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3 Feb 2003 : Column 57—continued

Electoral Commission Recommendations

Mr. Cash: 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'.

Mr. Deputy Speaker: 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'.

Mr. Cash: I should begin by handing to the hon. Member for Somerton and Frome (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


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


I propose that we leave out the words


3 Feb 2003 : Column 58

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.

Tony Cunningham: 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.

Mr. Cash: 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 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

3 Feb 2003 : Column 59

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.

6 pm

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 the hon. Member for Workington (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


It enables rights under Community treaties to be exercised

3 Feb 2003 : Column 60


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:


which dovetails with section (2) of the 1972 Act—


of the kind set out in the Nice treaty—


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.

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