The European Parliamentary Elections Act 1999 ('the Act')is

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1 Eurpean Parliamentary Electins Act 1999: the cnstitutinal issues by Gabriele Ganz In this article, Prfessr Gabriele Ganz f Suthamptn University writes abut the passage thrugh Parliament f the Bill preceding the Eurpean Parliamentary Electins Act 1999, which received Ryal Assent n 14 January 1999, and argues that it raises tw fundamental cnstitutinal issues: first, the vting system chsen fr electins t the Eurpean Parliament and, secndly, the rle played by the Huse f Lrds n the eve f the refrm f its cmpsitin. The Eurpean Parliamentary Electins Act 1999 ('the Act')is nly the secnd ne t becme law under the Parliament Act Unlike its predecessr, the War Crimes Act 1991, the Bill was freshadwed in the Labur Party manifest f 1997, althugh nt the precise vting system. It was nt, hwever, fught n purely party plitical lines. There was cnsiderable ppsitin within the Labur ranks in the Huse f Cmmns and, thugh the vtes in the Huse f Lrds culd nt have been wn withut the supprt f hereditary peers, they als culd nt have been wn withut crss-party1 supprt and help frm the crss-benches. Earl Russell, a Liberal Demcrat peer, said, 'It is nt a representatin f the peple Bill; it is a representatin f the parties Bill', and it was claimed that the unelected peers were prtecting the pwer f the electrate. Nevertheless, the unprecedented cnfrntatin between the Huse f Cmmns and the Huse f Lrds, culminating in the use f the Parliament Acts had zer effect. The gvernment gt the Bill passed intact in time t prepare fr the Eurpean parliamentary electins in June The Act thus prvides a textbk illustratin f the dminance f the Executive ver the Legislature. Whether a refrmed Huse f Lrds wuld have led t a different result is an pen questin. CLOSED LIST SYSTEM The stry starts with the Labur manifest f 1997, which stated: 'We have lng supprted a prprtinal vting system jr electin t the Eurpean Parliament.' The brevity7 f this prmise, which did nt mentin a specific vting system, was t play an imprtant part in the cnfrntatin with the Huse f Lrds. Interestingly, the Bill was nt included in the Queen's Speech but was brught frward fllwing persuasin by the Liberal Demcrats. Truble started befre the Bill was even published, in Octber 1997, ver a cde f cnduct gagging Labur MEPs frm discussing publicly the new selectin prcedure fr MEPs. Criticism by the ppsitin parties as well as rebel Labur MEPs greeted publicatin f the Bill, which prvided fr the 'clsed list' system f prprtinal representatin. The cuntry is divided int electral regins (nine in England, and ne each fr Sctland, Wales and Nrthern Ireland, s. 1 substituting s. 2 f 7 ' the Eurpean Parliamentary Electins Act 1978) and the number f seats allcated fr each regin is laid dwn in the Bill (i.e. 71 fr England, 8 tr Sctland, S fr Wales and 3 fr Nrthern Ireland, new s. 2(4); Sch. 1 sets ut the number f seats allcated fr each English regin). The vter in each regin can vte either O O ' O fr a registered party r fr an independent candidate. Hwever, the seats allcated t a party are filled frm the party's list in the rder in which they appear n the list. In ther wrds, the vter cannt shw a preference fr any candidate n the list, but nly vte fr a party; nt an individual, unless they are standing as an independent. This raises the fundamental issue f what electins are fr. Althugh the basic divisin f pinin between thse wh supprt 'first past the pst' in preference t prprtinal representatin frmed an undercurrent in the debates, as sme f the prtagnists penly declared, it was cnceded by the ppsitin that prprtinal representatin was a manifest cmmitment and had t be accepted as such, particularly in the Huse f Lrds. The Liberal Demcrats, in principle, supprted a different system f prprtinal representatin, namely the single transferable vte, but did nt think it was apprpriate in the circumstances f these electins. The debate was thus narrwly fcused n whether the system shuld be ne f pen r clsed party- lists. In the frmer the vters can chse the candidate they prefer frm the list, while in the latter the rder is determined by the party' (a system used by the majrity f Eurpean vters). The higher a candidate's psitin n the list, the better are his r her chances f electin. The gvernment argued that clsed lists wuld give a better chance f electin t wmen and ethnic minrity candidates, Amicus Curiae Issue 18 June 7999

2 and thse with a particular expertise, and that vters wuld nt have much knwledge abut individual candidates in cnstituencies the size f regins as envisaged in the Bill. It was als reiterated that a candidate in an pen list system culd be elected with fewer vtes than a candidate wh was nt elected. This wuld nly have been true as between candidates n the list f different parties, nt f candidates n the same party7 list, under the pen list system prpsed in the ppsitin amendment, which was successful in the Huse f Lrds. Under this amendment the vter wuld vte fr an individual candidate n a party list, r an independent candidate, and the ttal vte fr all the candidates f each party wuld determine the vte fr that party and thus the number f seats, which wuld be allcated in accrdance with the number f vtes each candidate received. The argument in favur f giving the vter a chice f candidate is the classic argument f accuntability. As Earl Russell put it, perhaps t simplistically: 'All members f elected assemblies... will try t please thse Jrm whm their title t sit cmes.' Open lists wuld enable the vter t get rid f unppular candidates and, cnversely, t decide between different candidates n the basis f mral and ethical questins such as capital punishment. Hwever, this argument begs the questin f whether MPs' primary lyalty is nw t their party rather than t their cnstituents r their cnsciences. Withut dubt, the clsed list system tightens the grip f party lyalty. This grip is tightened even mre depending n the way in which the party lists are cmpiled. This is nt dealt with in the Bill but is left t the plitical parties t decide. It was, hwever, very germane t, and much canvassed in the debates n, pen r clsed lists. We have already referred t the prblems f Labur MEPs ppsed t the new selectin prcedure. Each party' has adpted different prcedures fr cmpiling its party' lists. The crucial issues are wh in the party decides whether candidates get nt the lists and the rder in which they appear n the lists. The Liberal Demcrats and Cnservatives allw party members t determine the rder f candidates n the lists, subject in the case f the Cnservatives t prir vetting by a panel f lcal party chairmen. Labur adpted a cmplicated prcedure which invlved a ballt f party' members at the first stage, but left the crucial decisin f wh shuld g n the final lists and the rder in which they are listed t a panel cnsisting f members and nminees f the Natinal I Executive Cmmittee and reginal representatives f the party. This puts enrmus pwer int the hands f the party' leadership ver wh will be elected and this will strengthen their party lyalty rather than their independence. During the secnd reading debate in the Huse f Cmmns in Nvember 1997, the Hme Secretary, Jack Straw, under pressure frm the Liberal Demcrats and the cnstitutinal refrm grup Charter 88, agreed t give further cnsideratin t the pen list system used in Belgium. He placed an explanatry paper in the library f the Cmmns and cmmissined research frm NOE Thugh it was sn rumured that the clsed list wuld remain, Mr Straw did nt annunce his rejectin f the Belgian system until a late stage f the Bill, in March At the reprt stage he gave in detail the reasn why the Belgian system shuld be ppsed (namely, that under the Belgian system where the vter can vte either fr the party- r an individual n the list, it is pssible fr a candidate wh is higher n the list t be elected with fewer vtes than O smene lwer dwn because f the way the quta is allcated). ROLE OF THE HOUSE OF LORDS When the Bill was debated fr the first time in the Huse f Lrds, in April 1998, there was much ppsitin acrss the plitical spectrum t the clsed list system. This was a fretaste f things t cme. Strangely, the cnfrntatin between the tw huses tk anther six mnths t materialise. Althugh a Cnservative amendment prpsing the pen list system, which was finally successful in the Huse f Lrds, was first put frward in June 1998, it was nt put t the vte because it was getting late. At reprt stage it was mved again but nt put t the vte, n the grunds that it wuld nt have received enugh supprt. It was nt until the third reading n 20 Octber 1998 that the amendment was passed fr the first time by a majrity f 25. This vte began the game f ping-png which sent the Bill back and frth between the tw Huses fr an unprecedented five times. Was this 'a whlly imprper abuse f pwer' by the Huse f Lrds, which was nly made pssible by enlisting the aid f hereditary peers, r were the unelected peers acting as a bulwark f demcracy by using the pwers given t them by the Parliament Acts? The truth lies smewhere between these tw extremes. Was the Huse f Lrds Acting uncnstitutinally? The Salisbury Cnventin, evlved in 1945 by the then leader f the ppsitin in the Huse f Lrds, states that the Huse f Lrds may amend, but nt reject r wreck, a Bill cntained in the gvernment's manifest. Lrd Mackay, the ppsitin spkesman in the Huse f Lrds, expressly denied breach f this cnventin because the manifest nly cntained a pledge t intrduce prprtinal representatin fr Eurpean electins but said nthing abut the vting system t be adpted. The Lrds were nt rejecting the Bill at secnd reading, as happened in the War Crimes Bill, nr were they passing a wrecking amendment because it did nt remve prprtinal representatin frm the Bill. The Lrds, by their amendment passed n 20 Octber 1998, were asking the Cmmns t think again. What was unprecedented was that the Bill was batted back and frth between the tw huses five times. It was alleged by ne peer that n Bill ver the past 30 years had been amended bv the same amendment mre than twice. It was, f curse, nt the same amendment which ping-pnged five times between the huses. The rules f the game were the subject f a brief exchange between Lrd Carter, the Labur Chief Whip and Viscunt Cranbrne, then the ppsitin leader in the Huse f Lrds, when the Lrds insisted n their Amicus Curiae Issue 18 June 1999

3 amendment after its rejectin by the Cmmns. Lrd Carter put it succinctly when he said, 'They [the Cmmns] cannt insist n it again. They have t prduce an amendment in lieu'; therwise the Bill wuld be lst. The Cmmns did pass an amendment in lieu, namely prviding fr a review f the peratin f the system t reprt t Parliament within six mnths. This did nt satisfy their lrdships because the electins wuld still be held under the clsed system and there was n guarantee that a review which was unfavurable t this system wuld be implemented. The Cmmns tried again with a secnd amendment in lieu by adding a new sub-sectin t the first amendment, spelling ut that the review must cnsider hw the pen list might affect the result f an electin. This was derided as 'nt even a crumb frm the rich man's table' by the ppsitin spkesman in the Lrds. The Bill was sent back again t the Cmmns with the hpe f a substantial cmprmise. This was nt frthcming, but a third amendment in lieu prvided a new sub-sectin making the Secretary f State cnsult 'such persns appearing t him t be interested as he thinks apprpriate' befre appinting members f the review bdy. This was dne n the penultimate day f the sessin. A few hurs later it was cntemptuusly dismissed by the ppsitin spkesman in the Lrds as hardlv mving us n a millimetre. The 1 J O crunch came at 9pm, when the Lrds fr the fifth time insisted n their amendment and rejected the Cmmns' amendment in lieu by 212 tf 83 vtes, with the result that the Bill was lst in that sessin. Legitimate use f delaying pwer? Was this a legitimate use f the delaying pwer given t the Lrds by the Parliament Acts r a whlly imprper abuse f pwer? There was a time when the view was held by the leader f the Cnservative ppsitin in the Lrds that this pwer culd nly be used in mst exceptinal circumstances n a matter f utmst gravity and imprtance (see G Ganz, 'War Crimes Act Why n Cnstitutinal Crisis?' [1992] 55 MLR 87, 92). The issue f pen r clsed lists culd prbably nt have been s classified (Lrd Callaghan thught it was a secnd-level issue). Hwever, in the 1970s, a different view prevailed and the Cnservative ppsitin in the Huse f Lrds insisted n their amendments t the Trade Unin and Labur Relatins (Amendment) Bill in 1975 and the Aircraft and Shipbuilding Industries Bill in Nevertheless, Lrd Richard, the recently depsed Labur leader f the Huse f Lrds, was prbably right when he said: 'The ther side is ging t break the understanding that has arisen ver a number jyears under successive gvernments as t the circumstances in which this Huse shuld insist upn its psitin.' Kaleidscpe f interests The issue was, hwever, far mre cmplex than a simple cnfrntatin between the elected and the unelected huse, the elected huse against hereditary peers r a straightfrward party-plitical battle. There was a kaleidscpe f interests, ften self-cntradictry, which shifted as the cnflict reached its climax. Paradxically, the Cnservative party had nthing t gain frm defeating the Bill as they, as well as the Liberal Demcrats, were bund t win mre eur-seats under a system f prprtinal representatin. Sme f the inveterate Labur ppnents f the Bill had axes t grind such as being eursceptics and/r against prprtinal representatin. This was nt, hwever, true f thers wh defied their parties n sme vtes against the Bill but were strngly pr-eurpean and in favur f prprtinal representatin. Cnversely, sme peers wh supprted the gvernment cnfessed t being ppsed t prprtinal representatin. A number f peers spke f hw they changed sides as the cnflict with the Cmmns escalated and they were afraid bth f lsing the Bill and f frustrating the will f the elected huse. Earl Russell, a leading Liberal Demcrat, illustrated these cnflicting pressures mst pignantly when, n the third ccasin that the Huse f Lrds vted against the gvernment, he said he changed his mind five times befre finally deciding t vte against the gvernment nce mre. On the furth ccasin he did nt vte, but n the fifth and last ccasin, cnfrnted with the chice, as he saw it, f killing the Bill r giving in t the gvernment, he ended with the wrds f Lrd Hailsham in a similar situatin 'Let them have their silly way' and vted with the gvernment. Peers were nt alne in wrestling with their cnsciences; there was much ppsitin t clsed lists amng Labur MPs, and their speeches were gleefully quted by Lrd Mackay in the next debate in the Huse f Lrds. He especially relished the remark f ne Labur MP wh thught it dubtful 'that a majrity f the parliamentary Labur party7 is in favur f the clsed-list system'. His ppsitin t the clsed list system, hwever, cnflicted with his belief that the views f the elected chamber must prevail. He salved his cnscience by abstaining, but cheerfully predicted that the gvernment wuld get a majrity whatever the private view f the majrity f his clleagues. In the vte the gvernment had a majrity- f 182. The mral f the tale was drawn by anther Labur MP, Dr Jhn Marek, wh admitted that he wuld be dragned thrugh the gvernment lbby: 'What legitimacy des the elected chamber have in cmparisn with the unelected chamber whse members may, by and large, vte accrding t their wn judgment n the right curse f actin jr the cuntry?' Crucial rle f crss-benchers This statement is particularly true f the crss-benchers in the Huse f Lrds, wh d nt take a party whip and wh played such a crucial rle in the vtes n this Bill. Much play was made by the gvernment f the number f hereditary peers wh vted n each ccasin and that the ppsitin wn the vtes because f the hereditary peers. This claim leaves ut f accunt the rle f the crss-benchers, the majrity f whm are hereditary peers. Lrd Altn asserted that withut the vtes f crss- benchers the gvernment wuld have achieved their business n every ccasin. There was, hwever, a revealing remark by Lrd Mackay n the fifth rund in the Huse f Lrds, when he agreed with the minister that he was thinking, '... there are sme peple here I have never seen befre and [was] wndering wh they were'. This is an bvius reference t the 'backwdsmen' wh had been summned by the ppsitin t supprt them in the lbbies. With hindsight it is pssible t pick up clues in this last debate abut the tensins within the Cnservative party which were the backdrp against which this debate was held. Lrd Garel-Jnes refused t speculate in public abut 'the mtives f the Shadw Cabinet in inviting us t vte against the Gvernment yet again'. J Even mre significantly, the then leader f the ppsitin in the Amicus Curiae Issue 18 June 7999

4 Lrds cmmented immediately after the vte in which the gvernment was defeated: 'We are aware f the limitatins n the rights f this Huse... and I hpe that we will behave accrdingly when the Bill is reintrduced.' Tw weeks later Viscunt Cranbrne was dramatically sacked by the leader f the ppsitin, William Hague, fr making a deal with the gvernment behind Mr Hague's back which wuld have allwed 91 hereditary peers t be reprieved temprarily in return tr ppsitin peers nt bstructing the Bill annunced in the Queen's Speech t ablish the right f hereditary peers t sit in the Lrds. These events freshadwed the arrangements fr the subsequent passage f the Eurpean Parliamentary Electins Bill thrugh the Lrds, but, first, the Bill had t pass thrugh the Cmmns again in accrdance with the prcedure under the Parliament Acts. USE OF THE PARLIAMENT ACTS By the time the Bill returned t the Cmmns in the new sessin, the year which has t elapse between the first and last ccasins it is passed in the Huse f Cmmns, had already expired. The gvernment put befre the Huse a guilltine mtin which was alleged t be the mst severe that had ever been intrduced. It allwed nly fur hurs t debate the mtin and all stages f the Bill. Half f the available time was spent debating the guilltine mtin and the rest n the secnd reading debate, s n amendments culd be discussed. T cmply with the Parliament Acts, the Bill which is reintrduced must be the same as the frmer Bill except fr amendments agreed between the tw huses. Because f this prvisin the prpsal fr a review f the clsed list system, which was rejected by the Lrds, was nt included in the Bill n the secnd ccasin. There was, hwever, a change in the explanatry memrandum, because, since the passage f the Human PJghts Act 1998, the minister in charge f the Bill had t state whether the Bill cmplied with that Act. It was alleged by the ppsitin in the debate that the Bill was arguably in breach f art. 3 f the First Prtcl f the Eurpean Cnventin n Human Rights, which prvides fr the hlding f free electins. This can nly be decided by a curt. Cntrary t dire prphecies as t what wuld happen t the Bill in the Lrds, anther deal was agreed between the Cnservative peers and the gvernment abut the timetable fr the Bill, s that it culd becme law in January in time fr the Eurpean Parliamentary electins t be held in June under the new system. Instead f giving the Bill a secnd reading and then having a prtracted cmmittee stage, the ppsitin put dwn a reasned amendment declining t give the Bill a secnd reading because it included an undemcratic clsed list system fr which there was n mandate at the general electin. Paradxically, the passing f this amendment wuld help the gvernment by speeding up the passage f the Bill which culd becme law under the Parliament Acts after its rejectin fr the secnd time by the Huse f Lrds. Therefre, a vte fr the amendment was in reality a vte fr the Bill. The nly way ut f this dilemma was t abstain and this was the rute taken bv tw inveterate ppnents f the clsed list system, ne f whm nevertheless wanted the Bill t becme law and the ther f whm did nt. One peer abstained because he headed ne f the lists as prspective Cnservative candidate. As he put it succinctly: 'T vtejbr the Gvernment is prmting my candidature and, in the particular and peculiar circumstances f this evening, t vtejbr the amendment has the same effect.' Others wh spke passinately in favur f the Bill abstained, but mst speakers, in spite f the paradx, vted fr the secnd reading if they supprted the Bill r fr the amendment if they ppsed it. The 'serried ranks f the Cnservative Benches' carried the day by 167 t 73, and the Bill was returned t the Cmmns t be prepared fr the Ryal Assent. Lrd Strathclyde, the new leader f the Cnservative peers, taunted the gvernment with having suffered 'an unprecedented humiliatin' - n dubt with tngue in cheek. But neither was the defeat 'the death rattle f the ancien regime '. Sme hereditary peers were likely t be reprieved t fight anther day. CONCLUSION Is it a tale tld by an idit, full f sund and fury, signifying nthing? Why did the unprecedented game f ping-png with the Lrds yield n results at all? On tw previus cnfrntatins earlier in the sessin the Lrds had wn ntable victries: n tuitin fees fr English students at Scttish universities the gvernment prmised an independent review, which was accepted by the Lrds; in the case f lwering the age f cnsent fr hmsexuals t 16, the Lrds' defeat f the clause, which had been added t the Crime and Disrder Bill n a free vte in the Cmmns, led t the withdrawal f the clause by the gvernment with a prmise f new legislatin in the next sessin (which was again defeated in the Lrds). In each case there were special circumstances leading t a deal r climbdwn. The tw huses when in cnflict are engaged in a game f pker with each side trying t bluff the ther int climbing dwn. With hindsight the unprecedented cnfrntatin ver the Eurpean Parliamentary Electins Bill cannt be seen in islatin frm the battle ver Huse f Lrds' refrm which was ging n behind the scenes. We nw knw there were divisins in the Cnservative Party ver hw t handle this issue and that the leadership was ppsed t a deal and determined t face dwn the gvernment. The suspicin cannt be avided that this was a dress rehearsal fr the cming battle ver Lrds refrm s far as the Cnservative peers were cncerned. Having frced the gvernment t use the Parliament Acts, the gvernment was then handed the Bill n a plate, as a result f a deal negtiated with the Cnservative peers which cannt be divrced frm the prpsal t reprieve 91 hereditary members f the Huse f Lrds. As we have seen, hwever, ppsitin t the Bill was nt just a party plitical battle but received supprt acrss the plitical spectrum and frm crss-benchers and bishps. There was much heart-searching amng these peers abut frustrating the will f the elected huse, particularly when the cnfrntatin between the huses was reaching its climax,. It was the Earl f Amicus Curiae Issue 18 June 1999

5 Onslw, ready t act as a ftball hligan t further Lrds' refrm, wh pinted the mral when he said: '... this is a perfect example f why this Huse shuld be prperly refrmed. When it is prperly refrmed, we can use the pwers that we have with legitimacy and pride rather than be blackmailed because we are tld that we are all idits f hereditary Peers.' The Bill t ablish the right f hereditary peers t be members t the Huse f Lrds was intrduced in the Huse f Cmmns n 19 January. In a statement t bth huses, the gvernment cnfirmed that it was minded t accept an amendment t the Bill, when it reached the Lrds, t temprarily reprieve sme hereditary peers until there is a fully refrmed secnd chamber. That depended, hwever, 'n the extent t which the nrmal cnventins relating t the gvernment's legislative prgramme are being bserved' a euphemism fr nt blcking the Bill. (This amendment t reprieve 92 hereditary peers has nw been passed in the Lrds.) The statement accmpanied a White Paper setting ut the gvernment's prpsals fr Lrds' refrm bth in the shrt term (the transitinal huse) and lnger-term refrm, which wuld be cnsidered by a Ryal Cmmissin t reprt by the end f 1999 n the rle, functin and cmpsitin f a secnd chamber. The terms f reference make it clear that the Huse f Cmmns must remain the pre-eminent chamber f Parliament. Ominusly, the gvernment, in setting ut its \vn views n the pwers f a refrmed secnd chamber, cnsiders that they shuld be reduced, rather than restricting their exercise by 'institutinalising the understandings' under which the huse nw perates understandings which were evlved precisely because the huse was unrefrmed. In ther wrds the gvernment des nt envisage that a secnd chamber endwed with greater legitimacy shuld act as a better check n the Cmmns. The Cmmns will still nrmally be dminated by the gvernment frmed frm the party with a majrity f MPs, unless there is electral refrm mre radical than that prpsed by the Jenkins Cmmissin. Plus $a change, plus c'est la meme chse. Prfessr Gabriele Ganz Faculty f Law, Suthamptn University Misplaced trust? by Peter Willughby The trust cncept has been used fr mre than 800 years as a mechanism t prtect and cnserve family wealth. Hwever, in recent years, failure t set up trusts crrectly and t administer them scrupulusly has resulted in litigatin. Prfessr Peter Willughby utlines the dangers and pitfalls f setting up and administering trusts. Over the last 30 years there has been widespread and increasing use f trusts as a way f hlding persnal wealth. The trust cncept is ne with mre than 800 years f develpment, riginally in Lngland but mre recently in many ther jurisdictins. Trusts have been created fr many reasns but generally the verriding need is the prtectin and cnservatin f family wealth. One f the mst imprtant advantages f a trust is that it prvides a cnvenient and flexible way f ensuring that the benefit f assets is enjyed by members f a family thrugh mre than ne generatin, withut the incnvenience, publicity and expense that can ccur where it is necessary t btain a grant f prbate r letters f administratin r the equivalent, in several jurisdictins, n the death f a wealthy persn. It may be that ther advantages can be btained, such as the mitigatin f tax liabilities and the sheltering f family assets frm ptential creditrs. Unfrtunately in mre recent times trusts have all t frequently been marketed as 'prducts' by banks, accuntancy firms and even lawyers, withut prper attentin t the essential legal requirements f a valid trust. In many instances, aggressive marketing by peple wh have nt understd the need t set up trusts crrectly and then t administer them scrupulusly has resulted in litigatin which is ften multi-jurisdictinal and very expensive. The practical implicatins f matters such as heirship and creditrs' rights, tgether with the dangers f retaining direct r indirect cntrl in the persn creating the trust, have been underestimated. This has resulted in challenges by creditrs, disinherited heirs, frmer spuses and revenue authrities. Amiens Curiae Issue 18 June 1999