rose to move that an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 June, be annulled (SI 2008/1647).

The noble Lord said: My Lords, I am not an ardent Euroenthusiast, but nor am I an extreme Eurosceptic. I am not in favour of a United Kingdom withdrawal from the European Union, for example, and I could perhaps be persuaded to look again at the single European currency, although I confess that I think that many European institutions, especially the Commission, need reform. However, those are matters for another day. I mention them only to make it clear that my Motion tonight is not a ritual exercise in Eurobashing. I have a number of questions about the regulations to which my Prayer refers, which I hope that the noble Lord, Lord Bach, will be able to reply to in due course. I am grateful to him for coming to the Dispatch Box this evening; incidentally, I warmly congratulate him on his new appointment.

The purpose of the regulations is to disallow life Peers in your Lordships’ House from sitting or voting if they become Members of the European Parliament. They apparently emanate from a decision of the European Council of Ministers, and we are obliged to pass them into law—an obligation that we long ago accepted, wisely or not. However, since when was an assembly or parliament in another state entitled to say who should be Members of your Lordships’ House? I suppose that it is open to the European Parliament to receive a Member of your Lordships’ House but, to put it the other way around, to interfere with our national selection of who should be Member of this House seems an altogether different matter. They can say who they want in their parliament, and surely we should say who we want in ours.

The Merits of Statutory Instruments Committee has been unusually scathing about these regulations. Your Lordships will have seen its report, which says:

“Under these Regulations, MEPs will join aliens, bankrupts, those under 21 and those convicted of treason as the groups disqualified for membership of the House”.

It goes on to say that, in a little while, judges will apparently be disqualified for some other reason. What a very distinguished group that will be.

One of the idiosyncrasies of the regulations, referring as they do to life Members of your Lordships’ House, is the exclusion of hereditary Members. It would seem that, while all the life Peers in this House will, when the regulations come into force, not be able to sit in this House if they become Members of the European Parliament, I and the rest of the hereditary Peers will not be so excluded. Incidentally, nor will the Bishops; how many Bishops are planning to stand for the European Parliament, I could not say, but they will not be excluded from doing so if they so choose.

I do not necessarily disagree with the proposition that membership of two assemblies or parliaments is not a particularly good thing. However, that is surely a matter for the candidates who seek such election and, above all, those who are asked to elect them, or otherwise, when they come before the electorate. Membership of the House of Lords with Membership of the European Parliament is perhaps a difficult juggling act. I know that there are currently at least two or three Members of your Lordships’ House who are also Members of the European Parliament; I can see one or two of them around me as I speak. I offer no view as to whether that is a good thing or a bad thing. It is a matter for the noble Lord or noble Baroness concerned and those by whom they seek to be elected.

I end with two questions. First, on hereditary Peers, am I right in thinking from my reading of the regulations that hereditary Peers are indeed not treated in the same way as life Peers?. If that is the case, why not? Secondly, the recent appointment of the noble Baroness, Lady Ashton of Upholland, as a commissioner has been widely applauded; not least, if I may so, by me. However, under present arrangements, will she remain an active Member of the House, or will she take Leave of Absence? There is one—

My Lords, I did not mean to interrupt the noble Lord. I can answer this question now: my noble friend is due to take leave of absence almost as we speak.

My Lords, I am interested to hear that. There is one precedent. I think I am right in saying that the late Lord Cockfield was also a commissioner and a Member of this House. I confess that I cannot remember whether he took Leave of Absence or not. If the noble Baroness has decided to, and the late Lord Cockfield did likewise, that is entirely appropriate.

However, there are a few “i”s undotted and “t”s uncrossed in these regulations. The Government will presumably in due course produce a response to the Merits Committee, which has, as I say, been so scathing. They will no doubt have to consider carefully in preparing their response to that criticism. It is perhaps a little unfortunate that that careful consideration did not come before the regulations were placed rather than afterwards, but the Minister will no doubt explain that. In the mean time, I beg to move.

Moved, That a Humble Address be presented to Her Majesty praying that the Regulations, laid before the House of 24 June, be annulled (SI 2008/1647). 24th Report from the Merits Committee—(Lord Trefgarne.)

My Lords, I, too, begin by welcoming the noble Lord, Lord Bach, to his position. That exhausts the positive comments I shall make this evening.

I support my noble friend Lord Trefgarne in praying against the regulations. The Government have got themselves into a mess by agreeing to something that they should not have agreed to, and have now sought to correct the situation as it affects this House by bringing forward regulations that are palpably deficient.

When the 2004 regulations giving effect to the ban on the dual mandate were going through the House, I was the only person to rise, albeit briefly, and question the justification for them. The ban on the dual mandate is, to my mind, an infringement of the freedom of choice of electors. It is for electors to decide who they wish to represent them. If they wish to send the same person as their representative to Westminster and to Brussels, then it is a matter for them. It may be that the person is not able to do both jobs, but that is a matter for electors, not for the Council of Ministers. If the electors of Northern Ireland, for example, did not wish Ian Paisley to sit in the House of Commons and the European Parliament, the remedy was in their hands.

I therefore object to the ban—but we now have it. However, as we have heard, it creates a problem that is peculiar to this House. The Government have sought to address the problem through these regulations. However, as my noble friend has explained—and is abundantly clear from the report of the Merits Committee—they are deficient.

They are deficient in three respects. First, as we have heard, they apply only to life Peers. I looked at the Explanatory Memorandum to find a justification for confining the regulations to life Peers. The only justification appears to be in paragraph 7, which refers to life Peers and states in parenthesis,

“who are unable to resign their peerage”.

The hereditary Peers sitting in the House are unable to resign their peerages. Why, then, the discrimination? It appears that the regulations may have been drafted by someone who is unaware of the provisions of the Peerage Act 1963 as they affect hereditary Peers.

Secondly, the regulations inject a subsection which appears to be superfluous. Paragraph 4(1)(a) disqualifies a life Peer who is elected as an MEP from sitting or voting in the House of Lords. Paragraph 4(1)(b) then extends the disqualification to sitting or voting in a committee of the House of Lords, or a Joint Committee of both Houses of Parliament. Perhaps the Minister could explain how, if one is disqualified from sitting in the House of Lords, one could be considered for serving on a committee of the House.

Thirdly, as we have heard, the regulations are deficient in respect of the Writ of Summons. If one is elected as an MEP a year or so after the start of a new Parliament, one is already in receipt of a writ and paragraph 4(2) can only take effect two or three years later when a new Parliament is summoned.

In short, there are few parts of the regulations which are not deficient. Regulation 5 appears to raise no problems, but Regulations 3 and 4 are fundamentally flawed. I trust that the Minister will therefore withdraw the regulations and come back with one that, following consultation with the relevant authorities as recommended by the Merits Committee, is drafted in such a way as to pass muster.

My Lords, I would like to address a couple of points raised by this Prayer. First, is it reasonably justified for the European Parliament to have taken the view, and to have persuaded the member states of that view, that the dual mandate is incompatible with an effective European Parliament? Other noble Lords, such as the noble Lord, Lord Kingsland, know far more about the European Parliament than I do, but I believe that it is entirely justified. The work of the European Parliament has increased a great deal over recent years and is still increasing. It is basically a full-time job. It is right that the member states have recognised that by saying that the dual mandate is no longer acceptable. I am sure that constitutional arguments on that point can be raised by the noble Lord, Lord Norton, but I merely ask whether it is reasonable for the European Parliament and the collectivity of the European Governments to conclude that they want full-time Members of the European Parliament. I answer that with a certain and resounding yes. Probably no parliament has suffered more from dual, treble or quadruple mandates than the European Parliament did in its early years, with people coming in for a very brief time, then going away again and treating it with little respect. Therefore, I think that the move to ban the dual mandate was absolutely right.

Then there is the question of its impact on Members of this House. On that I merely say that I think the case has been rather misrepresented. The regulations do not exclude somebody from this House permanently, as it were; they merely exclude them temporarily while they are Members of the European Parliament. They do not prevent them becoming a Member of this House again when the fixed period leave of absence, which after all is only a very minor change to the existing rule on leave of absence, comes to an end. Therefore, I consider that it is entirely reasonable for the Government to have acted in this way.

I do not want to enter into all the details of the drafting. The two large issues are: is the European Parliament right in thinking that it needs to have full-time Members and is it reasonable that a Member of this House who wants to become a Member of the European Parliament should be able to do so while conforming to the rules laid down by the European Parliament? I answer yes to both those questions and no to the Motion that has been moved.

My Lords, before the noble Lord sits down, may I ask him why he adopts such a cavalier approach to the view of the electorate in this matter?

My Lords, I am not adopting a cavalier approach to anyone, least of all, unlike the movers of this Motion, to the European Parliament.

My Lords, I do not expect that the argument advanced by the noble Lord, Lord Hannay, about people abandoning Europe before their term of office is completed will be advanced from the Front Bench today for obvious reasons. Frankly, I am rather puzzled. I am very grateful to my noble friend Lord Trefgarne for raising this matter. I do not propose to repeat any of the arguments that he and my noble friend Lord Norton of Louth have advanced. However, it seems to me that there is a very important constitutional issue here. When I heard the noble Lord, Lord Mandelson—of Foy and wherever else it is—being sworn into this House this very week, I did not hear any exclusion from Her Majesty in respect of membership of the European Parliament or any other matter. That is quite extraordinary. Is this principle to be applied by the Government? Do the Government now feel that people should not be able to be Members of this House for life and to carry out their duties in this House for life if they are members of other assemblies?

I am amazed that the noble Lord, Lord Foulkes, is not participating in these proceedings. Are we to be told that the European Parliament uniquely is different from the Scottish Parliament? Why is it possible for a Member of this House to vote and speak in this House and be a Member of the Scottish Parliament but not the European Parliament? What of the promise set out in the writ that each of us received as life Peers? This is another example of this Government messing around with our constitution, creating anomalies and long-term difficulties which have not been thought through. The Government are, of all people, the victim of ill-thought-out constitutional change north of the border. On that specific point, I ask the Minister, do the Government now have a general principle that Members of this House cannot speak and vote if they are members of other legislative bodies?

My Lords, there are problems as regards the argument expounded by the noble Lord, Lord Forsyth. The problem has its roots in the failure of this House to reform itself. Once we came up with the compromise nearly a decade ago, we were bound to be left with rough edges and compromises. I always look to one of my great political heroes, George Woodcock, who said that good trade unionism was a series of grubby compromises. Once we had baulked at really reforming this House, we were going to be faced with a series of grubby compromises.

However, the noble Lord, Lord Norton of Louth, is trying to take us back to a decision the House has already taken. We have taken a decision on dual mandate. I am sure that some of the contradictions exist as regards other assemblies that both he and the noble Lord, Lord Forsyth, pointed out. However, the fact is that that matter has not been decided as regards dual mandate from other assemblies. Dual mandate as regards the House of Lords has been agreed by Parliament, and now we are looking at the consequences of that.

I am well aware that members of my flock come within the ambit of this. However, I can say with my hand on my heart that, wherever this applied I would think that it was a sensible way forward. As has been pointed out, it allows other members to make that decision in the future.

I also read the report by the Merits of Statutory Instruments Committee. I am growing fonder and fonder of the Merits of Statutory Instruments Committee, because its ability to bite the ankles of Ministers gives me great pleasure. I look forward to the Minister’s response to the report. The noble Lord talked about dotting the “i”s and crossing the “t”s; the “i”s and “t”s have been left alone. As I said before, that is perhaps part of the problem of dealing with this House, in which the noble Lord, Lord Norton of Louth, has been chief on stalling on proper reform. Therefore, we will have to make do and mend as we go along.

My Lords, the noble Lord is not addressing the issue that we raised. The problem is not the principle that is embodied in the order; the drafting of the order is the problem. I accept that the ban on the dual mandate is now a fact, but it creates a particular problem for this House, which the order seeks to correct. The problem is in the drafting of the order. The order is deficient; not the principle that underlies it.

My Lords, that is why I look forward with more expectation and eagerness than usual to what I am sure will be a very complete ministerial reply.

My Lords, I congratulate my noble friend Lord Trefgarne on bringing this important matter to your Lordships’ attention in his characteristic style. My noble friend rightly drew your Lordships’ attention to the 24th report of the Merits of Statutory Instruments Committee, HL Paper 136, dated 3 July 2008. It makes some extremely adverse observations on the regulations.

It is the regulations that we are asked to focus on tonight, rather than the principle that lies behind them. I listened with interest to the exchange between my noble friend and the noble Lord, Lord Hannay, about the merits and demerits of a dual mandate. Much as I would like to get into that tonight, it is not germane to the issue that the House has to confront. I hope that my noble friend and the noble Lord will excuse me if I do not trespass into that disputatious territory.

The judgment of the Merits of Statutory Instruments Committee is that the regulations are drawn to the special attention of the House on the ground that they may inappropriately implement European Union legislation; which is exactly what they do. One of the observations made by my noble friend Lord Norton of Louth concerned paragraph 4(2) of the regulations, which refers to Writs of Summons. It states:

“No writ of summons shall be issued to a life peer while disqualified under this regulation”.

My noble friend colourfully and effectively explained that that is nonsense; because it is much more likely than not that a European election will not coincide with a new Parliament. Every Peer must be issued with a Writ of Summons before he or she can come to your Lordships’ House. Halfway through, there may well be an election to the European Parliament, in which a particular Peer translates from your Lordships’ House to the European Parliament; but the Writ of Summons will still have been issued. There is nothing that your Lordships’ House, another place, this Parliament or the European Parliament can do about it. It is not just sloppy drafting, but sloppy thinking by the Government.

In fact, the Government could probably have avoided all this, had they taken the following advice from the Merits of Statutory Instruments Committee:

“We asked the Government whether they consulted the House authorities or any Committee of the House (Privileges or Procedure), before making this instrument and they confirmed that they did not. We consider that unfortunate. While the principle of the policy is non-negotiable, there is scope for implementing the disqualification in a variety of different ways and the House should have been consulted on the options”.

The Writ of Summons is an absolute classic example of that. There were disputes in the 17th century between Charles I and the Committee for Privileges of your Lordships’ House precisely about the Writs of Summons. The last word was had by the Committee for Privileges. What are the Executive doing interfering in the issue of Writs of Summons? It is not the Executive’s business; it is the business of your Lordships’ House, through the Committee for Privileges. Here is another example of sloppy thinking by the Government.

Given those last few words that I quoted about there being other ways of implementing the disqualification, we know that the Government are concerned about the possibility that if an hereditary Peer is disqualified it would reduce the number of hereditary Peers in your Lordships’ House by one for the duration of a European Parliament, and there might be clamour by the hereditary Peers. I am sure that there will not be; but I suspect that it lies in the Government’s mind that that could occur.

My Lords, there would indeed be a clamour—from me.

My Lords, that was a completely unrehearsed intervention by my noble friend. There is a simple solution to this problem. All that your Lordships need to do is alter our Standing Orders, whereby any of your Lordships, whether in origin life or in origin hereditary, could stand down for five years. That would have exactly the effect that the regulations have but would at the same time incorporate the hereditary Peers.

My understanding is that the Government are opposed to the Standing Order procedure because they say that Standing Orders of your Lordships’ House are not law and could be changed by the House, although most of them have not been changed for several centuries. Moreover, your Lordships could give a commitment in the Standing Order not to change it for five years.

The philosophy that lies behind the Government’s objection is even stranger. Our constitutional freedoms are based, not on laws, but on constitutional conventions. If only the law of the constitution were considered, we would still be a crown dictatorship. It is only constitutional conventions, such as ministerial responsibility, that make this country and this legislature democratic. If you stripped away the conventions, we would be a country that could not possibly successfully apply to be a member of the European Community or remain one if we were already a member. At least the Standing Orders have the merit of being written down. None of the constitutional conventions is written down anywhere. The Government’s thinking on the inappropriateness of Standing Orders is, frankly, bankrupt.

I could dwell on other issues, but your Lordships will be relieved to hear that I shall not. One of them is the non-discrimination clause in Article 14 of the European Convention on Human Rights, which refers to differentials in status. The Government have not had to make a statement about the European Convention on Human Rights, as they point out in the Explanatory Notes, because that is not required by the 1998 Act. However, it would be interesting to hear the Government’s view on whether they believe there is a breach of the convention.

My Lords, the noble Lord, Lord Kingsland, is as good a lawyer as anyone. What does he have in mind? Article 14 of the European convention is triggered only if it is linked to another convention right. Which convention right has he in mind?

My Lords, I concede to the noble Lord that that is true; but I was not asking him the question, I was asking the Government.

My Lords, will the noble Lord, Lord Kingsland, come clean and say that he was hoping that no other human rights lawyer would be present in the House?

Not at all, my Lords. I have always been extremely relaxed about the European convention, although I have had my moments of drama regarding the Act.

Finally, my noble friend Lord Forsyth made an observation about the noble Lord, Lord Mandelson, and the European Commission. I quote the diplomatic correspondent of the Times, Bronwen Maddox, from her article on 9 October 2008. She wrote:

“Baroness Ashton of Upholland spent her first day as European Trade Commissioner yesterday after the Council of Ministers waved away the potential obstacle of her membership of the House of Lords. Brussels commissioners are not allowed to hold any public office but the chief Commission spokesman, Johannes Laitenberger, said that was ‘fully in line with the rules’ for Ashton to remain a peer (while taking leave of absence from the Lords). He said: ‘A life peerage is an honour, not a job’”.

If a life peerage is an honour, not a job, then a hereditary peerage is certainly an honour, not a job. If the noble Lord, Lord Bach, is not inclined to accept my observations about Standing Orders, he has another way out.

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.

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?

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.

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.

My Lords—

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.

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 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.

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?

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.

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.

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.

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 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?

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.

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?

Yes, I can, my Lords.

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?

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.

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.

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.

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.]