European Parliament (Representation) Bill

Public Bill Committee, 9 January 2003.

Standing Committee A

Clause 2 - Recommendations by Electoral Commission relating to changes in number ofUnited Kingdom MEPs

Bill Cash (Conservative, Stone)

I beg to move amendment No. 14, in

clause 2, page 2, line 16, after 'Commission', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be.'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 38, in

schedule, page 13, line 7, after 'must', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be'.

Amendment No. 34, in

schedule, page 14, line 18, after 'Commission', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be'.

Bill Cash (Conservative, Stone)

Good morning, Mr. Cook, at this rather early hour.

The amendments are straightforward. Under the clause, the Lord Chancellor, unless it is to be someone else, would by notice be able to

''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 . . . or

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

The clause then provides for the power to give such a notice and the manner in which it is to be exercised, which I shall come to later.

The reason for amendment No. 14 is that on Second Reading the question was raised whether that distribution arrangement could impinge on the manner in which the boundaries are to be settled. We know that the Electoral Commission has a boundary committee, but, despite some inquiries—the Minister may be able to help me—it was not crystal clear from my discussions whether the boundary commissions still had a function in relation to these matters. Therefore, I put the amendment in the alternative and said ''and/or''.

My hon. Friend the Member for Poole (Mr. Syms) is an acknowledged expert, in our party and nationally, on boundaries and boundary revisions. He is a walking encyclopaedia on those matters. Whether he is a walking encyclopaedia on the law on the subject I am not sure, but I candidly admit that I am not certain what the position is. We should

therefore ensure that members of the Electoral Commission consult the appropriate people.

This is in no sense a hostile amendment but a probing amendment. We want to get the provision right. Therefore, we hope that the Minister and the Lord Chancellor's Department will give the amendment earnest consideration and bear in mind the word ''consultation'', which crops up quite a lot in the Bill.

I do not believe that my proposal for a definition of consultation is in this group of amendments, but because the word ''consultation'' appears in the amendment, I hope that you will understand, Mr. Cook, if I mention that in law the word ''consult'' means ''I hear what you say''rather like the Whips''but I do not have to take notice.''

My amendment would put into the Bill a definition that would apply to ''consult'' and ''consultation'' in all cases. It boils down to the fact that the person who is being consulted would be under an obligation to give due regard to the views being expressed and to give reasons for their decision in the light of the views expressed. That means not that ''consult'' would suddenly turn into ''You must do it,'' but that the proper mechanics of consultation would have to be followed through.

Frank Cook (Labour, Stockton North)

Order. The Committee will excuse me if I do not stand. It will save time. The hon. Gentleman is suggesting consultation in amendment No. 29 to clause 24. With the Committee's permission and if the hon. Gentleman wishes, I would be happy to regroup the amendments to include amendment No. 29 with amendments Nos. 14, 38 and 34. Does that meet with the Committee's approval?

Bill Cash (Conservative, Stone)

I am most grateful to you, Mr. Cook. That is most generous.

The position basically is that consultation would be defined in a way that would ensure that we have a proper discussion between the parties. If someone asked why it would be desirable to ensure that the reasons for the decision had to be published, I would simply say that over and again we come to the same problem in administrative law: the outcome of discussions can be challenged as a matter of judicial review. We discussed that on Second Reading when my hon. Friend the Member for South Norfolk (Mr. Bacon) asked whether such matters would be subject to judicial review. It seems to me that that would be more important in some areas of the Bill than others. The Minister was good enough to reply and I believe that she wrote to my hon. Friend, who was going to be a member of the Committee but that did not transpire. My hon. Friend raised an important point about judicial review and the Minister replied in the affirmative and subsequently wrote to him. I have seen the correspondence, because he sent it to me. What I am saying may help to explain the position.

Amendment No. 38 contains the same wording but would apply to paragraph 1(1) of the schedule. I am putting the matter in context because application of the wording, although the same in each case, would

produce slightly different results in relation to the provisions to which it applies. That dovetails with the Electoral Commission, so the points that I have already made would apply.

Finally, amendment No. 34 to paragraph 3(3) of the schedule, which refers to implementation of the Electoral Commission and states:

''The Secretary of State must consult the Commission'',

would add the words

''after consultation with the Boundary Committee''

and so on. That is the proposition.

Can the Minister give me an idea of whether she and her advisers think that that is necessary? They might think that it is not, but I think that there are implications here involving boundaries, which could give rise to the need for such a measure. I shall leave my remarks at that.

David Heath (Liberal Democrat, Somerton and Frome)

Thank you, Mr. Cook, and good morning.

The amendments could be construed as having a bearing on a later group of amendments tabled in my name: amendments Nos. 3, 4 and 10. Those deal with the consequences of having a small number of MEPs elected for a specific European regional constituency and the implications of that for proportionality under the election system that we have. One remedy for that defect, if indeed it is a defect, would be a boundary change.

I do not want to rehearse now arguments that will properly be made later but it is important for the Minister to explain whether any flexibility is offered to the Electoral Commission on that matter. The definitions of the regions are currently dependent on the Government's regions as defined in other enactments for the purposes of administration in Whitehall and elsewhere. There is no obvious reason why, for electoral purposes, the regions should be coterminous with those. The Bill does not make it clear whether there is scope for that to be amended. It would be a good thing if there were. There is otherwise a risk of having gross anomalies between the different regions of England in terms of population, which would have an effect on the electoral system.

If there is to be no change whatever and the position is fixed in stone, any consultation with the boundary committee of the Electoral Commission or with the boundary commission will be otiose and have no possible effect on the outcome. I hope that the Minister will be able to engage with that argument and explain the situation.

Amendment No. 29 defines consultation. I find defining consultation in legislation a novel concept. I can think of all sorts of reasons why that might be a very good idea, some of which we explored in the Chamber yesterday at Lord Chancellor's questions. The amendment goes even further, having a requirement for the publication of reasons. Again, that is desirable. It would provide an opportunity for challenge if the Minister or the commission were making unsubstantiated assertions or acting

unreasonably in using the powers conferred on them through the Bill.

Bill Cash (Conservative, Stone)

I am extremely grateful for the hon. Gentleman's tacit support on that point. The proposal is drawn from extensive experience of 30-odd years practising administrative law. Time and again, I have found that when the question of consultation has come up, people have found themselves up against a brick wall, for some of the reasons that I have given. That does not always occur, but the Minister might answer by saying, ''Judicial review applies so, as far as I am concerned, that deals with your problem.'' It does not deal with my problem because there is no opportunity to latch on to the failure to give due regard to those views. It is a question of not only reasonableness but being sure that one can attach a judicial review to the reasons.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the hon. Gentleman for giving way. I cannot hope to match his depth of experience, but, as a layman, I recognise the bluntness of the weapon of judicial review. As far as I can see, a simple assertion that the Minister has taken account of views on consultation and has rejected them would be sufficient in law, but I am not sure that that is adequate. As we are at pains to ensure that reasons are given in other aspects of the law, it is arguable that it is a deficiency that in the growing area of judicial review—we could have a debate about whether that is a good thing or a bad thing—no such reasons are given, and therefore cannot be used as a basis for argument. I would welcome the Minister's comments on that issue.

I should be grateful for any guidance that the Minister can give on the question of whether the boundaries are set. If the boundaries are to be set, by what means and under what statute will that occur? There is no capacity for changing boundaries to fit actual circumstances. If the boundaries will not be set, how will they be considered as part of the process of setting the distribution of MEP places within the total allocation offered to the United Kingdom?

Yvette Cooper (Labour, Pontefract and Castleford)

The amendments are unnecessary because the Bill gives the Electoral Commission the responsibility to recommend the distribution of MEPs. The Bill will not give the Electoral Commission the power to recommend boundary changes and will not give the Lord Chancellor the power to change boundaries.

The hon. Member for Stone (Mr. Cash) asked about the boundary commissions. There are currently four parliamentary boundary commissions—the boundary commission for England, the boundary commission for Wales, the boundary commission for Scotland and the boundary commission for Northern Ireland—which are purely responsible for parliamentary boundaries for Westminster, the Scottish Parliament, the Welsh Assembly and so on. They have no locus in the European parliamentary boundaries and would therefore have no locus in any discussion about the distribution or boundaries of seats in the European Parliament. There would therefore be no purpose in consulting the boundary commissions.

The Local Government Commission for England is now part of the Electoral Commission. The local government boundary commissions for Scotland, Wales and Northern Ireland are not part of the Electoral Commission. They make recommendations on local government boundaries as part of a rolling programme. The European parliamentary boundaries are set out as county boundaries in the European Parliamentary Elections Act 2002. Based on the county boundaries, the 2002 Act sets out which counties are part of which region. Those boundaries would change only if the county boundaries changed or if there were primary legislation to change the regional boundaries. There is no primary legislation to change those regional boundaries, and the Bill will not do that. It is not proposed to shift counties from one region into another, and it is not currently proposed to change the individual county boundaries.

Andrew Rosindell (Conservative, Romford)

Would the Minister be kind enough to explain her definition of ''county''?

Yvette Cooper (Labour, Pontefract and Castleford)

I wish that I could quote the hon. Gentleman the European Parliamentary Elections Act 2002, which lists the counties. For example, it refers to the county of West Yorkshire, which is my area, rather than the Wakefield district. I therefore refer him to the long list in the 2002 Act. Recommendations to change those county boundaries can be made only if there is an express instruction from the Secretary of State, and there is no such instruction to recommend changes to those county boundaries by the Secretary of State. In my experience, it is a brave boundary commission or Secretary of State who suggests changes to county boundaries. If county boundaries are ever discussed, everybody knows about it.

Bob Russell (Liberal Democrat, Colchester)

I suggest to the Minister that the way to respond to the hon. Member for Romford (Mr. Rosindell) is to use the description ''administrative counties''. He and I both take the view that Romford is in Essex, but it is not in the administrative county of Essex.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall resist the temptation to get into a dispute about Essex and Romford in Committee.

The boundary commissions and the boundary committees are not currently considering anything that would affect regional boundaries in time for the 2004 elections. They are not involved in anything that could affect the distribution of MEPs, and it is therefore unnecessary to say that they should be consulted as part of the Bill.

It is worth adding two additional points. First, even if the boundary committees were looking at things that were likely to affect regional boundaries in future, the Electoral Commission has to make its calculation on the basis of a set point. In other words, it has to base its calculation on the boundaries that are in place at a particular point in time. It cannot anticipate what might change in three or four years' time because it has to calculate on the basis of a particular position, which

is set out as being the boundaries and electoral register of 1 December 2002.

Secondly, the Bill will not stop the Electoral Commission consulting anyone it wants to consult. It could consult the boundary commissions and committees if it thought it appropriate. There is no limit on who should be consulted, but the boundary commissions and committees are not doing anything relevant, and it would therefore be inappropriate to place on the face of the Bill that they should be consulted.

Amendment No. 29 sets out what ''consult'' and ''consultation'' mean, which is unnecessary because those words have natural meanings and are used in a great deal of legislation. We are talking about the Electoral Commission, which has a history of consulting on issues and takes its role extremely seriously. It is an independent body and we can rely on it to consult in an appropriate way.

It would be inappropriate to include the end of the amendment, which states that the Electoral Commission must publish its reasons

''no sooner than three months before making the order.''

As I understand it, after the reasons were published there would be a three-month delay before the order could be made.

Bill Cash (Conservative, Stone)

The three months proposal is simply to ensure that reasons would be given if there were a dispute about whether a consultation had been properly conducted. Clearly, if there were a dispute relating to my amendments, there would need to be a period of time within which, for example, an application to the High Court could be made. The amendment stipulates

''no sooner than three months''

in order to allow an opportunity to consider all those questions.

We are engaged in a probing exercise, and I am not convinced by the Minister's argument, but we shall come to that later.

Yvette Cooper (Labour, Pontefract and Castleford)

Three months would make a massive difference when one is talking about an order that has to be in place in time for elections in 2004. An awful lot of the hon. Gentleman's amendments would put in place various delays and hurdles, which would make it impossible to get the right number of MEPs going to the European Parliament at the right time. They would leave us in an impossible position in which MEPs turned up at the door but there was nowhere for them to go. For that reason, the amendment is unnecessary, and I ask the Committee to reject it.

Bill Cash (Conservative, Stone)

I have heard what the Minister has said, and there are no particular matters that I need to raise now. I remain unconvinced by her reply, but that is not unusual. I hope that her reference to the inn is not a belated reference to Christmas.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Bill Cash (Conservative, Stone)

I beg to move amendment No.15, in

clause 2, page 2, line 23, leave out 'or anticipated change'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 16, in

clause 2, page 2, line 23, leave out 'under Community law' and insert

'in pursuance only of an express existing Treaty obligation.'.

Amendment No. 22, in

clause 4, page 3, line 20, leave out 'under Community law' and insert

'in pursuance only of an express existing Treaty obligation'.

Amendment No. 39, in

clause 4, page 3, line 21, after 'law', insert

'subsequent to the ratification of a treaty of accession'.

Bill Cash (Conservative, Stone)

These are important amendments. They raise the question that I referred to on Second Reading, and at the beginning of the Committee sittings. Amendment No. 15 would remove the words ''or anticipated change'' from subsection (2). That subsection states that

''The power to give such a notice''—

that is, the notice given by the Lord Chancellor—

''is exercisable with a view to the implementation of any change or anticipated change under community law in the total number of MEPs to be elected for the United Kingdom.''

I have already said that that is, to say the least, a novel provision. I have made various inquiries and carried out my own research, and I cannot come up with anything as unique. I mentioned yesterday that there is a provision concerning an order making power that relates to the third pillar, but that is not relevant to the above provision. There are certain similarities, but they are not sufficient for us to pursue them.

Effectively, we are now in a position where the orders are received from the European Commission. The Minister puts the most generous definition on the word ''inform''. I put the least advantageous definition on it. However, as she made clear—she has not actually answered my questions yet—the reality is that once the Commission puts the machinery in motion, the decision under the protocol that we discussed in the first sitting leads to a Council decision. The crucial words, which I recall the Minister perhaps eliding slightly, are ''to that effect''.

In other words, we would be boxed in by whatever is stated in the wording of the protocol in paragraph 3. From that, it follows that the unelected holder of the highest judicial office in the land—the Lord

Chancellor himself, no less—would have the power to intervene by giving a notice which, effectively, he will have been instructed to give.

We still do not know whether the majority vote that is part of the decision-making process of the Council could actually be effective. In the protocol it says ''shall have effect'', but I do not understand how a majority vote, which is the prescribed procedure, could have effect. After all, there is a requirement to subscribe to the number of seats as laid down in that paragraph: 732 with variations for a possible temporary increase. It is an unsatisfactory way to deal with an extremely important issue, and I am staggered that it is allowed.

I was grateful for the remarks of the hon. Member for Somerton and Frome (Mr. Heath) on the matter. I notice that a new amendment has been tabled to deal with a point that I raised on the question following the Minister's intervention, which was very helpful at the time. The hon. Gentleman also raised a similar point—in fact, I may be wrong, in that he may have picked up the point shortly before I did. However, our minds were certainly working along the same lines.

If we have an accession treaty, it seems—to some of us, at any rate—that it would be highly desirable to deal with those matters when the problem has been clarified rather than to deal with an anticipated change procedure that in itself is extremely chaotic. When I say chaotic, I mean chaotic in law; I hope that it will not turn out to be chaotic in practice. It is not at all satisfactory to legislate on the basis not only of hypothesis but of anticipated change.

I have to go further than that, of course. My other amendments deal with the words that follow: ''under Community law''. Again, the words ''anticipated change'' are fraught with uncertainty and difficulty. The courts can strike down legislation for a lack of certainty.

You may have noticed, Mr. Cook, that after listening carefully to what you said yesterday I am addressing my remarks to you and shall continue to do so.

Frank Cook (Labour, Stockton North)

You are still perambulating, though.

Bill Cash (Conservative, Stone)

I shall do my best to be a little more static.

The fact is that it is very unsatisfactory to provide in legislation for something that is based on hypothesis and is uncertain. I do not know whether the legislation will be challenged in the courts—I have no reason to believe that it will be—but if it were to be, the courts would have a great deal to say about whether anticipated change is a basis on which administrative action could or should be pursued.

I should be interested to hear what the Minister says about that. One could find some learned articles in law journals on this question. I shall provoke one, if I can, because I want to see what some of the great law academics would say about this issue, which is a practical question as well as an academic one.

My other point relates to the use of the expression ''under Community law''. This is a subject on which I have spent some time. You will be glad to hear, Mr. Cook, that I do not intend to give you 15 years' worth of analysis. However, that expression, too, is extremely vague. Ironically, the European Communities Act 1972 contains the phrase ''Community obligation''. As I did not want to think that the Minister might have an advantage over me in this respect, I have the Act here. With respect to the very important and allegedly superior law of section 2, that section says:

''All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.''

That is quite clear. The section goes on:

''Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision—

(a)''—

this is the point to which I have just referred—

''for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters''—

I shall not deal with those—

''or the operation . . . of subsection (1) above''—

I have already dealt with that—

''and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument''—

we know that that is basically what the Bill does—

''the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid.''

The section concludes:

''In this subsection 'designated Minister or department' means such Minister of the Crown or government department as may from time to time be designated by Order in Council''

and so on. That is the basis on which the order is being put together, because that is the fountain from which the exercise of the power is drawn.

It will be noticed that there is no definition of obligation in the Act, nor is there any definition of Community law in the Bill or in law in general. It is undefined. There are descriptions of Community law. It is fair to say that I would not have doubted that the international treaty included the attached protocol to which we have referred, with its comment on the Council decision and the arguments relating to that, as prescribed under section 1(4) of the 1972 Act. Section 1(4) says:

''For purposes of subsections (2) and (3) above, 'treaty' includes any international agreement, and any protocol or annex to a treaty or international agreement.''

I think, therefore, that we must assume that the protocol that we were discussing is a treaty for the purposes of the 1972 Act, and so has effect.

What does Community law comprise? I have here a worthy tome on constitutional administrative law and shall give a brief description from it. Community law, although used in this Bill, is not defined as such. The tome says:

''Community law is to be found in the Community treaties'',

which is a fair point. It is also found

''in regulations, directives and decisions of Community organs (the Council of Ministers, a political body composed of Foreign Ministers; or the European Commission, a supranational body composed of top Community officials); and in rulings and decisions of the Court of the Communities'',

which is the European Court of Justice. It continues:

''It is applied mainly by courts of the member states, but authoritative rulings are given by the European Court. According to that Court, Community law is distinct from national law''.

Let me repeat that that is, ''According to that Court''. It is distinct from that,

''but exists alongside it; and where Community law is in conflict with national law,''

it alleges that ''Community law prevails.''

Mark Hendrick (Labour/Co-operative, Preston)

What distinction does the hon. Gentleman wish to make between Community law and a treaty obligation?

Bill Cash (Conservative, Stone)

I have just made that very point. Community law would be a part of a Community obligation for the purpose here. However, there is not actually any definition of Community law as such, and it can create uncertainties, if I may put it like that, if novel expressions, such as Community law for the purposes of statute, are introduced when there could have been a reference to a Community obligation. We have already established in our discussions that we are talking here about a Community obligation, to the extent that the Council decision—I am now referring back to Tuesday's debate—raises questions about the manner in which the decision-making process operates and about the words ''to that effect''.

I am not disputing—I am in fact positively proposing—the fact that the protocol, under section 1(4) of the 1972 Act, is a treaty for the purposes of that Act. However, if that protocol does come under a treaty obligation, that is specific to that protocol, which prescribes the arrangements to be followed. That obligation is not so wide as to embrace all Community law. As I have just said, we can find Community law in a variety of Community organs. It can be in

''regulations, directives and decisions of Community organs''.

Those include the Council of Ministers, which is described in the protocol as making the majority decision, which returns us to our discussions about the expression ''to that effect'' and the number 732. Just to highlight the point, that tome then tells us that the organs include

''the European Commission, a supranational body composed of top Community officials''.

They are all frightfully important and all frightfully unelected. The law can also be found

''in rulings and decisions of the Court''.

The description of Community law with which we are dealing in practice is not the same as that generalised description of Community law, which, as the hon. Member for Preston (Mr. Hendrick) rightly pointed out, would include a Community treaty. In the context of the Bill, the use of Community law takes us outside the treaty. No one could dispute that. It takes us into a range of other potential law-making organs, as I have just described. The phrase ''under Community law'' could, for example, include something done by the European Commission. That is indisputable.

That raises a big question. I have been making much, I think with justification, of the undemocratic nature of many of the order-making powers here. I have uncertainties and concerns about the arrogated power—notice that I did not say ''arrogant''—of the Lord Chancellor. When we come on to the Gibraltar provisions, I fear that I might have to make some rather more trenchant remarks about the manner in which they have been put together in his Department, as compared to what was done in the Home Office up until last June. That is another aspect of the Bill that causes some concern.

A degree of authoritarianism permeates the making of the provisions. I must pay tribute to the draftsman, and have looked at the drafting with interest. I happen to know the person who drafted the 1972 Act, an old friend of mine who is a distinguished lawyer and still very active. I do not think that he anticipated that anyone would come along later and try to redefine the 1972 Act and start speaking about Community law as something that the courts will have to interpret, if ever it comes to that, when this Bill is enacted. Perhaps I should say, in deference to the Chair, Mr. Cook, ''if it is enacted''.

The fact is that Community law is not a defined description. For reasons that I have given, we are moving into the field of laws made, much to my regret, by the European Commission. As a democrat, I am absolutely and totally in favour of parliamentary law and totally against European government, regulated by unelected officials. For reasons that I gave on the ''Today'' programme the other day, I am also in favour of reform of the House of Lords, and think that it should be elected. That returns us to Tuesday's discussion on the role of the Lord Chancellor, who is, after all, responsible for this Bill.

It is a serious matter if we are to receive instructions from the European Commission on the administrative implications of the outcome of the referendums that we have discussed, even more so if those instructions can include

''any change or anticipated change under Community law''—

in future, made by the European Commission. That is especially so given that the words ''Community obligation'' could have been used, which would have fitted in with the 1972 Act. I wonder whether, despite the draftsmen's adroitness—I always pay tribute to them for that, because they are employed to cover

contingencies—that contingency, were it to occur, would lead us into an undemocratic procedure. A serious problem lies at the heart of that. The Government are not sure how everything will work out so they are giving themselves the widest possible ambit, at the expense of our democratic procedures and normal requirements, and giving the European Commission the potential to tidy up anything untidy, which I regard with grave suspicion.

Consider, for example, the remarks that the Lord Chancellor made about burglars. He said that we should imprison first-time burglars only as a last resort and the Attorney-General and others backed him up. If someone were told that that would be done by fiat of the Lord Chancellor—in effect, by a direction given by an unelected body—and not through the Criminal Justice Bill or theft Acts, they would be concerned.

The provisions encompass the possibility, inherent in the hypothetical arrangements provided in relation to anticipated change under Community law, of prescribing a system that, as is admitted in the Bill, will be capable of being put into effect by regulation or other European Commission provision. That is extremely unsatisfactory; it is wrong and bad. I have not got the faintest idea why an express existing treaty obligation has not been specified. That relates to another of my amendments.

I am being generous: these are not wrecking amendments, but serious amendments relating to the manner in which the operation is to be conducted. This is not just an academic exercise. We need to know exactly how the total number of MEPs would be elected under the existing arrangements. I endorse the amendment tabled by the hon. Member for Somerton and Frome. It is a new amendment, made in the light of the Minister's comments, and it helps the argument along. The amendment specifies an accession treaty, which will become express and existing.

I do not know what the Minister will say as a result of the advice that she periodically receives from an unknown source, but the bottom line is that I will insist on a precise definition of ''Community law'' in this context. How will the circumstances of change or anticipated change work in practice? Why has the existing wording been chosen and not wording that would have been democratic, constructive and consistent with the law as it now stands? How will the so-called Council decision have effect?

I expect to hear more about the method of voting and how the two elements of the requirement can be reconciled with what the Minister described as majority voting arrangements. One cannot have majority voting arrangements and a prescription that one has to adopt a particular position and no other. That is the situation regarding subsection (2).

I move on to amendment No. 22, which inserts the words

''in pursuance only of an express existing Treaty obligation''.

The other amendment, amendment No. 39, is in the name of the hon. Member for Somerton and Frome. The only thing I need to say on that matter is that

copious questions arise on the issue of Community law. One of the greatest constitutional lawyers, Mr. de Smith of Nottingham university, who is now deceased, set about trying to define the issues with the greatest clarity. His words relate to the whole question of Community law:

''Questions of the highest constitutional importance have now arisen. At this stage''—

this was written some time ago—

''we can only guess how they will be resolved. What if a directly applicable rule of community law (say, a regulation) conflicts with an Act of Parliament?''

He goes into the question of primacy:

''according to prevailing British doctrine, primacy should be accorded in the last resort to the subsequent United Kingdom statute''.

He then makes further remarks about whether that doctrine has been undermined.

Most recently, Lord Justice Laws made it quite clear that the doctrine of parliamentary sovereignty has survived. In a slightly different context regarding human rights, in relation to law within the aegis of the European legal arrangements, Lord Hoffman has made it clear that if by subsequent enactment the UK Parliament decides in clear and unambiguous words that it wishes to legislate inconsistently with the European convention, that law prevails.

That issue is currently being discussed in the Home Office and other areas of Government. They know perfectly well that there are certain things to which we cannot accede. I believe that the same doctrine applies in respect of European Community law. Although it is controversial, primacy should be accorded in the last resort to the subsequent UK statute.

Mark Hendrick (Labour/Co-operative, Preston)

The hon. Gentleman is attempting to muddy the waters between law that may be adopted under the European convention, and rulings of the European Court of Justice. The Court is there to defend Community law. To try to use a ruling that is related to whether this country adopts law from the convention is totally unjustified.

Bill Cash (Conservative, Stone)

I made it clear that there is a distinction between Community law in a general sense rather than in a statute under the aegis of the European Court of Justice, and law which emanates from the European convention on human rights. I am prepared to accept that it was an academic exercise.

As the hon. Member for Preston knows, because he and I served on the European Scrutiny Committee together, the convention that is due to be implemented—over my dead body—and to which the Government have already acceded in principle, could roll together the human rights functions under the charter of fundamental rights, which would then fall within the aegis of the European Court. There would then be two competing jurisdictions. To answer the important question that I have been asked, in the context of Community law there is a serious difficulty, and one or the other may end up taking over those functions. I think that it was the hon. Member for Somerset and Frome who asked whether the provisions in the Bill would be otiose because they

conflicted with human rights. Human rights is a pervasive body of law—

Mark Hendrick (Labour/Co-operative, Preston)

rose—

Bill Cash (Conservative, Stone)

I give way again to the hon. Gentleman, because I know that he takes an intelligent interest in these matters.

Mark Hendrick (Labour/Co-operative, Preston)

The point that I raised related to the word ''supremacy''. The hon. Gentleman asserts that UK law would have supremacy, certainly in the case of the European convention, because we choose to adopt or not to adopt the legislation in question. However, in regard to the European Court of Justice, which covers European Community law, there is no question of supremacy.

Bill Cash (Conservative, Stone)

An emphatic and fundamental question of supremacy arises from the 1972 Act. Just as we have subscribed to the European convention, so we have subscribed to the treaties set out, as I have already said at some length, in the 1972 Act. It is entirely and exclusively because of the existence of the 1972 Act that we subscribe to any of the principles of European law. Were it not for the 1972 Act, we would not do so. If somebody were to allege that we could not amend or repeal the 1972 Act, they would be entering into uncharted waters, which would be extremely unwise.

Frank Cook (Labour, Stockton North)

Order. The uncharted waters are becoming clear to me. We seem to be staggering into the European convention on human rights, which is simply a concern of the Council of Europe and does not relate directly to the Bill. Can we return please to the specifics of amendments Nos. 15, 16, 22 and 39 promptly?

Bill Cash (Conservative, Stone)

Indeed, Mr. Cook, but I would add briefly that the European convention includes the revision of all the arrangements for all the Community's institutions, which would also include the European Parliament. I leave it at that.

Frank Cook (Labour, Stockton North)

I am happy to learn that, but I remind you that we are discussing amendments Nos. 15, 16, 22 and 39. Let us get on with it, please.

Bill Cash (Conservative, Stone)

I think that the short answer to your point, Mr. Cook, is that I am happy to terminate what I have to say on this subject. We have had an opportunity to examine what the words mean and I look forward to hearing what the hon. Member for Somerset and Frome says.

David Heath (Liberal Democrat, Somerton and Frome)

I shall address my amendment No. 39 in a moment, but I wish to preface my remarks with some comments on amendments Nos. 15, 16 and 22 in the name of the hon. Member for Stone.

I return to the principle that we want to ensure that enlargement happens without delay and that the procedures in the United Kingdom are consistent with doing that and at the same time ensuring a proper distribution of European Parliament seats, appropriate time for consultation and so on. For that reason, I have a difference with the hon. Member for Stone on the point at which a trigger should be inserted. His amendment No. 15 would effectively prevent the Lord Chancellor giving the Electoral

Commission the request to do the preparatory work, which is necessary for consultation on the proposals that would enable the changes to be implemented when we have a specific requirement to change the number of seats.

My argument is simple: it is not clause 2 that is the problem, if there is a problem, but clause 4. That is why my amendment addresses clause 4 rather than clause 2. I note that another of the hon. Gentleman's amendments deals with clause 4. The appropriate point of argument is whether it is possible for the Government to pre-empt the requirements that are set out in protocol A, article 2 of the treaty of Nice, not for the preparatory work but for the implementation. For that reason, I cannot go along with the hon. Gentleman on amendment No. 15.

On amendment No. 16, again, I am not entirely content that it should apply to clause 2. However, the hon. Gentleman raises an interesting point about the introduction into legislation of the expression ''Community law''. I hope that the Minister will deal with it because, without question, there is an express treaty obligation to be considered. Whether the total number of MEPs to which the United Kingdom is entitled will be at a specific level is still open to change if there is a change in the number of countries that have not only sought accession but signed treaties of accession and ratified them. We discussed that in the previous sitting.

Clearly, there is a potential alteration, but that there is something to be debated and that there is something that the Electoral Commission should address is not in question. As I said, it is set out in the treaty of Nice and has the effect of an obligation on the UK Government. I hope that the Minister will be able to address the term if not, perhaps, the intent in clause 2.

Amendment No. 22 deals with the same issue but in the context of clause 4. I have more sympathy with it there. As we have already debated, I cannot see any good reason why the Government should wish unilaterally to reduce the number of British representatives in the European Parliament and pre-empt the decision under protocol A, article 2.

Nevertheless, good law dictates that that must be the point at which the decision is made, not before. It is not appropriate for us to second-guess what the total number of MEPs will be and thereby second-guess what the total franchise should be.

Therefore, it is my view that there should be expressly in clause 4 a trigger for the implementation of the recommendations that have previously been arrived at through the process that is described in clause 2. That is why I have some sympathy for amendment No. 22. However, I have even more sympathy for my amendment No. 39, which essentially deals with the same point. The implementations will take place only after we know what the figure is, not before. We will only know that figure once the treaty of accession is ratified. We were told by the Minister that that would require primary

legislation in the House as far as UK ratification was concerned.

One of the reasons I tabled my amendment was to enable the Minister to take advice from the Foreign and Commonwealth Office on the exact procedure that will be in place. It is important that we understand it. That gives her the opportunity to set out the stages of the process so that when we return to discuss the matter later, we know what we are talking about, what the trigger points are, and what will happen by default in the absence of ratification, either on the part of the UK or any of the states seeking accession. I hope that she will be able to provide that information today.

To avoid my having to intervene further, if she feels unable to set the information out with sufficient clarity, it would be helpful if she would write to me and to other Committee members to set out that process, or ask the Foreign and Commonwealth Office to do so if that is more appropriate. With that proviso, I await the Minister's reply to those important questions.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall deal with the amendments in turn. Amendment No. 15 would prevent the Lord Chancellor from asking the Electoral Commission to work on an anticipated or expected number. The frame of ''anticipated change'' applies only to the request to the Electoral Commission. It does not apply to the making of the order itself. The amendment would limit flexibility and possibly prevent the work from being completed on time. The phrase is included because of the circumstances that we face between now and the 2004 election. We may wish to ask the Electoral Commission to work on a possible series of options, or a particular number that we expect to be the conclusion of the Council decision before it takes a decision. It is not possible to lay the order without the Council's decision, but it is sensible to be able to ask the Electoral Commission to begin its consideration, rather than waiting in case the process of making the Council decision is delayed.

Bill Cash (Conservative, Stone)

The Minister appears to be conceding the point I made, although she has wrapped it up a bit. In fact, the provision is based on a hypothesis. It anticipates a decision yet to be taken, although the prescription of the manner in which that decision will be conducted is prescribed under the treaty. She looks puzzled, which is due to the difficulties inherent in the process that she has brought forward in the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

I am not sure whether the hon. Gentleman was complaining that we were asking the Electoral Commission to consider something before we were completely certain of the numbers, or complaining that there already was certainty about the numbers. He contradicted himself in his own point.

We will not have a final decision from the Council until it has got together to take that decision. Given that the treaty states that that decision should be made on a pro rata basis, it is possible to estimate what the conclusions are likely to be. Therefore, it is sensible to ask Electoral Commission to consider the matter. One cannot make the order until the Council decision has been taken. It is complete nonsense to suggest that legislation is being made on the basis of a hypothetical

situation. The order will not be made until the Council's decision has been taken. The Bill sets out that position, which is perfectly sensible. I do not see why there is a problem in asking the Electoral Commission to consider the matter before the Council takes its final decision.

Bill Cash (Conservative, Stone)

When the Minister does not understand something, she has a curious tendency to use words such as ''nonsense'' and ''contradiction''. It is slightly unwise to resort to expressions of that kind when she is not totally in control of the arguments she is putting forward. I am merely responding in kind because she is caught, hoist by her own petard, by a Bill that is alien to the way in which we usually legislate. Clause 2(2) states that

''a notice is exercisable with a view to the implementation of any change or anticipated change under Community law''.

I will be interested to hear what else she has to say to clarify those words.

Frank Cook (Labour, Stockton North)

Order. Let us all do that.

Bill Cash (Conservative, Stone)

It was a very long intervention, but it was necessary, Mr. Cook.

Yvette Cooper (Labour, Pontefract and Castleford)

I promise to stop using the word ''contradiction'' if the hon. Gentleman promises to stop contradicting himself. Amendment No. 15 is completely counter-productive because it would prevent the Electoral Commission getting on with its work.

Mark Hendrick (Labour/Co-operative, Preston)

Does my hon. Friend agree that the hon. Member for Stone is effectively saying that he would not buy a train ticket for a train from Preston to London because the train might not arrive, might derail or might not go directly to London?

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend makes a helpful analogy. As I have tried to make clear, the order will be pursuant to the Council decision. Amendments Nos. 16 and 22 try to limit the circumstances in which a request can be made to the Electoral Commission to circumstances arising specifically from a treaty obligation. We have made it clear throughout the Bill that we need to be able to respond to not only the explicit numbers set out in the treaty, which sets out the bottom line, but the Council decision, which is referred to in the treaty and is an obligation of it.

The phrase ''Community law'' covers both the numbers in the treaty and the Council decision, which is required by and pursuant to the treaty. It is not certain that the wording put forward by the hon. Member for Stone would cover the Council decision. It may be that he intends the amendment not to cover the Council decision, which is referred to in the protocol, which we discussed earlier. That is why the Bill refers to ''Community law'', rather than the wording he has put forward in Committee.

It would clearly be ridiculous if we were in a situation in which we could implement only the bottom-line figure of 72, which is set out in the treaty, but not be able to implement the transitional position on which the Council is likely to come to a decision in the next few months as result of some of the countries acceding. That is why that wording has been used. I should also point out that future alterations to

the number of MEPs have to be included in a treaty or by virtue of a requirement of a treaty. The number of MEPs is set out in a treaty and can only be changed in accordance with a treaty.

David Heath (Liberal Democrat, Somerton and Frome)

The draftsman may have been over-cautious because protocol A, article 3, makes the procedure and the prescribed number of MEPs clear in those circumstances. It can therefore be properly argued that it is entirely pursuant to the treaty obligation that any transitional number is incurred. Introducing a more imprecise term in order to cover decision of the Council of Ministers is therefore otiose because the figure is set out in the treaty.

Yvette Cooper (Labour, Pontefract and Castleford)

There is certainly a case to argue, but we would not want to find that the Council decision could not be covered because of the wording in the hon. Gentleman's amendment. The advice that I have is that it is necessary to ensure that the Council decision, which is clearly referred to in the treaty, can also be implemented by the order and that can be done through the wording in the Bill. It is unnecessary to take the further step of limiting the scope of the Bill to the provisions of treaties rather than Community law, because in practice, as I have said, future alterations to the number of MEPs must be in a treaty or by virtue of a requirement in a treaty. That is because the number of MEPs is already set out in a treaty and, under article 5, cannot be changed except in accordance with a treaty.

We must take issues such as the number of MEPs seriously as part of the European discussions. That is why treaty discussions should consider it.

Bill Cash (Conservative, Stone)

The nearer the Minister gets to delivering the advice that she has received, the clearer the situation becomes. I suspect that the hon. Member for Somerset and Frome has picked up the same point.

We have now established that whatever has to be done must be done in pursuance of a treaty. That is the Community obligation that I described. As I also explained, that is not the same as the ambit of Community law, which includes regulations, directives and other matters, as well as any laws that are made from time to time by the European Commission.

If, as the Minister now concedes, that flows from the decision and the questions of anticipated change are to be attached to and dependent on the manner in which that decision is made and when, why does the Bill not say, instead of ''Community law'', ''in pursuance of a decision that has been made'' and then specify which one it is?

I raise that point, Mr. Cook—

Frank Cook (Labour, Stockton North)

Is this an intervention?

Bill Cash (Conservative, Stone)

It is. I shall bring it to an end now.

Yvette Cooper (Labour, Pontefract and Castleford)

I was not sure whether the hon. Gentleman was suggesting an alternative amendment to the one that he has tabled. The wording in the Bill covers both the numbers in the treaty and the Council decision in the protocol.

As I have said, as a result of article 5 and the fact that the numbers of MEPs are set out in the treaty, any future change to the number would have to be either in the treaty or pursuant to a treaty in accordance with its requirements. Therefore, there are already inbuilt assurances in European law that this matter should be taken seriously, as it clearly will be, because inevitably every member state will take extremely seriously any discussion about the number of MEPs and will want to have a say in that and debate the matter in their own Parliament. Those provisions are already in place in the combination of European law as well as in the treaty. The wording in the Bill ensures that we implement only the bottom-line numbers in the treaty.

I understand the reasoning behind amendment No. 39 and why the hon. Member for Somerset and Frome tabled it as a probing amendment, but it might have a perverse effect. Were a future treaty to increase the number of UK seats, unless it was a treaty of accession, it would not be possible to implement that through the order. We would not be able to take advantage of a future increase because of the way in which the amendment is drafted. Only treaties of accession would trigger a change. That is obviously not the intention in the amendment.

The amendment is not necessary, even for the current tranche of accessions, and I want to amplify some comments that I made during our previous sitting. The accession treaties are not expected to alter the number of MEPs for existing member states if one or more of the accession states fail to ratify it. Although the accession treaties will need to deal with a number of consequential issues concerning ratification or failure to ratify, the negotiations concluded at Copenhagen did not raise a possible option of changing the number of MEPs for existing member states by the 2004 elections if Poland or another state fails to ratify. In practice, the consequence would be that if one country did not ratify, the European Parliament would be smaller, but the United Kingdom, France, Germany and so on would have the number of seats agreed in the Council's decision regardless of whether, at the last moment, another country failed to ratify.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister specified Poland, which is the interesting point. If Poland failed to ratify, 50 MEPs would not attend and the total number would be below 732, so section 3 of article 2 of the protocol would come into effect. I am not sure how I can reconcile those comments.

Yvette Cooper (Labour, Pontefract and Castleford)

The consequence of a late failure to ratify would be that following the 2004 elections there would be fewer than 732 MEPs. If the UK has, for example, 78 seats we would still have those 78 seats and the proportionate relationship between the UK, France, Germany and so on would remain the same. It would be as set out in the Council's decision. We do not expect the treaty of accession to change that.

The practical consideration is that, given the timetable of ratification by the other countries, the numbers game would have to be reopened at very short notice before the 2004 elections. The practical

implications of that are considerable. Under the amendment, if the number of MEPs could not be decided until the Bill has been enacted, ratifying the treaty of accession would cause additional delays in specifying the number of MEPs for each region and the preparations for the 2004 elections. Therefore, I ask the hon. Member for Stone to withdraw his amendment because it is unnecessary and would have perverse effects.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the Minister's explanation, but I find great difficulty in relating what she said with what is written in the treaty. I should be grateful for a note on the subject so that I can be clear in my understanding of how what seems to be plainly set out in the protocol is not to be the case. The problem applies only to Poland, which is the only country with sufficient MEPs to bring the total figure below 732. It seems to me that the correction would have to be made in such circumstances.

Bill Cash (Conservative, Stone)

We have had what can only be described as an extensive debate. The matter is important and, despite the fact that many would consider the Bill to be slightly obscure, it is not when, in the context of those boundaries that fall within the remit of the European Parliament, it comes to the rights of our constituents to exercise their democratic rights. As I said earlier, when they go down to the village school or wherever it happens to be, they are exercising the most important right that they have in a democratic society: the freedom of choice. Therefore, the question of how many Members of Parliament there are is of huge importance.

The question of co-decision is an extremely important ingredient in the way in which the European Community functions, and the European Parliament in particular. It does matter how many MEPs are allocated to each country irrespective of party because of the way in which the European Parliament is composed. That is an important point. What flows from it regarding implementation is extremely relevant.

I have not yet heard the Minister tell me whether the expression ''Community law'' includes regulations issued by the Commission. I wanted her to deal with this; I have asked about four times but she still has not done it. She may be able to answer that question by way of an intervention. I give her the opportunity to do so now.

The Minister has made a lot of the treaty, and she has more or less agreed with me and with the hon. Member for Somerton and Frome that it would be possible to reduce the ambit of the expression ''Community law'' by reference to the use of the word ''decision''. That is another option to which we may have to return later. The reality is that she has not answered my question. I have established without any doubt that Community law could include regulations made by the European Commission. It is perfectly simple for her to tell us whether that will be the case, but she has not done so. I await her answer with interest, and offer her the opportunity to intervene to explicitly rule out the making of any regulation by the European Commission related to the Bill.

There is also a problem concerning the issue of precedent. The use of words is new and has wide ramifications that raise important issues of principle and constitutional law. There are times when people can overegg the pudding on such issues, and dance on the head of a pin. I am not doing that; I am examining the manner in which we are proposing to implement European Community law, and all the serious and difficult questions it raises. Some are controversial, and many affect our constituents. We need to know what the provisions will cover. I am concerned that making provisions by order will become a new way of orchestrating Community law in this country.

We already have what we call Henry VIII clauses. I made an academic joke earlier about Cardinal Wolsey's revenge. Cardinal Wolsey managed to escape the block having dared to interfere with what Henry VIII wanted. We now find another incarnation of the Lord Chancellor coming back to ensure that he can implement provisions effectively issued by fiat of the European Community. That is an important issue with some historical connotations, but it concerns fundamental principles of law and the question of the relative merits and importance of our Parliament vis-à-vis the European Parliament and the European Community as a whole. We have touched on that already.

If we are now witnessing a new system of wording, ingenious as it may be such matters so often are in the hands of an adroit parliamentary draftsman—to extend the concept of the Henry VIII clause to Community law, that would amount to using a subordinate Minister, albeit the Lord Chancellor, in the context of Community law and an institution that the European Community would no doubt consider to be a provincial assembly, namely this Parliament, to put through a provision, the effect of which we have already been told is binding on us in any event.

That raises yet another important matter, which I want to put on the record. It is folly and an insult if we are already bound by the requirements, as the Minister is implying, to use this Parliament as a means of pretending that we are legislating when we are not. We are merely putting through a measure—I hestitate to use the word ''implementing''—with the appearance of compliance when it has already been decided at another level and which the Minister informed us we cannot change. That is why I reassert the doctrine of parliamentary sovereignty in relation to the Bill and I condemn the method employed in this arrogant way by the Government in attempting to put through arrangements that are unconstitutional, unprincipled and unnecessary.

Yvette Cooper (Labour, Pontefract and Castleford)

I have covered those points in some detail. Community law includes regulations and covers all sort of laws, but I have set out clearly that the number of MEPs can be altered only through treaties or as required by treaties. Clause 4(1) allows for MEP figures to be altered—only the number of MEPs and no other aspect of Community law—only by treaty or as required by treaty. The sort of situation and regulations that the hon. Gentleman describes to change the number of MEPs would not be possible

under European law, so it would not be possible for them to be implemented through the Bill. The scenario suggested by the hon. Gentleman is simply not possible as a result of the combination of European law—I have quoted treaties and articles—and the Bill.

I appreciate that the hon. Gentleman does not like Community law in general. The logic of his comments is that we should either break Community law or pull out all together, but he should not let that blind him to what the Bill does. I understand that it suits his purposes to exaggerate the consequences and implications of certain Bills and clauses, but it is not fair of him to do that. The Bill does not do what he describes, as I said clearly. The number of MEPs can be altered only through treaties or as required by treaties. The reason for the wording in the Bill is to be completely clear that the Council's decision, which was required under the protocol as part of the treaty, should be covered and implementable by the Bill. It is straightforward and he knows that he is being a little disingenuous in his points.

Bill Cash (Conservative, Stone)

The Minister may like to know that I have a letter of apology, which came through the Speaker, in respect of a certain hon. Member, who is now a Minister, for the allegation in the House that I had argued to come out of the European Union. I should be grateful if the Minister withdrew her remark and did not repeat it, because it is a serious allegation and there is no substance to it. I have argued consistently for renegotiation, which is quite a different thing; we renegotiate treaties all the time. The Minister still has not answered my question about the European Commission.

Yvette Cooper (Labour, Pontefract and Castleford)

Yes, I have; it was the first thing that I said. Community law includes regulations and all kinds of things, but, as I also clearly said, the position on MEPs can be altered only through treaties or as required by treaties. It is not possible for the kind of things that the hon. Gentleman suggested to be done under the Bill.

As for the hon. Gentleman's wider concerns about whether people are suggesting that he believes that we should withdraw, I wonder what he thinks the consequences would be if other member states did not agree to his version of the renegotiation of the treaties. Somehow I doubt that they would be as enthusiastic about renegotiation as he thinks, and the logical consequence of that is that he would have to break Community law or withdraw altogether.

Frank Cook (Labour, Stockton North)

The Chair, as ever, is intent on ensuring that none of us suffers the fate of Cardinal Wolsey or Sir Thomas More, so I will allow democracy to be exercised.

Amendment negatived.

Bill Cash (Conservative, Stone)

I beg to move amendment No.17, in

clause 2, page 2, line 26, after 'notice', insert

'which shall be a reasonable period of not less than three months'.

The amendment is short and simple. I just wanted the Minister to be good enough to explain why no period is specified. I have not been prompted by the Electoral Commission; I am simply curious. It is

important that a reasonable period is allowed. I would have thought that the idea of using the word ''reasonable'' had occurred automatically to the draftsmen, the Government and the Minister's advisers. Perhaps the fact that ''reasonable'' was not included means that the Government do not necessarily want the period of time to be reasonable. I put in a specific time by way of a probing amendment. I would be interested to know the Government's reasoning and whether the Electoral Commission will be disadvantaged in any way.

Yvette Cooper (Labour, Pontefract and Castleford)

The intention behind the amendment is sensible and three months is a perfectly reasonable time. Certainly, we should give the Electoral Commission as long as we can to do the work, but equally we should not limit its flexibility. The Electoral Commission may wish to take less time. Although there will need to be mathematical calculations and some consultations, it may be that those things can be executed relatively swiftly. Given the difficult timetable that we have between now and the 2004 elections, it seems inappropriate to limit the flexibility in the Bill. We certainly intend to give the Electoral Commission a reasonable period and three months seems sensible. I urge the hon. Gentleman to withdraw his amendment, because although its sense is accepted, it would be inappropriate to include it in the Bill.

Bill Cash (Conservative, Stone)

For one astonishing moment, I thought that the Minister was agreeing to accept the amendment, which would have been ground breaking. However, before she sat down, she hastily made it clear that she was not. She agrees with the sentiment behind it. In a suitably responsive manner, I accept that she has made that point, which has clarified the situation. I am grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 3, in

clause 2, page 2, line 29, leave out from 'region' to 'MEPs' and insert

'(other than Northern Ireland) is allocated at least four'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No. 4, in

clause 2, page 2, line 29, leave out 'and' and insert—

'(aa) Northern Ireland is allocated at least three MEPs; and'.

Amendment No. 10, in

schedule, page 13, line 14, after 'least', insert

'four MEPs, except that Northern Ireland is entitled to be allocated at least'.

I shall say at the outset that the hon. Gentleman made considerable reference to this group of amendments prior to discussing amendments Nos. 14, 38 and 34. Can we bear that in mind?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, Mr. Cook, although I thought that my remarks were to the effect that I would not discuss these amendments at that point, because we would come to them later. I shall, obviously, consult the record to ensure that matters are as they appear.

In passing, I reassure the hon. Member for Stone that, in the Committee of the other Bill on which I am simultaneously serving, a Minister gave Committee members a free vote on an amendment the other day, quite extraordinarily, which succeeded and amended the Bill. It was only on whether ''different'' took the ablative or the dative, but it was nevertheless a good precedent.

Bill Cash (Conservative, Stone)

The hon. Gentleman might be interested to know that I had hoped to propose a free vote in this Committee on some of my amendments on the constitutional issues that I have mentioned—on matters that might not be agreed across the House, but should give food for thought. However, I was advised that that might not be easy to achieve.

Frank Cook (Labour, Stockton North)

Order. Can we make progress?

David Heath (Liberal Democrat, Somerton and Frome)

I shall now make rapid progress.

These amendments raise a crucial issue, because they go to the heart of the system that Parliament, on the Government's recommendation, chose to use for European parliamentary elections in the European Parliamentary Elections Act 1999.

I know that I would tire you and the Committee, Mr. Cook, were I to take a great deal of time explaining different electoral systems and their consequences, so I shall not do that. However, inherent in what was agreed in the 1999 Act, which became law for those elections, was a system that was proportional in effect, albeit that there were problems over whether to have a closed or open list, or an alternative, as we shall debate later. It was decided that a regional system with multi-Member constituencies should reflect the proportion of votes cast in each region, to provide for representation reflecting the voting intentions of the British population. What emerged from that, which now forms part of the European Parliamentary Elections Act 2002, is what is termed a closed regional list system for all the English regions, Wales and Scotland. A different system applies in Northern Ireland under section 3 of that Act: a single transferable vote system. For this purpose, therefore, we have to treat Northern Ireland in a slightly different way from the rest of the United Kingdom.

That that was the clear intention is not in any dispute. The then Home Secretary, now the Foreign Secretary, made abundantly clear his intention to introduce a proportional system. Given that, we must examine how that system operates when there is a change in the number of Members to be elected. To take that to an absurd position, if the number of UK representatives were to be reduced to such a degree that only one individual was elected for each region, that would not in any way be a proportional system—it would simply be a first-past-the-post system. Therefore, the intention of Parliament and the Home Secretary would be frustrated. That is not what we want.

We have a system that will be broadly proportionate, with the exception of the situation in the north-east region, which presently elects four

MEPs. Under the reduction, we can reasonably anticipate that that would fall to three, which is the floor specified in the Bill for the number of representatives for each region.

The difficulty is that the system used for voting in the UK under present enactment, other than in Northern Ireland, becomes increasingly less proportionate the smaller the number of Members elected in a particular region. It is broadly proportionate if four or five Members are elected, although there is an element of doubt with four. However, when the number goes down to three, the system is much cruder and markedly less proportionate in its outcome, simply because there are not enough Members to represent the spectrum of voting intention in the region.

Again, without tiring the Committee excessively, that could be exacerbated by a decision of the Home Secretary. There are various ways of calculating proportionality. Those who are anoraks on the subject like nothing better than discussing different voting systems. To some degree, the former Home Secretary fell into that category. The way that he chose to calculate proportionality was based on the d'Hondt system. I prefer the Sainte-Lague system, which is an alternative system that is commonly used across much of continental Europe. It gives a slightly better outcome. We are talking about nuances, but there definitely is a difference.

However, we use the d'Hondt system, which makes calculations to decimal points. It has the perverse effect of a marked disproportionality of outcome if fewer than four MEPs are elected for a region. I do not have a particular partisan interest in the matter because, although we see at the polls that voting intentions shift rapidly, based on historic voting intentions I do not believe that the Liberal Democrats would be the beneficiaries of any change to introduce a more proportional system.

In what ways should we deal with the perverse outcome if we are to respect the intentions of the Government in 1999 and the intentions of Parliament? Basically, there are three ways of dealing with it, two of which I suspect the Minister will reject out of hand. The first is to apply to the whole of the country the example of Northern Ireland, which has a proportionate system based on the single transferable vote. Such considerations do not apply in that case, because a single transferable vote is much more accurately proportionate, even with a small number of representatives such as three.

That would work. As many people know, it is the Liberal Democrats' preferred voting system. We believe that what is good enough for Northern Ireland should be good enough for the rest of the UK. However, the Government have not adopted that position and, although I always hope for a Pauline conversion, I suspect that we will not have one this morning.

The second way is to allow flexibility in the boundaries of regions. In the case of a small region in population terms such as the north-east, the boundary commission can examine the position,

decide whether proportionality is achieved by the system and, if necessary, adjust the boundaries to include a higher population and therefore more representatives and restore the proportionality. However, we have heard this morning that the Government do not intend to do that. The regions are apparently immutable and we shall not see a change.

That leaves the third way, the way in which the Government have addressed the issue in the Bill, which is to say that, for each English region, there must be a floor for the number of MEPs who can represent that region. Although that has disadvantages because it may lead to one region being marginally over-represented as against another, it has the advantage of maintaining proportionality and the spectrum of political representation. It would also ensure that in an area such as the north-east, which has a relatively small population but a large geographical land mass and some difficulty in providing for proper representation, there were enough MEPs to represent it properly.

The Government believe that there should be a floor but that it should be three. I contend that there should be a floor, but that it should be four, which is the existing representation for the north-east, because below that anomalies begin to creep into the outcome. The same consideration does not apply to Northern Ireland, which is why this group hangs together, because of the single transferable vote system there. Therefore, there is no problem with a floor of three there. However, if we are to do justice to the voters of the north-east, we must ensure that all their votes count in a European election and that they have adequate representation to ensure that their voice is heard in Europe. That is not necessarily the case under the Bill. I believe that a floor of four would help that process. If the Minister has access to the detailed calculations, she will also see that there is a problem. It needs to be addressed and, if it is not addressed in the Committee, it will have to be addressed elsewhere. I know that this issue is of considerable importance and will have to be examined, I hope by the Electoral Commission. If it is not, we may need to change the basis on which the Bill is drafted.

Yvette Cooper (Labour, Pontefract and Castleford)

The amendments raise the minimum threshold for representation in any region to four MEPs, except for Northern Ireland which would have a minimum threshold of three.

The hon. Gentleman made an interesting speech, to which I listened carefully. Clearly there are pros and cons to any system. Any minimum threshold has an impact on electoral equality. If regions are raised to a threshold which, on electoral mathematics, they might have fallen below, constituents in that region will be over-represented and constituents in other regions under-represented. On the other hand, in a proportional system with no minimum threshold, it is, as the hon. Gentleman said, possible for small regions to find that their results become less proportionate. Those are trade-offs that must be balanced against one another. We have struck a balance to ensure that we keep the broad

proportionality and also maintain justifiable electoral equality across the regions.

It is also important to ensure that we treat regions similarly, instead of treating Northern Ireland differently. The hon. Gentleman argued that Northern Ireland should be treated separately because of the accounting method. I undertake to look further at that point, because I had not

considered the implications in full. However, I am not minded to accept the amendments based on what he said, because we must maintain electoral equality and allow the Electoral Commission—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 2 - Recommendations by Electoral Commission - relating to changes in number of United Kingdom MEPs

Frank Cook (Labour, Stockton North)

I remind the Committee that with this we are discussing the following:

Amendment No.4, in

clause 2, page 2, line 29, leave out 'and' and insert—

'(aa) Northern Ireland is allocated at least three MEPs; and'.

Amendment No.10, in

schedule, page 13, line 14, after 'least', insert

'four MEPs, except that Northern Ireland is entitled to be allocated at least'.

I also remind the Committee that under the terms of the resolution agreed on Tuesday our proceedings to the end of clause 7 must be brought to a conclusion by 5.30 pm today.

Bill Cash (Conservative, Stone)

We are dealing here with something that the Deputy Speaker was anxious, for a variety of reasons, that we should not discuss on Second Reading. The ingenious drafting of the hon. Member for Somerton and Frome (Mr. Heath) has produced an amendment that gives us an opportunity to examine methods of election.

At least one other hon. Member in this Room is a member of the European Scrutiny Committee and he will recall that we produced a report last June in which the method of election to the European Parliament was discussed. In a nutshell, the Committee decided, after a vote, to delete proportional representation for election to the European Parliament in its application to the United Kingdom and wisely advocated a return to the first-past-the-post system. I do not know whether the hon. Member for Somerton and Frome knew about that, but it was interesting because no one could say that the Government's party was not well represented on that Committee with a substantial majority. The bottom line is that that demonstrates that, irrespective of what may be contained in the treatiesI recall the provisions in the treaties covering uniform electoral procedurethere is advocacy, combined with an element of compulsion. I cannot say that it is absolute, but that is the sort of generality of the position.

To say the least, the hon. Gentleman is sensibly bringing to the Committee's attention the notion that the Electoral Commission shall review the current method of election of MEPs and then assess the efficacy of the various methods. The trigger for the hon. Gentleman's objectives is that reference is then made to ensuring proportionality, accountability and effectiveness of representation, and he follows that up [Interruption.] This is not the same amendment?

David Heath (Liberal Democrat, Somerton and Frome)

No.

Bill Cash (Conservative, Stone)

If I am speaking to the wrong amendment, I apologise and am happy to give way.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to steal the hon. Gentleman's thunder, but his comments on new clause 1 should properly be made in our subsequent debate. At the moment, I am simply dealing with the floor number of representatives for each region.

Bill Cash (Conservative, Stone)

In that case, I am happy to return to the matter later.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for her earlier considered reply to my comments. She said that she would examine more carefully the implications for smaller constituencies of the system that the Government have chosen to use. That was a positive statement by the Minister.

The Minister said that the basis of the Bill was uniformity across the United Kingdom. That is transparently not the case under the present system because of the difference in Northern Ireland. One cannot equate the three members voted for a province of Northern Ireland with the rest of the United Kingdom, because they are elected on a totally different basis, for historic and current political reasons that we all understand. There is a good argument for using that system in Northern Ireland. Some would say that there is an argument elsewhere, but that is a different argument.

If we ask officials to do the calculations, we can see whether, as we suspect, a bigger discrepancy is built into the system when we get down to three representatives. If there is, as the Minister correctly says, the trade off is then between that and the fact that a floor greater than three will produce a difference in the level of representation between different regions of the United Kingdom. I contend that that is less of an evil than not to have represented at all a political persuasion that is substantially represented in that region by the votes cast. That seems an appropriate trade off. We shall clearly need to come back to it later. I shall leave the Minister to reflect further on what I have said. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Cash (Conservative, Stone)

I beg to move amendment No.19, in

clause 2, page 2, line 34, at end insert—

'(aa) shall be debated by each House on a substantive motion; and'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment No.31, in

schedule, page 13, line 21, at end insert

'and shall be debated by each House on a substantive motion.'.

Amendment No.32, in

schedule, page 14, line 12, after 'House', insert 'on a substantive motion'.

Bill Cash (Conservative, Stone)

These are substantially the same amendments applied to different parts of the Bill. In particular, they would ensure that a debate was held where motions are recommended by the provisions in the Bill.

Amendment No. 19 proposes that the recommendation that we discussed this morning would have to be published by the Electoral Commission and laid before Parliament by the Lord Chancellor. Furthermore, it would cease to have effect at the end of a year after the day on which it was made. As far as I can see, there is no requirement for the matter to be debated. In view of the importance of this issue and in the interests of democracy, which I discussed this morning, any such recommendation should be debated. I have also included in the amendment the words ''on a substantive motion'', so the matter could not be debated simply in an Adjournment debate.

In a discussion this morning with the hon. Member for Somerset and Frome I discovered that he had had experience of a free vote—an unusual creature. In relation to much that takes place in the House, as I have said in a number of debates, and I have been supported by the former Chief Whip of the Labour party, the whipping system has got somewhat out of control. Given that we would expect to have a whipped Second Reading debate, when we are in Committee there is a great deal to be said for drawing on the brain power of members of the Committee and not treating them as if they were brain-dead automatons who cannot say anything. Actually, they often have a lot to say, but usually in private. We could make some useful advances in the reform of Parliament if we were to go down that route. For the time being, I will have to be content with a substantive motion and relying on the integrity of Members of Parliament in deciding whether in a given case they should rebel against their Whips and the Government, as some of us have found it necessary to do in the past on European issues. As we discovered this morning, the recommendation is very important, but there is no reason to go back over that ground. However, it should be debated properly when it emerges.

Amendment No. 31 relates to the schedule. A similar point arises with respect to the report, which must be published by the Electoral Commission as soon as possible after 1 May in a pre-election year in discharging its obligation to carry out a review of the distribution of MEPs between the electoral regions. Afterwards, it has to report its conclusions to the Secretary of State, not the Lord Chancellor, but we have been into that already. Paragraph 1(4) of schedule 1A states that

''The report must be published by the Commission and laid before Parliament by the Secretary of State.''

I shall not repeat the arguments that I have already given, and the amendment, which states that the report

''shall be debated by each House on a substantive motion'',

speaks for itself. It would not be good enough simply to lay that kind of report before Parliament, unless the Minister can assure me that it would automatically be debated. I should like an explicit clarification of that point.

Finally, amendment No. 32 relates to paragraph 3 of schedule 1A, which states:

''Where a recommendation under paragraph 1(3) is made to him, the Secretary of State must''—

I am glad to see that provision, which I have mentioned before—

''lay before Parliament a draft of an order giving effect to the recommendation by amending any of the numbers specified in section 1(3); and . . . if the draft is approved by resolution of each House, make an order in the terms of the draft''.

Amendment No. 32 would add the phrase ''on a substantive motion'', but that might not be strictly necessary because I suspect that a resolution would be a substantive motion, so we do not have to worry about it too much. Perhaps some explanation is needed as to why we have a recommendation under that schedule that is bound to be dealt with by an affirmative resolution, whereas the recommendation of the same Electoral Commission with respect to the point on clause 2 that I made at the beginning—the fact that the recommendation

''must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor''—

is not subject to the affirmative resolution procedure. That perhaps illustrates my point that, for some reason on which I should like to hear more, there is an apparent inconsistency in the procedures to be followed for similar recommendations made by the Electoral Commission in different circumstances. That seems a little odd. I shall be interested to hear what the Minister and the hon. Member for Somerton and Frome have to say.

David Heath (Liberal Democrat, Somerton and Frome)

There is a basic procedural principle in this House that matters of a constitutional nature are debated on the Floor of the House. Previous matters relating to European parliamentary elections have been dealt with in a Committee of the whole House, but this debate has been referred to a Standing Committee. It is a sound principle that a proposal that changes either the basis or the operation of an electoral system should be agreed by the whole House.

I pray in aid the support of the Secretary of State for Foreign and Commonwealth Affairs who said:

''There is a very good reason why it should not be possible to change the voting system by statutory instrument. We are dealing with fundamentals of our democratic system, and it would be wrong to change them by statutory instrument.''—[Official Report, 10 November 1998; Vol. 300, c. 208.]

We have here a proposal to do precisely that. The hon. Member for Stone (Mr. Cash) has suggested that we at least ensure that there is a debate on the Floor before such a change is made, which seems entirely

appropriate. I shall be interested to hear why the Minister feels that that might not be necessary.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall try to limit my remarks, as I am conscious that the guillotine will fall at 5.30 pm, as we have all agreed. We still have time to cover the remaining clauses and amendments, but we have already had some extensive debatesI shall not call them perambulationson issues surrounding the Lord Chancellor's constitutional status and the detailed extent of Community law. I think that sentencing policy even cropped up at one point.

The Bill provides for the report produced by the Electoral Commission on the redistribution of MEPs to be laid before the House. The Lord Chancellor will lay a draft order before Parliament and he cannot propose anything in that order that does not follow the recommendations in the commission's report. The order is then subject to the affirmative resolution procedure, which is a substantive motion of the House requiring debates in both Houses of Parliament. Clause 5(3) says that the order may not be made

''unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.''

Parliament will therefore have a debate and vote on the commission's proposals.

Bill Cash (Conservative, Stone)

I was referring to clause 2. Clause 5, to which the Minister has just referred, is supplementary and clearly says:

''This section applies to orders under section 4'',

not to those under section 2.

Yvette Cooper (Labour, Pontefract and Castleford)

That is indeed the case but, as I said a couple of seconds ago, the Lord Chancellor cannot propose anything in that order that does not follow the recommendations contained in the Electoral Commission's report. The hon. Gentleman's amendment calls for the commission's report to be put before Parliament, for a debate on a substantive motion on that report and for the order that has to implement the commission's recommendations also to be put before Parliament, which will effectively have the same content as the commission's report. That will be turned into the order, which will be put before Parliament under the affirmative resolution procedure. The amendment would create duplication, and would mean a delay in the process. Parliament will have the opportunity to debate and vote on the proposals made by the commission when it is introduced in an order.

The reason for using the affirmative procedure is relatively standard. We are debating a piece of primary legislation on the principles behind the order. The order will include the recommendations of the Electoral Commission, and it is right that those are drafted by the independent commission. If any Opposition parties feel strongly enough about that, they can propose that the matter should be the subject of an Opposition day debate. The reasons are relatively straightforward. There will be an affirmative resolution procedure for the order, and the affirmative resolution procedure applies for the schedule as well.

Bill Cash (Conservative, Stone)

If the Minister has a conclusive answer to

the questionunlike on some of the other matters, where we have not had any answersI shall be the first to admit it. In the light of her remarks, which I shall study when I have an opportunity to do so, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take new clause1Recommendations by Electoral Commission relating to methods of election of United Kingdom MEPs

'(1) Before making any recommendation as to the distribution of MEPs between the electoral regions under section 2, the Electoral Commission shall—

(a) review the methods of election of MEPs currently used;

(b) make an assessment of the efficacy of the methods of election in ensuring (i) proportionality; (ii) accountability; and (iii) effectiveness of representation;

(c) make such recommendations to the Lord Chancellor as it shall determine.

(2) A recommendation under this section must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor.'.

Yvette Cooper (Labour, Pontefract and Castleford)

I propose that clause 2 stand part of the Bill, but we reject new clause 1, which is proposed by the hon. Member for Somerton and Frome.

New clause 1 would ask the Electoral Commission to engage in what would inevitably be a long and complex review of a system that Parliament put in place only five years ago, after protracted debate, and under which only one election has taken place. It would delay its work on the redistribution of MEPs to a point where it would be very difficult to put the timetable in place for the 2004 elections.

I understand that the hon. Gentleman wants to raise issues concerning the voting system, and has a different view about the voting system that should be in place. I understand that the new clause is an attempt to pursue that. However, those issues go far wider than the Bill. The Bill does not address them, and it is appropriate that it does not. It is appropriate that the Electoral Commission should not be held up in the important work of sorting out the distribution of MEPs in time for the 2004 elections.

Clause 2 establishes the mechanism for the reviews of the distribution of MEPs to take place when the change in numbers has been agreed or is anticipated. It gives the Lord Chancellor the power to require the Electoral Commission to make recommendations in a specified period about the distribution of the total number of MEPs in the UK regions. It is important that the redistribution is in place in advance of the 2004 elections. It is right that the Electoral Commission should play the role of making the recommendation on the distribution given its other responsibilities and its independence. It will be a relatively tight time scale, but ultimately it operates within the framework of the treaty of Nice, which has been ratified by Parliament.

David Heath (Liberal Democrat, Somerton and Frome)

I rise to speak to new clause 1. The hon. Member for Stone will have the opportunity to say what he wants to say about the voting system.

I hear what the Minister has said, but it is transparently obvious to many people that there is a great deal of concern about the operation of the closed list system. It has been brought into disrepute for precisely the reasons that it was rejected on possibly three occasions, certainly twice, by the upper House when the European Parliamentary Elections Bill was under consideration in 1998.

The Bill went to the wire. There was a great deal of doubt as to whether it would complete its parliamentary passage in time. A majority in the upper House—Liberal Democrats, Conservatives, Cross Benchers and some who took the Labour Whip—felt that an open list system would have been a better option for achieving the Government's aims in reforming the European Parliament election system. I can do no better than to quote the Lords reason for insisting on their amendments, which were debated on 10 November 1998:

''Because electors should be able to vote for the individual party candidate of their choice.''—[Official Report, House of Lords, 10 November 1998; Vol. 594, c. 206.]

The problem with the present closed list system is that it puts far too much power in the hands of the party machine rather than of the elector in determining which competing candidates from a given single party shall be elected. It also puts an improper pressure on MEPs to address their attentions too much to the primary electorate which is, in their case, the membership of their party, rather than the wider electorate who can vote only for a party list.

For those reasons, we believe that the party list system is less good than the single transferable vote and the closed list system is inherently worse than an open list system, which would at least give the electorate the opportunity to express their choice between candidates.

I understand the Minister's saying that the scope of the Bill is limited to what is contained in the treaty of Nice and why she would not want to delay the process unnecessarily. However, this is an opportune time to review the system. In 1998, the then Home Secretary offered an early review as a concession. Since then, we have had further experience of what the system means for MEPs.

I am disappointed that some of the brightest and best MEPs are expressing concern that they are not part of a properly democratic system and are returning to domestic politics or going elsewhere. Some long-standing MEPs have found themselves running foul of their party list system and find that they will not be able to seek re-election under the next European Parliament elections simply because they have displeased someone within the hierarchy and apparatus of their own party.

Bill Cash (Conservative, Stone)

Would the hon. Gentleman care to elaborate, perhaps by reference to Labour party MEPs? He may recall that some people have actually

been dumped because they had the temerity to express views that were inconsistent with those of the great panjandrums who run the outfit.

David Heath (Liberal Democrat, Somerton and Frome)

That is undoubtedly the case, but the hon. Gentleman's party is not alien to that process.

Bill Cash (Conservative, Stone)

Some of us survive.

David Heath (Liberal Democrat, Somerton and Frome)

I have seen the system at work in the lists in the south-west region. The new Conservative list places the person who was at number one at number four or five.

Bill Cash (Conservative, Stone)

That decision was arrived at democratically. There was no closed-system meeting.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to explore the depths and thickets of the Conservative electoral process.

It is important that we have a system that best matches the aspirations of the electorate and the democratic accountability that we have in this country. I am not convinced that we have that at present. We seem to be developing a constitutional mosaic, in which there is a different electoral system for every tier of elections. I am not sure that that is a good thing. My party has a very clear preference as to the best solution, as do others— I accept that there are different opinions about it. I am not persuaded that that is a good way to attract and maintain higher turnouts in elections because every time we go to the ballot box there will be a different system of election, which we may not understand. This system has merit in providing approximate proportionality and demerit in not providing individual accountability for the electorate.

Sitting suspended for a Division in the House.

On resuming—

David Heath (Liberal Democrat, Somerton and Frome)

As I was saying before we were interrupted, there is a case for reviewing the system. The obvious independent body to do that is the Electoral Commission. While it is looking at the operation and distribution of seats, it is perfectly proper for it to receive and look at representations on the operation of the system. I accept that it is unlikely to be able to make detailed recommendations on changes of operation and to enact them before the next European Parliament elections, but that is not necessarily the deadline to which it would have to work. The new clause would simply require it to begin the process before allocating the seats.

I understand that the Minister does not want that to happen. She made that clear on Second Reading and has made it clear again today. In the interests of brevity I do not ask her to repeat it yet again, because I doubt that she will have changed her mind in the meantime. I am content to consider whether to move the Second Reading of the new clause at the appropriate moment. Meanwhile, we can continue the clause stand part debate and, I hope, reach a conclusion.

Bill Cash (Conservative, Stone)

I want first to refer to the arrangements in new clause 1, some of which I have already covered. I

said that the European Scrutiny Committee would prefer us to revert to a first-past-the-post system. I was about to consider what the arrangements set out in the new clause would involve. I am concerned not only about the closed list system but about the party list system.

The hon. Member for Somerset and Frome said—

Frank Cook (Labour, Stockton North)

Order. I am somewhat nervous that we may stray into areas that we should not consider today. As I read the new clause, it simply seeks a decision to engage in the review and look at the different systems. I have no intention of allowing various different systems to be discussed and evaluated today. That is clear to all members of the Committee, is it?

Bill Cash (Conservative, Stone)

I accept that ruling, Mr. Cook, and simply add this. In considering the recommendation that the Electoral Commission would arrive at, we must remember that some arrangements under the present system give rise to difficulties and, as I said, can lead to tyranny. In certain European countries, if people disagree with their leaders' proposals they can be removed from the list. If someone disagreed with Chancellor Kohl in Germany, for example, they were struck off the list and that was that. Of course, he has gonehe appears to have fallen on his sword. Having said that, the reality is that there are many objections to the way in which the system functions, and the hon. Member for Somerton and Frome has done us a service.

The hon. Gentleman also referred to what happened when the European Parliamentary Elections Bill of 1997—98 failed. As he pointed out, it was thrown out by the House of Lords, and subsequently brought in under the Parliament Acts procedure on 14 January 1999. Although it might be interesting, it is unnecessary to engage in a fuller discussion about the relative merits of those systems, particularly given what the European Scrutiny Committee has to say. Its report will be debated fairly soon, in which case an opportunity to go into some of those questions may arise.

All I need do is say that I am grateful for the opportunity to register my few points. In conclusion, I thank the hon. Gentleman for seeking to get something off the ground, which did not quite succeed.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 3.

Clause 3

Section 2: meaning of ''elector''

Clause 4 - Orders implementing changes in the - number of United Kingdom MEPs

Bill Cash (Conservative, Stone)

I beg to move amendment No.23, in

clause 4, page 3, line 28, leave out '(4) to (6)'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments:

No.27, in

clause 5, page 4, line 1, leave out subsections (4) to (7) and insert—

'(4) If a motion for the approval of a draft order is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedures provided under sections 2 to 5 of this Act.'.

No.35, in

schedule, page 14, line 21, leave out paragraph 4 and insert—

'4. If a motion for the approval of a draft order under paragraph 3 is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedure under the Act.'.

Bill Cash (Conservative, Stone)

The clause, which relates to orders implementing changes in the number of UK MEPs, troubles me. We have been through the arguments about the manner in which changes are due to take place and objections have been stated. Clause 5(4) states that if a motion for the approval of a draft order, containing the arrangements of which I have been so critical,

''is rejected by either House or withdrawn by leave of the House the Lord Chancellor may, after consulting the Electoral Commission, alter the draft order.''

Clause 5(5) states:

''the Lord Chancellor may not, without the consent of the Electoral Commission, alter any amendments to section 1(3) of the 2002 Act contained in the draft order.''

Clause 5(6) states:

''The Electoral Commission may not give its consent under subsection (5) unless it is satisfied that the distribution of MEPs proposed by the altered draft order could have been recommended under section 2.''

Clause 5(7) states that a

''statutory instrument containing an order that is not subject to approval . . . under subsection (3)'',

which is an order containing amendments to section 1 of the 2002 Act, is subject to annulment procedure.

What will happen if either House—the House of Commons or the House of Lords—decides that it does not like the arrangements produced? We must bear it in mind that the whole procedure begins with a Council of Ministers decision based on part of a protocol, which will already have been decided by majority vote and the provisions of which cannot be changed because it ''shall'' have ''effect''. Following that, the European Commission may or may not become involved in the process; according to the explanatory notes it will ''inform'' the Government, so the Lord Chancellor will then take his marching orders and the subordinate Minister will have to bring an order before what the Commission would like to believe is a provincial assembly, in order to implement arrangements that have been agreed, of course, without a referendum. We called for a referendum on the Nice treaty, but that was rejected.

We are here really talking about the democratic will of individual states, whether accession states or member states. The procedure of co-decision in the European Parliament means that it has a dramatic impact on the way in which we live our lives and are legislated for. All this paraphernalia is actually about some very simple questions. Who governs us and how is that done? What is the democratic will, and has the democratic deficit, to use that much-vaunted expression, been removed? From what I have been saying, the Committee might gather that I regard the democratic deficit to be alive and kicking. This provision is a very good example of that. It is monstrous that a Bill should give the Lord Chancellor such powers, when they could have been

exercised in a much more transparent and efficacious fashion.

Turning to what will happen when the procedure does ultimately reach the lower echelons of the provincial legislative arrangements that this House of Parliament is deemed to represent—I find that an astonishing thought, but that is what things seems to boil down to—we have some acknowledgement that the arrangements could be rejected. There is a provision that says:

''If a motion . . . is rejected by either House or withdrawn by leave of the House the Lord Chancellor may, after consulting the Electoral Commission, alter the draft order.''

So we are back to square one. Here is yet another twist and turn in the charade to which we are being subjected. We will be allowed to discuss arrangements, but not to arrive at any settled conclusions.

I hope that some Labour Members will be open-minded enough at least to acknowledge that there is something seriously wrong with a procedure that goes through such convoluted mechanisms to no effect. The bottom line is that it is a charade to be legislating on a matter that in itself determines the manner in which we legislate and exercise power, which is dependent on such things as how many MEPs there are and what coalitions and alliances they have entered into. At bottom, when we scratch away all the surface, as on one of those scratch cards, we will find just about zero.

David Ruffley (Conservative, Bury St Edmunds)

I fully support my hon. Friend's arguments. For my benefit, and perhaps that of the whole Committee, will he expand on what the next step would be if amendment No. 27 were made? That would mean that the order would fall and there could be no recommencement of procedures.

Bill Cash (Conservative, Stone)

Yes. We have legislative time in this House to deal with such matters properly. We did not vote against the Bill on Second Reading because at bottomalthough I doubt whether the Minister will understand this, coming from mewe appreciate that we have to comply with our international obligations. I might like to see those renegotiated, become more transparent and be more democratically passed, but certain arrangements have been made, and although my whole party and I would have liked referendums on such important questions, we acknowledge the fact that the law is the law for the time being until we can be fortunate enough to do something about it.

Having said that, the answer to my hon. Friend's question is yes, we would be unable to recommence the procedure, but I anticipate that at that point another Bill would have to be introduced to deal with the matter more democratically. To take up the point that the hon. Member for Somerton and Frome and I made under earlier amendments, that might perhaps be more precise about what is or is not Community law and address the questions on the accession treaties to which we have still not had very satisfactory answers. We do not yet know how many countries will become member states. We do not know what the outcome of the referendums in those countries will be.

The Bill is based on a hypothesis, and for all the reasons that I have already given, if the proposals end up being rejected by either House after a full-blown debate, there would be a case for saying that we should go back and recalibrate the system rather than recommencing a procedure that had, by definition, been rejected by the House of Commons or the House of Lords. The very fact that such a situation can arise presupposes that there could be such a rejection.

David Ruffley (Conservative, Bury St Edmunds)

The more that I hear from my hon. Friend, the more I like the amendment. Will he explain whether the renegotiation at which he is, I think, hinting, would be carried out by the Government going to the Council of Ministers, or by some other mechanism?

Bill Cash (Conservative, Stone)

We know that renegotiations have taken place. I think that I am right in saying that the Prime Minister himself has used the word ''renegotiation'' recently. There are circumstances in which that becomes absolutely essential. The word ''renegotiation'' used to be treated with contempt but it is now becoming common parlance.

The Minister might have the satisfaction of sitting there and thinking, ''Well, he can go on about this until the cows come home but he is not going to get any of these arguments through because the whole matter has already been determined by the Government's majority.'' I should be interested to know whether this provision is based on anything in the Labour party manifesto, but that is another story. The Labour party is in government and we accept the fact that while the rule of law must be obeyed, matters will go with the Government's majority. However, that is not to prevent us from criticising the manner in which the Government have made a law, from exposing matters that require further explanation or from putting down markers about what we think could be done if either House of Parliament decided, in its wisdom, to reject or withdraw such an order.

I am grateful to my hon. Friend for intervening. I re-emphasise that the amendment has not been tabled on the basis that I would regard the whole process as having come to a complete halt, and it should not be so construed. However, it would provide an opportunity, should those arrangements be rejected by Parliament, to introduce something to which I am sure that we would speedily assent and that would go through the parliamentary processes extremely quickly. However, that is to rely on what I have come to realise is merely a faint hope, which is that the Government will listen to what we say.

David Heath (Liberal Democrat, Somerton and Frome)

Throughout these proceedings, it has been clear that there are occasions on which the hon. Member for Stone and I share concerns about aspects of the Bill that we want to explore with the Minister. However, we part company when he places a nuclear device under the Bill, primes it and then steps asideor sits astride it, as I suggested earlierand I am afraid that this proposal is another nuclear device.

David Ruffley (Conservative, Bury St Edmunds)

A pretty good one.

David Heath (Liberal Democrat, Somerton and Frome)

Well, it depends on the objective. If someone's objective is to ensure accession of a large part of central and eastern Europe to the European Union, they will not want a nuclear device; they will want to

ensure that the House can legislate effectively.

The hon. Member for Stone has been entirely honest about what happens. The recommendations of the Electoral Commission may not find favour with the House. I think that unlikely, but clearly it could propose something that no one finds satisfactory. It may decide that the south-west of England should have 60 Members and the rest are to be distributed around the rest of the country, which may feel short-changed by that. We may feel slightly over-represented and vote even more vigorously against having that many Members of the European Parliament. Whatever the case, there must be a way in which the House can express its opinions on the Electoral Commission's recommendations, and that is provided for.

The Bill also provides for a feedback loop, which enables the Lord Chancellor, having taken into account the House's views, to return with revised proposals. However, it does not give him the opportunity to create his own alternative without the Electoral Commission being happy that it falls within its independent assessment of what is appropriate for the country.

Bill Cash (Conservative, Stone)

It is a relatively small point, but that is the arrangement already. It is not as if, with the revised version, the Lord Chancellor is given greater power. He is subjected to the same requirement to comply with what the Electoral Commission says in either event.

David Heath (Liberal Democrat, Somerton and Frome)

That is the case as the Bill is drafted. If the hon. Gentleman's amendment were successful, however, that option would be closed off and the Lord Chancellor would be unable to return with alternative proposals. The Bill would in effect be dead, and the only way in which the Government could secure our compliance as a country with our treaty obligations would be to introduce new primary legislation to give effect to what was in the Bill. I am not sure that that is a sensible way to legislate. Whatever deficiencies the Bill has, safeguards are built into it in the event that the House exercises its democratic will and decides that the Electoral Commission has produced proposals up with which it cannot put.

I reject the hon. Gentleman's suggestion that the Bill and the mechanism for determining our representation in the European Parliament should die with the first effort on the part of the Electoral Commission. Primary legislation would have to be introduced late in the process, which would almost certainly mean that we were unable to comply with our treaty obligations or to secure the election of Members of the European Parliament in the time scale required for the next election. We would be cutting off our nose to spite our face. I am sorry, but I simply do not regard the mechanism suggested by the hon. Gentleman as sensible.

Bill Cash (Conservative, Stone)

I hear what the hon. Gentleman says, but there are features of this Bill—he has agreed with me on a number of them—which deserve censure and criticism. That leads to the question of proportionality. We are obliged to implement what has been decided, although we would have preferred it to be subject to a referendum.

There is a reduction. There are important democratic questions here. I emphasise that my suggestion is without prejudice. Being severely critical of the mechanisms that are being employed in this Bill and the arrogance that lies behind much of it, I expect that we would give a speedy response to any future proposals, in the event that Parliament rejected them. That is why I do not believe it is a nuclear device, in the sense in which the hon. Gentleman uses the term. That is the key point. It is not just a question, as he said, that they would be killed off by some arrangement that I have in mind. The House would decide whether the arrangements were unworkable and wrong. Because the protocol is already in law, there is no way of avoiding the fact that it is already binding upon us, although I have reservations about aspects of the argument in general concerning the application of Community law in every respect.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is intervening.

Bill Cash (Conservative, Stone)

Yes, I am intervening.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for that intervention.

Frank Cook (Labour, Stockton North)

And for the following chapter.

David Heath (Liberal Democrat, Somerton and Frome)

And for the relevant supporting material.

The problem is that the result would mean less scrutiny, not more. I would reduce the time. Because of constraints of the time scale, it would give Parliament, the Government and the Electoral Commission less time to effect the changes, to consult upon them and to debate them effectively. That is why I reject it.

We have to comply with our treaty obligations. Those of us who want to see accession take place at the earliest opportunity also have a responsibility to ensure that we achieve the necessary changes. The hon. Gentleman has referred several times to his wish to have a referendum on the Nice treaty. I am a strong supporter of referendums on European matters when they make significant changes to our constitutional arrangements. I would have argued, and did so elsewhere, for a referendum on Maastricht when it was rejected by the Government. I have always argued for a referendum on the euro, at a time when other parties were rejecting the idea.

In the case of the Nice treaty, I still do not see the major constitutional implications he describes that would have merited a referendum in that instance. However, there are occasions when that would be entirely appropriate.

Irrespective of whether or not we have a referendum, we have proposals that must be in place at a certain time. I want to improve the Bill and, as far as possible, accountability in the context of the Bill. However, I am not prepared to lose the context in which we can reach a decision in order to allow enlargement to take place on the present timetable. That is a consequence of the hon. Gentleman's amendment, which is why I will not support him if he presses it to a vote this afternoon.

Yvette Cooper (Labour, Pontefract and Castleford)

These amendments do not deal with proposals to renegotiate entirely the

treaties of Amsterdam and Maastricht, and neither will I. Nor will I address the many points of misinformation that the hon. Member for Stone included in his speechwhich I have previously correctedsuch as his reference to the roles of the European Commission and the Council. I will concentrate on the amendments.

The hon. Member for Somerton and Frome clearly explained the role that the amendments would play and the problems that they would cause. We put into the Bill this extra bit about what would happen under clause 5(4) if the draft order is rejected because the Electoral Commission will have to make a recommendation that will involve some approximations and rounding up and down and, once it has done the maths and made its recommendation, it is possible that at the margins there may be two—or theoretically more—different distributions that achieve the aim that is set out in clause 2(4)(b), which is to ensure that

''the ratio of electors to MEPs is as nearly as possible the same in each electoral region.''

It is theoretically possible that a similar result could be achieved with the final MEP placed in one of two or more regions.

In those circumstances, if the Electoral Commission were to put forward its recommendation and Parliament was unhappy with it and rejected it because it believed that it did not offer the best distribution but that there was an alternative that would also achieve the same end, we would be stuck. We would be unable to take forward that alternative, and there would be a risk either of missing the 2004 election or of having to have hastily prepared primary legislation.

The hon. Member for Stone says that his party would give speedy passage to primary legislation; it is unclear to me how it would do that, given his objections to the principles behind this and the fact that if there was a disagreement—if Parliament were to disagree—there might be an alternative that the Electoral Commission would be happy with, in which case we might as well put that through the same process as before. Therefore, this allows the Lord Chancellor to come forward with an alternative distribution for Parliament to accept, but only if the Electoral Commission is happy with it and believes that it satisfies the requirement of clause 2(4)(b). However, Parliament could continue to reject it indefinitely, which would return us to the original situation, so this does not reduce the powers of Parliament in any way. This allows for an alternative distribution to be put forward in time for the 2004 election, if the Electoral Commission is happy with it.

Bill Cash (Conservative, Stone)

I think that the Minister appreciates that it is possible that these proposals will be rejected. Anything can happen in this world. I am simply making the point that what I have proposedincluding the guarantee that we would give a speedy response and get any future Bill throughis based on the fact that there are parts of this Bill and its mechanisms that do not pass a proper democratic test. Therefore, the reasons why

Parliament might reject it are connected with the unsatisfactory nature of the Bill. However, contrary to what the Minister says, we accept the principle of the Bill because we would want to implement our international obligations.

Yvette Cooper (Labour, Pontefract and Castleford)

The order will put forward the distribution as recommended by the Electoral Commission. If Parliament chooses continually to reject that, we will either be unable to send the right number of MEPs to Europe at the 2004 elections and be in breach of Community law and our treaty obligations, or we will need to attempt to pass primary legislation. It would be unnecessary to reach that point if it were possible to resolve the matter more quickly by simply putting an alternative distribution to Parliament.

This is a narrow provision, and it is highly unlikely that it will be used unless it transpires that there are several possible alternative distributions that meet the numbers game. In all probability, we would expect the Electoral Commission to come forward with a sensible recommendation that meets the requirement of clause 2(4)(b), and it will be for Parliament to decide on the matter at that point.

Bill Cash (Conservative, Stone)

We have said as much as we need to say about this set of amendments. In the light of what the Minister has said, I am prepared to withdraw the amendment; despite all my reservations on the procedure, she concedes that it would be followed in such a manner that although it would be preferable to have another Bill, it is unlikely that we will get one. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bill Cash (Conservative, Stone)

I beg to move amendment No. 24, in

clause 4, page 3, line 32, leave out

'(including provision modifying any Act)'.

Frank Cook (Labour, Stockton North)

With this it will be convenient to take amendment No. 33, in

schedule, page 14, line 16, leave out

'(including provision modifying any provision made by or under any Act)'.

Bill Cash (Conservative, Stone)

The provision in brackets takes us back to the old problem of what I call Wolsey's revenge. On this occasion, we are considering a Henry VIII clause. The term 'Henry VIII clause' refers to an objectionable procedure that has been used by Governmentsincluding mine, I must admitfor a long time. Such provisions allow orders to be made modifying Acts of Parliament. Wolsey's revenge is shorthand for a case in which we apply a similar procedure with respect to European law, and I am seriously against its use.

It sticks in my throat when a Henry VIII clause is used; I take the gravest exception to it. The reason why they are used must be that it is thought that there is too much congestion on the Floor of the House, if not in the Chamber or in terms of the Members of Parliament present, then certainly in terms of the vast quantity of legislation that we shove through. The disproportionality of attendance to volume of legislation is a point that should be considered.

It is clear that the objective of a Henry VIII clause is to prevent the necessity for primary legislation in the amending of Acts of Parliament. However, that raises

some serious questions about whether it is desirable to modify Acts by order. Subsection (3) says:

''An order under this section may make consequential, supplementary, incidental, transitional or saving provision''

and then adds:

''(including provision modifying any Act).''

If from that it is to be assumed that the modifications of the Act would be limited exclusively to provisions that are ''consequential, supplementary'' and so on, that would certainly mitigate my problem with the clause. However, I take exception to the provisions because I object to all the arrangements that have been put in place, and it is adding insult to injury to allow an Act that has been subject to such stringent criticism to be modified by an order. It is going just that bit too far.

Amendment No. 33 deals with a similar point. I do not need to repeat the principle; in the context of what I have said, the amendment is self-explanatory. I do not like the provisions. I would be interested to know why the Minister has decided that they should be included, and then perhaps we can take a decision on them in principle.

David Heath (Liberal Democrat, Somerton and Frome)

I concur. I add one sentiment: that it makes nonsense of a consolidation Act if there is still provision to amend any other Act that may have been forgotten in the consolidation procedure. The European Parliamentary Elections Act 2002, which is supposed to have brought together all the relevant legislation, contains a substantial schedule of repeals and revocations. If there are omissions they should be in the measure so that we can deal with them as primary legislation. If they are not there should be no need for a provision of this kind, which is otiose. We have consistently argued against it in the context of other legislation and I shall oppose it in the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

I oppose the amendments. The provision is a standard format; it appears in electoral and other legislation whenever there may be unforeseen provisions that might need to be amended for effective implementation. It is true that we have recently had a consolidation Act but there may not be another for some time.

The provisions to make the amendments in clause 4(3) ensure that changes can be made which are related to the changes that are provided for in clause 4(1). For example, it may involve changes to any references in the 2002 Act that may be affected by the changes to section 1 of that Act made under clause 4(1). There may be further consequential changes, which ideally should be in the Bill. There is a series of consequential amendments in clause 7, but it is possible that further such purely consequential amendments will come to light which have not been anticipated. The wording does not allow unrelated provisions dealing with an entirely separate issue to be made. The Joint Committee on Statutory Instruments can rule anything ultra vires if it goes beyond the bounds of being consequential and, ultimately, Parliament can reject the order, too. There is nothing untoward in the proposal, which is relatively straightforward and for which there are many precedents.

Bill Cash (Conservative, Stone)

Having heard what the Minister said, which was predictable, I am not impressed. Henry VIII provisions are objectionable and we will simply have to accept that for the time being they are part of our procedural arrangements and the way in which these things are done. I am prepared to withdraw the amendment in the light of what the Minister has said, but I put down a marker that the practice should be brought to an end as part of a package of procedural and legislative reforms because it is not a satisfactory way to legislate.

Having put that on the record, I am conscious that many Acts of Parliament these days contain such provisions and I am not convinced that this is the time to press a matter of principle, about which so many people feel strongly, to a vote. However, unless the hon. Member for Somerton and Frome wants to intervene to convince me otherwise, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

The clause gives the power to the Lord Chancellor to make the order changing the total number of UK MEPs and the distribution of MEPs among UK regions as recommended by the Electoral Commission and in line with implementing our obligations under the treaty of Nice, which has been ratified in the UK Parliament. The Lord Chancellor cannot make an order changing the distribution, other than one that follows the recommendation of the independent Electoral Commission or that has the consent of the Electoral Commission if the original order is rejected by Parliament. The power to make consequential provisions will ensure that changes, which relate to changes in the number of MEPs, can be made to, for example, references in the 2002 Act.

Bill Cash (Conservative, Stone)

I have already explained our difficulties with clause 4, and it is not necessary to go into them again. It is, however, a very unsatisfactory way in which to legislate. We accept the obligations, which are implicit in the protocol, as a matter of principle, although I object to the manner in which they are being brought through. In due course, we may want to make some changes. There are many uncertainties about the number of MEPs who will be brought in. As I have said, the process is based on a hypothesis and will occur without referendums, and the procedures are deeply unsatisfactory.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I will be in trouble with the Whips for intervening. The hon. Gentleman has been dropping his atomic bombs like hot cakes; has he cleared them with the Leader of the Opposition, who, if I am not mistaken, was only a short while ago bemoaning the fact that enlargement had been proceeding too slowly?

Bill Cash (Conservative, Stone)

As I have said repeatedly, the Conservative party and I are very much in favour of enlargement. There are no atomic bombs here. All I am

doing is drawing attention to the fact that the procedures, which the Minister seeks to implement through the framework of the Bill, are deeply defective for a range of reasons, which have already been given. We want to see enlargement proceed and are prepared to see the protocol implemented; the Bill is about how that can be done. The Bill is not about the principle of whether the provisions of the international obligations prescribed by the protocol should have been subject to a referendum.

It is no good the hon. Member for Newcastle-under-Lyme (Paul Farrelly), with whom I have worked well on a number of occasions as a neighbouring MP, seeking to put words into my mouth. The arrangement set out in the Bill is unsatisfactory for all the reasons that I have given. I stand by that and think that a new Bill would be a better way to deal with the matter.

We acceded to the Bill's principle on Second Reading. We have not yet dealt with the Gibraltar provisions, which we wholeheartedly support, although we will table amendments to deal with some of our concerns about the way in which they have been put together. It is an extremely sad day when Members of Parliament, recognising that there is a function to be performed in terms of applied criticism, construe that as wrecking the Bill. I am not wrecking the Bill; I am simply suggesting a better way. That is my point and I shall continue to make it. Having said that, the next step is for us to proceed to a vote.

David Heath (Liberal Democrat, Somerton and Frome)

The next step is for me briefly to say that nobody should be under any illusions about the fact that we wish a Bill to succeed that gives effect to enlargement and the necessary changes. Most of the amendments that I have tabled and most of the criticisms that I have made focus on clause 4, which gives the process for the implementation of changes. It would be entirely inconsistent to make those criticisms yet accept the clause in its present form. I do not support the clause as it stands, but that is not to say that I do not support the Government's purpose in introducing the Bill or the end result. I should make it clear, however, that we are not happy with the way in which the Bill is constructed. This is the point at which we must express that concern, and I shall not support the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Clause 5 - Section 4: supplementary

Bill Cash (Conservative, Stone)

I beg to move amendment No.26, in

clause 5, page 3, line 39, after 'Act', insert 'or any other Act'.

This is no more than a small probing amendment. An order made under clause 4(3) may include ''provision modifying any Act''. Clause 5 states:

''This section applies to orders under section 4.''

It also refers to an

''order which contains amendments to section 1 of the 2002 Act.''

If clause 4 contains the power to modify an Act by order, why should we not include the words ''or any other Act'' in this case? It is a small point, and I hope that it is a drafting issue. If there is a substantial reason, an ingenious parliamentary counsel's reason or a departmental reason for that, I would be glad to hear what it is.

Yvette Cooper (Labour, Pontefract and Castleford)

The reason for the wording is that, under clause 5(3), any order that affects the number and distribution of MEPsthe key issues in the Billmust be taken under the affirmative resolution procedure.

The clause allows for consequential and supplementary amendments that are made by order to be taken under the negative resolution procedure, as long as they are not to section 1 of the 2002 Act. That is the standard procedure, and it is not unusual for simple consequential provisions to be dealt with in that way.

It is important to clarify, however, that even consequential amendments to section 1 of the 2002 Act—in effect, clause 1 of the Bill, which relates to the important issue of the number and distribution of MEPs—should be taken under the affirmative resolution procedure.

Bill Cash (Conservative, Stone)

I understand what the Minister says, but it rather makes my pointwhich is that distinctions are made based entirely on whether it is exclusively a section 1 amendment order that is being dealt with. The bottom line is that other quite significant provisions flow from the arrangements, yet they do not attract the affirmative resolution procedure, and are relegated to the bottom of the pile by way of annulment. However, having said that, I do not want to make too much of an issue of the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

In discussing the amendments, we have debated extensively many of the issues raised by the clause. It provides that the relevant order must be a statutory instrument and be debated and approved by both Houses of Parliament. It also provides a mechanism for altering the draft order should either House fail to approve it, so that an alternative redistribution of MEPs can be arranged. No amendment to the draft order could be made without consultation with the Electoral Commission and, in the

case of amendments dealing with the redistribution of MEPs, without their consent.

Bill Cash (Conservative, Stone)

Having already withdrawn my amendment relating to the power of recommencing the procedure, and because I want to make it clear that we are not attempting to make the entire machinery grind to a halt, but merely want to improve the way in which things are being done, I do not propose to oppose clause 5.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Schedule agreed to.

Clause 7 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Kemp.]

Adjourned accordingly at thirteen minutes past Four o'clock till Tuesday 14 January at twenty-five minutes past Nine o'clock.