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However, we believe that the legal and policy mandates behind the regulations are robust. The legal mandate is clear: under both European and domestic law, dual mandates are prohibited. I refer not to the ability to be a Member of both this House and the Scottish Parliament but to be a Member of the European Parliament and any national Parliament in any of the member states. In European law, the 2002 Council decision amended the 1976,

The Act sets out certain common principles that will apply to all member states with respect to elections to the European Parliament. The Council decision builds on the Act, including the provision preventing dual mandates.

I remind the House that in 2004 both Houses approved the European Communities (Definition of Treaties) (Common Electoral Principles) Order and passed the European Parliamentary Elections (Common Electoral Principles) Regulations 2004, which gave effect to the bar on dual mandates. As the noble Lord, Lord McNally, said, that has been done and it is now a question of how we implement what both Houses of Parliament have decided. The prohibition on dual mandates has, therefore, been a part of domestic law since 2004. Indeed, there was a debate in this House on 27 January 2004 in which the order was discussed, and tonight the noble Lord, Lord Norton of Louth, told us that on that occasion his was the one voice to be raised against it.

Perhaps I may deal next with the leave of absence point. I know that there are some proponents in the House of relying on the provision for leave of absence

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to prevent dual mandates. The provision allows a noble Lord to apply for leave of absence at any time. However—this is the problem—it may also be revoked by the noble Lord at any time by giving at least one month’s notice.

The European Parliament’s Legal Service, with which we have had many dealings—and I praise it as an institution—has indicated that the current provision would not suffice to satisfy the no dual mandate rule, as it is left to the individual Peer to decide whether to take leave of absence, rather than making specific provision that an MEP cannot sit in the House. Allowing life Peers, if elected as MEPs, to use the leave of absence provision in the House of Lords might be viewed as being in breach of the EU law prohibiting dual mandates.

Of course, it is possible for the Standing Order to be amended to achieve the same effect as the regulations so that Peers who are elected as MEPs are definitively prohibited from sitting and voting. However, the Government had to legislate to make changes to the membership of your Lordships’ House in 1999, and that is some evidence that Standing Orders are not an appropriate vehicle for making these sorts of changes to the membership of the United Kingdom legislature.

I do not like to disagree with the noble Lord, Lord Kingsland, but I have to argue that Standing Orders might not qualify as a legal rule under national law for the purposes of EU law. Our view is that allowing for the membership of members to be suspended through the House’s Standing Orders would not amount to a change in the UK legal position for the purposes of determining whether we comply with the EU prohibition on dual mandates. Although your Lordships vote on the content of Standing Orders, they are not subject to the same procedures as primary and secondary legislation and are not scrutinised by the other place. Further, the courts have no jurisdiction over breach of Standing Orders.

Lord Kingsland: My Lords, I am sure that the noble Lord has this matter in mind as he speaks, but can I remind him that none of those strictures applies to constitutional conventions?

Lord Bach: My Lords, that is right, but in our view Standing Orders do not form part of the law of the United Kingdom. This is the important point of the debate—they would not be taken into account by the European authorities in determining whether we were compliant with EU law.

Lord Lester of Herne Hill: My Lords, is not the point in answer to the noble Lord, Lord Kingsland, that a constitutional convention is not a law because it is neither a common law decision binding nor is it a written rule in a statute? It therefore does not satisfy legal certainty and would not be regarded by a European lawyer as being law in the sense in which European law understands it, however much constitutional conventions are understood in our own system.

Lord Bach: My Lords—

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Lord Kingsland: My Lords, I wonder whether the Minister will give way as I should like to respond to the noble Lord, Lord Lester. He is right that a constitutional convention is not a law, but nevertheless without constitutional conventions we could not be a member of the European Community as we would not be a democracy. Standing Orders at least, on the terms put forward by the noble Lord, Lord Lester, have the merit of being written down. That is why I argue that his approach to Standing Orders is completely undermined by my approach.

Lord Bach: My Lords, I think that the noble Lord, Lord Kingsland, was asking me the question. The noble Lord, Lord Lester, answered it admirably, if I may say so without seeking to flatter him unduly. We just have to disagree on this. The Government’s view is that, arguably, Standing Orders would not be enough and would not be taken into account by the European authorities in determining whether we are compliant with EU law. That is our view.

Far from imposing a new burden, the regulations before us today offer a concession to life Peers to take up office as MEPs, given that they would otherwise be barred from doing so. From a policy perspective, the Government’s position is that life Peers should have the opportunity to take up such a mandate if that is their wish. It is a matter for them. Without these regulations they would not be able to do so. Our intention with these regulations was to provide a simple, pragmatic and interim solution to a specific and pressing problem. We want to deal with this issue in the context of Lords reform. Under any such reform it should at least be possible for Peers to resign their seats if they wish to do so.

Let me say a word about hereditary Peers, which is one of the points that the noble Lord, Lord Norton of Louth, justifiably made about what he saw as defects. We have been asked why we have not treated hereditary Peers in the same way as life Peers, and have pointed out that in this House we are all equal—it is a House of Peers. But we are not all equal in how we have arrived in this House. Certain hereditary Peers, such as the noble Lord, Lord Trefgarne, sometimes tease the rest of us by suggesting that their means of arrival is superior to ours. The consequences for a hereditary Peer standing for the European Parliament would not be quite the same as the consequences for a life Peer doing so.

The House of Lords Act 1999 provides that 90 hereditary Peers should be excepted from its effects, together with the two hereditary office holders. At the time the Act was passed, considerable stress was laid by the House on the point that 90 should be the guaranteed number, not the maximum. However, a vacancy can be caused only by a death. There can be no by-election unless there is a death. If the bar on sitting and voting that these regulations apply to life Peers were extended to hereditary Peers, the result would be that the number of hereditary Peers able to take part in the proceedings of the House could potentially be reduced below 90 for the whole period of the European parliamentary term of five years.

Further, let us consider the circumstances in which the hereditary Peers came into the House. They took a deliberate decision to stand for election. They achieved

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their status at the expense of many others with whom they were in direct competition. There are well over 100 names on the list of Peers registered to stand in any election, and at the by-election last year to replace the late Lord Mowbray and Stourton there were 43 candidates. In these circumstances, it is not entirely proper to suggest that an excepted Peer, having been elected to this House, should be permitted to turn his back on it for up to five years at a time. If I was in any doubt about this line of argument, particularly about whether there would be any upset from hereditary Peers if their numbers were to be reduced in this way, all I have to do to convince myself that I am right is to remember the response of the noble Lord, Lord Trefgarne, just a few minutes ago when it was suggested that no one would really care if there were fewer than 90 hereditary Peers. That is why hereditary Peers are not included in this order.

Lord Norton of Louth: My Lords, I understand the point the Minister is advancing, but the force of his argument would apply to those who were elected to this House through the by-election option after these regulations take effect, or after the 2004 order is introduced. What about hereditary Peers elected to the House before 2004 who came in on the basis that they would be the equivalent of life Peers and who would not be aware that they would subsequently be excluded from seeking election to the European Parliament, if that was their wish?

Lord Bach: My Lords, perhaps I am being slow. I am missing the noble Lord’s point. I would have thought that the comments I have made about hereditary Peers apply to all hereditary Peers, all of whom were elected after the 1999 Act, unless they were elected in a by-election.

Lord Norton of Louth: My Lords, I shall seek to explain. If they were elected before 2004, they came in on the same basis as a life Peer coming in during the same period. One accepts a life peerage and the fact of election is irrelevant in this context. All the Members who came into this House before 2004 accepted that once they were here, they would be here for life. They were not aware that if subsequently they were contemplating standing for election to the European Parliament they would be barred from doing that. One can argue that once the ban on the dual mandate is introduced, anybody entering the House will be aware that the ban took effect on them, and there is justification for excluding them, which was at the heart of the noble Lord’s argument.

Lord Bach: My Lords, I rely on the compromise that was reached between my noble and learned friend Lord Irvine and the noble Marquess, Lord Salisbury, then Viscount Cranborne. It made the number of hereditary Peers 90, plus the two. The House itself, not just hereditary Peers, having agreed that compromise might well not be very pleased to find that that number of hereditary Peers goes down by virtue of hereditary Peers being included in this order.

Lord Trefgarne: My Lords, whatever may be the merits of the points made by the noble Lord, the fact is that hereditary Peers are being treated differently

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from life Peers—and, as I mentioned earlier, so are Bishops. Does that not mean that the Bill is hybrid and should there not therefore be some other procedure?

Lord Bach: My Lords, it cannot be a hybrid order, because this is a negative resolution. I make it absolutely clear that we did not choose it to be a negative resolution because otherwise the issue of hybridity would arise. It is a negative resolution because, having taken advice on the issue from the Joint Committee on Statutory Instruments, it was believed that this was a proper negative resolution, especially bearing in mind the debate that had taken place in January 2004, when it was made clear by my noble friend Lord Evans of Temple Guiting, on behalf of the Government, that we intended to introduce the ability for Members to join other legislatures.

In summary, the Government have proposed the regulations in response to a pressing need. At least one life Peer has expressed a wish to stand at the European parliamentary elections next year but cannot do so unless the regulations are in place. In proposing the regulations for life Peers—I hope that I have made the necessary apology for the way in which this has taken place—we have taken what I would describe as a minimalist and practical approach to ensure that all mechanisms are in place well in time for those elections in accordance with best electoral administrative practice. I emphasise that it is our long-term intention that all Members of the House of Lords will be able to resign from the House to become Members of the European Parliament if they so wish. Therefore, we see the regulations as no more than a temporary measure pending the introduction and implementation of a wider reform package for this House.

I hope that the explanation that I have given has allayed some noble Lords’ concerns.

Lord Lester of Herne Hill: My Lords, the note explains that because this is a negative resolution, no statement of compatibility with the European convention is needed. Of course that is correct, but can the Minister confirm to the House that he is satisfied that no breach or threatened breach of the convention is involved in passing the regulations into law?

Lord Bach: Yes, I can, my Lords.

Lord Norton of Louth: My Lords, I apologise if I have missed something that the Minister said—he may feel that it was encompassed in his generic apology at the beginning—but has he addressed the drafting deficiencies of Regulation 4?

Lord Bach: My Lords, I shall try to explain Regulation 4—I know that the House is sitting late tonight. I think that Regulation 4(1)(b) exercised the noble Lord in particular; he said that it is unnecessary. It follows the model in existing primary legislation, such as the Insolvency Act 1986. That is how we approached the writ of summons issue, rather than in the way that it was dealt with in 2005. That is why the wording appears as it does. We are happy to take that away to consider whether it was appropriate.

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On Regulation 4(2) and whether there is a gap in the writ of summons disqualification: yes, there clearly is. A Peer who is an MEP would continue to hold the writ of summons in the time, which there may well be, before the next Parliament, but the regulations follows the model in other legislation—again I go back to the Insolvency Act 1986, where exactly the same thing applies. If someone is disqualified under that Act, their writ of summons still exists but they are left in the same position as would be an MEP under the regulations. It would be excessively technical to try to cater for this short period. The same issue could arise if a Peer was made bankrupt and there was still some time before the next Parliament.

Having heard my arguments, I am sure that the noble Lord, Lord Trefgarne, will think very carefully about what to do next. My advice is that he should not test the opinion of the House.

Lord Trefgarne: My Lords, I congratulate the noble Lord, Lord Bach, on his debut. If ever there was a case of making bricks without straw, this was it. If ever there was a case of a Minister having to play a rum pack of cards, this was it. I am grateful to every noble Lord who has contributed to the debate. The regulations clearly have a number of deficiencies that may yet come back to haunt the Government. In the mean time, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Department for Innovation, Universities and Skills (Lord Young of Norwood Green): My Lords, I beg to move that the House do now adjourn until 8.58 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.51 to 8.58 pm.]

Planning Bill

House again in Committee.

Clause 11 [Suspension pending review]:

[Amendments Nos. 88 and 89 not moved.]

Clause 11 agreed to.

Clause 12 [Pre-commencement statements of policy, consultation etc.]:

[Amendments Nos. 90 to 97 not moved.]

Clause 12 agreed to.

Clause 13 [Legal challenges relating to national policy statements]:

Lord Dixon-Smith moved Amendment No. 98:

98: Clause 13, page 6, line 31, leave out “6” and insert “12”

The noble Lord said: This is a large group but the amendments are relatively small and we can deal with them simply and, I hope, fairly expeditiously. The amendments are designed to extend the period in which a claim for judicial review can be brought. It is a similar argument to that on 28 days and 42 days. We are suggesting that we move from 48 days to 98 days,

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or 12 weeks. Sometimes legal issues can be difficult. At this stage, the decision on whether to bring a judicial review, if it is to be brought at all—the probability is that it will not be—is something for which we ought to allow time.

Other amendments in the group would ensure that the time limit ran from the date of publication rather than the date of the Secretary of State’s decision. If the Secretary of State reaches a decision on a Friday afternoon, the publication of that decision may well not be until Monday. Although three days may seem insignificant, my experience suggests that lawyers could argue about three days for three weeks or even three months. The date of publication ought to be the appropriate point at which to start the clock. These are fairly simple amendments and I beg to move.

9 pm

Baroness Hamwee: I have tabled a number of amendments in this group. They pretty much make the same point as that made in those tabled by the noble Lord, Lord Dixon-Smith. Publication by definition comes later than the decision. It may be only half an hour or, as he says, it may be three days. I might be capable of arguing the issue for three days, but probably not for three weeks. I have taken more than three seconds to speak, but my speech is closer to three seconds than to anything else.

Lord Cameron of Dillington: Amendments Nos. 98, 99 and 105 concern the 12-week notice for judicial review. On the one side this Bill is about speeding up the processes, while on the other side it is about the normal civil procedure for filing for judicial review, which provides a maximum time limit of 12 weeks—although the Civil Procedure Rules state that that can be shortened by specific enactments, which is what we have here. We need to think afresh and work out what is reasonable in the circumstances.

I speak reluctantly on these amendments because I have added my name to others that seek to stretch deadlines. An applicant serving a notice on a landowner or a local authority and expecting them to provide a full and considered response in 28 days seems unreasonable, as is the provision in Clause 50, with a farmer having only 14 days in which to respond; he might well be on his holidays.

However, parties trying to establish a judicial review will have been following the debate for several months. They will almost certainly have been involved in consultation and will have followed the parliamentary debate—eventually, it is to be hoped, in both Houses—and the shape of the national policy statement will be obvious to them long before it is published. The difference between this and the other time limit changes, which I support, lies in the fact that the claim form to be filed, as I understand it—lawyers may correct me—merely has to set out the grounds for the review; it does not have to state the whole case in writing. The supplicant can also add to it at a later date and can, in special circumstances, even ask the court for an extension to the time limit.

While I can see both sides of the argument, I share with the noble Lord, Lord Jenkin, a distaste for the currently overused judicial review process and the

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uncertainty that it might create in this instance. I fear that I am not able to support the extension of time limits from six weeks to 12.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): I am grateful to noble Lords for explaining their concerns and I hope to reassure them that there is a good reason for doing this as we have.

Amendments Nos. 98, 99, 101, 105, 109 and 112 would increase the time in which a claim for judicial review can be commenced in respect of national policy statements from six weeks to 12. Noble Lords have argued that six weeks is an unreasonably short time in which to require someone who wishes to challenge an NPS to file the appropriate claim form. I am well aware that the usual rule in judicial reviews is that claims must be filed promptly and, in any case, not later than three months after the grounds to make a claim first arose. As the noble Lord, Lord Cameron, suggested, we are trying to create in the Bill a process that is fast but certainly not overhasty. We need to introduce focus and discipline into the process but, essentially, this is a fair regime. It provides people with an opportunity to challenge national policy statements in the courts but it ensures also that that does not cause unnecessary delay.

It is important to remember the context in which this will work. The processes for drawing up, designating and reviewing national policy statements will be clear, open and undertaken in full public view. NPSs and amendments—unless, in the view of the Secretary of State, a proposed amendment does not materially affect the policy—will be subject to public consultation, an appraisal of sustainability and parliamentary scrutiny. So, within that, we have created a robust and transparent process. On those grounds, it is reasonable in such cases to expect that the claim forms should and could be filed within six weeks.

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