Mr William Cash (Stone, Conservative)

I beg to move amendment No.23, in

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

Mr Frank Cook (Stockton North, Labour)

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

No.27, in

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

'(4) If a motion for the approval of a draft order is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedures provided under sections 2 to 5 of this Act.'.

No.35, in

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

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 If a motion for the approval of a draft order under paragraph 3 is rejected by either House or withdrawn by leave of the House the Secretary of State shall not recommence the procedure under the Act.'.

Mr William Cash (Stone, Conservative)

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

''is rejected by either House or withdrawn by leave of the House the Lord Chancellor may, after consulting the Electoral Commission, alter the draft order.''

Clause 5(5) states:

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

Clause 5(6) states:

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

Clause 5(7) states that a

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

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

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

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

exercised in a much more transparent and efficacious fashion.

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

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

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

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

Mr David Ruffley (Bury St Edmunds, Conservative)

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

Mr William Cash (Stone, Conservative)

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

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

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

Mr David Ruffley (Bury St Edmunds, Conservative)

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

Mr William Cash (Stone, Conservative)

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr David Ruffley (Bury St Edmunds, Conservative)

A pretty good one.

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

ensure that the House can legislate effectively.

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

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

Mr William Cash (Stone, Conservative)

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

Mr William Cash (Stone, Conservative)

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman is intervening.

Mr William Cash (Stone, Conservative)

Yes, I am intervening.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful for that intervention.

Mr Frank Cook (Stockton North, Labour)

And for the following chapter.

Mr David Heath (Somerton & Frome, Liberal Democrat)

And for the relevant supporting material.

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

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

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

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

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

These amendments do not deal with proposals to renegotiate entirely the

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

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

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

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

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

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

Mr William Cash (Stone, Conservative)

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

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

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

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

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

Mr William Cash (Stone, Conservative)

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

Amendment, by leave, withdrawn.

Mr William Cash (Stone, Conservative)

I beg to move amendment No. 24, in

clause 4, page 3, line 32, leave out

'(including provision modifying any Act)'.

Mr Frank Cook (Stockton North, Labour)

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

schedule, page 14, line 16, leave out

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

Mr William Cash (Stone, Conservative)

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

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

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

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

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

and then adds:

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

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

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

Mr William Cash (Stone, Conservative)

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

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

Amendment, by leave, withdrawn.

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

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

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

Mr William Cash (Stone, Conservative)

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

Mr Paul Farrelly (Newcastle-under-Lyme, Labour)

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

Mr William Cash (Stone, Conservative)

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

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

The Committee divided: Ayes 9, Noes 6.