Mr William Cash (Stone, Conservative)

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.'.

Mr Frank Cook (Stockton North, Labour)

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'.

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

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?

Hon. Members:

Yes.

Mr William Cash (Stone, Conservative)

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

Mr William Cash (Stone, Conservative)

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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?

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

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.

Mr Andrew Rosindell (Romford, Conservative)

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

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

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.

Mr Bob Russell (Colchester, Liberal Democrat)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

Mr William Cash (Stone, Conservative)

I beg to move amendment No.15, in

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

Mr Frank Cook (Stockton North, Labour)

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'.

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

You are still perambulating, though.

Mr William Cash (Stone, Conservative)

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.''

Mr Mark Hendrick (Preston, Labour/Co-operative)

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

Mr William Cash (Stone, Conservative)

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.

Mr Mark Hendrick (Preston, Labour/Co-operative)

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.

Mr William Cash (Stone, Conservative)

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—

Mr Mark Hendrick (Preston, Labour/Co-operative)

rose—

Mr William Cash (Stone, Conservative)

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

Mr Mark Hendrick (Preston, Labour/Co-operative)

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.

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

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?

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

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.

Mr William Cash (Stone, Conservative)

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

Order. Let us all do that.

Mr William Cash (Stone, Conservative)

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

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

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.

Mr Mark Hendrick (Preston, Labour/Co-operative)

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?

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

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

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

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.

Mr William Cash (Stone, Conservative)

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—

Mr Frank Cook (Stockton North, Labour)

Is this an intervention?

Mr William Cash (Stone, Conservative)

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

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

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

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

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

Mr William Cash (Stone, Conservative)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

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

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.

Mr Frank Cook (Stockton North, Labour)

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.

Mr William Cash (Stone, Conservative)

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.

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

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.

Mr William Cash (Stone, Conservative)

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.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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'.

Mr Frank Cook (Stockton North, Labour)

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?

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

Mr William Cash (Stone, Conservative)

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.

Mr Frank Cook (Stockton North, Labour)

Order. Can we make progress?

Mr David Heath (Somerton & Frome, Liberal Democrat)

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.

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

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.