European Parliamentary Elections (Amendment) Regulations 2009

My Lords, I speak at this rather late hour on a Thursday afternoon because I should have liked to speak in the debate on 14 October last year on Statutory Instrument 2008/1647, which deals with the same general subject matter as the proposals before us. However, I had a family commitment out of London that evening and was unable to do so. Nevertheless, before the debate I spoke to my party’s spokesman, my noble friend Lord Kingsland, and to the noble Baroness the Leader of the House, with whom I have subsequently had a most cordial correspondence. I should first make it clear that I am the hereditary Peer referred to in the Merits of Statutory Instruments Committee’s report in respect of the 2008 order who was both an elected hereditary Peer and a Member of the European Parliament between 1999 and 2004. I was, incidentally, elected to remain in this House by my party’s Peers, in the full knowledge that I was a Member of the European Parliament. My memory is that there was a degree of controversy about that at the time—my noble friend Lord Henley might confirm that, as he was Chief Whip—but the ballot box delivered its verdict. My concern is that the Government have not taken the opportunity in these statutory instruments to remedy some of the shortcomings pointed out in the debate of 14 October 2008. In particular, I return to the discrimination between the exempted hereditary Peers and life Peers in respect of access to the process of disqualification made available in UK law for life Peers but not the 92 exempted hereditary Peers. This is also the subject of a petition that I have lodged in the European Parliament. The reasons for this were described by the Minister in the House that evening, at col. 676 of Hansard. While I think that I know humbug when I see it, I do not wish to make any further comment about the merits or otherwise of that policy, other than to say that it is a bit bizarre to have a policy to eject the 92 hereditaries from this House as soon as may be while denying them the right of resigning. The important issue is the dog that did not bark on that October night, regarding whether or not that policy is implementable under European Union law. After all, given the doctrine of the supremacy of EU law, Governments often discover that there are things that they would like to do but cannot. That is a long-established and recognised phenomenon, as we all know in this House—indeed, as anyone engaged in political life in this country knows in respect of things such as the common agricultural policy and the common fisheries policy. Speaking as an individual, I entirely understand the thinking behind the ““no dual mandate”” rule for the European Parliament, and I see absolutely no difficulty with it, as long as due legal process is observed when implementing the legislation across the EU. It must be seen in the context of European law as a whole. In this instance, all that is required is for those in the second Chamber to have an escape route available to them. It is widely known that at one time in this country it was thought that the leave of absence procedure, which is available to hereditary Peers, as it is to every other Member of this House, would provide that route. However, more recently it was felt by the European parliamentary authorities that that was not the case. As a result, statutory instrument No. 1647 was put on to the statute book. However, that escape route is not available to the 92 exempted hereditaries who are, as the Minister explained in terms to the House on that evening, identical in respect of their membership of this House. I expect that the Minister will say that the rules for election to the European Parliament for this country are exclusively a matter for the United Kingdom Government. That is probably the case, but I would not emphatically and completely agree with it. However, I am not making that point now. Rather, in dealing with this issue, the Government have completely failed to address the implications of Article 19 of the European Communities treaty relating to the question of citizens of a member state seeking election to the European Parliament in another member state. This is not a completely fanciful notion. After all, in the European Parliament there is Danny Cohn-Bendit, who some noble Lords may remember as ““Red Danny””; he may have been a hero of the Minister in his youth. There is also Ari Vatanen, the world champion rally driver and Finnish national who represents France. I have not asked the noble Lord, Lord Grenfell, whether this is the kind of thing that he might be interested in, but I dare say it could be. Anyway, the rule may well have relevance and application in, for example, the island of Ireland. The failure of the Government to deal with this point regarding the 92 exempted hereditaries denies them their rights as European citizens to stand in another member state, unlike their life Peer colleagues. I ask the Minister, although this may be a triumph of hope over experience, to bring forward provisions to remedy this shortcoming by regularising the position and any other deficiencies in European Union law that may relate to it. The important point here is that, on these kinds of rights, we are not talking about something in the gift of the Government. The fact that the Government may, in their words, be planning to deal with these matters at some point, even in the quite near future, is interesting but not directly relevant. It matters not at all whether the Government like or hate hereditary peers, whether they admire or despise them, or whether they agree or disagree with them. It is not a question of how we got here. The question is: now that we are here, what is the right position? We, too, have rights. Equally, those who have rights cannot sell or renounce them, or give them away, or have them modified by UK statute. Indeed, that is one of the criticisms made by the noble Lord, Lord Pearson of Rannoch. Whether any of us, as individuals, exercise our rights is our affair and a matter for our judgment and our conscience. I turn to how these provisions were negotiated with the European Parliament’s legal service. My inquiries have revealed that the legal service made it clear, at the outset, that the rights sought by the UK Government should be available to all Members of this House. The Government demurred, saying that they would be dealing with the problem posed by the 92 quite soon, and perhaps rather weakly, but understandably—given that the UK Government rather than the European Parliament initiates legislation in this House—there was little more to be done. What is, however, absolutely clear is that the timescale of ““soon”” does not correlate with the Government’s policies as contained in An Elected Second Chamber: Further Reform of the House of Lords, which was published in July last year—that is to say, before the October statutory instrument came before Parliament. First—to state the obvious—nobody knows the outcome of the next general election, although we can guess at it. Secondly, it is expressly stated that there is no finality about any plans for further reform. Thirdly, there is no certainty about how the issues posed by the remaining 92 are to be dealt with; option 2 envisages that some may remain for many years, possibly until 2021, although I agree that that is short compared to the period between the 1911 Act and the 1999 Act. Fourthly, if I have understood the document correctly, and I believe that I have, it is anticipated that the same process that will be applied to the 92 hereditaries will also apply to the life Peers for whom the statutory instrument was specifically put on the domestic statute book. A serious question, about how this was presented to the European Parliament’s legal service, needs to be answered. If I were one of those legal staff, I might feel that Her Majesty’s Government had been perhaps rather economical with the truth about what was happening. We must not forget that our reputation abroad as ““perfidious Albion”” must have come from somewhere. I dare say that your Lordships will call this a nitpicking, pettifogging, silly little argument. In many ways, I am the first to agree but, in my opinion, the Government, by relying on nitpicking, pettifogging legal arguments, are attempting to take a nice cheap hit at the expense of the hereditary Peers. That hit goes against not only the provisions of the European treaty but the letter and spirit of the compromise behind the 1999 changes here. It may seem a small matter, and in one sense it undoubtedly is, but it has considerable, wider implications. In my view, it is the wicket gate to the primrose path. It is just the kind of issue that I was expected to take up, and did, on behalf of my constituents during my 10 years in the European Parliament. It seems to me that if you choose to live by nitpicking, pettifogging legal arguments, you have no business to complain if you subsequently die by them. Over the weekend, I turned on the television and heard the right honourable Caroline Flint, the Minister for Europe, telling the nation on behalf of the Government that their role in Europe is to see that the rules are obeyed. Quite right; I agree entirely. However, the Government should take the beam out of their own eye before going around trying to take the motes out of other people’s eyes.