European Parliament (House of Lords Disqualification) Regulations 2008

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. 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, "““Act concerning the election of the representatives of the European Parliament by direct universal suffrage””." 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 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.