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Orders of the Day — European Assembly Elections Bill

Part of the debate – in the House of Commons at 12:00 am on 7th July 1977.

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Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East 12:00 am, 7th July 1977

I shall be referring later to some of the interesting points raised by the hon. Member for Dudley, West (Dr. Phipps), including the suggestion which he advanced in his concluding remarks.

I wish to present my observations to the House on three matters relevant to the Bill and indeed to this debate. They relate to the degree and nature of the commitment to direct elections, the effect of direct elections on the powers of Parliament and the mechanics of direct elections as reflected in and provided for in this Bill.

I have already referred in this House on previous occasions to the first two matters, in particular in my speech in the debate on 29th March last year. Therefore, to some extent I shall be summarising, recapitulating, and amplifying in regard to those two matters.

The EEC Treaty envisages progress to direct elections after a period of membership by designation and contemplates that in acceding to the Community all member States associate themselves with and accept that concept. It follows from this that every adherent to the Community accepts obligations to work to that end—that is to say, to the institution of an appropriate form of direct elections for the European Parliament.

There is, of course, no commitment in law to bring it about at any specified time. However, there is a clear and continuing commitment to consider proposals until an acceptable form has been achieved, and procrastination would bring no diminution of that duty. That is the position in law under the treaty.

More recently, a further element has been injected in respect of the time factor, because the Government have agreed a target date of 1978. That date, again, is not a commitment in law. It does not derive from the treaty, because that is silent as to time, nor does it bind this House; but it does involve the good faith of the Government and therefore of the nation in whose name the Government speak overseas. On our reputation for good faith depends our standing and position both in the Community and in the wider world outside.

There is, therefore, a clear obligation on member States in law to accept the principle of direct elections and to work constructively towards the implementation of that principle. There is a further obligation, that is not expressed in law but which derives from good faith, and it is to do our best—which is the English translation of "use our best endeavours"—to achieve a satisfactory method by 1978. If, having done our best, we can- not meet that date, that is that. Lex non cogit ad impossibilia. However, we must do our best. We cannot do more than that; but we must not do less.

I come now to the matter of powers. I recognise that there are real apprehensions that direct elections will mean an increase of power for the European Parliament with a corresponding decrease in power for the House and perhaps further erosion of national sovereignty. I respect those apprehensions, but I believe them to be groundless for the reasons that I gave in more detail in my speech to the House on 29th March 1976.

Those apprehensions derive from a misunderstanding of the constitutional position and a failure to grasp the wholly different constitutional position that obtains in the parliamentary institutions of Britain and the Community. In Britain we follow the principle of the sovereignty of Parliament. Parliament is supreme and its jurisdiction is unfettered and unbounded. That principle was enshrined in the old saying: Parliament can do anything except make a man a woman, or a woman a man. It is true that the marvels of modern surgery have rather eroded the striking nature of that example. However, the principle remains the same. It is the principle of the omnipotence of Parliament.

Similar considerations do not apply in the Community. There is no principle in the Community of the sovereignty and the supremacy of Parliament, and the consequences of a fundamental change in the method of election and the expansion of membership must be viewed in the context of the constitutional position that actually obtains there—not on a notional superimposition of quite different British constitutional principles.

In Britain the powers of Parliament are a matter for Parliament alone, but that is not the position in the Community. The Community, unlike Britain, operates under a written constitution. It is an institutionalised Community with three political institutions—the Council of Ministers, the Commission and Parliament—as well as a fourth, non-political institution, the European Court of Justice. Each institution has its powers defined by treaty and cannot exceed them or encroach upon the powers of the other institutions. The powers of the Parliament are clearly defined in Article 137 of the Treaty which says that it shall exercise the advisory and supervisory powers which are conferred upon it by this Treaty. The interpretation of those powers is a matter for the Court of Justice under Articles 164 and 173. It follows, therefore, that just because the European Parliament becomes directly elected in future it could not extend its powers at the expense of the House of Commons or other national Parliaments or, indeed, of the other institutions of the Community.

The European Parliament cannot confer upon itself a law-making function that it does not have under the treaty, or transfer to itself the law-making function that the treaty conferred upon the Council of Ministers, who are answerable, and should be responsive, to their national Parliaments. The European Parliament is not a law-making body.

However, it does not follow that because the European Parliament does not have power, it does not have influence. Although it is not a law-making body, it is a law-shaping body, and that is a function that it discharges by scrutiny and discussion—in the presence of representatives of the Commission—of the draft regulations and directives en route from the Commission to the Council of Ministers as the law-making body. That gives the European Parliament an influence on the formative stages of legislation which, unhappily, is lacking in this House. The European Parliament exercises that function within its existing powers which were conferred by the treaty. Direct elections will not add new powers. What they can and should do is to enable the European Parliament better to discharge those duties that it already has.

There can be no addition to the powers of even a directly-elected European Parliament against the will of national Parliaments including, of course, this House. Any increase in the European Parliament's powers would mean an adjustment in the allocation of functions contained in the treaty. That would involve an amendment to the treaty which would bring into play the requirements of Article 236; that is, ratification of any amendments: by all the Member States in accordance with their respective constitutional requirements. I now wish to say something about the mechanics of direct elections. The form of the Bill is somewhat curious and it perhaps calls for prefatory comment. The Government wish to keep their options open—at any rate between the two main possibilities—and so there is in the Bill Clause 3(2) which refers to a possible resolution by the House after the passing of this Act". It is, on the face of it, somewhat Gilbertian. It is envisaged that Parliament will laboriously give effect to a Bill including the regional list system, and then—after the concurrence of both Houses and Queen's consent—the House by a unicameral resolution would reverse the corporate decision of Parliament. That is how the Bill stands. It is a constitutionally odd and perhaps not wholly dignified position.

The matter calls to mind the American Congressman who ended his speech, when he was seeking election, with the words: and those, gentlemen, are my sincere and profoundly-held sentiments. But, of course, if you don't like them, I can easily change them. We are now told that the Government would look upon an amendment with acquiescence. The Home Secretary said twice yesterday that if Clause 3(1) were approved—presumably he meant in Committee—Clause 3(2) would fall. Of course, that is not the position. Clause 3(2), logically, need not fall, because the wording in 3(2) refers to a different period of time. It is prefaced by the words: after the passing of this Act. As drafted, it provides a locus peni-tentiae for the future. Its deletion could come about only by an amendment— which is now hypothetical—by an unidentified sponsor and with an unpredictable result.

It would have been better to hold discussions at the formative stage, on a Green Paper basis, and to seek then to arrive at a consensus, or at least to define the parameters within which decisions should be taken.

If we give a Second Reading to the Bill it will be without commitment to either of the suggested procedures, although we shall be committed to the principle of direct elections and the choice between two specified methods. Prima facie, there will be a presumption in favour of the regional list system which is specifically enacted in the Bill, but there are obviously merits and drawbacks in both systems and, in my view, a fairly close balance between them.

The Assembly constituency, with its first-past-the-post system, has in its favour that it is a less radical departure from our traditional system and gives a greater degree of local or quasi-local election and representation. Of course, the personal rapport between a Member and the electorate, which is such a basic and valued part of the constituency pattern in this House with more than 600 Members, cannot fully or perhaps even satisfactorily be reproduced when Members are representing the far larger constituencies that will be required if there are only 81 Members.

The regional list system would result in a fairer representation between parties, at least on a strictly mathematical basis, and probably a more balanced and appropriate mix of Members suited for the work of a Parliament that operates a system that is quite different from our method of work. However, that would be at the expense of local representation. The regions would be large and some composed of disparate elements. There would be less scope for local election and selection; and diminished direct contact between the elected Member and his electors could diminish interest in what might be regarded as a remote Assembly.

We must also consider the time factor. This is not conclusive because there is no legal obligation to conclude by a specified date, but it is an important factor having regard to the commitment entered into by the Government on behalf of the nation and the moral obligation arising from that.

The advantage here clearly lies with the regional list system because the electoral regions are already specified in the Bill in Clause 4 and Schedule 3 with the voting procedures set out in Schedule 4. There are no post-Act procedures required with that method. Once the Bill is on the statute book, only the logistical items in Schedule 4 would stand between us and readiness for direct elections.

With Assembly constituencies the picture is different. First, there will have to be a House of Commons resolution, and this cannot be brought in until the Bill is on the statute book. Then the Boundary Commission must submit its report to the Home Secretary with recommendations for the 79 Assembly constituencies in compliance with the requirements of Schedule 2(9). The Commission must then publish a Notice of Recommendations and take into consideration the representations that may be made within one month of the publication of the Notice. It is true that no local inquiries are needed on the 1949 and 1958 Acts model, but we do not know how long it will take the Commission to consider representations. The Home Secretary mentioned a minimum of 18 weeks. We do not know how many representations there will be, but there is certainly nothing in the history of the Boundary Commission to give them a reputation for precipitancy or intemperate haste in these matters.

Finally, the Home Secretary will have to lay a report before Parliament with a draft Order in Council to give effect to it. Parliament in this context means not just the House of Commons but both Houses.

If we had to go through all these stages, the target timetable could not reasonably be met, and the Boundary Commission is not in a position to start work without express statutory authority. An hon. Member said earlier that surely the House could do something about that, but all that we can do is to put an Act on the statute book through all the normal legislative processes. There is no doubt that the powers enjoyed by the Boundary Commissions and the scope of their authority as defined under the 1949 and 1958 Acts do not extend to these activities.

There are merits and demerits in both systems. Neither is perfect, but nor is our present system in the House. Indeed, it is manifestly imperfect. Not only does it give rise to the mathematical imbalance of representation between parties complained of by advocates of proportional representation, in an argument that obviously has some intellectual force, at any rate from the point of view of abstract principle; but it results also—and this has nothing to do with theory or learned argument about proportional representation—in gross and indefensible inequities in the distribution of seats and a completely distorted and unfair pattern of representation of electors.

Hon. Members who want evidence for these views need look no further than the Home Secretary's Answer to one of my Questions about a month ago in which he set out the 20 largest and 20 smallest constituency electorates. My constituency is not the largest, but I represent 93,627 electors—41.7 per cent. more than the electoral quota and many more electors than the three smallest constituencies put together—all of which, curiously enough, are represented by hon. Members opposite. The Leader of the House also represents only 36,864 electors—35·4 per cent. less than the electoral quota.