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3 Feb 2003 : Column 64—continued

Lady Hermon: 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

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?

Mr. Cash: 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,

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

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Mr. Heath: I offer my commiserations to the hon. Member for Stone (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.

6.30 pm

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.

Mr. Redwood: 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. Heath: Mr. Deputy Speaker is looking at me in a way that I take to mean that my embarking on a debate

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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.

Mr. Cash: 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.

Mr. Heath: 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.

Mr. Cash: 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 the hon. Member for Somerton and Frome (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.

Mr. Heath: 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.

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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.

Mr. Redwood: I am grateful to my hon. Friend the Member for Stone (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.

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