I beg to move amendment No. 21, in page 2, line 23 [Clause 2], leave out

'any change or anticipated change under Community law in' and insert

'ARTICLE 2 of Protocol A.Protocol annexed to the Treaty on European Union and to the Treaties establishing the European Communities as respects'.

With this it will be convenient to discuss amendment No. 22, in page 3, line 20 [Clause 4], leave out

'a change under Community law in' and insert

'ARTICLE 2 of Protocol A.Protocol annexed to the Treaty on European Union and to the Treaties establishing the European Communities as respects'.

I should begin by handing to Mr. Heath a letter that I have just received that was addressed to me, but which is actually for him. The degrees of consultation are becoming more and more ridiculous, but having said that, I have now been able to read what the Minister had to say, and it does take us a little further.

The amendments raise extremely important points that we traversed in Committee, but on which we did not reach a conclusion.

Amendment No. 21 deals with a strange provision in the Bill, which has lurking within it some difficult issues of constitutional law. The amendment relates to clause 2, which empowers the Lord Chancellor by notice 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 specified in the notice; or

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

We then come to the specific difficulty, which is as follows:

"The power to give such a notice 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 propose that we leave out the words

"any change or anticipated change under Community law" and insert specific provisions relating to the treaty of Nice, which—unenthusiastic as I am about its provisions—I accept is a part of the law of the UK, including the protocol. In Committee, I asked why the House should be expected, under an order-making power, to enable such a notice to be given with a view not only to a change of community law, but to an anticipated change.

As I said in Committee, the Bill is based on a hypothesis; we do not know how the referendums in the accession states will work out. Therefore, we have no way of knowing exactly how many MEPs will be drawn into the process. In Poland, where there are 50 seats, there is strong resistance to going further into the integration process. When Poland hears about the horrors of the convention on the European constitution—I dare say that that will be described to the country graphically during the referendum process—there will be a greater determination not to go along with it.

The impact of the protocol on the UK will be to reduce the number of our MEPs, which currently stands at 87, to 72. That arises under article 2 of the protocol, which, for the purposes of the European Communities Act 1972, is to be regarded as a treaty. A peculiar wording has been chosen, which—because of the words "community law"—cannot be confined simply to the protocol, and may include any other proposal that might be brought in by legislative instrument; perhaps by the Commission.

The explanatory notes suggest that the European Commission shall inform the UK Parliament as to the number of Members that we would be expected to implement. Frankly, I cannot understand why the words have been chosen, unless it is to give as much ambit as possible to the Government to enable them to calibrate the system in a way that suits them at a given time. But that is not the way we legislate in this country.

Does the hon. Gentleman accept that if the Bill goes through, we will have 72 British MEPs in 2004? If Poland, or any of the other applicant countries, does not agree on entry in a referendum and does not join, all that will happen is that we will get additional seats. We are bound to get 72 and, regardless of what happens in the future, we will get more than 72 seats if a country does not come in.

Even if that were the case, that is not the way in which we should legislate. The Bill's reference to any "anticipated change" in Community law is far too general. Under the heading "Matters of Principle", with respect to delegated legislation, there is an authoritative statement on constitutional law:

"There is a clear threat to parliamentary government if power is delegated to legislate on matters of general policy or if so wide a discretion is conferred that it is impossible to be sure what limit the legislature intended to impose."

There is no way in which it can be established under article 2—and paragraph 3 of that article in particular—what the numbers will be. Therefore, it is inappropriate and wrong to legislate in this fashion, particularly when there is an option, which is to spell out in the amendment what is done under the protocol.

I am not saying that, irrespective of my concern about the Nice treaty as a whole, I will take the gravest exception to the proposal, to the point at which I say that we will not allow the enlargement process to continue. I have made that clear in Committee. However, I do not believe that the Government should set a unique precedent—nobody has given me any indication that this has been done before—by extending their ability, by an order-making power, to say that, in anticipation of a change in European Union law, they will bring in an order to do this, that or the other. However, that would be within the remit of the sovereignty of the UK Parliament, because it would involve an Act of our Parliament that we could adjust if we so wished. In the context we are discussing, we could not simply adjust the measure.

As I have told the Minister several times, under that protocol, if a different number results from the referendum process—because some countries did not participate—the Council will adopt a decision "to that effect". That means, first, that the Council will have the broadest possible powers in respect of drawing up Community law as a whole, with all the instruments at its disposal, such as the power of regulation and the Commission powers and so on; and, secondly, that the decision will, in effect, already have been taken.

The protocol determines the basis for prescribing the total number of members. It notes that if the total number of members referred to in paragraph 2, which gives the UK allocation as 72, is less than 732, a pro-rata correction will be applied—as Tony Cunningham has just pointed out—to the number of representatives to be elected in each member state, so that the total number is as close as possible to 732, but that such a correction should not lead to the number of representatives to be elected in each member state being higher than that provided for in article 190. That is where I would ask the hon. Gentleman to reconsider his point.

The position appears to be that there cannot be a higher number, but I am more concerned about the principle that lies behind the provision. A pre-emptive decision will have been taken under a protocol which is binding on us under section 2 of the European Communities Act 1972 because, as I have already pointed out, a protocol is to be regarded as a treaty for these purposes.

A further problem for the Government is that to take such a wide power is both inconsistent with normal constitutional principles and, in the context of EC law, would create a precedent that could be applied to any order-making power by using those magic words. That would thus obviate some of the difficulties that the Government have already experienced in getting certain elements of European legislation through the House.

Section 2 of the 1972 Act strongly suggests that we should give serious consideration to revising the arrangements. Subsection (2) authorises the making of Orders in Council and ministerial regulations to implement

"Community obligations of the United Kingdom".

It enables rights under Community treaties to be exercised

"for the purpose of dealing with matters arising out of or related to any such obligation or rights".

That refers not to Community law, but to Community obligations, yet there can be no obligation at this stage because we do not know the outcome of the referendums. There can be only a hypothesis, so there can be no obligation. Furthermore, the use of the words "Community law" does not dovetail with the wording in section 2 of the 1972 Act.

Section 12 of the European Parliamentary Elections Act 2002 consolidates section 6 of the European Parliamentary Elections Act 1978. Incidentally, in the case of Prince, serious doubts were raised as to the vires of that provision as a matter of constitutional law. Section 12 deals with treaty ratification and states:

"No treaty which provides for any increase in the powers of the European Parliament is to be ratified by the United Kingdom unless it has been approved by an Act of Parliament . . . In this section"— which dovetails with section (2) of the 1972 Act—

"·treaty' includes any international agreement, and . . . any protocol"— of the kind set out in the Nice treaty—

"annex to a treaty or international agreement."

We have already observed, however, that under the protocol the Council has already decreed, in advance of the referendums, that it shall adopt a decision "to that effect". As that is part of a protocol that is defined for the purposes of section (2) as a treaty and as it certainly provides for an increase in the powers of the European Parliament—which is what the measure is all about—it should not be ratified by the United Kingdom unless it has been approved by an Act of Parliament. The 2002 Act does not provide that it should be by order of the unelected Lord High Chancellor on instructions from the unelected European Commission.

I put some of those points of principle to the Minister, but received no satisfactory reply. However, the points are important; they raise questions about the construction of a Bill that gives order-making powers to the EC under some future Community law that has not yet been devised, but which is postulated as already in effect. The powers are similar to the Henry VIII procedure for modifying Acts of Parliament, which so many of us find objectionable, but which at least we can control. However, we cannot control Community law, so that raises questions about the sovereignty of Parliament.

The Government are going down an extremely difficult and dangerous path. They may be driven by convenience or expediency, but I do not believe for one minute that the people of this country contemplated that such principles would ever be proposed. They will certainly not be acceptable.

But are not the Government being entirely logical? Are they not saying, "We have absolutely no influence over the matter; we shall be told what to do by the European Commission in future; we are useless at negotiating and we shall be unable to control it; so why give a toss about Parliament either"?

Indeed. That is very much the tenor of my article in The Daily Telegraph today on House of Lords reform. The issue relates to democracy. I said much the same in a debate on scrutiny and accountability in Westminster Hall last week. This stuff comes up over and over again. It is about our legal and practical co-operation with Europe. However, if we have order-making powers whose effect is to make presumptions about their operation in practice, and which run against the principles adumbrated by the courts, we have a process that I have called "Wolsey's revenge". That Lord High Chancellor dared to challenge the king but managed to escape by dying just in time. None the less, we now have a new Lord High Chancellor, who comes along and tells Parliament, "We will legislate, using this order-making power and my unelected authority, to drive through the provisions on future Community law." That is offensive to the constitutional principles on which our legislative process is founded.

Surely the moral of my hon. Friend's excellent tale is that Wolsey was a Euro-enthusiast, and he was, of course, replaced by Britain's first and greatest Eurosceptic, Thomas Cromwell. Is not there hope for us all if we can build on that model?

There is indeed, but I would also point out to my right hon. Friend that the fate of Thomas Cranmer and Thomas Cromwell is not one that I would want visited on anyone.

I wonder whether our common religious position would not make us both very wary of being too supportive of Thomas Cromwell, whose history in such matters was thoroughly disgraceful.

Order. We have heard enough history; perhaps we can return to the present day.

Indeed, Mr. Deputy Speaker; otherwise we shall all be hanged, drawn and quartered—not on your instructions, I am sure.

Order. I can assure the hon. Gentleman that that is not one of the powers of the occupant of the Chair.

I wish to refer to the problem that arises in respect of regulations made under those provisions. Again, under section 2 of the 1972 Act, regulations can be introduced by a designated Minister for the purpose of implementing Community obligations. However, schedule 2 to that Act says that regulations may not be used for a number of purposes, one of which is taxation; another is a provision having retrospective effect. If the issue has already been decided, there is an "Alice in Wonderland", Lewis Carroll quality to the problem.

I often feel that I am in an "Alice in Wonderland" situation when the hon. Gentleman is speaking.

Well, as I said on another occasion, words mean what we choose them to mean; the question is:

"which is to be master—that's all."

The masters are undoubtedly those who are pulling the strings to get such an order through. They are instrumental in ensuring that the provision, which has already been determined, states that the Council will adopt a decision to that effect and that it will be implemented. However, the provision could well turn out to be retrospective.

We know that the provision is based on a hypothesis; we do not know which referendums will be successful, and to get their ducks in a row or to get the pieces of the jigsaw into the right pattern, the Government may have to make adjustments by order that could well infringe the principles of schedule 2 to the 1972 Act by making a provision that has retrospective effect. There is a further restriction under schedule 2 to the 1972 Act, which refers to a power-delegating legislative authority. Again, that provision could well fall foul of those arrangements.

We are considering a Bill, and I am very conscious of the fact that the votes are against us. The Minister has indicated during our proceedings that there is nothing much that I can do about such things anyway because, after all, they are Community obligations—she uses the phrase "Community law" in the Bill—and therefore I will have to put up with them. However, I can tell her that I will not put up with them. We in Parliament should not simply have it dished out to us that this is the way in which we legislate as a matter of principle. Serious questions lie at the heart of this debate.

Again, as recently as 2001, the Secretary of State for Trade and Industry was involved in the case of Orange, the mobile phone company. The court said that although the power to make Community subordinate legislation had been widely construed, the Government must clearly indicate what primary legislation is being repealed or amended when that procedure is invoked. Perhaps we will find ourselves in difficulty about that as well.

I cannot prejudge what a court would say in that context, but I can give the general principles on which such things are determined and construed. For example, the European Court of Justice has asserted that it has supremacy over our legislation. I can say that, without a shadow of a doubt, that is not the case. Indeed, many authorities—Lord Denning and Lord McCarthy—can be cited, and Lord Bridge said that all this was based on the voluntary agreement that we entered into in 1972. Well, it may have been voluntary in 1972, but if we were to introduce legislation the effect of which was inconsistent with section 2 of the 1972 Act, there would certainly be a conflict between what the European Court of Justice said and what was implemented under the 1972 Act, which stated that we must obey the rulings of that Court.

I shall not demur from that view in so far as I believe in the rule of law, but I will not accept the idea that, for all time, we are bound by the acquis communautaire and we cannot legislate on our own terms if we wish to do so. The provision raises those questions of principle, and they have not been properly examined, so I should be interested to see how the argument develops.

As my hon. Friend knows, I served on the Committee that considered the Bill. During the debates in Committee, he said:

"The courts can strike down legislation for a lack of certainty."—[Official Report, Standing Committee A, 9 January 2003; c. 46.]

He went on to say that it is not satisfactory to legislate on the basis of hypothesis or anticipated change. Will he say to which courts he was referring in that comment? Is it in the powers of our own courts to strike down such legislation; or are they subservient to the European courts?

My hon. Friend makes a very important point. Such things could be dealt with initially by our own courts but then referred, via the House of Lords, to the European Court of Justice. Alternatively, the House of Lords could adjudicate on its own terms in implementing the jurisprudence, which has tended to evolve, whereby the House of Lords tends to agree with what the European Court has ruled. That is a matter for Parliament, and a great deal of judicial activism is going on in that business. I say unequivocally that I regard the question of certainty as something for the United Kingdom courts to determine, but I cannot stop the appeals process because, as I have said, I subscribe to the rule of law.

I am concerned about the political and constitutional consequences of such things, which are even coming to bear on the Prime Minister in relation to article 3 of the European convention on human rights, where it is unambiguously the case—as Lord Hoffmann said in the case of Simms and O'Brien in 1999—that the British Parliament can legislate in a manner inconsistent with the convention provided that it does so expressly and unambiguously. I believe that that doctrine continues in relation to the 1972 Act, although I am well aware that that is not accepted by those in the European Court of Justice.

I do not find it helpful to confuse the jurisprudence of the European convention on human rights with that of the European Court of Human Rights. The hon. Gentleman will know perfectly well that the supremacy of Community law is paramount. Can he cite one case—just one—in which a British court has not given supremacy to Community law?

What I can do is to indicate, as I did earlier, that the McCarthy decision, for example, clearly ran counter to some of the subsequent decisions. According to the authorities that I have at my disposal, there is no doubt at all that the issue has not been resolved, despite the statements by Sir William Wade and others that there has been a revolution in these questions. I can sum that up by reference to the authority's conclusion in the chapter on the United Kingdom and the European Union, which says that, although constitutional dogma has been shaken, the problem of sovereignty has not been adequately resolved, but it is unlikely that everyone would agree now with the view expressed in 1972 that the ultimate supremacy of Parliament will not be affected, and it will not be affected because it cannot be affected. Crucially, that is because it emanates from the 1972 Act. The authority also states that only time will tell whether that is a problem of any practical significance and, if so, whether closer political union at Community level can be built on such foundations. That raises the issue of extrapolation of ideas, the extension of the European Court, and the issue of European integration, the convention and the constitution, which is coming down the track like a runaway train.

Although that is a specific example, the reality is that it shows in embryonic form the nature of the problem. In response to Lady Hermon, case law indicates that the supremacy of Community law is not a given. Whether it is open to us to obviate the difficulties by addressing the manner in which the European Communities Act 1972 is devised, however, is a question of political will and of constitutional issues, without prejudice to the fact that, generally, through judicial activism, there has been an increasing tendency for our courts to agree to the emanations from the European Court of Justice. We are reaching breaking point, however, and some would say that we have gone past it.

I thank the hon. Gentleman for taking a second intervention from me. The principle of the sovereignty of Community law has been on the statute book, certainly at the European Court of Justice, since 1962 and the famous case of Costa v. ENEL. To return to clause 2(2), it states that the power that the Lord Chancellor may exercise is confined to

"any change or anticipated change under Community law in the total number of MEPs".

That is very precise. Given that Community law is supreme, if the number of MEPs changes, does he agree that the UK Parliament and Government must comply with that?

I have already given my reasoning on that point with respect to the interaction of the protocol and paragraph (3). A number of serious points arise, and it is not necessary for me to repeat what I have already said. The hon. Lady refers to the question of case law whereas I refer to the constitutional question. A substantial area must be considered very carefully, and I do not think that the natural consequences of going down the route that has been assumed so far can be taken for granted.

With respect to clause 4, which would implement the changes in the number of UK MEPs, the Lord Chancellor would have the power by order to give effect to a change—not an anticipated change but an actual change—under Community law. I take exception to the term "Community law" in that context. For similar reasons as before, I have substituted the wording in the protocol. The Minister will be aware that what I am doing is perhaps somewhat improbable. The Prime Minister once said to me in the Lobby, when I was raising a matter of European law, "I wouldn't have thought that you would have accepted that," but I accept the law as it stands. Whether I think that it is right, fair or can be changed is a separate issue. That is why I am putting the Government to the test. If they are to rely on article 2 of protocol A, to which I refer in my amendment, why not stick to it? It is as simple as that. Why go through the paraphernalia of using the words,

"or anticipated change under Community law"?

I wait to hear what other Members of the House, and in particular the Minister, have to say.

I offer my commiserations to Mr. Cash, who is struggling manfully with whatever is afflicting him: it cannot be easy to make long speeches with such a problem.

The words "convenience" and "expediency" have been mentioned more than once during our consideration of the Bill. The Government have again phrased the Bill in such a way as to give themselves maximum flexibility to allow for circumstances that they have not yet considered. The problem is that that is not the proper way for Parliament to approach legislation. The Bill creates a power that Parliament might well not want to be exercised without primary legislation. The hon. Member for Stone tabled several amendments on this matter in Committee, with some of which I disagreed because their effect would have been to blow the Bill apart.

There are two considerations: the point at which the Lord Chancellor asks the Electoral Commission to undertake its preliminary work and that at which the Lord Chancellor introduces orders to implement those changes. On the ground of expediency, I was less than happy at the prospect of delaying the start of the preparatory work, as every indication was that that would mean that we could not provide for representation at the 2004 European elections. I was equally unhappy with the contention that the Government would deliberately bring about circumstances in which the UK was under-represented, which is not a likely scenario.

I agree with the hon. Member for Stone that there is a problem with introducing legislation under which any change to the composition of the European Parliament could be enacted through secondary legislation on the say-so of the Lord Chancellor—an unelected Minister, as we have discussed—without the House having the opportunity to debate it as primary legislation. The problem concerns every matter that is introduced as a result of a treaty, but that does not initially require primary legislation. The Government can accept by treaty and through the royal prerogative matters that should properly be the province of the elected House of Commons.

Although this provision is a minor one in the great scheme of things, it could mean that, after treaty negotiations, the Government could opt for changes in the composition of the European Parliament to be dealt with by secondary rather than by primary legislation. That is not satisfactory. When we questioned the Minister about that in Committee, she first suggested that article 2 of protocol A was insufficient in itself because it did not talk about the Council of Ministers. I have considered that point, but cannot accept that construction. The process is clearly laid out in article 2, and the article cannot be construed in any way that would not allow for that process.

Will the Liberal Democrats join the Conservatives in saying that there must be a referendum on the constitutional changes now unfolding in the European Union, as well as on the euro should the Government ever brave that tricky subject?

Mr. Deputy Speaker is looking at me in a way that I take to mean that my embarking on a debate on that subject would be out of order. That debate may therefore have to wait for another day. I hear what the right hon. Gentleman says, and my party's position has always been that any major constitutional change should be put to a referendum of the British people. We pressed for one during the debates on the Maastricht treaty. My party has led the field. Without straying from the subject of this debate, I think that I have dealt with the intervention.

The proposal of the hon. Member for Stone deals with the specific treaty requirement that underlies the provenance of the Bill. It is an unexceptional statement, and the Government are clearly relying on the requirement for this change. The process exists and includes provision for pro rata reductions should some of the applicant countries not ratify their membership of the European Union. That may be the case, as there will be a sequence of referendums in many of them, some of which might result in their Parliaments not ratifying the treaty of accession.

That is all inherent in article 2 of protocol A, so I do not understand why this Bill, which is a limited measure that deals with the specific question of the reduction in the number of British MEPs needed to comply with the accession of the applicant countries, should contain a phrase that is any wider than the specific protocol. I think that is what the hon. Gentleman has in mind with his amendment, and I find it difficult to argue against that proposition.

I do not invite the hon. Gentleman to go down this route, but I merely make the further point that the use of this formula would mean that huge amounts of legislation could be decided in the Council of Ministers or any other forum. The consequence would be that such forums would simply say, "Let it be done." That would be that.

The hon. Gentleman sets out the argument of the slippery slope. It is easy to make and, by extrapolation, he extends it to an apocalyptic outcome. I am not sure that I would necessarily go as far as he does, but I accept that the provision of a wide interpretation that allows the Government to avoid the need to return to the House for primary legislation affords them a possibility that should not be afforded to an Executive. It should not be a case of the European Union deciding matters without the House having an opportunity to debate them.

The House as a whole has not heard these arguments, so I return to the question of the accession treaty. The Minister said that it would have to be introduced to give effect to the results of the referendums. As Mr. Heath and I agreed in Committee, that treaty would bring the moving picture to the point at which we knew where we were. We could have implemented the measure at that point without all this hypothetical and unconstitutional manoeuvring.

The hon. Gentleman is right. We had such a debate and I tabled an amendment that would have made the treaty of accession a trigger point for implementation. The Government rejected that.

I have sympathy for the hon. Gentleman's intentions, but I do not go along with all his arguments about the consequences. The measure is much more limited than he suggests. However, as a matter of principle, the House should determine and ratify that which is decided for it by the Executive in their treaty negotiations. I am not sure that a Henry VIII clause could be said to apply to a Cardinal Wolsey figure, but there is an element of such a clause in the provision. I instinctively reject that.

I am grateful to my hon. Friend Mr. Cash for drawing the House's attention to the crucial matter of principle that arises from the power that we are now debating in detail. He is right that the principle that the Government seek to establish could have many evil consequences if it were followed more generally in the treatment of European legislation. Cannot even the Minister see that it is a democratic outrage to ask the House to legislate in advance of agreements, deals and decisions elsewhere and to accept whatever takes places and in whatever circumstances without it having the opportunity to reconsider and to introduce the normal primary legislation that we would expect for matters of constitutional and democratic significance?

There used to be a strong principle in the House—the Government have destroyed it along with many other traditions—that any constitutional matter had to be debated at the length that the House chose and on the Floor of the House. We always thought that the constitution was so important that it was right that every Member of Parliament should have free and unfettered access to such a debate and that the debate should carry on for as long as the House saw fit even if it went on for much longer than the Government of the day wanted. We are now told that an important constitutional matter—the style and number of the representatives that we have in the European Parliament—can be determined by an unelected Minister and rammed through in a statutory instrument with very limited debate and no scope for amendment.

The Liberal Democrats' spokesman was typically wimpish when I asked him whether the British people should be entitled to express their view on the clause and the wider principles behind it. All the electorates in the applicant states get a vote and the voters in places such as the Republic of Ireland have a vote on enlargement. The British people do not get a vote and so cannot express their view on this crucial matter. Their Parliament is now invited by a Government with a very big majority to ram through an unsatisfactory Bill with this crucial power at its heart. That will prevent or stifle debate.

If it is true that the British public feel so strongly about the European Parliament, will the right hon. Gentleman explain why—with the exception of Northern Ireland where voters come out and vote in any election because they feel passionately about the results—

Order. The hon. Lady is taking the argument far outside the bounds of the amendment.

I am grateful for your guidance, Mr. Deputy Speaker.

It is important to distinguish between the wish to vote in an election and the wish to vote on the constitutional settlement of this country. Many people might want to vote against a widening of the European Parliament and its representation because they are not impressed by it, but they are not given the opportunity to express that view and their Parliament is being asked to accept this unsatisfactory legislation.

My only worry about the approach of my hon. Friend the Member for Stone is the modesty of his amendments. He welcomed the protocol and the intent of the negotiation. I do not think that it was a good deal well done because so much of it was unnecessary for enlargement. The applicant states need free trade, which they seem unable to get from the European Union, but do not need much of what will be forced on them and us. There is a problem with his proposals, but they are much better than the Government's.

I hear what my right hon. Friend says, but he might remember that I tabled about 240 amendments to the Nice treaty and such matters were covered in principle at the time. I have said that once something has been done, we can say that we did not like it, but equally we can say that we wish to renegotiate it. I did what I did with a sense of purpose, which was also the case with the Amsterdam and Maastricht treaties, and much of what I said at the time has come about.

I agree entirely and am full of praise for my hon. Friend's energetic work. I was not criticising him but merely remarking—I think that he would agree—that his proposed remedy to the difficulty is modest and partial. There are much bigger sins of commission and omission in the underlying treaty and negotiation that we cannot discuss under the amendment or solve tonight. Despite all that, I urge the House to vote for his amendment. It goes some way to dealing with the problem and certainly highlights for those in the press and public who are interested in such arcane but important matters that there is a big problem. We must stop the Government getting the idea that they can legislate in increasingly general terms and then ram all the important detail through at any date in the future through statutory instruments, which cannot be amended and can be debated only at short length.

Does my right hon. Friend agree that, if the Government are confident that they can railroad through a facilitating provision that allows them to agree to a reduction in British representation in the European Parliament without proper debate, thereby showing a contempt for the institution, it is scarcely surprising if the British people feel precisely such a contempt themselves?

I agree. According to the enthusiasts for Europe, we have missed the train in Europe, but it has come to my attention during the debate that, not only have we missed it, but it is going to run us down, as my hon. Friends the Members for Stone and for Buckingham (Mr. Bercow) remarked.

rose—

I give way to my right hon. Friend.

I am waiting to be called to speak.

I thought that my right hon. Friend wanted to intervene. He will be delighted to know that I am about to finish.

The Bill is a thoroughly bad piece of legislation. The Opposition are right to highlight its deficiencies and propose remedies. I hope that the House will vote for the amendment because it goes a little way to tackle a huge underlying problem as Parliament is invited to undertake a very undemocratic act.

I am concerned lest the pre-judgments of my right hon. Friend Mr. Redwood and my hon. Friend Mr. Cash should mislead the House into mistaking the importance of refusing the Government permission to do what they wish to do. The treaty of Nice is perfectly reasonable. I am pleased about enlargement and happy that the Conservative party is in favour of it, although one might not always think that that is so.

I am determined to make it clear that the most important and valuable thing that we have done since the war is to become part of the European Union. I very much hope that we continue to play a proper part, instead of a semi-detached one, in the building of that association, which is so important for both our peace and prosperity. However, that does not give the Government an excuse to railroad the House. That is the issue. I am afraid that my right hon. and hon. Friends undermine their position by taking an anti-European line. The problem has nothing to do with that; it is about the defence of the House.

The Solicitor-General and the Under-Secretary are both distinguished in the quality of their independence. They must be just as appalled as I am at how the House's ability to control the Executive is being undermined day after day—usually under the foolish word "modernisation". It may be that the Conservative party is taking longer to replace the Labour party than I should like, but we must remember that one day Labour Members will have to keep the Executive in order themselves. What they have done to the House will rebound on them. That is why the proposal is so damaging.

I wish to be a little sharp with my right hon. Friend the Member for Wokingham. I deeply resent the concept of yet another referendum. This House has the parliamentary role. We must not allow the world out there to believe that we abdicate our duty by holding a referendum every time we have a difficult thing to do. The thing about referendums is that one can never find the people who voted the wrong way afterwards. There is no responsibility—

Order. I have indulged the right hon. Gentleman a few moments longer than perhaps I strictly should. We are hearing too much about election turnout and the merits, or otherwise, of the referendum as a constitutional device. We should return to the particular matter under consideration.

I thank you, Mr. Deputy Speaker, for giving me enough time to get off my chest something that I have been wishing to say for some time. I much appreciate it. It is very helpful to have such an opportunity.

On the precise issue, I hope that the Government will not take it too hard when those of us who enthusiastically favour our membership of the European Union tell them that it is important not to besmirch our relationships with the rest of Europe by doing things that appear to be less than wholly democratic, parliamentary and defensive of the British tradition of how we do things.

I want to put things straight between us. I am very much of my right hon. Friend's view, as I think he is of mine, that the main affront tonight is the lack of British democracy in how we handle such important matters now and in future. I am sure that we can make strong common cause, both in our remarks and in the Division Lobby, by saying that we must believe in and practise parliamentary democracy in the House. The Bill does the opposite.

I am glad that my right hon. Friend and I are on the same side. From time to time, we find that a great support and pleasure. I think that on this issue we will be as one.

The key issue that I hope that the Government will think through is that it is often proper for European law to override the law of individual countries—otherwise, it would not be possible to have a single market, for example. Even the former Prime Minister, powerful though she was in some of her statements, recognised that we could not agree to something in the single market only to find that French or German law overrode it. It is funny how we are usually more willing to allow our laws to override such things than other people's laws. It is a curious element in our dealings with the rest of Europe. However, there are times when any sensible single market or concept of political co-operation needs European law to override domestic law.

If the public are to accept that, it is important that we do not extend those rights into areas where they are not necessary. The Government do not need to take any more power than they need. Because they are seeking to do more than is strictly necessary, many of us feel endangered. They ought to think seriously about the matter, as they need to tread softy and carefully reassure people who may otherwise be worried. I do not want them to be troubled by some of the more extreme fears expressed by my hon. Friend the Member for Stone, but he also expressed some reasonable fears.

My right hon. Friend's reference to extreme fears has brought me to my feet. I am extremely concerned about the democracy of the House, which is why I tabled the amendments. I have been mildly rebuked by my right hon. Friend Mr. Redwood for not going far enough, but what I have done is to stand up for democracy in the House and for democracy for other people in Europe; and referendums, which are not disclosed in the provisions, are the means whereby this legislation will affect them—

Order. Apart from a tendency to go down memory lane, the hon. Gentleman is trying to expand his argument too far.

I shall not follow my hon. Friend's example, Mr. Deputy Speaker. I was hoping to bring him onside, as I did not want him to feel under too much attack from my right hon. Friend the Member for Wokingham for the form of the amendment. It is perfectly reasonable—it says that we favour the principle, but that the method of implementation is not the best. If the Government are not keen on it, I am sure that they could restrict their powers in a different way. If they did, I am sure that my hon. Friend the Member for Stone, in a spirit of friendship, which is in his nature, would accept that. However, if they do not, there is a reasonable feeling across the country that they are trying to pinch a bit of unnecessary extra power, which is par for the course.

I shall keep my remarks short this time. If there is a change or an anticipated change under community law in the total number of MEPs, the Lord Chancellor may by notice require the Electoral Commission to make a recommendation. Clause 2(5) says that a recommendation made under clause 2

"must be published by the Electoral Commission and laid before Parliament by the Lord Chancellor".

Does that give the right hon. Gentleman peace of mind and reassurance?

Having been a Member of Parliament for as long as I fear I have been, I know that there are some mechanisms that do not amount to much. If I may say so, that mechanism is one such and does not provide power. However, the mechanism is not the real problem. I cannot understand why the Government want to take an extra step when they could achieve the end that they desire in a way that is acceptable to the whole House.

This is a constitutional debate, but it is not anything like as worrying as is sometimes claimed. We are inclined to treat every issue as if it were the most important one, but with constitutional issues it is better to tread softly than go too far. In the past, people have dealt with such issues by achieving a necessary end in a way that is acceptable to the whole House.

The Government are antipathetic to the amendments because as an Administration they are characterised by ministerial impatience. They do not want to accept them because in future, when they want to act, they do not want to have to listen to views other than their own. The purpose of debate here, however, is not merely to seek to change ministerial minds, but to enable the electorate to be more aware of the arguments and alternative points of view.

As so often, my hon. Friend has put his finger on the problem, and explained why I have tried to draw a distinction between the issue and the European ramifications. It is rare for me to be enthusiastic about being on the same side as Mr. Heath, but on this occasion we are as one. The issue is a constitutional one—it is about seeking to limit Parliament's powers as little as possible to achieve the necessary end. No sensible person would deny that we need to achieve the end envisaged in the Bill, because we want enlargement of the European Union and to be able to meet our obligations in such a union. At the same time, we want to do so by as limited a method as possible. It would be no skin off the Government's nose if they helped everyone to feel that they had tried to get close to 100 per cent. backing on a constitutional matter rather than leaving us divided on something on which we do not need to be divided. The Government can achieve their ends and we can protect the constitutional position, which is the Opposition's duty, and normally one that the Government accept.

Mr. Redwood said that in days gone by constitutional issues could be debated for a long time. I do not want people to get the idea that the Bill has not been debated at tremendous length. In Committee, Mr. Cash spoke for about 90 per cent. of the time, but we finished with a free sitting.

That really will not do at all.

Order.

We covered these issues quite extensively in Committee, when I gave full answers to many of the points made by the Opposition today. I am pleased that the throat of Mr. Cash is holding out, and I commend its endurance.

I greatly admire the hon. Lady, as she knows, and I am sorry to interrupt her at such an early stage in her speech. However, it is exceptionally irritating to be told that the amendments, or at least their purport, have been substantially debated in Committee. I merely put it to her that it is important to bear in mind the fact that the Bill is now on Report. I was not privileged to serve as a Committee member, but I am entitled to hear the arguments, including hers.

We were obviously deeply disappointed not to have enjoyed the company of the hon. Gentleman in Committee—he would have been a joy. I am happy to rehearse again many of the key points, but I question the decision of the hon. Members for Stone (Mr. Cash) and for Somerton and Frome (Mr. Heath) to make points that they had the chance to make repeatedly in Committee.

Will the hon. Lady give way?

I will give way to the hon. Gentleman so that he can repeat his point.

I am not going to make my point again, but wish to say that the point that I made about section 12 of the European Parliamentary Elections Act 2002 was an additional point. The points made by my hon. Friend Mr. Bercow are valid—the Bill is a constitutional measure and should have been taken on the Floor of the House.

We have already dealt with many of the substantial points made by the hon. Gentleman, but I am happy to go through them again. As we have made clear throughout, the Bill's purpose is to allow a mechanism for the implementation of the treaty of Nice.

The treaty of Nice provides for the reduced number of MEPs that would be in place once all the states had acceded. It also provides for the Council to take decisions on the interim position and to make pro rata adjustments in accordance with the treaty. We should be in no doubt that we can implement the numbers set out in the treaty and the interim arrangements. The problem with the amendment and with attempts to restrict the relevant provisions in the Bill too much is that we might end up being able to implement the precise details set out in the treaty—the bottom-line position, which means that the UK should reduce the number of its MEPs to 72—but not be able confidently to give effect to the Council's decision on the interim position, which is provided for in the treaty, but on which a decision has not yet been taken. There is therefore a danger that we might not be able to implement the provision for 78 MEPs, and we would end up with fewer MEPs than Opposition Members say they want.

Perhaps the hon. Lady can help me. Why is it not possible for her so to arrange things that she could ask Parliament about the matter? Why does she feel we would be excluded if we adopted the arrangement that would be most natural to us? We would set out the two most likely circumstances, and, if things did not turn out like that, the Government would return to Parliament and allow it to make its decision in plenty of time for it to be implemented. There would be no need to hold anything up for that, but at least Parliament would make the decision.

We have ratified the treaty of Nice, which sets out the bottom line. The interim position needs to be achieved by a pro rata adjustment. We have done that. The matter has been debated and has gone through the parliamentary procedures. We have set out the final position and the basis on which the interim position will be decided. I agree with the right hon. Gentleman that the matter needs to come back before Parliament, which is why it will be dealt with through an order. He seems to be asking for primary legislation in order to implement interim arrangements, the details of which were set out in the treaty of Nice and endorsed by Parliament.

I perfectly understand the hon. Lady's explanation. I merely suggest to her that these issues cause considerable concern and worry, often needlessly. In the circumstances, surely a Government with their ear to the ground and with fingertip control would go the extra mile to give Parliament the opportunity to make the decision, so that it did not feel bypassed.

The right hon. Gentleman overstates his case. It is clearly right that Parliament should ratify the treaty of Nice. That is exactly what happened. The treaty sets out the process for reducing the number of MEPs to ensure that the states joining the European Union can have representation. It sets out that representation in exact numbers, once all the accession states have joined. It also states clearly that the interim arrangements will need to made on the basis of a pro rata adjustment. That leaves no freedom to manoeuvre in the process that we will have to go through, but it is important that the Council decision is implemented; otherwise, we will not be able to allow other European countries to get their fair representation in time for the 2004 elections. Perhaps that is the agenda of some Opposition Members.

Is there not an easy way out? Why does not the Minister say that the House is right to want to consider the matter once we know the answer? When we know how many Members of the European Parliament need to be elected at the next election, all she has to do is to get the business managers to give her a day or two on the Floor of the House to bring the necessary amendment before us as primary legislation, and all will be well. It is not as though the House has very much to do. It is going home terribly early every night because it does not have enough business, and there are lots of Fridays when it does not sit at all. People outside do not understand why we do not do a decent day's work every day. Why cannot we have some time to do as I suggest?

I am sorry to hear that the right hon. Gentleman is not enjoying his early morning rises in order to get to the House. Astonishingly, he seemed at one point to be accusing the hon. Member for Stone of not being Eurosceptic enough, which seemed to trouble the hon. Gentleman. Opposition Members are simply trying to put hurdles in the way of the accession states ensuring fair representation in the European Parliament: that, in the end, is what all this is about.

We are going through a sensible process. The order will come back before Parliament once the Council decision has been taken.

Will the hon. Lady give way?

In a minute.

It is perfectly sensible that the Council's decision should be implemented to complete the process. We discussed extensively in Committee the fact that future alterations to the number of MEPs must be made in accordance with a treaty or by virtue of a requirement in a treaty. The number of MEPs is set out in a treaty and, under article 5, cannot be changed, except in accordance with a treaty.

Will the hon. Lady confirm, however, that, unless the clause is amended, a future treaty that included a change in the number of MEPs would be implemented through primary legislation, not secondary legislation?

A future treaty would have to be ratified in this country; that is how we have always handled important treaties.

This is a key point. We have no provision for the ratification of a treaty, other than for those matters that require a change in UK law. If a change in UK law was not needed because the matter was to be dealt with through secondary legislation, it would not be ratified by the House or anyone else; it would be made simply on the say-so of Government.

I appreciate that hon. Members are desperate to place hurdles in the way of the reforms that we need to put in place, but—

Will the hon. Lady give way?

It would be nice to be able to answer one intervention before taking another. I will give way to Mr. Bercow, as it is always a pleasure to hear the points that he makes.

There has been plenty of discussion throughout the Bill's passage through the House. I can testify to the extensive debates that we had in Committee, not only on the final numbers set out in the treaty of Nice, but on the interim arrangements. We have debated the Bill as primary legislation. The order setting out the interim arrangements for the number of MEPs as a result of the Council decision will be subject to the affirmative procedure. We will also have the opportunity to ratify the treaty of accession. There are ample safeguards for Parliament, and we are dealing with such a transitional issue—the number of MEPs, which must be established by a pro rata adjustment. That is not a number that can be plucked out of thin air by the European Commission or the European Council. There is not a wide range of decisions that need to be taken. A narrow decision has to be implemented in respect of the transitional arrangements for when some states accede. It is right that we give those countries the right to representation.

rose—

I give way briefly to the hon. Member for Buckingham, if he can remember what he was going to ask.

I can always remember what I was going to ask.

I simply put it to the hon. Lady that it would be wise and gracious for her to accept that in arguing that pushing something through via secondary legislation is different from an alternative to, and is less than, proper ratification, Mr. Heath was absolutely right. The hon. Lady, I am sorry to say, was absolutely wrong.

The hon. Gentleman is mistaking two completely different issues. I have said that the order will go through the affirmative procedure. I have made no comment about the ratification procedure. Hon. Members are putting hurdles in the way.

What is at stake is that other countries should be able to accede to the European Union. We should support that, and we should give them their fair representation. Opposition Members say that they want enlargement, that they want other countries to be able to accede, but they do not want to give them their representation in the European Parliament.

rose—

I shall not give way. We have had considerable debate.

We must give those countries fair representation. That involves reducing the number of MEPs from this country, and also from other countries right across Europe. It is the fair thing to do in order to ensure that countries acceding to the European Union receive their fair representation. I am sorry that Opposition Members choose not to support that.

I have only one point to make, which is that the Minister has answered none of the matters raised: zero. She has given absolutely no response. She did not deal with the European Parliamentary Elections Act 2002, and she did not deal with the principal matters raised by many right hon. and hon. Members. In her final remarks, she completely failed to answer the question that my right hon. Friend Mr. Gummer and I and others raised, which is implicit in my amendment: what is it that leads the hon. Lady to need to substitute for the precise wording of the protocol the words

"any . . . anticipated change under Community law"?

She has failed miserably to answer those questions.

Question put, That the amendment be made:—

The House divided: Ayes 176, Noes 287.

Question accordingly negatived.

I beg to move amendment No. 1, in page 2, line 27 page 2, line 27 [Clause 2], leave out subsection (4) and insert—

'(4) In determining what recommendation to make for the distribution of any total number of MEPs, the Electoral Commission must ensure that—

(a) each electoral region (other than Northern Ireland) is allocated at least four MEPs;

(b) Northern Ireland is allocated at least three MEPs; and

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

With this it will be convenient to discuss the following:

Amendment No. 2, in page 2, line 29 [Clause 2], leave out 'and'.

Amendment No. 3, in page 2, line 29 [Clause 2], at end insert—

'(aa) Scotland is allocated at least eight MEPs;

(ab) Wales is allocated at least five MEPs; and;

Amendment No. 4, in page 5, line 5 [Clause 8], leave out 'and Wales'.

Amendment No. 5, in page 5, line 11 [Clause 9], leave out 'and Wales'.

Amendment No. 6, in page 9, line 36 [Clause 19], leave out subsection 2.

Amendment No. 7, in page 10, line 38 [Clause 21], leave out 'and Wales'.

The amendment returns us to an issue that we discussed in Committee: the impact of the electoral system for Members of the European Parliament on regions that have a smaller number of MEPs to elect. You will know, Mr. Deputy Speaker, that when the original European Parliamentary Elections Act 1999 was introduced we had long and conflicting arguments about the precise way in which the Government's decision to introduce a system of proportional representation for European parliamentary elections was implemented. My colleagues and I took the view—indeed, I believe that I was speaking for my party on the issue at the time—that a closed-list system was not preferable to an open-list one. I think that subsequent events have proved us right. The country has not been persuaded that a system that gives people the opportunity to vote not for individual candidates, but on the basis of a party list, gives them the latitude that they would like to exercise in deciding who represents them.

With a reduction in the total number of MEPs, an issue has come to light regarding the position of parliamentary regions—only one region, the north-east, will be affected by the change in question, as a result of the treaty of Nice—that elect a limited number of MEPs. One of the perverse effects of the electoral system that the former Home Secretary, now the Foreign Secretary, chose to implement is that proportionality reduces markedly when there is a limited number of MEPs to be elected. The north-east elects four MEPs, and it is anticipated that that will reduce to three once the Bill takes effect and the changes to the constitution of the European Parliament are in place. That will result in a very imperfect match between the votes cast for each candidate and the proportionality of the result. That does not apply in the case of Northern Ireland, which has only three MEPs at present—that will continue under the Bill and my amendment would not change that position—because, uniquely among the regions and countries of the United Kingdom, it has a provision for a single transferable vote system, which is proportional even in small numbers. I fear that I will lose the attention of the House completely if I go into detail about the relative merits of the d'Hondt and the Sainte-Lague methods of calculating arithmetical progressions for the purpose of determining proportionality, and you will be relieved to hear that I do not intend to do so even if tempted or prompted, Mr Deputy Speaker. However, I would point out that the d'Hondt formula exacerbates that problem.

I speak from a position of disinterest, because my party would not necessarily be the beneficiary of any change of the kind that I propose in amendment No. 1. That may not be the case in the future, given present trends in the opinion polls, but on past political performance in the north-east we would not necessarily benefit. However, as a matter of principle, if we claim to have a system that is proportional across the country, it is both perverse and wrong to introduce an anomaly by design. That is why my amendment would provide a floor, so that each region, with the exception of Northern Ireland, would have at least four MEPs.

Given that thousands of people who left Northern Ireland during the appalling troubles that we endured for 30 years have returned since the Belfast agreement, why would the hon. Gentleman's amendment deprive that increased electoral roll of an additional seat at European elections?

That is not the intention of the amendment, nor is it what it says. The figure of four for other countries and regions of the United Kingdom and three for Northern Ireland would be the floor. If the Electoral Commission determined that it would be right and proper for Northern Ireland to have an extra MEP, it would not be a problem. I hope that I have allayed the hon. Lady's fears in that respect.

I am trying to achieve at least a broadly proportional system across the country. That would be disturbed if representation in the north-east were reduced to three MEPs, and that would be a retrograde step to which there are alternatives.

Surely the only way to achieve a more broadly proportional system—the hon. Gentleman's words—would be to distort the system so that the north-east would have fewer voters for every MEP. Is that the correct approach?

The hon. Gentleman must know that that happens already. Under the regional system, parity is achieved only in the broadest terms between the number of electors and the number of MEPs in a region. He is right that my amendment would mean a subsequent distortion for the rest of the country, because it would be marginally less represented than it would otherwise be, but it would be a matter of percentage points only, not whole numbers. It would not have a retrograde effect on the rest of the country compared with the effect on the north-east of having a distorted representation under the Government's proposals.

There are other ways of addressing the problem. We could change the voting system across the whole country to extend to other regions the advantages of the single transferable vote system in Northern Ireland. The Government do not accept that proposition.

Thank goodness.

The hon. Gentleman says "Thank goodness", but if he talked to people in Northern Ireland he would find that they recommended their system because they find it to be appropriate to their needs. There is a strong argument for extending that system to other parts of the country.

That would be one way of dealing with the anomaly. The other way would be to have flexibility in the boundaries of the English regions so that they could accommodate any changes by extending their areas. Again, the Government are not prepared to accept that. They want the boundaries of the English regions to be set in stone along the lines of the administrative boundaries that were set some time ago by a previous Government. I am not sure that they are right, but that is their view.

Having cut off those alternative ways of dealing with the problem, the only way that is left is through the proposal that I make in amendment No. 1. It would not be a perfect solution. As Mr. Osborne says, it can operate only with a small detrimental effect on the rest of the country in terms of its representation. I accept that, and I hope that he recognises that it is not the system that I would choose. Nevertheless, it would be one way of addressing an problem that further suggests that the closed list system is not the best way of administering a European parliamentary election.

I am pleased to be able to speak in the debate, specifically on amendments Nos. 2 to 7, which are tabled in my name and in that of my hon. Friend Adam Price.

I sincerely hope that the House will have the opportunity to express its views, especially on amendment No. 3, which deals with an issue of great importance to people in Scotland and Wales—namely, that of fair representation in the European Union. Given earlier contributions, to which hon. Members will have listened with close interest, I appreciate that there are issues of concern for people elsewhere, including in certain regions of England. My point has particular relevance to the representation of Scotland and Wales, in that they are nations, not regions. European law recognises representation for member states, but not for nation states that do not have the status of member states. We should remember why it is important that parts of the European Union have a fair and adequate level of representation in the European Parliament. It is fashionable to say that the European Parliament has no powers, so what is the point? However, when one looks at the growing role of the European Parliament, irrespective of whether one is a fan, it is clearly important to retain a fair and equitable level of representation—not merely because of the electoral system, but because it is important that a minimum amount of representation be guaranteed for Northern Ireland, which is recognised in the Bill. However, it is not recognised with regard to Scotland or for Wales.

It is clearly important to have a fair and equitable level of representation in the European Parliament, especially when one understands the importance of co-decision—that is, the role that the European Parliament plays in the legislative process, among other things, with regard to the free movement of workers, the establishment of the internal market, research, technological development, education, the environment, consumer protection and the like. Fair and equitable representation in the European Parliament is also important because of the role that it plays in budgets. The Parliament and the Council are the two arms of the budgetary authority, so they share the power of the purse just as they share legislative power. That is why it is important to have fair and equitable representation for Scotland, Wales and everywhere in the European Union.

May I ask the hon. Gentleman about the consistency of his party in trying to increase or maintain its number of MEPs, given that he rightly supports a reduction in the number of MPs in this House?

I am delighted to confirm that the policy of the Scottish National party is to repatriate all powers that normal countries have to Scotland and to have no Scottish representation in this House whatsoever, in the same way as there is no representation from the Irish Republic in this House.

As the hon. Gentleman is clearly talking about an independent Scotland, perhaps he could tell me how many seats he thinks that he would have for MEPs in the European Union.

Order. That goes outside the terms of the amendment.

I am grateful for that clarification, Mr. Deputy Speaker, because the level of representation in the European Parliament is germane to the amendment. I will hold to your ruling on that.

As regards the other European institutions, Wales and Scotland do not have their own independent representation in terms of voting rights at the Council of Ministers and the European Council, nor do they have permanent representation as part of the UK, which is why representation in the European Parliament is so vital to our two countries.

My hon. Friend is absolutely right. Scotland does not have a permanent representative in the Council of Ministers, does not nominate a Commissioner and does not take part directly in any of the key decision-making bodies of the European Union. That is why we need to ensure that we have fair and equitable representation. In response to John Robertson, who asked how many MEPs countries with populations of 5 million get, the list is in the annexe to the treaty of Nice. Those countries, which include Denmark, Slovakia and Finland, will be guaranteed 13 MEPs. Scotland currently has eight, and under the Bill will have its representation reduced to six.

To return to the consistency of the hon. Gentleman's argument, he is arguing that Scotland should be given representation because it has no direct representation in the Council of Ministers. Is it consistent for him to want the number of Members of this House to be reduced under the changes introduced in the Scotland Act 1998, given that we have a Secretary of State for Scotland doing the job for us in the Cabinet here?

I notice that you are shaking your head, Mr. Deputy Speaker. I should be delighted to debate on another occasion the role of the Secretary of State for Scotland, her French lessons and whatever else the hon. Gentleman may wish me to discuss, but I want to get back to the matter at hand—the amendment. [Interruption.]

Order. I do not want to hear a secondary, sedentary debate going on. We will please deal with this amendment, and this amendment only.

I am grateful, Mr. Deputy Speaker.

I should like to conclude by discussing the powers of the European Parliament and why it is important, because of co-decision and its role in budget-making powers, that we have a fair and equitable level of representation. The supervisory powers of the European Parliament and the proposals supported by the UK Government on reforming the European Union show how important it is that one has the maximum amount of representation in the European Parliament. The Bill undermines that right for Scotland and Wales.

Under plans that the French and German Governments propose and that the United Kingdom Government apparently support, the President of the Commission will be elected by Members of the European Parliament. As somebody who represents a fishing constituency, I stress that it will be inexplicable if Scottish Members of Parliament, from whatever party, vote to decrease Scotland's representation by 25 per cent. That is the effect of the Bill.

Perhaps hon. Members will vote for a fair and equitable reduction in representation throughout the United Kingdom because they accept the legitimacy of being represented as part of the UK. All regions and nations in the UK must accept the pain that will be inflicted to make way for the accession states.

I am delighted to hear the attempt at justification by Mr. Duncan. As a Unionist, why does he accept the disproportionate reduction of representation in Scotland and Wales? I shall explain the disproportionate nature of the reduction and perhaps he will have the opportunity later to explain the reasons for his support for that.

The problem is compounded because current representation for Scotland is second class in terms of numbers. Scotland has half the representation of other countries of 5 million people. Denmark, which also has a population of 5 million, has 16 members of the European Parliament whereas Scotland has only eight. In political terms, a Scottish voter is worth only half a Dane. That also applies to Wales, which currently has five Members of the European Parliament, whereas the Republic of Ireland, with a population below 4 million, has 15. In political terms, a Scot is worth only half someone from Denmark, and somebody from Wales has only a third of the political clout of a voter in the Republic of Ireland. That is not remotely justifiable.

Does my hon. Friend agree that the other stateless nations of the European Union are currently in a stronger position than Wales and Scotland? The number of Members of the European Parliament in Spain will be reduced, but the autonomous regions have the additional safeguard of co-decision on a united Spanish position at the Council of Ministers. Scotland and Wales do not have that.

I draw special attention to the regions in Germany and Austria. They play a strong role in the decision making of their federal governments. That does not happen in the UK. Such decision making is guarded by secrecy and confidentiality under the concordats between the UK Government and the devolved Administrations. Different Governments and different parties in the House argue that the European Union should be more transparent, democratic, accountable and should offer greater subsidiarity—the Scottish National party and Plaid Cymru support that—but they are happy to maintain secrecy and a lack of transparency for representation within the UK for the European Union.

The hon. Gentleman claims that under the Bill, a Scottish voter will be worth half a Danish voter. If we accepted the amendment, how would a Scottish voter stand in relation to an English voter?

Representation within England is for the people of England to decide. I represent a Scottish constituency and my mandate is therefore to ensure fair and equitable representation for Scotland. The hon. Gentleman makes a strong case for the best possible representation for England and I wholeheartedly support that. However, I will not accede to a measure that will undermine Scotland's already second-rate status in the European Union and condemn it to third-rate representation.

The Bill and the House of Commons explanatory note show how much representation Scotland and Wales will have in future. Page 14 of the research paper explains the position under the 72-seat scenario. That will be the UK's total number of seats after enlargement, which the SNP and Plaid Cymru support. We welcome other small and medium-sized independent countries in the European continent taking their rightful place in the European Union, with all the attendant rights and obligations. However, the research paper explains that Scotland's representation will be reduced from eight to six, and Wales's representation will decrease from five to four. One does not need an "O" grade in arithmetic to calculate that Scotland's reduction from eight to six Members of the European Parliament is a decrease of 25 per cent. The amendment would prevent that.

Wales will experience a 20 per cent. drop in representation in the European Union. I challenge hon. Members in other parties to name one other part of the European Union whose representation will decrease by more. They cannot. Scotland is the nation that will experience the biggest single drop in representation under the changes.

The hon. Gentleman makes clear Scotland's position if it were separate, not as if it is part of the UK. The UK is represented in the European Parliament, and the Bill provides for equal numbers for the seats in the UK. It would apply to Scotland in the same way as the SNP's agreement on the boundary changes in Scotland would apply to a UK Parliament.

I am sorry that the hon. Gentleman has not had time to examine the detailed figures that explain the changes. The reduction from eight to six seats is a reduction of 25 per cent. in representation for Scotland. Spain is next on the list, with a 22 per cent. reduction; Ireland follows with 20 per cent., and Wales also has a 20 per cent. reduction. We have to compare and contrast. The hon. Gentleman was right to say that if Scotland were independent it would have more representatives. Independence in Europe would be the best answer.

Let us consider Luxembourg, which has only 448,000 inhabitants—the same population as Edinburgh, Scotland's capital. Luxembourg is set to have six Members of the European Parliament. Changes in the EU that involve member states also involve guarantees. Degressive proportionality means the smaller the member state, the greater the over-representation. The smallest are therefore looked after best. Scotland is by no means one of the smallest member states. However, a country with a population that is smaller than that of Edinburgh will have the same representation as Scotland.

I therefore stress to Mr. Tynan that I agree that independence in Europe would give Scotland the best deal. I am glad that a Labour Member of Parliament has pointed that out this evening. However, maintaining the second-class representation is much better than the third-class representation for which the Bill provides.

The hon. Gentleman might have misunderstood the question that I posed earlier. I did not ask whether he believed that an independent Scotland should have more MEPs. Rather, I asked whether he accepted that we are speaking tonight on a United Kingdom basis. On the basis of UK-wide representation in the European Parliament, these measures are being proposed according to equality throughout the UK, and not on the basis of Scotland as an independent state. That does not exist at present and I do not think that it ever will.

I do not want to labour this point. I think that everyone in the Chamber understands that, were Scotland an independent member of the European Union, it would have far more MEPs. I would far rather have that. That issue is not on the table this evening—I agree with the hon. Gentleman on that. What we have instead is this amendment, which will guarantee that Scotland and Wales do not lose out more. Those Members who vote against it would therefore be voting in favour of Scotland having a disproportionate reduction in its level of representation. It would not only be disproportionate; it would be the biggest decrease in representation in the European Parliament anywhere in Europe.

Surely those in the House who advocate that the present UK constitution protects the role of small nations such as Wales and Scotland must face the fact that the Secretaries of State for Wales and Scotland have failed to protect the position of those countries within the United Kingdom—that is different from the situation in Northern Ireland—and that the situation in Europe as a whole protects the role of small nation states. We need to ensure that the legislation going through the House does the job that the Secretaries of State for Wales and Scotland should have done in the first place.

I am grateful to my hon. Friend for pointing that out. That argument has been propounded not only by his good self; it was also propounded by the Labour Government during the 1970s and 1980s, when they argued that it was vital that Scotland and Wales had a level of over-representation. That idea is to be found in the memoirs of the former Taoiseach of Ireland, Garrett Fitzgerald, who pointed out that UK Labour Government Ministers were arguing that Scotland and Wales needed better representation at the time. How things change! Twenty years later, Scottish Labour MPs at Westminster are arguing in favour of Scotland having a disproportionate reduction in representation in the European Parliament.

The hon. Gentleman will recall that the justification for that over-representation in Scotland was the separate legislative programme there. That was the reason for it, and now that that arrangement has gone, we are seeking to remove that disproportionality. He must accept that what we are implementing today is a United Kingdom settlement—the number of MEPs for the United Kingdom—for a regime that is being implemented on the same basis throughout the whole of the UK. He may wish to have an argument about independence, but that is not what we are here for.

I am grateful for the hon. Gentleman's intervention, but it did not provide much more clarity in terms of the position of the Conservative party or the Scottish Conservative party on the matter. I referred earlier to an argument put forward by a UK Government about Scotland's representation in Europe, not about a devolved Scotland within the UK. I could argue all evening about why Scotland should have 13 Members of the European Parliament, which is what it would get if it were independent, but the amendment is not about that. It is about guaranteeing current levels of representation. That is second best, but it is better than third class.

The hon. Gentleman has expressed his interest in Scottish Conservative policy. I do not want to deviate from discussing the amendment before us, but, for the record, our only proposal is that the UK settlement be implemented on the same basis throughout the whole of the UK, and that only in that way can it be implemented on a fair and equitable basis throughout this United Kingdom—and long may it remain so.

I would be delighted to forward the figures to the hon. Gentleman, because he clearly has not seen them. The reduction in the level of representation throughout the UK is neither fair nor equitable. Scotland's reduction is 25 per cent. The reduction of representation in England is less than that. Compared with other parts of Europe, Scotland's representation is miles worse. That is unacceptable, and I would have thought that someone representing a part of Scotland that is suffering because Scotland's case is not being argued effectively in the European Union would have been better off making the case to Ministers that they should not undermine Scotland's representation in Europe.

Is not the basis for our argument that Wales and Scotland are nations within the UK and, as such, enjoy a unique constitutional status in all the structures of UK governance? If Members of other parties do not join us in the Lobby tonight, will it not be another case of the big UK parties failing to stand up for the small UK countries?

I am grateful to my hon. Friend.

rose—

I shall give way one last time before I finish, and it will be to Mr. Rosindell, but I would like to get back to the point that my hon. Friend Adam Price has just made with such great force. Curiously, his argument is supported by the Minister, who said in the last debate on the Bill on the Floor of the House that the reason the Bill had been drafted in this way was that

"there are different legislative arrangements in Northern Ireland and Scotland for elections and judicial matters."

The Government recognise the need for a differentiated approach for the different nations within the United Kingdom. That is why Northern Ireland's position has been guaranteed to remain at three seats, yet that right to fair and equitable representation has not been extended to Scotland and Wales.

I shall be interested to see how the Liberal Democrats will vote on this matter. The Member who leads for them on this, the hon. Member for Somerton and Frome, has made some very sensible suggestions today. In the previous debate, he said that the EU

"has listened to the pleadings of the small countries, which believe that there is an irredeemable minimum number of representatives that they should have so that they are properly represented. That touches on what Angus Robertson said when he compared Scotland with other small nations that are member states. We need to recognise the imbalance." —[Hansard, 10 December 2002; Vol. 396, c. 180, 197.]

I shall be interested to see how Scottish and Welsh Liberal Democrat Members of the Westminster Parliament vote tonight. They have the chance to join SNP and Plaid Cymru colleagues to guarantee at least the current level of representation. We have said that that level is inadequate, but at least it is better than the third-class representation to which the Bill will demote Scotland. Unfortunately, there are no Scottish Liberal Democrats here this evening, but I note that the leader of the Welsh Liberal Democrats is present. I do not know whether he is in favour of Wales's representation in the European Parliament being reduced by 20 per cent., but we shall find out in the Lobby later on, when I hope that the amendment will be voted on so that MPs from all parties will be able to make their views known.

Scotland is, of course, a great nation, but does the hon. Gentleman agree that it is not a nation state? If the logic of his argument were to be applied across the whole of Europe, how large would the European Parliament become? Bavaria, Catalonia and a whole range of regions and countries within nations would, of course, expect greater representation. Where would it end?

The hon. Gentleman is a doughty campaigner for the rights of self-determination for the people of Gibraltar. I would be the last person to tell anyone anywhere in Europe where they should set the boundaries for their self-determination. That is up to people elsewhere to decide. It is up to the people of Gibraltar to decide how they should be represented, and it is up to people throughout the rest of Europe to decide how they would like to be represented. I would like to ensure that Scotland's representation is not third class, and that it is not demoted by 25 per cent. I look forward to hon. Members being given the chance to vote on this important issue. I mentioned the presence of the Welsh Liberal Democrat Member, so I shall give way to him.

I am honoured to have been mentioned by the hon. Gentleman, who has made the cogent case that I would expect from a member of a party that clearly wishes to separate itself from the rest of the United Kingdom. An earlier intervention implied that members of Plaid Cymru have the same wish. Does the hon. Gentleman not accept, however, that there are different views? Is there not a case for suggesting that those who do not want separation may have a collective responsibility to consider the proportionality that we are discussing and, perhaps, the necessary cost of achieving it?

I must confess that I did not understand that. Is the hon. Gentleman saying that he wants Wales's representation to be reduced by 20 per cent., or that he is against the idea?

The hon. Gentleman must try to see outside the box. His is not the only point of view in the Chamber.

Some of us are passionate supporters of the interests of Wales in the European environment—but in the context of not separating ourselves from the rest of the United Kingdom. The hon. Gentleman is perfectly entitled to take the position that he takes, but does he not accept that taking a different position does not necessarily involve betraying the nation of Wales?

Much as I would like the amendment to normalise the representation of Scotland and Wales in Europe as normal member states, the amendment will not achieve that. What it will do is guarantee the current level of representation. This is a very easy question: do Members from Scotland and Wales support the current level of representation, or do they not?

Curiously, one argument has not been presented on either side of the House—the argument that it might be in the interests of the Scottish National party or Plaid Cymru for the levels to remain as they are for narrow party-political purposes. [Interruption.] I see a lot of head-shaking, but I am grateful to the hon. Member for Hamilton, South for supporting my proposition from a sedentary position. If the level of Scottish representation in the European Parliament is reduced from eight to six, the first MEP to go off the list will be from the Labour party and the second will be a Liberal Democrat. Should that reduction continue, the next will be a Conservative.

Will the hon. Gentleman give way?

No. I want to finish my speech.

What the Scottish National party and Plaid Cymru propose will not guarantee Scotland and Wales the normal, fair status of member states. It is clear that we cannot resolve the issue this evening. That means, indisputably, that Scotland and Wales will be in an inferior position in terms of MEP numbers. What the House must decide this evening is whether to accept the current level of representation, which our amendment would guarantee, or whether to vote for a 25 per cent. reduction in Scottish representation. I now give John Robertson the opportunity to intervene, and tell the House that Scotland will not experience a 25 per cent. reduction in its representation.

The hon. Gentleman is viewing the issue solely from his nationalist standpoint, rather than from a UK-wide standpoint. He has used his platform entirely to promote nationalist politics. This has nothing to do with representation in Europe; it is just party politics.

Having given way so many times to so many Members on both sides of the House, I thought I was being fair.

Will the hon. Gentleman give way?

I will deal with the point made by the hon. Member for Glasgow, Anniesland first, but then I will give way to—I think—the only Member to whom I have not given way already.

The hon. Member for Glasgow, Anniesland had the opportunity to deny that Scotland's representation would fall by 25 per cent. Clause 2(4)(b) makes that clear, stating that the Electoral Commission must ensure that

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

That means a uniform reduction in membership from every UK region—from eight to six, according to the House of Commons Library. I do not know about the hon. Gentleman's mathematical abilities, but I can tell him that a reduction from eight to six is a reduction of 25 per cent. When he had the opportunity to deny that, he failed to do so. The fact is that if Members from Scotland, Wales and hopefully elsewhere do not back the amendment, Scotland's representation will fall by 25 per cent. and that of Wales by 20 per cent.

Does the hon. Gentleman apply his argument about proportionality to all areas? It seems to me that, according to his logic, the Barnett formula would be eradicated. It is not a question of third-class representation; it is a question of the quality of the representation. In the past Scotland's representation in the UK has been of great quality—delivering, for instance, the Barnett formula.

I do not think that the Chair would look too kindly on us if we moved the debate to the subject of the Barnett formula, although I would be delighted to discuss it with the hon. Gentleman some other time.

The hon. Gentleman had the opportunity to deal with a point that was not denied by the hon. Member for Glasgow, Anniesland—that Scotland's representation is set to decline by 25 per cent., and that of Wales by 20 per cent. That is not fair or equitable. I urge Members on both sides of the House to vote for fair and equitable representation for Scotland and Wales, and I appeal to Members throughout England to make the strongest case that they can for the areas they represent. That is up to them, however. Members of the SNP and Plaid Cymru have a mandate to represent the best interests of the people of Scotland and Wales, and we will take every opportunity to do so rather than accepting a further reduction of our representation in the European Union.

I cannot quite believe that that speech has finished.

Mr. Heath raised some points that he had raised in Committee. He wanted to raise the minimum threshold for representation in any region except Northern Ireland to four. The Bill's current threshold is three in all regions. I understand what the hon. Gentleman is trying to achieve and I have some sympathy with what he said, but I disagree with him ultimately because I think it important for all regions to be treated in the same way.

Does the Minister accept that Scotland and Wales are nations, not regions?

I know that the hon. Lady and her party are keen to argue that Scotland and Wales should be treated differently, and should become independent nation states. I disagree. I think it important to treat every region in the UK in the same way.

Will the Minister give way?

I will, on condition that the hon. Gentleman makes a different point.

Will the Minister answer the point that was made by my hon. Friend Angus Robertson? Does she accept that Scotland's representation will be cut by 25 per cent. and Wales's by 20 per cent?

The Electoral Commission has not set out its recommendation as to what the numbers should be. Will the hon. Gentleman let me first respond to the points that were made by the hon. Member for Somerton and Frome before I move on to the points that were made by Angus Robertson?

It would be inappropriate to single out Northern Ireland in the Bill so that it received less representation than any other region. I have looked further into the points that the hon. Member for Somerton and Frome made about the way in which the votes are counted in Northern Ireland. I do not think that that is sufficient to justify setting a threshold in Northern Ireland that is different from that in other regions. Furthermore, as I set out in Committee, to do so would effectively mean over-representation and under-representation in other regions, which could not be justified.

To deal with whether Scotland and Wales should be uniquely qualified to receive more representation than any English region, that is simply unjustifiable. The nationalist parties are arguing that the votes of people who live in Edinburgh should count for more in the UK's representation in the European Parliament than the votes of people who live in Leeds. As a Yorkshire MP, I do not see how that is remotely justifiable in any way.

Will not the Minister confirm that there is an inconsistency in her argument, because the Bill enshrines a specific status for Northern Ireland? Why is it that Northern Ireland should have a specific status, which I think is fair and equitable, and Scotland and Wales, the other nations within the UK, should not have that same right?

The Bill provides for the minimum threshold for representation in any region to be set at the level of three. That is the right thing to do. Hon. Members are arguing that the votes of those who live in Scotland or Wales should count for more than the votes of those who live in England. I understand that they want independent nation states. I disagree with them on that. I strongly believe that that would not be in the interests of the people of Scotland, Wales, the UK or Europe. If hon. Members accept that, for the purposes of this amendment, they vote as part of the United Kingdom, they have no justification for arguing that the votes of people who live in Cardiff should count for more than those of people who live in Birmingham.

As a matter of record, does the Minister accept that there are particular circumstances in Northern Ireland, quite closely related to the troubles and divisions within the community, that mean that, for practical reasons, it probably is necessary to have a minimum of three MEPs there?

I recognise the point that the hon. Gentleman has made, but it is probably right to have a minimum of three MEPs in any region; it is difficult to see how a result could be properly proportionate if the number fell below three in any region.

The nationalist parties need to recognise another issue. They are trying to set this up as an opportunist issue—them versus the rest of England, them versus the rest of the United Kingdom. That is not what this is about. They are arguing to maintain the status quo: to maintain the number of MEPs that they have. A number of states are acceding to the European Union. Everyone has argued across Europe that it is important that they should be given representation in the European Parliament; everyone else accepts that. Everyone accepts that, overall, in order to achieve that, and so that we do not have a massive explosion in the size of European Parliament, all member states should see a reduction in their MEPs as a result—except Scottish National Members, who believe that Scotland should have special treatment within the United Kingdom.

Does the Minister feel that it is fair that Scotland and Wales should suffer a disproportionate reduction? That has been the crux of the debate.

It is important that the distribution should be fair across the United Kingdom. That is why we have asked the Electoral Commission to come up with a recommendation as to what the distribution should be. The Bill provides for the commission to do that. If hon. Members think that the commission needs to take particular things into account, they should talk to the commission. The commission will make the recommendation about what the fair distribution should be, but the nationalist parties are not arguing for a fair distribution. They are not arguing for the people of Scotland and Wales to be treated fairly alongside everyone else. They are arguing for their votes to count for more. That is unacceptable when we consider people living in the UK as a whole. It is right that people should be fairly represented in the European Parliament. This Bill provides for that fair representation. Their amendments do not.

With the leave of the House, we have certainly had a lively debate on this group of amendments. I listened with care to what Angus Robertson said over rather a long time in support of his amendments. Seductive though his arguments may be to a casual listener, they depend on one factor only: his interpretation of Scotland and Wales as being member states. They are not member states. The United Kingdom is the member state, of which the nations of Scotland and Wales are a part.

Will the hon. Gentleman give way on a point of clarification?

There is no such thing as a point of clarification in this place. We are not in a debating chamber in a school debate. The hon. Gentleman's position is perfectly proper as the position to be adopted by a nationalist party that wants Scotland to be separate from the United Kingdom. I accept that. I am a little surprised that it is entered into by Plaid Cymru Members. I thought that their position had changed over recent years and that they did not wish to secede from the United Kingdom, but that is a proper position. What they cannot possibly argue is that the words in clause 2(4)(b),

"the ratio of electors to MEPs is as nearly as possible the same in each electoral region" are unfair to any part of the UK in themselves. The hon. Gentleman is proposing to give an unfair advantage to Scotland and Wales at the expense of the regions of England. As a Somerset MP, I am unable to accept that proposition.

Several hon. Members:

rose—

We have had untold interventions and it is time—

Will the hon. Gentleman give way?

All right. Once.

The hon. Gentleman, for whom I have great regard, has missed the point with regard to what Angus Robertson was saying. The whole point at issue is that if there is to be a reduction, it should be across the board and fair. The proposed reduction is not going to be across the board and fair, according to the research from the House of Commons Library. It has nothing to do with nation states. It is to do with the number of people in a population. We are saying that we should maintain that representation pro tem, whatever the future of those states.

I reciprocate in my regard for the hon. Gentleman. We have worked together over a number of years, but he is wrong. It is not possible to interpret the phrase that I read out from the Bill as being unfair to any part of the United Kingdom, other than in the sense that, were Wales and Scotland to be separate member states, they would be treated differently. That is a difference that we shall have to accept, but I ask him to look at the internal logic of his argument because it has some deficiencies.

Will my hon. Friend give way?

Well, all right.

It does not matter that much.

Go on.

I apologise for, rather ironically, annoying my hon. Friend. I wonder whether he, having listened to the interventions from the nationalists, agrees with me about the reality of the debate about their amendments. If one believes in independence for Wales and for Scotland, it is appropriate to change to higher representation for those countries. However, if one believes, as I do, that we are part of the United Kingdom, it is necessary to have fair and equitable distribution. Otherwise, the north-east and the south-west of England could equally argue that, for economic and other reasons, they, too, are special cases for greater representation.

If my hon. Friend is going to tender his apologies ironically, I shall accept them quizzically. However, I believe that his point is correct.

On amendment No. 1, I think that the hon. Lady almost accepted the logic of my argument. She agreed that it bears examination, so she has some sympathy with it, but she then went so far as to say that we could not go below the threshold of three, because that would destroy proportionality. I agree, but going below the threshold of four also destroys proportionality, given this ridiculous closed-list system and the d'Hondt arithmetic progression, which the previous Home Secretary chose to adopt for European elections. That is why, to pursue the interests of proportionality and proper representation across the United Kingdom, I must press the amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 43, Noes 424.