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One of the idiosyncrasies of the regulations, referring as they do to life Members of your Lordships’ House, is the exclusion of hereditary Members. It would seem that, while all the life Peers in this House will, when the regulations come into force, not be able to sit in this House if they become Members of the European Parliament, I and the rest of the hereditary Peers will not be so excluded. Incidentally, nor will the Bishops; how many Bishops are planning to stand for the European Parliament, I could not say, but they will not be excluded from doing so if they so choose.

I do not necessarily disagree with the proposition that membership of two assemblies or parliaments is not a particularly good thing. However, that is surely a matter for the candidates who seek such election and, above all, those who are asked to elect them, or otherwise, when they come before the electorate. Membership of the House of Lords with Membership of the European Parliament is perhaps a difficult juggling act. I know that there are currently at least two or three Members of your Lordships’ House who are also Members of the European Parliament; I can see one or two of them around me as I speak. I offer no view as to whether that is a good thing or a bad thing. It is a matter for the noble Lord or noble Baroness concerned and those by whom they seek to be elected.

I end with two questions. First, on hereditary Peers, am I right in thinking from my reading of the regulations that hereditary Peers are indeed not treated in the same way as life Peers?. If that is the case, why not? Secondly, the recent appointment of the noble Baroness, Lady Ashton of Upholland, as a commissioner has been widely applauded; not least, if I may so, by me. However, under present arrangements, will she remain an active Member of the House, or will she take Leave of Absence? There is one—

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I did not mean to interrupt the noble Lord. I can answer this question now: my noble friend is due to take leave of absence almost as we speak.

Lord Trefgarne: My Lords, I am interested to hear that. There is one precedent. I think I am right in saying that the late Lord Cockfield was also a commissioner and a Member of this House. I confess that I cannot remember whether he took Leave of Absence or not. If the noble Baroness has decided to, and the late Lord Cockfield did likewise, that is entirely appropriate.

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However, there are a few “i”s undotted and “t”s uncrossed in these regulations. The Government will presumably in due course produce a response to the Merits Committee, which has, as I say, been so scathing. They will no doubt have to consider carefully in preparing their response to that criticism. It is perhaps a little unfortunate that that careful consideration did not come before the regulations were placed rather than afterwards, but the Minister will no doubt explain that. In the mean time, I beg to move.

Moved, That a Humble Address be presented to Her Majesty praying that the Regulations, laid before the House of 24 June, be annulled (SI 2008/1647). 24thReportfrom the Merits Committee—(Lord Trefgarne.)

Lord Norton of Louth: My Lords, I, too, begin by welcoming the noble Lord, Lord Bach, to his position. That exhausts the positive comments I shall make this evening.

I support my noble friend Lord Trefgarne in praying against the regulations. The Government have got themselves into a mess by agreeing to something that they should not have agreed to, and have now sought to correct the situation as it affects this House by bringing forward regulations that are palpably deficient.

When the 2004 regulations giving effect to the ban on the dual mandate were going through the House, I was the only person to rise, albeit briefly, and question the justification for them. The ban on the dual mandate is, to my mind, an infringement of the freedom of choice of electors. It is for electors to decide who they wish to represent them. If they wish to send the same person as their representative to Westminster and to Brussels, then it is a matter for them. It may be that the person is not able to do both jobs, but that is a matter for electors, not for the Council of Ministers. If the electors of Northern Ireland, for example, did not wish Ian Paisley to sit in the House of Commons and the European Parliament, the remedy was in their hands.

I therefore object to the ban—but we now have it. However, as we have heard, it creates a problem that is peculiar to this House. The Government have sought to address the problem through these regulations. However, as my noble friend has explained—and is abundantly clear from the report of the Merits Committee—they are deficient.

They are deficient in three respects. First, as we have heard, they apply only to life Peers. I looked at the Explanatory Memorandum to find a justification for confining the regulations to life Peers. The only justification appears to be in paragraph 7, which refers to life Peers and states in parenthesis,

The hereditary Peers sitting in the House are unable to resign their peerages. Why, then, the discrimination? It appears that the regulations may have been drafted by someone who is unaware of the provisions of the Peerage Act 1963 as they affect hereditary Peers.

Secondly, the regulations inject a subsection which appears to be superfluous. Paragraph 4(1)(a) disqualifies a life Peer who is elected as an MEP from sitting or voting in the House of Lords. Paragraph 4(1)(b) then extends the disqualification to sitting or voting in a

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committee of the House of Lords, or a Joint Committee of both Houses of Parliament. Perhaps the Minister could explain how, if one is disqualified from sitting in the House of Lords, one could be considered for serving on a committee of the House.

Thirdly, as we have heard, the regulations are deficient in respect of the Writ of Summons. If one is elected as an MEP a year or so after the start of a new Parliament, one is already in receipt of a writ and paragraph 4(2) can only take effect two or three years later when a new Parliament is summoned.

In short, there are few parts of the regulations which are not deficient. Regulation 5 appears to raise no problems, but Regulations 3 and 4 are fundamentally flawed. I trust that the Minister will therefore withdraw the regulations and come back with one that, following consultation with the relevant authorities as recommended by the Merits Committee, is drafted in such a way as to pass muster.

Lord Hannay of Chiswick: My Lords, I would like to address a couple of points raised by this Prayer. First, is it reasonably justified for the European Parliament to have taken the view, and to have persuaded the member states of that view, that the dual mandate is incompatible with an effective European Parliament? Other noble Lords, such as the noble Lord, Lord Kingsland, know far more about the European Parliament than I do, but I believe that it is entirely justified. The work of the European Parliament has increased a great deal over recent years and is still increasing. It is basically a full-time job. It is right that the member states have recognised that by saying that the dual mandate is no longer acceptable. I am sure that constitutional arguments on that point can be raised by the noble Lord, Lord Norton, but I merely ask whether it is reasonable for the European Parliament and the collectivity of the European Governments to conclude that they want full-time Members of the European Parliament. I answer that with a certain and resounding yes. Probably no parliament has suffered more from dual, treble or quadruple mandates than the European Parliament did in its early years, with people coming in for a very brief time, then going away again and treating it with little respect. Therefore, I think that the move to ban the dual mandate was absolutely right.

Then there is the question of its impact on Members of this House. On that I merely say that I think the case has been rather misrepresented. The regulations do not exclude somebody from this House permanently, as it were; they merely exclude them temporarily while they are Members of the European Parliament. They do not prevent them becoming a Member of this House again when the fixed period leave of absence, which after all is only a very minor change to the existing rule on leave of absence, comes to an end. Therefore, I consider that it is entirely reasonable for the Government to have acted in this way.

I do not want to enter into all the details of the drafting. The two large issues are: is the European Parliament right in thinking that it needs to have full-time Members and is it reasonable that a Member of this House who wants to become a Member of the European Parliament should be able to do so while

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conforming to the rules laid down by the European Parliament? I answer yes to both those questions and no to the Motion that has been moved.

Lord Trefgarne: My Lords, before the noble Lord sits down, may I ask him why he adopts such a cavalier approach to the view of the electorate in this matter?

Lord Hannay of Chiswick: My Lords, I am not adopting a cavalier approach to anyone, least of all, unlike the movers of this Motion, to the European Parliament.

Lord Forsyth of Drumlean: My Lords, I do not expect that the argument advanced by the noble Lord, Lord Hannay, about people abandoning Europe before their term of office is completed will be advanced from the Front Bench today for obvious reasons. Frankly, I am rather puzzled. I am very grateful to my noble friend Lord Trefgarne for raising this matter. I do not propose to repeat any of the arguments that he and my noble friend Lord Norton of Louth have advanced. However, it seems to me that there is a very important constitutional issue here. When I heard the noble Lord, Lord Mandelson—of Foy and wherever else it is—being sworn into this House this very week, I did not hear any exclusion from Her Majesty in respect of membership of the European Parliament or any other matter. That is quite extraordinary. Is this principle to be applied by the Government? Do the Government now feel that people should not be able to be Members of this House for life and to carry out their duties in this House for life if they are members of other assemblies?

I am amazed that the noble Lord, Lord Foulkes, is not participating in these proceedings. Are we to be told that the European Parliament uniquely is different from the Scottish Parliament? Why is it possible for a Member of this House to vote and speak in this House and be a Member of the Scottish Parliament but not the European Parliament? What of the promise set out in the writ that each of us received as life Peers? This is another example of this Government messing around with our constitution, creating anomalies and long-term difficulties which have not been thought through. The Government are, of all people, the victim of ill-thought-out constitutional change north of the border. On that specific point, I ask the Minister, do the Government now have a general principle that Members of this House cannot speak and vote if they are members of other legislative bodies?

Lord McNally: My Lords, there are problems as regards the argument expounded by the noble Lord, Lord Forsyth. The problem has its roots in the failure of this House to reform itself. Once we came up with the compromise nearly a decade ago, we were bound to be left with rough edges and compromises. I always look to one of my great political heroes, George Woodcock, who said that good trade unionism was a series of grubby compromises. Once we had baulked at really reforming this House, we were going to be faced with a series of grubby compromises.

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However, the noble Lord, Lord Norton of Louth, is trying to take us back to a decision the House has already taken. We have taken a decision on dual mandate. I am sure that some of the contradictions exist as regards other assemblies that both he and the noble Lord, Lord Forsyth, pointed out. However, the fact is that that matter has not been decided as regards dual mandate from other assemblies. Dual mandate as regards the House of Lords has been agreed by Parliament, and now we are looking at the consequences of that.

I am well aware that members of my flock come within the ambit of this. However, I can say with my hand on my heart that, wherever this applied I would think that it was a sensible way forward. As has been pointed out, it allows other members to make that decision in the future.

I also read the report by the Merits of Statutory Instruments Committee. I am growing fonder and fonder of the Merits of Statutory Instruments Committee, because its ability to bite the ankles of Ministers gives me great pleasure. I look forward to the Minister’s response to the report. The noble Lord talked about dotting the “i”s and crossing the “t”s; the “i”s and “t”s have been left alone. As I said before, that is perhaps part of the problem of dealing with this House, in which the noble Lord, Lord Norton of Louth, has been chief on stalling on proper reform. Therefore, we will have to make do and mend as we go along.

Lord Norton of Louth: My Lords, the noble Lord is not addressing the issue that we raised. The problem is not the principle that is embodied in the order; the drafting of the order is the problem. I accept that the ban on the dual mandate is now a fact, but it creates a particular problem for this House, which the order seeks to correct. The problem is in the drafting of the order. The order is deficient; not the principle that underlies it.

Lord McNally: My Lords, that is why I look forward with more expectation and eagerness than usual to what I am sure will be a very complete ministerial reply.

Lord Kingsland: My Lords, I congratulate my noble friend Lord Trefgarne on bringing this important matter to your Lordships’ attention in his characteristic style. My noble friend rightly drew your Lordships’ attention to the 24th report of the Merits of Statutory Instruments Committee, HL Paper 136, dated 3 July 2008. It makes some extremely adverse observations on the regulations.

It is the regulations that we are asked to focus on tonight, rather than the principle that lies behind them. I listened with interest to the exchange between my noble friend and the noble Lord, Lord Hannay, about the merits and demerits of a dual mandate. Much as I would like to get into that tonight, it is not germane to the issue that the House has to confront. I hope that my noble friend and the noble Lord will excuse me if I do not trespass into that disputatious territory.

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The judgment of the Merits of Statutory Instruments Committee is that the regulations are drawn to the special attention of the House on the ground that they may inappropriately implement European Union legislation; which is exactly what they do. One of the observations made by my noble friend Lord Norton of Louth concerned paragraph 4(2) of the regulations, which refers to Writs of Summons. It states:

“No writ of summons shall be issued to a life peer while disqualified under this regulation”.

My noble friend colourfully and effectively explained that that is nonsense; because it is much more likely than not that a European election will not coincide with a new Parliament. Every Peer must be issued with a Writ of Summons before he or she can come to your Lordships’ House. Halfway through, there may well be an election to the European Parliament, in which a particular Peer translates from your Lordships’ House to the European Parliament; but the Writ of Summons will still have been issued. There is nothing that your Lordships’ House, another place, this Parliament or the European Parliament can do about it. It is not just sloppy drafting, but sloppy thinking by the Government.

In fact, the Government could probably have avoided all this, had they taken the following advice from the Merits of Statutory Instruments Committee:

“We asked the Government whether they consulted the House authorities or any Committee of the House (Privileges or Procedure), before making this instrument and they confirmed that they did not. We consider that unfortunate. While the principle of the policy is non-negotiable, there is scope for implementing the disqualification in a variety of different ways and the House should have been consulted on the options”.

The Writ of Summons is an absolute classic example of that. There were disputes in the 17th century between Charles I and the Committee for Privileges of your Lordships’ House precisely about the Writs of Summons. The last word was had by the Committee for Privileges. What are the Executive doing interfering in the issue of Writs of Summons? It is not the Executive’s business; it is the business of your Lordships’ House, through the Committee for Privileges. Here is another example of sloppy thinking by the Government.

Given those last few words that I quoted about there being other ways of implementing the disqualification, we know that the Government are concerned about the possibility that if an hereditary Peer is disqualified it would reduce the number of hereditary Peers in your Lordships’ House by one for the duration of a European Parliament, and there might be clamour by the hereditary Peers. I am sure that there will not be; but I suspect that it lies in the Government’s mind that that could occur.

Lord Trefgarne: My Lords, there would indeed be a clamour—from me.

Lord Kingsland: My Lords, that was a completely unrehearsed intervention by my noble friend. There is a simple solution to this problem. All that your Lordships need to do is alter our Standing Orders, whereby any of your Lordships, whether in origin life or in origin hereditary, could stand down for five years. That would have exactly the effect that the regulations have but would at the same time incorporate the hereditary Peers.

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My understanding is that the Government are opposed to the Standing Order procedure because they say that Standing Orders of your Lordships’ House are not law and could be changed by the House, although most of them have not been changed for several centuries. Moreover, your Lordships could give a commitment in the Standing Order not to change it for five years.

The philosophy that lies behind the Government’s objection is even stranger. Our constitutional freedoms are based, not on laws, but on constitutional conventions. If only the law of the constitution were considered, we would still be a crown dictatorship. It is only constitutional conventions, such as ministerial responsibility, that make this country and this legislature democratic. If you stripped away the conventions, we would be a country that could not possibly successfully apply to be a member of the European Community or remain one if we were already a member. At least the Standing Orders have the merit of being written down. None of the constitutional conventions is written down anywhere. The Government’s thinking on the inappropriateness of Standing Orders is, frankly, bankrupt.

I could dwell on other issues, but your Lordships will be relieved to hear that I shall not. One of them is the non-discrimination clause in Article 14 of the European Convention on Human Rights, which refers to differentials in status. The Government have not had to make a statement about the European Convention on Human Rights, as they point out in the Explanatory Notes, because that is not required by the 1998 Act. However, it would be interesting to hear the Government’s view on whether they believe there is a breach of the convention.

Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Kingsland, is as good a lawyer as anyone. What does he have in mind? Article 14 of the European convention is triggered only if it is linked to another convention right. Which convention right has he in mind?

Lord Kingsland: My Lords, I concede to the noble Lord that that is true; but I was not asking him the question, I was asking the Government.

Lord McNally: My Lords, will the noble Lord, Lord Kingsland, come clean and say that he was hoping that no other human rights lawyer would be present in the House?

Lord Kingsland: Not at all, my Lords. I have always been extremely relaxed about the European convention, although I have had my moments of drama regarding the Act.

Finally, my noble friend Lord Forsyth made an observation about the noble Lord, Lord Mandelson, and the European Commission. I quote the diplomatic correspondent of the Times, Bronwen Maddox, from her article on 9 October 2008. She wrote:

“Baroness Ashton of Upholland spent her first day as European Trade Commissioner yesterday after the Council of Ministers waved away the potential obstacle of her membership of the House of Lords. Brussels commissioners are not allowed to hold any public office but the chief Commission spokesman, Johannes Laitenberger, said that was ‘fully in line with the rules’ for Ashton to remain a peer (while taking leave of absence from the Lords). He said: ‘A life peerage is an honour, not a job’”.

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If a life peerage is an honour, not a job, then a hereditary peerage is certainly an honour, not a job. If the noble Lord, Lord Bach, is not inclined to accept my observations about Standing Orders, he has another way out.

8.30 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I thank all noble Lords who have spoken for the interesting and lively debate that we have had so far. In particular, I thank the noble Lord, Lord Trefgarne, for moving his Motion this evening, and I am grateful to him and the noble Lord, Lord Norton of Louth, for their kind welcome. I am not sure that this is the debut that I would have chosen for myself in relation to a Standing Order, but all good things have to come to an end and I shall at least comfort myself with the compliments that were paid in the typical House of Lords way.

I start in a way that is not normal for Ministers by saying that I acknowledge absolutely some of the concerns that have been raised in and outside the House about some of the process issues surrounding the regulations. Frankly, we should have consulted the House authorities prior to making the regulations. I hope the House will accept that our failure to do so was not deliberate but was a serious oversight. From this Dispatch Box, I sincerely apologise for the oversight and assure the House that we will learn from our mistake on this occasion.

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