Clause 2 - Recommendation by Electoral Commission relating to changes in number of
European Parliament (Representation) Bill
6:30 pm

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 13, in

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

Mr Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following:

Amendment No. 18, in

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

Amendment No. 21, in

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

Amendment No. 25, in

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

Amendment No. 9, in

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

Clause 23 stand part.

Amendment No. 36, in

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

Amendment No. 37, in

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

Mr William Cash (Stone, Conservative)

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

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

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

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

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

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

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

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

Mr David Ruffley (Bury St Edmunds, Conservative)

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

Mr William Cash (Stone, Conservative)

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

Mr Frank Cook (Stockton North, Labour)

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

Mr William Cash (Stone, Conservative)

Indeed. I entirely accept that point.

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

Mr David Heath (Somerton and Frome, Liberal Democrat)

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

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

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

Mr William Cash (Stone, Conservative)

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

Mr David Heath (Somerton and Frome, Liberal Democrat)

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

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

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

Mr David Ruffley (Bury St Edmunds, Conservative)

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

Mr David Heath (Somerton and Frome, Liberal Democrat)

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

Mr David Ruffley (Bury St Edmunds, Conservative)

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

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

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

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

Mr William Cash (Stone, Conservative)

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

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

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

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

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

Mr William Cash (Stone, Conservative)

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

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

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

Mr William Cash (Stone, Conservative)

Oh, come on.

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

Mr William Cash (Stone, Conservative)

This is sheer Plato.

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

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

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

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

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

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

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

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

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

Mr William Cash (Stone, Conservative)

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

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

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

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

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

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

Ms Yvette Cooper (Parliamentary Secretary, Lord Chancellor's Department; Pontefract and Castleford, Labour)

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

Mr William Cash (Stone, Conservative)

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

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.