Schedule 2

HC Deb 05 March 1998 vol 307 cc1230-48

MINOR AND CONSEQUENTIAL AMENDMENTS OF SCHEDULE 1 TO THE EUROPEAN PARLIAMENTARY ELECTIONS ACT 1978

Amendment proposed: No. 33, in page 8, line 15, leave out 'candidates' and parties".—[Mr. George Howarth.]

5.45 pm

The First Deputy Chairman

With this, it will be convenient to discuss the following amendments: No. 25, in page 8, line 15, leave out 'and parties".

Government amendment No. 34.

Sir Brian Mawhinney (North-West Cambridgeshire)

I had assumed that the Minister would speak to the amendment. It would be helpful if we could start by hearing the Government's rationale for the amendment. I should be happy to respond to that.

The First Deputy Chairman

So that everyone knows that the Chairman is acting properly, I should explain that anyone is entitled to move an amendment formally. That is up to them. I have called the right hon. Gentleman. He can make his case if he wants to. It is up to him.

Sir Brian Mawhinney

If the Government are moving the amendment formally, this is the most disgraceful part of the debate.

Mr. George Howarth

I shall reply.

Sir Brian Mawhinney

It would be more helpful if the Minister made his speech now.

Mr. Howarth

I took it from the remarks of the hon. Member for Ryedale (Mr. Greenway) a few minutes ago that he wanted to make progress and that we could move forward. If the right hon. Gentleman wants to debate the amendment, that is fine. I had assumed that the Conservatives wanted to make progress.

The right hon. Gentleman was kind enough to give notice of his intention to speak on the amendment. Government amendments Nos. 33 and 34 are intended to clarify the original intention of the paragraph, which was to give the power to make regulations to extend the imposition of a limit on parties' national expenditure on European elections.

The European Court of Human Rights gave a judgment recently on a complaint by Mrs. Phyllis Bowman that legislation covering expenditure by third parties at elections infringes the right to freedom of speech under the European convention on human rights. The court found that section 75 of the Representation of the People Act 1983 restricted Mrs. Bowman's freedom of speech and was therefore in breach of article 10 of the convention.

The Government are considering the implications of the judgment carefully. It is a difficult area of electoral practice. We have asked the Committee on Standards in Public Life, chaired by Lord Neill of Blaydon, to look at that aspect of election funding in its wider review of party funding. We shall wait for the committee's view before taking any action on the judgment. In the meantime, the existing provisions of law continue to apply.

The amendments relate to the power to make regulations about the limitation of candidates' and parties' election expenses. Under the regional list system proposed in the Bill, the existing limitations on candidates' expenditure in constituencies cannot apply meaningfully. The electorate are being asked to vote for parties rather than an individual candidate, except in the case of independent candidates. We need to consider whether there should be limitations on expenditure and, if so, how they should be handled. It may be necessary to limit the expenditure by candidates and that by parties. Amendment No. 25 would restrict the regulation-making power to limit expenditure by candidates only. In the context of a regional list system, the limitation of candidates' expenditure alone is insufficient. I therefore ask the right hon. Gentleman not to press his amendment.

The Neill committee might recommend national limits on expenditure by political parties. If so, the House will have to consider that recommendation. In those circumstances, the regulations could be used to implement that proposal in relation to European elections.

Sir Brian Mawhinney

I am grateful to the Minister; that helps to start the debate.

It is a matter of record that, in the time that I have had this job and although, occasionally, the temperature across the Dispatch Box has risen ever so slightly, I have never been personal in my comments. I mean no disrespect to the Minister, but we find ourselves in the most serious situation and it is quite unacceptable that the Home Secretary is not speaking on this group of amendments. The Minister read his brief, but the seriousness of the situation in which we find ourselves might not be as apparent to some as he and I know it to be.

Not only did I write to the Home Secretary when the European Court of Human Rights decision was announced two weeks ago; I pointed out in Committee last week that we would be looking for a preliminary response from the Government. We are doing so not because we are seeking, in two weeks, to pin the Government to some definitive response to the judgment—I think that I know enough about it to share the Minister's view that the Government find themselves in a complicated and difficult situation—but because whatever decision emerges is highly relevant to the Bill, particularly the Government amendments. We tabled our amendment, in part, as a probing amendment to find out exactly what the Government intend. I shall talk generally about the Government amendments rather than specifically seek to defend ours.

When the Minister speaks again—if he catches your eye, Mr. Martin—I should be grateful if he will explain the phrase "a general election" in Government amendment No. 34. Those words have a particular connotation in this House and this country. I do not find them defined in the Bill in any way other than the conventional way yet, in the context of the Bill, we shall not be having a general election.

Mr. George Howarth

To clear up that point, "a general election" is a general European Parliament election.

Sir Brian Mawhinney

That is what I assumed the hon. Gentleman meant. I was—I think, helpfully—trying to point out that there is confusion about the phrase because it normally means something else in this country. Since the phrase is not defined in the Bill in the way in which the hon. Gentleman has just defined it, it would be helpful if he withdrew the amendment and, on Report, made clear what the words "a general election" mean in the context of the Bill.

Mr. Martin Linton (Battersea)

Does the right hon. Gentleman accept that the phrase "a general election" has always meant nothing more and nothing less than the opposite of a by-election? Local or European elections can be general if they are not by-elections. The term does not define only Westminster elections.

Sir Brian Mawhinney

The Minister understands the point that I am making and the spirit in which I am making it. If the hon. Member for Battersea (Mr. Linton) does not mind, I shall not get into a semantic discussion.

Mrs. May

Is my right hon. Friend concerned, as I am, about amendment No. 35, which was not selected for debate—

The First Deputy Chairman

Order. The hon. Lady mentioned an amendment that has not been selected. She should not do that type of thing.

Sir Brian Mawhinney

I shall not follow my hon. Friend down that road.

We have no sense from the Minister's speech that the Government have the first idea of what they will put in place for the funding of European elections at a constituency and candidate level. There was nothing in his speech that indicated whether there might be limits, or whether such limits would be on parties at a regional level or on individual candidates on the list. There was nothing in his speech that indicated whether there would be any relationship between the amount of money that a registered party—we do not know what that means—could spend in a region compared with what could be spent by an independent candidate in that region.

The Minister and his right hon. and hon. Friends have spent some time stressing the fact that the Bill breaks the link between MEPs and their constituencies. The list system will be run from the centre and, as we established last week, much more undemocratically in the Labour party than in the other two parties. We have heard nothing of how the Minister envisages controlling expenditure from the centre at a regional or individual level. This is the worst example of the Government approach: "Trust us; we will come back with the regulation. We will give you an hour and a half to debate it and, with our majority, we will push it through."

Unacceptable as all that is, it pales into insignificance beside the Bowman decision. It might be for the convenience of the Committee if I remind it exactly what that case is all about. In the 1992 general election, as my memory serves me, Mrs. Phyllis Bowman, a senior executive of the Society for the Protection of Unborn Children, had printed 25,000 leaflets setting out the views on abortion of the three main party candidates in the Halifax constituency. Given Mrs. Bowman's point of view—I shall be neutral and non-inflammatory—the record of the hon. Member for Halifax (Mrs. Mahon) was less attractive than those of the other two candidates. The leaflets were not effective, since the hon. Lady was re-elected.

Mrs. Bowman was taken to court, found guilty and prosecuted, and eventually appealed to the European Court of Human Rights on the ground that her freedom of expression, as guaranteed in article 10 of the European convention on human rights, had been transgressed. Two weeks ago, the European Court found in Mrs. Bowman's favour. It ruled that her freedom of expression under article 10 had been transgressed and it would appear that the part of our national law that stipulates that any individual cannot spend more than £5 promoting a person's candidacy in an election particularly upset the court.

The significance of the ruling should be understood. Expenditure on elections in our system—which was touched on earlier, not least in the comments of my hon. Friend the Member for Poole (Mr. Syms)—is controlled by a legally enshrined agent. We have had a ceiling on constituency expenditure, which was possible because expenditure was funnelled down one channel. Individual expenditure up to a limit of £5 was thought to be de minimis and therefore not influential.

In effect, the decision of the European Court on Human Rights is that anyone can spend any amount of money in promoting or denigrating any candidate. That is open sesame—it destroys the basis on which we have funded elections in this country thus far.

During the Second Reading debate of the Human Rights Bill, the Government were generous in recognising that when the European Court of Human Rights had found against British law, Conservative Governments had always moved to change the law of the land. That generosity was appreciated and remarked upon at the time—indeed, it was true of previous Labour Governments also. We now find ourselves with a European Court decision, based on article 10—which is the subject of heated discussion in Committee on another major constitutional Bill—which says, in effect, that British law is no longer appropriate.

6 pm

I heard what the Minister said—in the meantime British law remains as it is. Technically, that is true, but in practice it is not. If the Minister were to spend his hard-earned money on promoting the candidacy of someone at the local elections in just eight weeks' time—or on denigrating an old Labour candidate—he knows that he would not be taken to court, even though he had, prima facie, broken the law of the land. He knows that the European Court would nod his appeal through because it has dealt with the Bowman case.

In practice, if not in theory, we have no law governing expenditure at a constituency or regional level. The Bill does not address that point. What is worse, the Minister says that the matter will be referred to the Neill committee, but that committee's deliberations on the capping of party expenditure will be irrelevant until the Government decide what they will do to close the loophole.

If, for example, the Neill committee said that, at a general election, no party should spend more than the Labour party spent centrally at the last general election—£26 million—that would be irrelevant; anybody could add their expenditure in any constituency in the country in support of or to denigrate any candidate. There is nothing the Neill committee or the House can achieve other than by primary legislation. I mention primary legislation because the amendments and the schedule deal with regulation. The Minister and I will agree that we cannot address the consequences of the European Court's judgment by regulation.

Mr. Gerald Bermingham (St. Helens, South)

Does the right hon. Gentleman agree that we cannot even address the matter by primary legislation? Our primary legislation must conform to the ruling of the court. The ruling in the Bowman case is simple—anyone can spend anything at an election. No matter what we do—by legislation or regulation—it will be pointless.

Sir Brian Mawhinney

That is a good question, because it goes to the heart of what we are discussing. I am not sure that the hon. Gentleman is right. He might be right.

Mr. Syms

He is nodding.

Sir Brian Mawhinney

I can tell my hon. Friend the Member for Poole that I have been in the House with the hon. Member for St. Helens, South (Mr. Bermingham) for long enough to treat his legal judgments with great consideration. His batting record is reasonable by any lawyer's standards, but I am not sure that he is right because the judgment drew attention to the £5 limit.

For example, the Government might decide to change £5 to £1,000 and be willing to have that tested in the European Court. The consequences would blow a hole in our electoral system. If the hon. Gentleman and half a dozen of his friends decided to spend £1,000 each in the next-door constituency, that would have a profound effect on the election. They would, in effect, be spending virtually as much as the official expenditure channelled through the agent in the constituency.

Mr. Bermingham

The Bowman decision said that £5 was de minimis and ridiculous, but if one reads the judgment carefully, one sees that it goes further. In addition, it was a judgment of the full court, which makes it even more difficult to deal with. It says that a person is "entitled to spend"—it does not say that there should be a reasonable limit. That is why I advance the premise that we cannot alter the judgment, either by primary legislation or by regulation.

Sir Brian Mawhinney

I have acknowledged that the hon. Gentleman might be right. I find it encouraging that we agree on the fundamental nature of the decision and on the coach and horses to be driven through our electoral law.

We are being asked to agree to two Government amendments that we do not find attractive. The Government want to come back to the matter later. The amendments are a cover because the Government have no idea what they should do and no idea of what the limits should be. They have no idea whether list candidates should spend money and, if so, how much. The Government have no idea what system to have in the first place, and they will not decide until Monday. They do not know how to deal with the issue of expenses. The Government are saying that we should touch the forelock and trust the Home Secretary and that that will be sufficient. It will not be sufficient. That is an unacceptable way to proceed in a constitutional Bill and it is made worse by the Bowman decision.

So that no one is in any doubt, the decision means that any vested interest group can target candidates—Labour and Conservative regional list candidates, Members of Parliament and local councillors. Any Member of Parliament who is on the wrong side of a vested interest group—perhaps for the best of reasons, and even if those reasons are supported by 99 per cent. of the constituents he has been elected to serve—can, because of the Bowman decision, be targeted financially. We saw what a rich man tried to do at the last election. A very rich man can decide to spend an awful lot of money in targeted seats to affect the outcome of the democratic process. A trade union might decide to target Tory Members of Parliament, if history is anything to go by.

The Government amendments have not begun to address the problem. They do not know what they are talking about. I felt sorry for the Minister when he was reading his brief because he knows that nobody sitting in the Box can come to his aid with any substantive information on the amendments. They are all quality civil servants, but they do not have a clue—because Ministers do not have a clue.

The First Deputy Chairman

Order. The right hon. Gentleman knows that the Minister is responsible for his brief.

Sir Brian Mawhinney

I understand that, Mr. Martin. I was trying to pay a compliment, but I recognise that no one but hon. Members exists and so I shall talk only about the Minister. He does not know and I do not blame him—well, I do in one sense because before bringing this constitutional measure to the Committee he should at least have had some understanding of how the elections were to be financed, but he does not. He has no idea as to the division between the candidate, the regional list and the centre. In this case, it is not his fault, but the whole subject has been blown wide open by the European Court decision.

Mr. A. J. Beith (Berwick-upon-Tweed)

The right hon. Gentleman is right to draw attention to the difficulties that the Bowman judgment presents for our electoral law and the possibility of candidates being targeted by various different causes, but I hope that he recognises and will make it clear that the amendments clarify provisions that would enable a national limit to be set, thus preventing parties buying elections with substantial national expenditure. Does he accept the principle that there should be a national limit?

Sir Brian Mawhinney

The right hon. Gentleman does not understand the Bowman decision. There is no such thing as a cap on national spending any more, whatever the Neill committee, the Government or this Committee might decide. For example, the Neill committee might say that the Government won the last election by spending £26 million nationally, so that will be the limit—that would scare the daylights out of the right hon. Gentleman's party—but it will be the limit only as regards a party's expenditure. There is no legal means of stopping anyone else in this Chamber spending more money on their own behalf to target the right hon. Gentleman or someone standing against him. He has not understood the significance of the Bowman decision.

We find ourselves faced with the most serious problem without the presence of the Home Secretary, or any response, despite the fact that we showed the courtesy of alerting the Home Office to the fact that we needed to have this debate. As I told the Minister, I am looking not for a definitive decision, but for some indication of how we might proceed. The hon. Gentleman and the Home Secretary might think that it would be worth consulting the other parties on this issue. I have always said that I am happy to meet the Home Secretary in those circumstances.

We will meet next week on Report. If the hon. Gentleman accepts my advice about amendment No. 34, which could be more felicitously amended, he could bring it back so amended to the House then and give us some early indication of the Government's thinking on this important issue.

Mr. George Howarth

The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney), gave notice that he wanted to raise this issue. I would not want to minimise his concern, but, although he acknowledged one central fact in my earlier speech, he has not taken it fully into account.

Whatever else is happening as a result of the Bowman case—I shall refer to that in detail in a moment—in the meantime, the existing provisions of the law, section 75 of the Representation of the People Act 1983, continue to apply irrespective of whether we might need at some point to make regulations. So, unless and until it becomes apparent that regulations are necessary, that will be the case. It is not that there is nothing in existence—the existing provisions of electoral law are in place.

Sir Brian Mawhinney

I said that, although the Minister was technically right to point out that that was the law of the land, in practice—I think I used the hon. Gentleman as an example—if he were to spend his money, illegally in terms of that legislation, the Committee knows that nothing would now happen to him. In practice, we have no limits, even though there is a law on the statute book and that is why the matter is of such urgency.

Mr. Howarth

The right hon. Gentleman is correct, and I am not trying to pretend that the Bowman judgment does not present difficulties: it does, and I shall describe what we are going to do about it. We are considering the implications of the judgment as it affects the areas of electoral practice that he mentioned.

In addition, the Committee on Standards in Public Life, chaired by Lord Neill, has been asked to study that aspect of election funding within the wider review of party funding that that committee has agreed to undertake. The important thing is that that review is under way. Obviously, the Bowman judgment needs to be fed into the process. No one could sensibly argue that that should not be the case. If an inquiry into party funding is under way, which has implications for election expenditure, it is sensible that the judgment and its implications should be fed into the process.

At the same time, we are taking advice on the implications, so I do not see that there is that urgency. In amendments Nos. 33 and 34, we are merely being prudent. I am not saying that we know for certain at this stage whether we will need to introduce regulations. Only when we have finished considering the matter in more detail and Lord Neill has had the opportunity to look into it, can we be certain about that.

6.15 pm

In those circumstances, it is prudent to put into the Bill a provision that would enable us to produce regulations. The right hon. Member for North-West Cambridgeshire was kind enough to say that he did not think that we were involved in any conspiracy, and his arguments were reasonable. As he acknowledged, if we introduced regulations, they would have to be debated. It would be done not by the diktat of the Home Secretary or anyone else; it would be a matter for debate in the House.

If, as is often the case, consultation between the parties was necessary before the introduction of any regulations, I am sure that it would take place. The previous Government undertook such consultations, as did previous Labour Governments, and I would expect this Government to do so. The right hon. Gentleman says that the consultations should take place before the Bill comes back to the House on Report. I will pass that view on to my right hon. Friend the Home Secretary, but I think that, although a time will come when consultation will need to take place, it will not be before the Report stage.

The prudent move, which the amendments allow, is that we should have the scope to lay regulations if those should prove necessary as a result of the Neill committee and the advice that we will receive on the Bowman judgment. In the meantime, I am confident that the existing legal provisions apply.

Mr. Bermingham

Will the Minister also suggest to his right hon. Friend the Home Secretary that Bowman is looked into carefully? Its scope may well need to be tested before the European Court before any regulations are laid that could make any sense and if Lord Justice Neill's inquiry is to have any meaning in the long term.

Mr. Howarth

I can assure my hon. Friend that the Bowman judgment is already being considered carefully. He makes an important point, but it has been covered.

In view of those matters, it is important that the ability to make those regulations should be within the scope of the Bill. Amendments Nos. 33 and 34 would help us with that.

Sir Brian Mawhinney

Perhaps the Minister could have amendment No. 34 redrafted to make it clear what the words "a general election" mean.

Mr. Howarth

That is a fair point. As I said, in this context, they mean a European election. The term "general election" has usually meant any election that is not a by-election, as my hon. Friend the Member for Battersea (Mr. Linton) pointed out. So the term applies to a general election for this Parliament and a general election for the European Parliament. Therefore, I do not think that it is necessary to clarify the amendment any further. That is an accepted principle, and that is why the amendment has been phrased in that way. With those comments, I hope that the Committee will support amendments Nos. 33 and 34 and that, if the right hon. Member for North-West Cambridgeshire thinks it appropriate, he will not press amendment No. 25.

Mr. Allan

The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) gave an apocalyptic view of the Bowman judgment. The judgment is significant, but we do not yet know whether it will be apocalyptic. It recognised the need to hold free elections—obviously, allowing a wealthy individual to buy a seat would contravene the principle of free elections.

The court considered whether the restrictions in the law that applied to Mrs. Bowman were proportionate to the effect that they produced. It made it clear that she was not promoting a specific candidate, but publishing information about all candidates. It also said that people who were pro-abortion might choose to vote, with the anti-abortionists, for the candidates she tried to highlight.

Mr. Bermingham

If the hon. Gentleman reads further, he will see that the judgment makes it clear that adverse or knocking copy can be electorally effective. We run the risk of going down the American road of black and negative advertising against both person and party.

Mr. Allan

I accept what the hon. Gentleman says. My point is that the courts will have further work to do in testing whether the Bowman judgment will cover a case in which, for example, the Minister—who is clearly a member of a party—spends significant sums promoting himself. I do not believe that we have yet reached such an apocalyptic position, although we have yet to hear the results of the Government's deliberations.

Another critical point is that the court, in justifying its judgment in the Bowman case, specifically referred to the fact that there were no restrictions on national or regional expenditure. Liberal Democrats are happy to support the Government amendments, as they would allow for regulations to limit national expenditure. We believe that such a limit has been a long time coming, and that it should be applied to all elections.

The right hon. Member for North-West Cambridgeshire did not refer to amendment No. 25, which he tabled. We believe that it would prevent the imposition of national limits, which is a disgraceful proposition, given the strong public support for them. Many people will ask why the Conservatives, with their record of dubious finance and heavy election spending, did not want parties' expenditure to be limited nationally.

Sir Brian Mawhinney

If the hon. Member for Sheffield, Hallam (Mr. Allan) had been listening—I am grateful to the Minister, who seems to indicate his support before I have even made my point—he would have heard that I explained precisely what amendment No. 25 would do. As to his point about Bowman, those of us who have been in the House for some time have come to realise that it takes the Liberal Democrats a little longer to understand what is fairly obvious to the rest of us. His short speech underlined that point.

The Minister said that the Bowman case had been referred to Lord Neill, but the matter is not quasi-political—it does not require a cross-party decision on what would be an acceptable political framework. It is a fundamental legal question. I share the view of the hon. Member for St. Helens, South (Mr. Bermingham). We find it difficult to envisage what the Government expect will emerge from the Neill committee on this issue.

Indeed, as I said, the consequence of Bowman is, in effect, to render null and void what emerges from the Neill committee's deliberations, unless and until the Government decide how to amend the law to bring it into line with the court judgment—that has always been the bipartisan tradition in this country. The Neill committee will then have the opportunity to decide what advice it should offer within that new legal framework. I do not expect the Minister to go into the matter now, but I want him to think about it and reflect to the Home Secretary hon. Members' sense of unease about the Government's response.

The Minister also said that there was no great need for urgency. I know that this is not the subject of the debate, so I shall not go into detail, but elections will take place throughout the country on 7 May, and it will be supposed that they will be subject to current law. We have established that that may be true in theory, but no longer necessarily in practice. I would have expected the Minister to think that that merited some urgency.

Again, I agree with the hon. Member for St. Helens, South—I hope that I am not ruining his reputation by agreeing with him so often—who made an important point. The scope and nature of the decision may have to be tested in the courts before hon. Members can form a view about what our response should be in terms of primary legislation. That will take time, and it will impinge on the European elections. Given the speed with which the European Court moves, it might even impinge on the next general election.

I assume that hon. Members will shortly consider in Committee the Human Rights Bill, at the heart of which this matter lies. Before we do that, it would help if the Government could give us some steer on the interrelationship between Bowman and the Human Rights Bill, as well as between Bowman and the European Parliamentary Elections Bill.

Given that I have explained why we tabled amendment No. 25—the Minister heard and understood what I said, even if the Liberal Democrats did not—I am perfectly happy to beg to ask leave to withdraw the amendment.

The First Deputy Chairman

Order. We are discussing amendment No. 33, which is a Government amendment.

Sir Brian Mawhinney

In that case, to be technical, if and when we come to amendment No. 25, we shall not press it further.

Mr. Linton

The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) said that amendment No. 25 was a probing amendment on the Bowman judgment. I think that we would all agree that it was necessary, as the judgment is currently the all-important issue in this area. Like him, I look forward to hearing the Government's response. I am not convinced that the right hon. Gentleman has identified what the final consequences will be. The £5 limit, for example, was an individual limit—it is not absolutely clear that, even if there were national limits, it would apply to third-party organisations.

My substantive point is that amendment No. 25 is not only a probing amendment—it would defend the status quo and an anomaly in law that allows the Conservative party to outspend every other party that is represented in the House. The "open sesame" to which the right hon. Gentleman referred already exists. Indeed, one could argue that it began more than 100 years ago, when legislation aimed at preventing corrupt and illegal practices in elections referred only to candidates, not to political parties.

Moreover, in the 1950s, a court decided that anyone could publicise political propaganda during an election provided that it did not refer to a particular candidate in a particular constituency. That judgment meant that a poster saying "Vote Conservative" did not count in terms of the limits, whereas one saying "Vote Bloggs, Conservative" did. That anomaly has allowed the Conservative party to spend without limit at every election since then.

The Liberal Democrats' record is not spotless, as in 1974 the Liberal party, as it was then, was the first to advertise in a newspaper during an election campaign, opening the anomaly even wider. Liberals have regretted setting that precedent ever since. I hope that they will support us in reversing the situation.

Under the status quo, which the right hon. Member for North-West Cambridgeshire wants to defend through amendment No. 25, we have the ridiculous situation in which spending on local campaigns, which are no more than a sideshow these days, is limited, but national spending is not.

6.30 pm

Mr. Tim Collins (Westmorland and Lonsdale)

The hon. Gentleman is making an interesting case for a limit on political parties being able to advertise in newspapers but not, presumably, for a limit on the amount that newspapers themselves can spend advancing a political cause. Is that perhaps because of Mr. Rupert Murdoch's shift of view during the general election campaign?

Mr. Linton

That does not figure at all in the Government's thinking or in mine.

At the general election, Conservative candidates spent £5 million, as they were limited by law, but the party itself spent £20 million, because there was no limit on that. It outspent the Labour party by about 3:2, and the Liberal Democrats by about 7:1. Conservatives have always denied that the anomaly exists; they did so in evidence to the Hansard Society and to the Home Affairs Select Committee.

The enormous anomaly is clear to every non-Conservative Member. The right hon. Member for North-West Cambridgeshire is right to draw our attention to the Bowman judgment, but he surely cannot defend the existing anomaly.

Mr. Syms

Under the current electoral system, there is a clear division between what is spent in constituencies and what is spent nationally, for the sensible reason that most people who stand as candidates think that their vote will increase if they publish their name, photograph and personal details; so, in election campaigns, one can count the literature bearing the candidate's imprint and measure precisely what has been spent, whereas national expenditure is much more difficult to measure.

Under the regional list system—although we do not know the Government's final proposals—people will vote for one of the parties or for an independent. Most political advertising will by its nature be general rather than specific. In the South-East, for example, parties will probably not put all 11 of their candidates on every piece of literature, with their dogs and families. The literature will tend to say, "Vote Conservative", "Vote Labour" or "Vote Liberal".

Trying to control expenditure at a regional level will be a real problem. One will be able to identify the few leaflets that advertise specific candidates, and it will be relatively easy to tabulate the expenditure of the independents, but it will be extremely difficult to disaggregate regional from national expenditure and determine whether a regional agent is keeping within the limit.

At present, newspaper advertising and poster sites are excluded. Would spending on those have to come within the regional limit? How would one disaggregate the readership of the Daily Mail, for example, in the south-east, the west midlands or the north?

Mr. Allan

The hon. Gentleman said that most advertising, and most voting, will be for a party rather than an individual candidate, and we feel that that strengthens the case for imposing limits on parties. He described some of the difficulties, but does he in principle think that those limits should exist?

Mr. Syms

Given the system under which we will have to operate, there will have to be a national limit. My principal point concerns how on earth we are to control a regional limit in a region the size of the South East, for example. How can we differentiate between national and regional spending?

It is perfectly easy to see who the candidates are, and what literature they have produced, in a single-member constituency, but what happens when someone in London hands out political leaflets to people getting on a train to Guildford? How do we disaggregate the expenditure? There has to be some limit somewhere, but the system chosen will be extremely difficult to operate.

Mr. Bermingham

The Bowman judgment is relevant not only to the European issue but to every form of election spending. That is my great worry. I do not want what happened with value added tax on second-hand cars—people were prosecuted and subsequently pardoned, simply because the European courts changed the law—to be replicated. I simply ask that we test what the Bowman judgment means, how broad it is, and what sums and persons it covers. Once we have done that, we will know how to frame our own legislation within the European law.

Mr. George Howarth

The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) said that he was not happy with the situation, but wanted to see how it developed and perhaps have a discussion at some point with my right hon. Friend the Home Secretary. He asked me to draw his observations to my right hon. Friend's attention. He knows my right hon. Friend quite well, as I do, and will know that he is an assiduous reader of everything that is put in front of him. I will draw the matter to his attention, but I am sure that he would have read the Hansard report thoroughly in any case.

We have had a useful debate on this difficult matter. Developments will have to take place. The hon. Member for Poole (Mr. Syms) added one fresh point, to which I shall respond briefly. The matter is not as complicated as he makes out. If expenditure is limited to promoting a regional list or a candidate who wants to be a regional MEP, that would clearly be local expenditure, and would be covered by the relevant limits.

National spending limits are under consideration by the Neill committee, and I hope that we will find an agreed way of controlling such expenditure. The accounting might be more difficult than in a single constituency, but I honestly do not think that it will be impossible. Any regional agent should be able to resolve such a problem without too much difficulty.

I hope that the Committee will feel able to support amendments Nos. 33 and 34.

Amendment agreed to.

Amendments made: No. 34, in page 8, line 15, at end insert '(including expenses incurred in relation to a general election as a whole)'.

No. 35, in page 8, line 18, leave out 'of MEPs'.— [Mr. George Howarth.]

Mr. Clappison

I beg to move amendment No. 17, in page 8, line 31, leave out 'may' and insert 'shall'.

The Chairman of Ways and Means (Sir Alan Haselhurst)

With this, it will be convenient to discuss the following amendments: No. 18, in page 8, leave out lines 35 and 36.

No. 19, in page 8, line 41, at end insert— '(c) the regulations shall require the name of each candidate to appear on the ballot paper.'.

Mr. Clappison

The amendments involve the important subject of by-elections, and we want it to be noted that we consider by-elections an important part of our political tradition from which we should not depart lightly. We need to know more about the Government's intentions. I cannot overlook the telling evidence of the manner in which the Government seek to deal with by-elections in the Bill.

The important subject of by-elections is buried in schedule 2 to the Bill, under the heading: Minor and consequential amendments of schedule 1 to the European Parliamentary Elections Act 1978". We regard the subject as far from minor, and its position in the Bill is telling evidence of the Government's chaotic approach. We need to know more about the contents of schedule 2. Apparently, regulations will have to be made to prescribe the procedure to be followed when a seat becomes vacant. Can the Minister give us some brief details of the proposed procedure? Will he spell out the "specified circumstances" mentioned in the schedule? We know a little about that subject from what the Home Secretary said on Second Reading, but the Minister should spell out the specified circumstances in which a by-election would be held.

We understand that it is the Government's intention that a vacancy will normally be filled by the next candidate on a party list, save in the case of the exhaustion of the list or the loss of an independent candidate. However, the Home Secretary said that that would depend on the next candidate on the list being eligible and willing. We need to know more, including the conditions that will determine whether a candidate is eligible and willing at the time of the by-election. Who will determine that? The regulations have yet to be made and the Bill gives no guidance. The Minister should tell the Committee more about that, because the Bill remains silent.

The amendments address an important subject, given the centralised control that the Bill will introduce and the power that it will give to the party machinery. Only this morning, my eye was caught by a headline in The Herald, which revealed that the Labour party intends to ban its troublesome, left-wing Scottish Members of Parliament, but I shall not pursue that point further. I can assure the Committee that I do not spend my time trawling through the newspapers looking for details of internal strife in the Labour party, but my eye was also caught by another headline that stated: What Derry's £59,000 could do for your walls". I shall move swiftly on.

The amendments give the Government the opportunity to spell out how their alternatives to by-elections will work. We believe that by-elections have served this country well. They are a customary part of our political life and have had many desirable consequences for the quality and continuity of our representation in the European Parliament. The Government should tell the Committee more about their new system, instead of burying the subject in schedule 2.

Mr. Beith

Nobody loves European by-elections, least of all the electorate, who vote in extraordinarily low numbers. Under the proposed system, it seems sensible that the next person on the list should fill any vacancy that arises. I am reinforced in the view that nobody loves European by-elections by the fact that the hon. Member for Vale of York (Miss McIntosh), who is in her place, sees no urgent need to impose one on the electors of Essex, whom she represents in the European Parliament. She is not the first to decide that it would be unreasonable to impose a by-election on the electorate, and she has accepted the almost intolerable burden of representing at the same time the Vale of York in the House of Commons and Essex in the European Parliament. Given what hon. Members have said about the demands on Members of the European Parliament, that is a serious burden indeed. It is obvious that either she does not think that she should cause a by-election or Conservative central office has said, "For heaven's sake, don't make us have a by-election."

By-elections will have to be held in some circumstances, some of which are envisaged in the drafting of the Bill. For example, a party might run out of candidates on its list if it had won all the seats in a constituency, which might happen in one or two of the smaller constituencies. The Government may have not addressed the problem of someone leaving a party since being adopted to the list, either through expulsion—like the Lord Provost in Glasgow—or by voluntarily joining another party, as people do with increasing frequency these days. Some provision should be made for such circumstances, although few parties would be enthusiastic about invoking it, because it would increase the risk of legal proceedings on the expulsion of a candidate in the first place—the Labour party has much recent experience of such proceedings—and the party might not want to face the expense of a by-election. Certainly, most members of the public would think it ridiculous if someone could benefit from his position as next on a party's list, if he had chosen, openly and freely, to leave that party. However, in general, it would seem sensible to use the system set out in the Bill as the means of filling casual vacancies.

6.45 pm

Miss McIntosh

I need not detain the Committee by explaining why it has not been deemed appropriate for me to cause a by-election. I merely point out that I follow a long and distinguished tradition, as the 19th Member of Parliament to have performed the onerous duties of dual representation. Indeed, many distinguished hon. Members who have found themselves in the same circumstances are now serving on the Front Benches.

We have seen the Home Secretary briefly this evening, but he is not present for the debate on these amendments. I hope that the Government will keep an open mind on continuing to hold by-elections. The same points that were made about the Government's choice of a closed rather than an open list, and about their rejection of the current system under which Members of the European Parliament are elected, are relevant. The purpose of a by-election is to maximise voter choice and to elect the candidate of the voters' choice at the time that the by-election is held. By-elections also test the popularity of the parties at the time, but the proposed system could reflect their position some three or four years earlier.

I do not have much sympathy with the argument made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), that by-elections should not be held to save taxpayers' money, although that point greatly preyed on my mind in my own circumstances. The abolition of by-elections would have the same effect as the proposed closed list and give total control over decision making to the party hierarchies, not electors. I hope that the Government understand that Conservatives stand for democracy. We believe that the electors should decide, not party hierarchies. I hope that the Government will keep an open mind, especially on amendment No. 19, which would allow the name of each candidate to appear on the ballot paper. I hope that the Government will accept it.

Mr. David Ruffley (Bury St. Edmunds)

I support the amendments, because they draw attention to the profoundly undemocratic spirit of the Bill. The Home Secretary has spoken in unusually condescending and patronising terms of the electorate's inability to distinguish between candidates. He has said that ethnic minorities and women would be disadvantaged by anything other than a closed list system. However, those are deeply anti-democratic tendencies. If the Government chose not to hold a by-election, as provided for in schedule 2, they would compound the bad effects of a bad Bill.

I support my hon. Friend the Member for Vale of York (Miss McIntosh) in pleading with the Minister to give the Committee some comfort and say that Ministers will keep an open mind. Those members of the public who are following these proceedings will see in the passage of the Bill a profoundly undemocratic process at work. Given Ministers' commitment to newness, modernity and democracy, I am sure that they will want to think again about the contents of schedule 2.

Mr. Gill

I rise to support amendment No. 18. If the two lines concerned are not removed from the Bill, this will be the most anti-democratic feature of a Bill already anti-democratic enough. The Committee fails to appreciate sufficiently that democracy in this country depends on people promoting others to represent them in the House of Commons or, in this case, the European Parliament. The Bill's statement that there may be circumstances in which vacancies will not be filled by election creates a dangerous precedent. The people are cut out of the equation altogether and the vacancies filled by the parties. That will lead inevitably to something that we have not seen in British politics before: corruption.

If the people do not have the ultimate sanction of voting out of office someone whom they regard as unsatisfactory or corrupt, such people cannot be removed. Under the schedule, it is possible for the parties continually to promote someone whom the electorate would not vote for because of such considerations. It is wrong that the electorate's opportunity to fill vacancies at by-elections will be removed in that way.

A vacancy may under these arrangements be filled by people whom the electorate have already rejected or who are unacceptable but who are parachuted in. That cuts across the spirit of our democracy. The voters must be the final arbiter in such matters, and the House and the parties must not remove that ability. This is a question not of the convenience of the House or politicians or of the convenience of and expense to parties but of allowing Britain's electors to retain their democratic right to be represented in whatever forum by people on whom they have had an opportunity to express some judgment. They should not have to be represented by someone on whom they have had no opportunity to express an opinion. The measure turns democracy on its head. It is anti-democratic and for that reason, I support the amendment.

Mr. Collins

In supporting the amendments, I note the extraordinary conversion of some parties on by-elections. I welcome the hon. Member for Wirral, South (Mr. Chapman) to the Committee. He won a famous by-election victory just over a year ago. He will remember in the first days of 1997 sitting alongside the present Deputy Prime Minister saying that it was a democratic abuse that the then Prime Minister had not called the by-election. The then Prime Minister went on to call it, but the party of the hon. Member for Wirral, South no longer favours by-elections.

Even more extraordinary was the proposition of the Liberal Democrats, who have bored the pants off the entire planet for the past 30 years about victories in council and parliamentary by-elections. They now say that they do not want by-elections to the European Parliament. We understand why: they have never won a European by-election and know that they never would. That is why they want to abolish them.

Mr. George Howarth

The hon. Member for Hertsmere (Mr. Clappison) and I have one thing in common: we have both fought by-elections. I was fortunate enough to win, and while it was unlikely that he could ever have won Bootle, he found another entry into the House.

Mr. Clappison

I fought it twice.

Mr. Howarth

Indeed, the hon. Gentleman fought it twice.

There is a fundamental misunderstanding, exemplified by the hon. Member for Westmorland and Lonsdale (Mr. Collins). There is a difference between the utility of by-elections for this Parliament and their utility for the European Parliament. The purpose of the regional list system is to provide an element of proportionality in respect of votes cast for a party and the number of seats won. The Bill provides for the possibility of vacant seats being filled without a by-election, to preserve that element. A by-election for a single seat in a region would be won by the party with the greatest electoral strength there, irrespective of whether it had held the vacant seat. A by-election would disturb the element of proportionality that the regional list system brings to the result of the election. That would be unfair to the smaller parties. That is the difficulty with the amendments.

We want a proportional system for the European elections that reflects the different strengths of parties and different views across regions. A by-election held by any means imaginable would not fit the bill. Amendments Nos. 17, 18 and 19 would undermine that principle.

Amendment No. 19 refers to ballot papers for by-elections. It is customary that the same ballot papers are used for general elections and by-elections. As the Government have not confirmed that the ballot paper for general elections will include candidates' names, it would be foolish to include a provision specifically for by-elections in respect of an issue that has not yet been decided for general elections.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich)

Does my hon. Friend agree that an electoral system without sufficient faith in the electorate to decide their representatives in a by-election must have a fundamental flaw?

Mr. Howarth

If we were dealing with a first-past-the-post, constituency system, my hon. Friend would have a point, but we are dealing with a proportional regional list system for the European Parliament. I could accept the premise of her argument only for a different set of circumstances.

I ask the hon. Member for Hertsmere not to press the amendments. They are conceived with a mindset that relates to first-past-the-post Westminster elections. They do not take account of the different arrangements that we propose. I ask him to accept that the amendments are inappropriate for our proposed regional list system.

Mr. Clappison

I have listened carefully to this useful debate. I am not convinced by the Minister's response. My hon. Friend the Member for Ludlow (Mr. Gill) made an important contribution on the principle involved. The proposal has not only been introduced in a chaotic way; it is bad in principle.

My hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) struck the nail on the head when he said that the guiding principle of Liberal Democrat politics is to do whatever is convenient for the Liberal Democrat party. I was surprised by the comments of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) about my hon. Friend the Member for Vale of York (Miss McIntosh). They were not gallant. I do not recall the Liberal Democrat party taking such a purist approach to the necessity for holding by-elections when the previous Member for Torridge and West Devon joined the Liberal Democrat party. The Liberal Democrats must have had a serious argument about the necessity of by-elections. The problem was presumably overcome by the sort of chivalry that the right hon. Gentleman has just displayed and the natural charm and affability of the lady who then represented Torridge and West Devon.

We are not convinced by the Government's arguments. The schedule, instead of being tucked away as a minor and consequential amendment, should have been headed "Mistrust of the People". It is saying that the Government do not trust the people and would rather leave the matter to party bosses and lists, to shuffling around in back rooms under party control. That is a system that we abhor. However, although I have been less than convinced by the Minister's response, in view of the lateness of the hour and the need to make progress, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 40, in page 9, line 30, leave out 'and'.

No. 41, in page 9, line 32, at end insert— '(c) for sub-paragraph (4) substitute—

"(4) If a person who is disqualified under this paragraph for the office of MEP is returned as an MEP under—

1. (a) section 3, or
2. (b) regulations made in accordance with paragraph 3(1), his return shall be void and his seat vacant.

(4A) If a person who is disqualified under this paragraph for the office of MEP for a particular electoral region is returned as an MEP for that region under—

1. (a) section 3, or
2. (b) regulations made in accordance with paragraph 3(1), his return shall be void and his seat vacant."; and
3. (d) in sub-paragraph (5), for "elected" substitute "returned".'.

No. 42, in page 9, leave out line 34 and insert— '(2) For sub-paragraph (1) substitute—

"6.—(1) Any person may apply to the court for a declaration or, as the case may be, a declarator that a person who purports to be an MEP—

1. (a) is disqualified, or
2. (b) was disqualified at the time when, or at some time since, he was returned as an MEP under section 3 or under regulations made in accordance with paragraph 3(1).

(1A) The decision of the court on an application under this paragraph shall be final.".'.—[Mr. George Howarth.]

Schedule 2, as amended, agreed to.