government act without that agreement. I am sure that any further exploration of that issue would fall outside the ambit of the amendments.

As the hon. Member for Stone has said, protocol A and article 2 set out a clear mechanism for what happens to the number of representatives if all the applicant states join and what happens if they do not and the total falls short of 732: namely, a pro rata correction on the part of each state. I would not need the European Commission's computer system to work out that calculation; I could probably do it on a pocket calculator or even longhand, if pushed. It is not particularly difficult. My point is that there is an automaticity about it. The figure will be clear according to the number of states that join. There will also be a trigger point within the protocol: it will be the number of states that are members of the European Union as a result of having signed accession treaties by 1 January 2004.

Given that we have an agreement that we cannot change because the Government have entered into a treaty obligation that we as a House had no part in determining, I understand why it could be argued that the provisions of amendments Nos. 11 and 12 are unnecessary. They could not have any real effect on what happens to the total membership of the European Parliament as far as the United Kingdom is concerned. They would have only a deleterious effect; they would prevent the proper distribution of the seats allocated by the process to which the Government have agreed and consequently the UK might have an improper representation or fail to meet its representation in time for the elections.

Although I accept that the Bill is unclear in relation to providing the triggers for implementation and even for the initial consultation on the part of the Lord Chancellor, I am not sure that the mechanism in amendments Nos. 11 and 12 is the right way of addressing that.

Bill Cash (Conservative, Stone)

The hon. Gentleman makes his usual interesting remarks, but he will understand that I am considering the matter not just from the point of view of what is set out, but from the point of view of what is being done to seek, on the face of it, to acquire so-called parliamentary approval. I am concerned because it is misleading—I do not like to use the word deceitful—to pretend that we can do something that we cannot do and then to invoke a superior law, which is debatable as a matter of jurisprudence, if not in political reality. I am sure that the hon. Gentleman will understand that I am concerned that the clause will minimise the value of our democratic procedures. As I said on Second Reading, the clauses are rather like Wolsey's revenge. We used to have the Henry VIII clause, which amends Acts. Now the Lord Chancellor, who has sometimes apparently likened himself to Lord Wolsey—whether that is apocryphal I do not know—has taken to himself superficial powers without substance, because he is being directed to such extent by the Commission.

David Heath (Liberal Democrat, Somerton and Frome)

I take the hon. Gentleman's point seriously, although in this instance the Lord Chancellor's Department—to get away from the Lord Chancellor's personality—is a means to an end rather than the end itself. He is right that the European Parliamentary Elections Act, which was a Bill last year, could have provided a mechanism for the proper parliamentary approval of changes. I accept that it is a consolidation Act, but it specifies the number of MEPs to be elected and it consolidates the Elections Acts of 1978, 1993 and 1999. The way in which British people are elected should be a matter for primary rather than secondary legislation, and that is not what the Bill provides.

The hon. Gentleman is also right to say that the Bill enables almost any future European law—that very vague term—to be used as a basis for further changes, without the House having the opportunity to discuss it as primary legislation. I share his view that that is unwise.

I am unhappier about new clause 2. The hon. Gentleman did not spend much time on it, but it effectively means that, should any state not agree a treaty of accession by 1 January 2004, the whole mechanism for representation of the United Kingdom in the European Parliament will fall apart. That does not seem a sensible option and it may not be what he intended when he drafted the new clause—or it may be what he intended. Either way, it is not a sensible way to proceed. I want to ensure that we consider these matters properly in this sovereign Parliament and that we can meet as quickly as possible the requirements for the applicant countries to accede. I have serious concerns about the way in which the Bill is put together, but new clause 2 is not a sufficient remedy for the deficiencies that I have pointed out.

Bill Cash (Conservative, Stone)

Before the hon. Gentleman sits down, I should say that I did not enlarge on new clause 2 because I thought, on reflection, that I could deal with the arguments that I wanted to deal with. I simply tabled it as an atomic bomb provision, but one that I did not intend to trigger.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for that explanation. I am not greatly in favour of atomic bombs at any time, but sitting on top of them while letting them off seems to me an inappropriate and unwise action. With that, I look forward to the Minister's reply.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I also want to speak to new clause 2. It is a pleasure to address for the first time the efforts of the hon. Member for Stone, as he is my parliamentary neighbour. I know that he is a practising solicitor, so I hope that the absence of parliamentary counsel has not meant that all the hard drafting has spoilt his Christmas and new year too much.

Many Government Members regret that the hon. Gentleman has not been given his head on his pet subject but has instead been bogged down by such riveting matters as leasehold reform. However, now that we are dealing with his pet subject, I commend him for the remarkable restraint that he has shown in his amendments. That restraint is doubly underlined by the presence of the hon. Member for Romford (Mr. Rosindell) on the Committee. I flicked through the amendments to see whether he had attempted to introduce Europe to hitherto unknown electoral regions such as Wessex, Mercia, Northumbria and the Danelaw.

I understand but do not agree with what the hon. Member for Stone is trying to do in amendments Nos. 11, 12 and 20. I assume that he is still an hon. Member; if he is a right hon. Member, perhaps he will inform us.

Bill Cash (Conservative, Stone)

No, there is no prospect of that.

Paul Farrelly (Labour, Newcastle-under-Lyme)

The hon. Member for Somerton and Frome, who obviously has read the Nice treaty, has addressed many of the issues raised by the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has not pronounced ''Frome'' correctly.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I apologise.

My hon. next-door neighbour did not address new clause 2. I am surprised at his enterprise in putting down this atomic bomb. The Bill should be relatively uncontroversial, given that his party is not opposed to enlargement of the European Union—at least, that is my understanding.

New clause 2 proposes that if any country, no matter how small—the hon. Gentleman used Lithuania as an example—fails to accede, the flexibility of the United Kingdom and, by analogy, of all member states would simply disappear. The veto of the smallest applicant would prevent any attempts by a nation such as ours to provide flexibility for future enlargement.

Therefore, I would be less generous than the hon. Member for Somerton and Frome about the

mechanism proposed by the hon. Member for Stone, whose views on Europe are very well known. It should not surprise us that he has introduced such an amendment. It is a wrecking amendment. It will wreck national parliamentary flexibility across the European Union and then may very well wreck enlargement as a whole. I would be very grateful if the hon. Member for Stone commented on that.

Yvette Cooper (Labour, Pontefract and Castleford)

It is a pleasure to see you in the Chair, Dr. Kumar.

Some of the points raised by the hon. Member for Stone would be best dealt with in what I expect will be extensive debates on clauses 4 and 5, which deal with wider issues around what happens when a draft order is rejected and withdrawn. With the leave of the Committee, I shall return to those issues when we debate them later and concentrate only on the effect of the amendments.

Like the hon. Member for Somerton and Frome—I hope that I shall have many opportunities during our sittings to practice the pronunciation of his constituency—I have my copy of the Nice treaty, as I anticipated that we would discuss its wording in detail. The hon. Member for Stone was right to point to the protocol, which underpins much of what is in the Bill. Although I recognise the purpose behind the hon. Gentleman's amendments, they go against the principles of the Nice treaty, including those set out in the protocol, which has already been ratified by Parliament. Therefore, the amendments would be contrary to European Community law. They are also unnecessary and would create considerable practical difficulties.

Bill Cash (Conservative, Stone)

First, the Conservative party voted against the Nice treaty and, secondly, among my 240 amendments on the treaty, I called for a White Paper on the constitutional implications that flowed from it. I am glad to say that the hon. Member for Somerton and Frome's party supported my amendment through its foreign affairs spokesman. Although there was a three-line Conservative Whip, many hon. Members sensibly and graciously went through the Lobby in support of my amendment. The Minister will sense that there is a comity of understanding about the democratic basis on which the exercise is being conducted. Had we had a White Paper, the issues would have been properly explained. They have not been explained until now, which is why we have raised them.

Yvette Cooper (Labour, Pontefract and Castleford)

I know that the Conservative party opposes many of those ideas and I understand both its position on many European issues and the hon. Gentleman's personal views. Returning to the point raised by my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly), I understand that the Conservative party supports enlargement.

Bill Cash (Conservative, Stone)

And so do I.

Yvette Cooper (Labour, Pontefract and Castleford)

The principles are relatively straightforward. If one wants fair representation for the accession states in the European Parliament and

the European institutions, one has only two alternatives. One can either indefinitely expand the size of the European Parliament or reduce the number of seats held by the existing member states, in which case there must be a mechanism for doing so. The treaty of Nice sets out such a mechanism in extensive detail, which includes the bottom line on the numbers that will ultimately be reached. It entailed extensive discussion and has been ratified by Parliament.

The hon. Member for Stone may disagree with the particular numbers. He may disagree with the principle because he thinks that the European Parliament should grow ever bigger. However, the process was fair. It is sensible to accept the principle that the size of the UK's representation in the European Parliament should reduce in line with other states as set out in the treaty of Nice. The Bill is straightforward because it is about implementing that principle.

Bill Cash (Conservative, Stone)

I understand where the Minister is coming from and I did not expect her to say anything else. The question of whether one wants enlargement is also a question for those states that propose to accede. We know that there is deep concern and that certain states may decide to vote no. The question of whether one is in favour of enlargement is not exclusive to those of us in the United Kingdom who have reservations about, for example, the various treaties from Maastricht onwards or the proposed constitution. If the states that are proposing to accede have doubts about the manner in which they are being forced into enlargement—many among their populations believe that to be the case—it is more than desirable that we should make the same kind of point.

When I say that I am in favour of enlargement, I do so against the background that it may well be necessary to renegotiate those treaties. The Minister will know that I have long taken the view, which I still hold, that renegotiation of the treaties will be required. I should like to see enlargement on a temporary basis until those of us who see the damaging direction in which the European Union is going have an opportunity to make the appropriate adjustments from within by renegotiating the treaty.

Frank Cook (Labour, Stockton North)

Order. I am rather confused.

Bill Cash (Conservative, Stone)

That was a long intervention.

Frank Cook (Labour, Stockton North)

It was an exceedingly long intervention. Try to be more succinct in future.

Yvette Cooper (Labour, Pontefract and Castleford)

Hon. Members will understand from the hon. Member for Stone's intervention why he was so enthusiastic when electoral matters, including European parliamentary issues, were transferred to the Lord Chancellor's Department, which gave him the opportunity to raise many broad issues, including his long-held view that the entire Maastricht treaty should be renegotiated or that we should opt out if it could not be.

Tony Cunningham (Labour, Workington)

Is not one of the great ironies that we are all saying that we agree with enlargement, yet the driving force behind enlargement was the European Parliament? The European Parliament decided to take forward enlargement, and to ensure that it was concluded by the end of 2003, to enable member states to take their places in the European Parliament. The two things go together.

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend is right. The European Parliament played a central role in the process, and it is right that it should itself reflect the gains and the benefits of having so many other states join the European Union.

The hon. Member for Stone expressed concern that there was no process or mechanism for adjusting the numbers of MEPs depending on the number of states that accede. That is incorrect. The treaty of Nice, to which Parliament agreed, and which now forms part of UK and Community law, sets out the final numbers of MEPs for each member state, whether existing or acceding. It also provides a mechanism for pro rata reductions as a transitional measure should not all accession states sign an accession treaty by 2004.

Bill Cash (Conservative, Stone)

I said that.

Frank Cook (Labour, Stockton North)

Order.

Yvette Cooper (Labour, Pontefract and Castleford)

Those reductions will be agreed by member states and adopted by a decision of the Council of Europe.

By ratifying the treaty, Parliament has already agreed to the mechanism and to the principle behind it. The protocols of the treaty set out the mechanism for handling the process and the problems the hon. Gentleman describes. It is for member states to agree and to come to a decision in the Council on a pro rata basis. The treaty of Nice is pretty prescriptive. It sets out the bottom line—the number we will have to end up with—but also states that the transition towards it must be done on a pro rata basis. Ultimately, if it was not done on a pro rata basis someone could take the decision to the European Court of Justice as a breach of the treaty.

The hon. Gentleman suggested, mischievously I think, that the explanatory notes say that this is being done under instruction from the European Commission. In retrospect, the notes use slightly unfortunate wording. However, as the hon. Gentleman is well aware, because he has read it, that is not what the treaty of Nice says. The treaty clearly states that the decision will be taken by member states in the Council on a pro rata basis, but with the lower limit that it sets out and as ratified by the UK Parliament. It is factually correct that the European Commission will inform the UK of the Council's decision, although of course we should be expected already to know it, having been party to Council decisions.

Bill Cash (Conservative, Stone)

The Minister may be about to answer my question, which concerned whether, under the mechanism to be adopted, the decision will be unanimous or by a majority vote. Will she also be good enough to explain why the fact that all this is

subject to accession states agreeing to it through an affirmative vote in a referendum is not specified?

Yvette Cooper (Labour, Pontefract and Castleford)

As I understand it, the Council decision under the treaty of Nice is a majority decision, but it has to be taken on a pro rata basis. Frankly, there is limited freedom to manoeuvre. It is effectively a mathematical exercise because the treaty sets out the bottom line and the fact that the decision must be taken on a pro rata basis.

Bill Cash (Conservative, Stone)

In other words, it is based on a presumption.

Yvette Cooper (Labour, Pontefract and Castleford)

It is based on the fact that it needs to be a pro rata reduction.

Bill Cash (Conservative, Stone)

I am sorry—

Yvette Cooper (Labour, Pontefract and Castleford)

If I may continue, I may be about to answer the hon. Gentleman's question. He is concerned about what happens if an accession state fails to ratify. That is a legitimate question. The treaty of accession, which is being drawn up at the moment, will provide for certain adjustments to be made if an accession state such as Poland fails to ratify. That will be put to the United Kingdom Parliament for ratification. The details of accession and what happens if states fail to accede, having initially passed the test, or decide that they want to accede and then fail to ratify, will be addressed as part of the accession treaty.

David Heath (Liberal Democrat, Somerton and Frome)

That was an interesting and important comment. Is the Minister saying that a new European Communities Bill will be brought before the House to give it the opportunity to ratify the accession process subsequent to the accession treaties being signed on 1 January 2004, or whenever that occurs, and that the whole House will have the opportunity to discuss the matter in detail as part of the ratification process?

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman will be aware that that is a matter for the Foreign and Commonwealth Office, so I shall explain my understanding of the position and will respond further if it is not entirely accurate. The accession treaty is intended to be signed in April 2003, although he will be aware that it is part of negotiations and discussions throughout Europe, so we cannot be certain about the precise timetable. There will be a ratification process for this country as well as accession states and that will take place as part of normal procedures.

David Heath (Liberal Democrat, Somerton and Frome)

Obviously, there will be ratification of the treaty. The question is whether that comprises a change in British law, which would mean that a Bill was brought before the Committee. It is by no means clear that that is the case. My interpretation of what the Minister said is that a new European Communities Bill will be brought before the House to ratify the treaty, which will make changes to British law, although I am not clear what those changes will be. Is that the Minister's understanding? If it is not, will she ensure that I am told that at some stage?

Yvette Cooper (Labour, Pontefract and Castleford)

That is my understanding of the position: there will be a further opportunity for the House to debate the details of the accession of the applicant states and the process that will take place.

The issue of a country failing to ratify will need to be addressed as part of that process.

Bill Cash (Conservative, Stone)

The Minister raises an interesting point. It is arguable that the order-making power should have been brought in when all that had been settled—that lies at the heart of my amendments—because there are uncertainties in the hypotheses, as I mentioned. If there is a treaty dealing with the mechanisms, as she accurately said, instead of going for anticipated changes and permutations, it would have been better to deal with the whole matter when the accession took place. Furthermore, the Minister said that the decision would be taken by majority vote, but I have still not received an answer to my question about the extent to which, if it is a majority vote, they are still bound to do so.

Yvette Cooper (Labour, Pontefract and Castleford)

I did not understand the last part of the hon. Gentleman's question.

Bill Cash (Conservative, Stone)

Despite the fact that there is a majority vote, there is still an obligation to give effect to a decision. That is set out in the protocol, which states:

''The Council shall adopt a decision to that effect.''

If the decision is made by majority vote, why should it be arrived at in any event? Surely it is dependent on whether there is a majority.

Yvette Cooper (Labour, Pontefract and Castleford)

The treaty requires the Council to make a decision of some sort. It may take a while to reach that decision or it may reach it quickly, but it will have to reach that decision on a majority basis—

Bill Cash (Conservative, Stone)

To that effect.

Yvette Cooper (Labour, Pontefract and Castleford)

Yes, to that effect.

The treaty of Nice prescribes in some detail how that decision will be taken: it will be done on a pro rata basis. Therefore, the scope to manoeuvre is limited. That is another reason why it would be wrong to delay the process until after the accession treaty: the issues at stake here for the European Parliament—the ultimate number and the pro rata principle of reduction to achieve that—are already set out in the treaty of Nice. Therefore, we must implement the provisions in the treaty that have already been ratified by Parliament.

I want to deal in a little detail with the effects of the amendments. First, they raise a series of practical problems. They ask us to delay the introduction of any order, or even consideration by the Electoral Commission, until the referendums have taken place. That would create immense problems for the European parliamentary elections. If the Electoral Commission could not even consider the distribution of seats and we could not reduce the number of seats in line with the treaty's recommendations and decisions, which we have already ratified, until the referendums had been held, we could not implement the treaty of Nice in time for the 2004 elections. We would not, therefore, comply with Community law and we would be sending to the European Parliament considerably more MEPs than it has space for. One can imagine people rushing to be first to get their seat. The London MEPs would have an advantage, because they can get to the airport more quickly.

Mark Hendrick (Labour/Co-operative, Preston)

Does my hon. Friend the Minister agree that if the process were delayed, as the hon. Member for Stone suggests, the Gibraltar representative would not be able to take their seat because the process had not been completed? That would fly in the face of the Conservative Party's policy of ensuring that Gibraltar was adequately represented.

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend is right. It would also be a question of how long it takes to get from Gibraltar to Brussels.

The amendments try to provide an alternative way of deciding how many seats the UK should have that is contrary to the process set out in the treaty of Nice, which we have ratified. We cannot do that unilaterally. We agree the number of seats in the European Parliament following discussions across Europe. That is then set out in a treaty that we ratify and sign up to.

I recognise that the hon. Member for Stone is concerned about the timing and what would happen if Parliament or another country did not ratify the accession treaty. As I have said, what should happen to surplus MEP seats can be decided as part of the treaty, although one possibility would be simply to keep the present number and for a country not to take up its allocation. That would reduce the number of seats, which would help to allay Opposition Members' concerns about the figure of 732. However, that is a matter for discussions in the run-up to the accession treaty.

Paragraph (b) of amendment No. 11 relates to parliamentary scrutiny. Parliament has already ratified the treaty. The European Scrutiny Committee will clearly have to consider the Council's decision on the transition numbers. The order will go through the affirmative procedure, so it will be debated in both Houses.

Amendment No. 12 would mean that the Electoral Commission could not even begin work on the distribution until the referendums were completed. New clause 2, as my hon. Friend the Member for Newcastle-under-Lyme and the hon. Member for Somerton and Frome have said, would mean that if any of the states failed to ratify, the whole thing would explode and no adjustments could be made, which would not be sensible.

The hon. Member for Somerton and Frome said that there were no clear trigger points. I recognise that he was opposing the amendments tabled by the hon. Member for Stone. I understood him to be expressing concern that the Lord Chancellor would be able to decide when to consult the Electoral Commission.

David Heath (Liberal Democrat, Somerton and Frome)

I do not have a particular concern about the point at which the Lord Chancellor chooses to consult the Electoral Commission. That is a matter of process. I have more concern about the point at which the changes in the total number of MEPs to be elected from the UK come into force under clause 4. What the Minister has told us in the past few minutes suggests that that point should be subsequent to the ratification of a treaty of accession. Perhaps she would be kind enough to confirm that that would be the case.

Yvette Cooper (Labour, Pontefract and Castleford)

I am not entirely clear about what the hon. Gentleman is asking. Perhaps we could discuss it when we get to clause 4.

The implementation of the order has to be in line with the treaty of Nice and the international obligations that we have. I was glad that the hon. Gentleman clarified his point about the timing of the consultation of the Electoral Commission because it did not seem to be a big deal to specify that in the Bill. He seemed to be concerned that the Lord Chancellor might unilaterally reduce the number of MEPs, or that he might at least be given the power to do so. However, that would also be contrary to the treaty of Nice. It would be against Community law for the Lord Chancellor to decide that we were going to have fewer MEPs than is set out in the treaty of Nice or the Council decision. For the Lord Chancellor to make such a choice would be against the treaty and against the international obligations and law that we have signed up to.

David Heath (Liberal Democrat, Somerton and Frome)

I shall not intervene again. I just want to say that it is a completely absurd hypothesis that the Lord Chancellor would take such action, but he could do so under the Bill and there would be empty seats in the European Parliament. An empty seat policy has not been unknown in British relationships with the European Union in the past.

Yvette Cooper (Labour, Pontefract and Castleford)

I reassure the hon. Gentleman that the Lord Chancellor has no such intention. We take seriously our international obligations and the agreement that we have made and negotiated as part of the treaty of Nice to maintain the places of our MEPs. The amendments are unnecessary. The point behind them is to consider the impact of states not ratifying the treaty. To the extent that they are delaying tactics that would make it impossible for us to implement the treaty of Nice—effectively, a back-door way of sabotaging the treaty, to which I understand that Opposition Members were opposed—they should be rejected by the Committee. The amendments would make it impossible for us to send the right number of MEPs to the European Parliament in 2004, and they should be rejected.

Bill Cash (Conservative, Stone)

We have had a wide-ranging debate, and several useful and important points of principle and detail have emerged. I have not had much in the way of answers to some questions. With respect to the question of a referendum, my party said that we should have a referendum on the Nice treaty. We have a vested interest in ensuring that referendums are held in relation to the provisions. It could well be that if there were a referendum in the UK on that question, we would get a no answer. I am pretty confident that that would be the case.

The principle that lies behind my approach is consistent with what we would hope to see elsewhere in the EU. That does not prejudice the fact that we want enlargement. In 1990, when Lady Thatcher was Prime Minister, I wrote a pamphlet—it was one of the first pamphlets on modern European issues—that advocated a policy of unity in Europe, but was against federalism. That is possible to achieve.

What worries me about the Bill is that a lot of arrangements will be put in place based on hypotheses. The Minister made it abundantly clear in her reply that we do not have any options. Everything has already been prescribed and laid down in the—

Frank Cook (Labour, Stockton North)

Order. The House requires all right hon. and hon. Members to address their remarks through the Chair and not to perambulate. I must tell the hon. Gentleman that he tends to infringe both requirements and I ask him to amend that immediately.

Bill Cash (Conservative, Stone)

I should be only too happy to do so. My perambulations so far have not gone much further than the corner of the chair, but I am happy to keep at least one leg in line with the legs of the chair.

The important point about the amendments is that they seek to identify the extent to which there is a mismatch in relation to the reality of the position that the Minister advanced. In effect, she said, ''You've got no option, so you've just jolly well got to accept it.'' That relates not so much to numbers in the event of there being a Division, but to the fact that the law has already been prescribed. Over and over again, the Minister has made the point that we have no option. It is a curious situation. In rather a grandiose fashion, the Lord Chancellor has all the mechanisms for making powers and the accompanying paraphernalia, but when we puncture the balloon there is nothing there because we have to do it anyway. It has all been prescribed and laid down in the treaty. That raises some serious questions about the extent to which the whole procedure enables us to make amendments. The Minister has made it clear that she will not accept the amendments, but, much more seriously, even if she were minded to accept them she would not be able to do so.

I conclude with a point about how many Members could actually turn up and whether an increase would mean that the European Parliament was overflowing. It would not do the European Parliament any harm to note that we in the Westminster Parliament do not have sufficient seats to allow everybody to sit down at once.

Amendment negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 4.

Clause 2 - Recommendation by Electoral Commission relating to changes in number of

Bill Cash (Conservative, Stone)

I beg to move amendment No. 13, in

clause 2, page 2, line 16, leave out 'Lord Chancellor' and insert 'Secretary of State'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 18, in

clause 2, page 2, line 34, leave out 'Lord Chancellor' and insert 'Secretary of State'.

Amendment No. 21, in

clause 4, page 3, line 20, leave out 'Lord Chancellor', and insert 'Secretary of State'.

Amendment No. 25, in

clause 4, page 3, line 34, leave out 'Lord Chancellor' and insert 'Secretary of State'.

Amendment No. 9, in

clause 23, page 11, line 31, after 'Act', insert 'shall be exercised by a Minister in the Lord Chancellor's Department who is a Member of the House of Commons, and who is designated for that purpose, and'.

Clause 23 stand part.

Amendment No. 36, in

clause 25, page 12, line 6, leave out 'Lord Chancellor' and insert 'Secretary of State'.

Amendment No. 37, in

clause 25, page 12, line 8, leave out 'Lord Chancellor' and insert 'Secretary of State'.

Bill Cash (Conservative, Stone)

All the amendments have one feature in common, which is that they would substitute references throughout the Bill to the Lord Chancellor with references to the Secretary of State. I am well aware that amendments have been made under the Transfer of Functions (Transport, Local Government and the Regions) Order 2002. However, it is important to remember that the provisions of clause 23 state that the functions should be exercised concurrently with the Secretary of State and that the schedule to the Bill, which is referred to in clause 6 in terms of the periodic reviews of distribution of MEPs, refers exclusively to the Secretary of State and not to the Lord Chancellor.

The purpose of the amendments is to point out that the Home Office historically has been responsible for activities to do with parliamentary elections—which are of vital importance to our democratic process—the procedures to be followed and all the paraphernalia that goes with them. I am not trying to do myself out of a job. None the less, considering the matter objectively, I am bound to ask why it is thought appropriate that the Lord Chancellor should take on the role rather than the Secretary of State, leaving aside the order, which I understand perfectly well.

I am not sure that I am in a position to answer that question. It is not to do with the individual who holds the office for a time but whether the Lord Chancellor's

Department has a base of knowledge and experience that is adequate to deal with such matters.

Individuals will transfer from one Department to another. We had that with the Department for Environment, Food and Rural Affairs the other day. It may be that, to some extent, the transitions are seamless and do not matter from the point of view of those administering the laws behind the scenes. Last night, I watched ''Yes, Minister'' on UK Gold, and had a good laugh. I wondered what Sir Humphrey would have to say were he looking at this Bill from the Home Office's point of view.

I have no doubt that such transfers have been amicable, but they raise various questions. I cannot identify why it is thought that the Lord Chancellor, an unelected member of the Government who is responsible for the judicial process and the administration of the courts, should be given such an exclusive right—or, rather, a pre-eminent right, as it is concurrent with a Secretary of State's—to determine matters that relate to elected representatives returned to, in this case, the European Parliament as well as matters that relate to other aspects of his remit, such as the Electoral Commission, local government and the Political Parties, Elections and Referendums Act 2000.

I am not sure whether there has ever been a debate on the Lord Chancellor's new accretion of powers, nor any explanation of that ever given. No one has ever seen fit to ask the question that I am now asking. I hope that the Minister will not just give me a flip answer, saying, ''Oh well, it's just tough. Those powers are in the Bill and you're going to have to put up with it''. I would like to know the rationale behind that. Are there any papers? Can I use the Freedom of Information Act 2000 or any other mechanism to discover that rationale?

In particular, I should like to ask whether it is appropriate that the Lord Chancellor should have all the powers in the Bill. If I think that he should not have such powers over parliamentary matters, as I clearly do, it is incumbent on the Minister to explain why she thinks that he should, without only repeating that they are in the Transfer of Functions (Transport, Local Government and the Regions) Order 2002 and that that is it.

David Ruffley (Conservative, Bury St Edmunds)

Is my hon. Friend's question connected at all with the speculation among high members of the judiciary that the Lord Chancellor should not, in fact, be simultaneously in charge of a large Government Department and head of the United Kingdom judiciary? There is much discussion along the lines that those functions should be separated.

Bill Cash (Conservative, Stone)

I am not absolutely sure, but my hon. Friend's ingenuity is such that I should not be at all surprised to discover that there was some connection there.

Frank Cook (Labour, Stockton North)

Order. The hon. Gentleman's ingenuity is very interesting, but it has very little relevance to the amendments under discussion. Please pursue the task.

Bill Cash (Conservative, Stone)

Indeed. I entirely accept that point.

Another issue is the extent to which the Lord Chancellor, in his historic role as the keeper of the nation's conscience, is in fact an appropriate person to undertake such electoral matters. As I said, I am at a loss to know why it is thought that the Lord Chancellor and his Department are appropriate to deal with them. I am concerned that these matters relate to election and to the House of Lords, which—despite what I said on the ''Today'' programme this morning—is as yet, unfortunately, not elected. I hope that it will be; in which case, no doubt, the Lord Chancellor will be able to justify his order-making powers over electoral matters. It is very odd that an unelected Member of the other House should have those powers, and I should be interested to hear in detail why the Minister thinks that that is justified.

David Heath (Liberal Democrat, Somerton and Frome)

I support the hon. Gentleman's basic contention. We are clearly on the radical side of the Committee in pointing out that the Lord Chancellor holds an unelected position. His position as head of the judiciary is relevant in this context. The advice that is given to him by the Electoral Commission is justiciable and subject to judicial review, and he is the nominal head of that system. I have a big problem in answering the question, ''Why is it the Lord Chancellor?'' I and my party believe that there should be a ministry of justice and that the person filling the position of Secretary of State in that Department should come from the elected House of Commons, not the unelected House of Lords.

In the context of the Bill, the Lord Chancellor, in his combined role as a member of the Executive, a member of the legislature and head of the judiciary, is responsible for matters that are quintessentially political; namely, the determination of electoral arrangements. Many hon. Members have difficulties with that proposition. That is why I tabled amendment No. 9, which, rather than give the power to the Secretary of State, would elevate the Minister's position to give her the responsibility as a representative of the Lord Chancellor's Department in the elected House. That is an appropriate way of dealing with what would be otherwise an intractable problem. The Minister's name is on the back of the Bill as the Member presenting it to the House of Commons, so what could be more natural than that she should have responsibility for implementing the changes that are inherent in it?

The alternative proposed in the amendment tabled by the hon. Member for Stone is to replace the term ''Lord Chancellor'', wherever it appears, with ''Secretary of State''. I decided that that was a little cumbersome, but I admire his perseverance in identifying where it would apply. It does, however, prompt the question of which Secretary of State would be given the responsibility.

Bill Cash (Conservative, Stone)

I do not want to get into the entrails of constitutional law, but the position of Secretary of State is an indivisible function. Which one would be responsible is a matter for the Prime Minister, but it would almost certainly be the Home Secretary.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely understand that, and ''Secretary of State'' is the proper term to use in the amendment. However, it remains unclear which Secretary of State it would be.

As the group that we are debating includes the clause 23 stand part debate, will the Minister clarify which Secretaries of State are implicit in the joint responsibilities of the Lord Chancellor and the Secretary of State that the clause mentions? That is difficult to understand in this context.

The basic point is that this is a matter of electoral law. The Prime Minister can of course dispose responsibilities among his ministerial team as he sees fit, and the responsibility for these matters has been given to the Lord Chancellor. That does not alter the view, which some of us hold strongly, that it is inappropriate that the Lord Chancellor—as an individual post-holder, a non-elected member of the House of Lords and the head of the judiciary—should hold this power. It should be a matter for the elected House. I agree with the hon. Member for Stone that the sooner we have an opportunity to reform the upper House to make it entirely elected, the better. Ideally, any ministerial responsibilities should be taken away to make it absolutely clear where responsibility and accountability lie. The current position is very odd, and I find it increasingly difficult to justify our residual constitution when I talk to anyone else anywhere else in the world about democracy.

David Ruffley (Conservative, Bury St Edmunds)

I rise to support the amendments tabled by my hon. Friend the Member for Stone for two reasons. First, for the reasons adduced by him and the hon. Member for Somerton and Frome, it is clearly correct that an elected Member of the House of Commons should exercise that power. Secondly, as I said earlier, a serious body of commentary and analysis is being conducted by high-ranking members of the judiciary, including most recently Lord Bingham, who, like many modernisers, believes that it is inappropriate and wrong for the head of the United Kingdom judiciary also to hold a position in the Executive and the legislature.

David Heath (Liberal Democrat, Somerton and Frome)

There is an argument that it is unlawful under the convention for the same person to hold those different roles.

David Ruffley (Conservative, Bury St Edmunds)

The hon. Gentleman cannot tempt me down the path of interpreting the European convention on human rights. High-ranking members of the judiciary take the view that the functions should be separated, which is germane to the amendments because it will cause confusion if, at some later date, the Lord Chancellor, who is referred to in the Bill, is head of the UK judiciary but not a Minister with responsibility for the upper House in the Lord Chancellor's Department. The time may not be long in coming when the judicial function and the ministerial role of the Lord Chancellor will be separated. It is therefore prescient of my hon. Friend the Member for Stone to draft an amendment to cover that possible eventuality and to ensure that the powers of Ministers in vital areas such as electoral law are

exercised not by appointed Members in the House of Lords but by elected Members of this House.

Yvette Cooper (Labour, Pontefract and Castleford)

The issues raised by the amendments run very wide. I assume that the point of the hon. Member for Stone's amendments—I shall come to the hon. Member for Somerton and Frome's amendments in a moment—is that responsibility for election issues should be transferred out of the Lord Chancellor's Department. It would clearly be ridiculous to argue that the Lord Chancellor's Department should retain its current responsibilities for electoral matters, but that various details should be transferred to another Secretary of State, for whom it would be hugely inconvenient and irritating because the majority of the work would have been done in the Lord Chancellor's Department.

The amendments would set up a situation in which other Secretaries of States and other Departments would have to sign off the details of orders when the decisions had been made and the responsibility had been taken by the Lord Chancellor's Department because of the transfer of functions order. I assume that the principle behind the amendments is to oppose the order.

Bill Cash (Conservative, Stone)

I briefly referred to that. I would add that, for the treaty of Nice and for any other treaty, it is the Secretary of State for Foreign and Commonwealth Affairs who conducts the negotiations, so we have a balance within the House of Commons. It is the Secretary of State who negotiates the treaty, which is the basis for what we have been discussing, and the implementation of electoral law is the concern of the Home Secretary. The Minister is right to the extent that I would be doing myself out of a job—and her too for that matter. I can say only that the principle seems to be unimpeachable, and I await with interest to hear what she has to say about why the Lord Chancellor is thought to be the appropriate person to carry out that function.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall come to that. The Home Secretary is not responsible for the interpretation of electoral law or electoral administration. That function has been transferred to the Lord Chancellor's Department. Local government election issues have been transferred to the Office of the Deputy Prime Minister. The hon. Gentleman objects to the Transfer of Functions (Transport , Local Government and the Regions) Order 2002, and the amendments are an attempt to do away with those provisions. In practice, the amendments would not achieve that; they would have the effect that I described earlier.

I shall address the principle that the hon. Gentleman set out and explain why the transfer of functions order puts those issues in the Lord Chancellor's Department. It can be argued that, whichever way one cuts Government responsibilities, someone will disagree, and departmental responsibilities can be cut in any way one likes. A strong case can be made for linking electoral issues with the other matters that the Lord Chancellor's Department deals with.

The Department's work has changed in recent years. It supports the courts and the judiciary, and it deals also with a series of constitutional issues, including matters under the Human Rights Act 1998 and the Freedom of Information Act 2000, and House of Lords reform. The Department deals increasingly with many of the issues connected with guaranteeing democracy and the various constitutional pillars of democracy. That includes maintaining an independent judiciary and the rule of law, which are both important to a democracy.

The Department deals with the relationship between parliamentary democracy and the Human Rights Act 1998, the protection of the rights of the individual against the state and against others under the Human Rights Act and the Data Protection Act 1998, and questions of privacy under the Freedom of Information Act. There is a considerable argument for linking those issues with the administration of elections and the guaranteeing of democratic elections. I suppose that it is the defence of all the pillars of a democracy and the protection of the individual.

Bill Cash (Conservative, Stone)

I endorse a great deal of the sentiment that lies behind what the Minister says. I am sure that it will not have escaped her attention that the person whom she is putting forward as the arch-proponent of these entirely admirable objectives is a person who is completely unelected. That raises a serious question, leaving aside the point that arises on amendment No. 9.

The unelected Lord Chancellor is not in a position subjectively to preach to anyone in this House—or to any voter—on how their election should be conducted. That is a serious point that could get quite nasty because, indirectly, it raises the questions that will need to be addressed in connection with the House of Lords—in particular, the Lord Chancellor's mistake with regard to House of Lords reform and the proposal that only 20 per cent. of its membership should be elected. That suggestion has been decisively rejected, although he tried to suggest otherwise this morning.

Yvette Cooper (Labour, Pontefract and Castleford)

I disagree with the hon. Gentleman's conclusion that, in order to have responsibility for constitutional matters, one needs to be a Member of the House of Commons.

Bill Cash (Conservative, Stone)

Oh, come on.

Yvette Cooper (Labour, Pontefract and Castleford)

There is a series of issues here, which are not simply about the defence of elections but about the independence of the judiciary.

Bill Cash (Conservative, Stone)

This is sheer Plato.

Yvette Cooper (Labour, Pontefract and Castleford)

A series of arguments has been put forward about the importance of the defence of the judiciary. Opposition Members have raised issues about the separation of powers. The constitutional situation in this country is complex. Alternative arguments have been offered about the need for a representative of the judiciary—or its head—in a system with a strong Executive. That can strengthen the protection of the judiciary. There is a whole series

of complex constitutional arguments, to which I do not think there is any single, simple solution.

Opposition Members are simplifying the case to argue that, because the Lord Chancellor is a member of the House of Lords, the Lord Chancellor's Department should not have responsibility for election issues. An alternative, slightly tongue-in-cheek point could be made that all of us in the House of Commons have a huge vested interest in the conduct of elections. One can offer all sorts of alternative arguments from different perspectives.

It seems that there are two important principles. First, there is a strong case for dealing with both issues in a single Department because common threads run through them. Secondly, there must also be accountability to Parliament, which includes the House of Commons. That is why Parliamentary Secretaries in the House of Commons were appointed to the Lord Chancellor's Department, which is a relatively recent innovation. We have a new House of Commons Select Committee on the Lord Chancellor's Department, which is extremely welcome, and I look forward to its work. We need to have proper accountability. There are different ways of ensuring that that accountability works, and that decisions are taken to protect democracy in this country. It is wrong to make simple assertions about that along the lines of today's amendments.

The hon. Member for Somerton and Frome asked specific questions about clause 23. The Transfer of Functions (Transport, Local Government and the Regions) Order, which came into force in November, transferred responsibility for European parliamentary and Westminster elections to the Lord Chancellor. The UK Secretaries of State also retain powers under that legislation. Consequently, a Minister of the Crown will be able to make any provision of subordinate legislation. In effect, the transfer of functions order provides for the Secretaries of State and the Lord Chancellor to have concurrent powers in the matter of electoral law.

The Bill has an approach consistent with the order by providing for the concurrent exercise of the Lord Chancellor's powers under the Bill. In practice, that means that the Lord Chancellor will expect to carry out his functions that relate directly to the policy responsibilities of his Department, such as making the order to provide for the redistribution of MEPs, or the designation of the region of which Gibraltar will become a part. However, as the powers also enable related electoral legislation to be amended—for example, the European Parliamentary Elections Act 2002—it is appropriate to allow for them to be exercised concurrently with the Secretary of State. That is why the clause takes such a form.

I ask hon. Members to withdraw their amendments. I think that the amendments are really designed to express objections to the transfer of functions order. That order has come into effect. The amendments from the hon. Member for Stone would create a rather absurd position of other Secretaries of State having to pass orders on the work of the Lord Chancellor's Department. The amendments of the hon. Member for Somerton and Frome are effectively unnecessary

because Parliamentary Secretaries at the Lord Chancellor's Department do operate in the House of Commons. In implementing the Bill, the Lord Chancellor cannot act without reference to Parliament, which includes both Houses. The order will have to pass through both Houses anyway.

I understand the points that hon. Members have made about House of Lords reform. It is clearly vital that we press on with the reform of the House of Lords. Under the current provisions, the legislation will pass through both Houses—rightly so—and therefore Ministers in both Houses must be accountable for the decisions that are taken.

Bill Cash (Conservative, Stone)

As I expected, the Minister has put as good a face on the matter as possible, but I cannot honestly say that the arguments have persuaded me one bit. The Lord Chancellor is unelected. I contradict the Minister's assertion that, historically, the role is not one for the Home Office. The Lord Chancellor's Department has attracted quite a lot of accumulated functions, including those relating to the Channel Islands and the Isle of Man, with quasi-constitutional implications.

The following quotation indicates the state of affairs some years ago:

''The Home Secretary is in effect the Minister of the Interior, though he also has responsibilities for Westminster's relations with the Channel Islands and the Isle of Man. Some of his responsibilities . . . have only a tenuous connection with the administration of justice—for example, implementing (or not implementing) the reports of constituency boundary commissions; superintending the machinery for the conduct of elections''

and so on. Perhaps the Minister did not appreciate that that was the case. What I am suggesting is not in any sense novel; it is embedded in the circumstances that are described in the distinguished tome on constitutional law from which I have just quoted.

I see that there is a flurry of activity going on, so doubtless there will be yet another response for us to consider. I have not heard anything on the substance

of the issue that alters the point relating to the Secretary of State. The Minister did not refer to the schedule. Then there is clause 23. Schedule 1A makes no reference to the Lord Chancellor at all. I do not understand that.

Yvette Cooper (Labour, Pontefract and Castleford)

The reason for that is that the schedule amends the European Parliamentary Elections Act 2002. That Act refers to the Secretary of State, so schedule 1A also refers to the Secretary of State. However, under the transfer of functions order the Secretary of State effectively becomes the Lord Chancellor. The transfer of functions order operates on the schedule and on the 2002 Act as a whole.

Bill Cash (Conservative, Stone)

In other words, it is primarily a drafting arrangement and doubtless we can expect another consolidation Act to clear all this up, perhaps after the accession treaty and the arrangements that we have discussed. All this could have been dealt with far more efficiently then, because we would have been dealing with reality, rather than a hypothesis. There is a lot to be said for that.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.