|
Column Number: 1
Standing Committee A
Thursday 9 January 2003
(Morning)
[Mr. Frank Cook in the Chair]
Clause 2
Recommendations by Electoral Commission
relating to changes in number of
United Kingdom MEPs
9.25 am
Mr. William Cash (Stone): I beg to move amendment No. 14, in
clause 2, page 2, line 16, after 'Commission', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be.'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 38, in
schedule, page 13, line 7, after 'must', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be'.
Amendment No. 34, in
schedule, page 14, line 18, after 'Commission', insert 'after consultation with the Boundary Committee of the said Commission and/or the Boundary Commissions as the case may be'.
Mr. Cash: Good morning, Mr. Cook, at this rather early hour.
The amendments are straightforward. Under the clause, the Lord Chancellor, unless it is to be someone else, would by notice be able to
''require the Electoral Commission to make a recommendation to him as to the distribution between the electoral regions of—
(a) a total number of MEPs . . . or
(b) if the notice specifies more than one total number of MEPs, each of the total numbers so specified.''
The clause then provides for the power to give such a notice and the manner in which it is to be exercised, which I shall come to later.
The reason for amendment No. 14 is that on Second Reading the question was raised whether that distribution arrangement could impinge on the manner in which the boundaries are to be settled. We know that the Electoral Commission has a boundary committee, but, despite some inquiries—the Minister may be able to help me—it was not crystal clear from my discussions whether the boundary commissions still had a function in relation to these matters. Therefore, I put the amendment in the alternative and said ''and/or''.
My hon. Friend the Member for Poole (Mr. Syms) is an acknowledged expert, in our party and nationally, on boundaries and boundary revisions. He is a walking encyclopaedia on those matters. Whether he is a walking encyclopaedia on the law on the subject I am not sure, but I candidly admit that I am not certain what the position is. We should
Column Number: 2
therefore ensure that members of the Electoral Commission consult the appropriate people.
This is in no sense a hostile amendment but a probing amendment. We want to get the provision right. Therefore, we hope that the Minister and the Lord Chancellor's Department will give the amendment earnest consideration and bear in mind the word ''consultation'', which crops up quite a lot in the Bill.
I do not believe that my proposal for a definition of consultation is in this group of amendments, but because the word ''consultation'' appears in the amendment, I hope that you will understand, Mr. Cook, if I mention that in law the word ''consult'' means ''I hear what you say''rather like the Whips''but I do not have to take notice.''
My amendment would put into the Bill a definition that would apply to ''consult'' and ''consultation'' in all cases. It boils down to the fact that the person who is being consulted would be under an obligation to give due regard to the views being expressed and to give reasons for their decision in the light of the views expressed. That means not that ''consult'' would suddenly turn into ''You must do it,'' but that the proper mechanics of consultation would have to be followed through.
The Chairman: Order. The Committee will excuse me if I do not stand. It will save time. The hon. Gentleman is suggesting consultation in amendment No. 29 to clause 24. With the Committee's permission and if the hon. Gentleman wishes, I would be happy to regroup the amendments to include amendment No. 29 with amendments Nos. 14, 38 and 34. Does that meet with the Committee's approval?
Hon. Members: Yes.
Mr. Cash: I am most grateful to you, Mr. Cook. That is most generous.
The position basically is that consultation would be defined in a way that would ensure that we have a proper discussion between the parties. If someone asked why it would be desirable to ensure that the reasons for the decision had to be published, I would simply say that over and again we come to the same problem in administrative law: the outcome of discussions can be challenged as a matter of judicial review. We discussed that on Second Reading when my hon. Friend the Member for South Norfolk (Mr. Bacon) asked whether such matters would be subject to judicial review. It seems to me that that would be more important in some areas of the Bill than others. The Minister was good enough to reply and I believe that she wrote to my hon. Friend, who was going to be a member of the Committee but that did not transpire. My hon. Friend raised an important point about judicial review and the Minister replied in the affirmative and subsequently wrote to him. I have seen the correspondence, because he sent it to me. What I am saying may help to explain the position.
Amendment No. 38 contains the same wording but would apply to paragraph 1(1) of the schedule. I am putting the matter in context because application of the wording, although the same in each case, would
Column Number: 3
produce slightly different results in relation to the provisions to which it applies. That dovetails with the Electoral Commission, so the points that I have already made would apply.
Finally, amendment No. 34 to paragraph 3(3) of the schedule, which refers to implementation of the Electoral Commission and states:
''The Secretary of State must consult the Commission'',
would add the words
''after consultation with the Boundary Committee''
and so on. That is the proposition.
Can the Minister give me an idea of whether she and her advisers think that that is necessary? They might think that it is not, but I think that there are implications here involving boundaries, which could give rise to the need for such a measure. I shall leave my remarks at that.
Mr. David Heath (Somerton and Frome): Thank you, Mr. Cook, and good morning.
The amendments could be construed as having a bearing on a later group of amendments tabled in my name: amendments Nos. 3, 4 and 10. Those deal with the consequences of having a small number of MEPs elected for a specific European regional constituency and the implications of that for proportionality under the election system that we have. One remedy for that defect, if indeed it is a defect, would be a boundary change.
I do not want to rehearse now arguments that will properly be made later but it is important for the Minister to explain whether any flexibility is offered to the Electoral Commission on that matter. The definitions of the regions are currently dependent on the Government's regions as defined in other enactments for the purposes of administration in Whitehall and elsewhere. There is no obvious reason why, for electoral purposes, the regions should be coterminous with those. The Bill does not make it clear whether there is scope for that to be amended. It would be a good thing if there were. There is otherwise a risk of having gross anomalies between the different regions of England in terms of population, which would have an effect on the electoral system.
If there is to be no change whatever and the position is fixed in stone, any consultation with the boundary committee of the Electoral Commission or with the boundary commission will be otiose and have no possible effect on the outcome. I hope that the Minister will be able to engage with that argument and explain the situation.
Amendment No. 29 defines consultation. I find defining consultation in legislation a novel concept. I can think of all sorts of reasons why that might be a very good idea, some of which we explored in the Chamber yesterday at Lord Chancellor's questions. The amendment goes even further, having a requirement for the publication of reasons. Again, that is desirable. It would provide an opportunity for challenge if the Minister or the commission were making unsubstantiated assertions or acting
Column Number: 4
unreasonably in using the powers conferred on them through the Bill.
Mr. Cash: I am extremely grateful for the hon. Gentleman's tacit support on that point. The proposal is drawn from extensive experience of 30-odd years practising administrative law. Time and again, I have found that when the question of consultation has come up, people have found themselves up against a brick wall, for some of the reasons that I have given. That does not always occur, but the Minister might answer by saying, ''Judicial review applies so, as far as I am concerned, that deals with your problem.'' It does not deal with my problem because there is no opportunity to latch on to the failure to give due regard to those views. It is a question of not only reasonableness but being sure that one can attach a judicial review to the reasons.
Mr. Heath: I am most grateful to the hon. Gentleman for giving way. I cannot hope to match his depth of experience, but, as a layman, I recognise the bluntness of the weapon of judicial review. As far as I can see, a simple assertion that the Minister has taken account of views on consultation and has rejected them would be sufficient in law, but I am not sure that that is adequate. As we are at pains to ensure that reasons are given in other aspects of the law, it is arguable that it is a deficiency that in the growing area of judicial review—we could have a debate about whether that is a good thing or a bad thing—no such reasons are given, and therefore cannot be used as a basis for argument. I would welcome the Minister's comments on that issue.
I should be grateful for any guidance that the Minister can give on the question of whether the boundaries are set. If the boundaries are to be set, by what means and under what statute will that occur? There is no capacity for changing boundaries to fit actual circumstances. If the boundaries will not be set, how will they be considered as part of the process of setting the distribution of MEP places within the total allocation offered to the United Kingdom?
| 
