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Shersby, Michael

Sims, Roger

Skeet, Sir Trevor

Smith, Tim (Beaconsfield)

Smyth, Rev Martin (Belfast S)

Soames, Nicholas

Speed, Sir Keith

Spencer, Sir Derek

Spicer, Sir James (W Dorset)

Spicer, Michael (S Worcs)

Spink, Dr Robert

Spring, Richard

Sproat, Iain

Squire, Robin (Hornchurch)

Stanley, Rt Hon Sir John

Steen, Anthony

Stephen, Michael

Stern, Michael

Stewart, Allan

Streeter, Gary

Sumberg, David

Sweeney, Walter

Sykes, John

Taylor, Ian (Esher)

Taylor, Rt Hon John D. (Strgfd)

Taylor, John M. (Solihull)

Temple-Morris, Peter

Thomason, Roy

Thompson, Sir Donald (C'er V)

Thompson, Patrick (Norwich N)

Thornton, Sir Malcolm

Thurnham, Peter

Townend, John (Bridlington)

Townsend, Cyril D. (Bexl'yh'th)

Tredinnick, David

Trend, Michael

Trimble, David

Trotter, Neville

Twinn, Dr Ian

Vaughan, Sir Gerard

Viggers, Peter

Waldegrave, Rt Hon William

Walden, George

Waller, Gary

Ward, John

Wardle, Charles (Bexhill)

Waterson, Nigel

Watts, John

Wells, Bowen

Whitney, Ray

Whittingdale, John

Widdecombe, Ann

Wiggin, Sir Jerry

Willetts, David

Wilshire, David

Wolfson, Mark

Wood, Timothy

Yeo, Tim

Young, Rt Hon Sir George

Tellers for the Noes :

Mr. Sydney Chapman and

Mr. Michael Brown.

Question accordingly negatived.

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

Mr. Maclennan : I want to speak--

Mr. Roger Stott (Wigan) : On a point of order, Mr. Lofthouse. I realise that the House is in Committee, but I seek your guidance on how to reverse that procedure so that the Home Secretary can make a statement on a certain matter. I was in court this afternoon when a young Irish man was set free by a magistrate and the--

The First Deputy Chairman : Order. The hon. Gentleman's point is nothing to do with this Committee. I cannot deal with it ; it must be dealt with by the Chair when the Committee reverts to being the House.

Mr. Stott : Further to that point of order, Mr. Lofthouse.

The First Deputy Chairman : Order. I have ruled on the matter.

Mr. Maclennan : So far, clause 1 has been considered only in so far as it deals with the rather narrow question of whether an additional European Parliament seat should be allocated to Scotland. In fact, the clause goes a great deal further and wider than that. It is the core of the commitment to widen the United Kingdom's representation in the European Parliament, as set out in the decision

"amending the Act concerning the election of representatives of the European Parliament by direct universal suffrage annexed to the Council Decision 76/787/ECSC, EEC, Euratom of 20th September 1976." The background to the decision is the view taken by the Community Heads of Government that it was proper to enlarge the European Parliament to give membership to the new La"nder of east Germany which had adhered to west Germany and to the European Community. That was a welcome step. However, we must determine whether it is necessary to give effect to that decision of the Council of

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Ministers through the manner proposed by the Government, whether clause 1 is necessary to give effect to that decision or whether it is a self-executing decision under the terms of the treaty of Rome and the European Community Acts.

I make no secret of the fact that I and my right hon. and hon. Friends feel that the way in which the Government propose to widen the representation is undemocratic because it will only extend the unfairness of the present representation in the European Parliament. It would not greatly disquiet us if the Bill were found to be so defective as to be unsuitable for implementation by the House. The question is whether it would be appropriate as well as necessary to give effect to clause 1. It might be argued that if we vote against the clause, that could defeat the Government's intentions and make it impossible for this country to ratify the decision taken by the Community Heads of Government at the Edinburgh summit. That might be regarded as unfortunate, but we believe that the position is not entirely clear. The legal status of both decisions taken on 1 February, to which clause 1 would give effect, and of the so-called Act, as amended, which is annexed to the 1976 Council decision, is obscure. That makes it difficult to determine what would happen if the British Parliament declined to pass this implementing Bill.

The authority on the question who has been drawn to my attention is the author T. C. Hartley who, in his book "The Foundations of European Community Law", second edition, 1988, page 24, writes : "The instrument providing for elections took an unusual form since all its substantive provisions are in an Act annexed to the Council decision. The legal nature of this Act is controversial. Does it take effect as an international agreement between the member states based on a draft recommended by the Council? Or does it take effect as a decision of the Council to which the member states have agreed? Perhaps the best view is that article 138(3) of the European Community"--

he refers to the provisions of the European Coal and Steel Community and Euratom Acts--

"lay down a special procedure for amending these treaties which derogates from that in articles 236 EEC, 96 ECSC and 204 Euratom. If this view is correct, it takes effect as an Act of the member states, but forms part of the three treaties. The importance of this question is that the jurisdiction of the European Court to annul, interpret or enforce the Act depends on the Act's legal status."

I think that you will agree, Mr. Lofthouse, that that is far from a conclusive view as to the necessity of clause 1 for the implementation of the decision taken by the Heads of Government in Edinburgh. Certainly, it is true that, normally, if the Government commit themselves to a binding international agreement, the commitment stands, regardless of any subsequent inability, for domestic reasons, to implement it.

To take another example from a different European sphere, if the European Court of Human Rights finds that British law is incompatible with the European convention on human rights, to which the United Kingdom is committed in international law, the Government are obliged to take steps to change the law and to make it clear to Parliament that this is an overrriding commitment.

If Parliament decides to reject their advice, the Government are placed in a very difficult position, which most Governments would naturally seek to avoid. Normally, the situation is avoided because of the opportunity that Parliament is given, as the Government are giving us the present opportunity, to consider treaties

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and any necessary implementing legislation before the Government are finally bound by the act of ratification. It is, however, avoided in the case of European Community legislation because the primacy of this is established in United Kingdom law by the European Communities Act itself.

In the case of the European Parliament elections, therefore, the question arises : are the Government already bound by the agreement at Edinburgh and the subsequent decision by the Council of Ministers, or is the procedure set out in the decision whereby the provisions are to enter into force following receipt of the last notification akin to ratification?

The language of the decision which clause 1 purports to be importing is, I submit, quite unclear on this point. Council decisions in general are binding in their entirety. Article 189 EEC would seem to make that point clear beyond peradventure. This one is to enter into force on the day of publication--that is, 9 February. It also states clearly that the provisions "shall" be applied to the elections to the European Parliament in 1994. That is made clear in article 2 of the decision, which says that the provisions "shall be applied for the first time in elections to the European Parliament to be held in 1994."

These questions may, therefore, fairly be asked. Is what we are doing necessary? Is it being done in vain? Is Parliament intervening in a manner that is simply not required by European Community law? Is it handling this matter in an inappropriate fashion?

On the other hand, the provisions--this is the curious contradiction in the decision--are merely "recommended" to member states "for adoption in accordance with their respective constitutional requirements."

That comes at the end of the preamble, just before article 1. In short, the reference to respective constitutional requirements seems to imply that this is really a ratification process akin to that in article 236 for amendments to the treaty of Rome. But the other language and legal form of the decision give some grounds for arguing that the Government are already bound to implement the provisions, and that if Parliament were to choose to reject amendment 1, that would not free the Government from their obligation. 8.15 pm

The method of implementation is not laid down ; we are not required by the decision to proceed in the manner in which the Committee is proceeding. We are certainly not bound to implement the Government's policy in this matter, for it is clear that the adoption of the decision is to be in accordance with our respective constitutional requirements, not according to any European Community law. If the Government were faced with the rejection by Parliament of clause 1 of this Bill, they could conceivably seek an alternative method, depending on the reasons for rejection.

Nor is any firm deadline laid down for implementation. I put it to the Committee that, if we reject clause 1, it will still be perfectly possible for the Government to meet their obligations under the decision by bringing forward a system of election which does not depend upon a boundary commission procedure, but which gives effect to a system of election which is pursued in many other member countries of the European Community--a proportional system which relies upon the votes cast in the

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existing European parliamentary constituencies. Therefore, a vote to defeat clause 1 would in no way defeat the objectives of the Government in seeking to give effect to the decision.

I therefore submit that it is an act of high responsibility to question whether the Committee should embark upon a legislative process to implement a system of election which runs entirely counter to the other commitment of this country to seek a common system for elections to the European Parliament, and which is not necessary. I have taken a little time to deploy these legal arguments about the necessity of clause 1 to avoid any charge being made by the Government that, in advocating its rejection, we are acting irresponsibly.

Mr. Beith : I have been following my hon. Friend's deployment of his case, to which he brings his customary legal authority. Looking at it more from a layman's point of view, would I be right in assuming that there is at least an argument for saying that the authority that supports the position in the treaty of Rome requiring a common system is more compelling than the authorities that he cites for implementing the additional number of seats, which would be the basis on which the Government might press us to vote that clause 1 stand part?

Mr. Maclennan : I would certainly accept that argument. Indeed, I would go further and say that, in the light of the decision taken by the European Parliament in March this year to adopt the de Gucht proposals, and the fact that under the presidency of Belgium in the autumn this matter will undoubtedly be brought on to the agenda of the Council of Ministers, it is highly probable that member countries of the European Community will progress further down the road to a common system of election before the 1994 election. It would be acting very much within the spirit of EC law-- and, I would argue, within the letter--if we were to reject the way of implementing the decision that the Government have recommended to us.

I referred briefly to the deadline laid down for implementation. The decision envisages implementation in time for the 1994 elections, but it does not specify any earlier date after which it would be difficult, or impossible, to proceed on the basis of the new allocation. I concede that that last point would add to the political difficulty if the Bill were rejected--when I say "the Bill" I am talking about clause 1 of the Bill, because that is the heart of the matter. Other member states would not know whether to proceed on the assumption that the United Kingdom would find the means of implementation, or to conclude that the agreement could not come into force in time for the elections and make their own arrangements on the basis of the present allocation.

It seems reasonably clear from the wording of the decision that, if we fail to make provision for the election of extra MEPs, and therefore fail to notify in accordance with the decision, the other member states would be prevented from taking up their own allocations and the whole agreement would be held up. However, this is not the only way in which our obligation to implement the decision can be fulfilled.

It is possible that, if we do not pass clause 1, that will be seen by other member countries of the European

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Community as putting a block in the way. That might be so interpreted by the Government that they felt unable to give effect to the decision. It is possible that other member states might try to bring us back to the negotiating table, seek an opt-out for Britain from the Government, or seek to take us to the European Court of Justice to clarify the legal position.

I referred earlier to Hartley. His view would seem to imply that the European Court of Justice might have the power to enforce the decision once notification had been given, but might be inhibited from doing so beforehand if it regarded the notification procedure as akin to ratification. There is another theoretical outcome : the Council of Ministers might recognise the difficulty of the United Kingdom's implementation by adopting a decision to amend the Act, leaving the United Kingdom allocation unchanged at 81 seats.

Mr. Beith : My hon. Friend is worrying me a little, or at least Hartley is. Does he conclude from Hartley that, in any challenge in the European Court, it is likely that the provisions of clause 1 would appeal to the Court more strongly than the provision of the treaty of Rome which requires us to have a common electoral system? I would find that a worrying conclusion for the court to draw.

Mr. Maclennan : I do not think that that is the conclusion to be drawn from Hartley. I think that the court would be more likely to conclude that the matter should be governed by Community law rather than by the domestic law of this country.

If the outcome of this temporary impasse was that the Council of Ministers thought it appropriate to ask us to adopt a new decision, leaving the United Kingdom representation allocation unchanged, that would require the consent of Her Majesty's Government. I have no doubt that Her Majesty's Government would be reluctant to accept an allocation of seats lower than that of France and Italy. It would be a temporary way out of the impasse for the Community because we would not be holding up the Community's development, but simply inflicting a wound on ourselves. It would be an unnecessary wound, as it would be open for us to proceed very speedily in a different way. Clause 1 is unnecessary to fulfil our obligations : that is really the core of my argument. It is not necessary because a wholly different way of proceeding is available to the Government : it implements the purposes of the Bill as set out in its long title. All that the Bill seeks to do is to

"give effect to a Decision of the Council of the European Communities of 1st February 1993 having the effect of increasing the number of United Kingdom representatives to be elected to the European Parliament ; and for connected purposes."

Nothing in that long title requires us to go down the route that the Government have chosen to give effect to the decision. The preferable route is one that has been adopted in all the other 11 countries of the European Community. It is a system of election that does not depend on the work of boundary commissions or allocation of seats along the lines proposed in the Bill. It would be necessary to insert a reference in the European Communities Act 1972--either by Order in Council or by primary legislation- -but it would no longer be necessary to amend the European Parliamentary Elections Act 1978 as the Bill proposes.

There is a perfectly straightforward way of proceeding, which, to my mind, is infinitely preferable. It is more

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