Parliamentary Sovereignty and EU Renegotiations

Debate between William Cash and David Nuttall

Thursday 4th February 2016 Commons Chamber

[Sir William Cash]

As my hon. Friend knows, a very good example is the ports regulation. The industry, the employers, the unions, the Government and the Opposition did want not it to happen, yet we were powerless to do anything about it. The regulation will become a European regulation and imposed on this Parliament, unless we can obstruct it, as we have done so far.

[Mr Nuttall]

My hon. Friend is absolutely right. That is an excellent example of where this House no longer has the ability to control its own affairs. In passing, I pay tribute to the great work that my hon. Friend and his Committee have done in drawing to the attention of this House and therefore the British people the enormous number of rules and regulations that come out of Brussels and that have to be enforced by this Parliament.

As I was saying, our constituents come to us expecting that we will be able to help them. When they find out that we cannot do so, what does that result in? It results in their having a lack of confidence and faith in MPs and the political process. That is evidenced by a reduced turnout in elections. People think, “Well, why bother? These people have no power anymore.” That is why we have seen a fall in the turnout. It also means that there is a lack of engagement in the political process, because people lose faith and confidence in the whole democratic process, and that is dangerous. Societies break down once democracy breaks down, which is why it is so important that the people of this country seize this golden opportunity—this is their one opportunity—in the forthcoming referendum to take back the powers. They should do so for the sake not of us in this House, but of themselves, because if they do not like what we are doing, they can get rid of us and appoint someone else in whom they have faith. This is where we have common cause with those on the left of British politics. We might disagree with them—they want a socialist system, which is an honourable position, but I prefer a capitalist system and I will stand up and defend that—but we both can agree on democracy and on the fact that the power lies with our constituents. If my constituents do not want me, they can replace me with someone else, and we all stand on that basis.

This is a golden opportunity. I hope that this debate will show the British people that this is the one chance probably in their lifetime to get back their powers. I do not believe that this renegotiation has changed in any meaningful way the sovereignty of this House. It will not give us back any powers. We do not have time to examine these documents in detail, but I have looked at them and I am sure that they do not give us back any more powers, which is why I hope, in my heart of hearts, that the British people will ask themselves from where they want to be governed—from here in Westminster or by the foreign powers in Brussels.

European Union Referendum Bill

Debate between William Cash and David Nuttall

Monday 7th September 2015 Commons Chamber

[Sir William Cash]

There have been suggestions, of course, that the BBC has been in receipt of money from the EU. My hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who is not in his seat at the moment—he usually is—put that question to Mr Harding, and we were hoping we would get further information on the matter. We have, however, invited Lord Hall to return and he will be coming back to see the Committee quite soon. He has accepted the invitation this time—he has not been required to appear—and we are looking forward to getting an answer to that question, and many others.

[Mr Nuttall]

Perhaps when Lord Hall does appear, we might put a point to him about choosing interviewees, which is just as relevant in respect of businesses. We might suggest that when the BBC is seeking an anti-European Union viewpoint, it should not always go to members of UKIP, because there are members and supporters of all parties—not just the Conservative party, but the Labour party, too—whose views it could, and should, be seeking.

[Sir William Cash]

The hon. Member for Luton North (Kelvin Hopkins) and other Labour Members on my Committee put that very question to the witnesses—Lord Hall and Mr Harding in particular, as well as Rona Fairhead—because it is essential that all sides of the arguments are heard. As I have said repeatedly in this debate, this is not a party political issue in the sense that it is not Conservative versus Labour. The very fact that the referendum has been set up and the question is “Do you want to remain in or leave?” means that it is a national issue and therefore all the broadcasting authorities, including the BBC, must have regard to the fact that we are passing over in this Bill the entire conduct of the referendum. That means it must be conducted not on a party political basis, but on yes versus no and on the question: “Do you want to remain in or do you want to leave?” Therefore there must be impartiality. We do not just want a Eurosceptic view. Some might think, “I would want that, wouldn’t I?” but actually, no; it must be done on an impartial basis.

It is rather strange that the BBC was somewhat dismissive of News-watch, an organisation that runs a comprehensive analysis of all news programmes—who goes on, what questions are asked and the whole conduct of the BBC output. I am afraid that it seems to me that the BBC was somewhat dismissive of that, to say the least. I believe from what I have heard that the BBC does not in fact have its own monitoring system. If it does not have its own monitoring system, how is anybody to know whether or not it has been impartial, because that is like looking for a needle in a haystack? We do not have the facilities to be able to conduct the analysis for ourselves, but the BBC has £5 billion and I would have thought that was the least it could do.

Presumption of Innocence and EU Law

Debate between William Cash and David Nuttall

Monday 10th February 2014 Commons Chamber

[Mr William Cash (Stone) (Con)]

I am glad to say that the two Front-Bench speeches have combined to encapsulate all the arguments. While I have some comments to make about the Government’s position, I commend the speech of the hon. Member for Hammersmith (Mr Slaughter), because he drew out several of the European Scrutiny Committee’s concerns. I am sure that the Minister, having somewhat belatedly reached the conclusion that improvements were required, will acknowledge that, and that everyone will be satisfied, given that we are now considering a motion on forwarding a reasoned opinion.

As I pointed out in an intervention, for all the brickbats, congratulations and backslapping that might be coming from either side of the House, as things stand there is a more worrying matter to consider. If the Minister has received late information that more member states are prepared to deal with the matter properly, that would be useful for me, as Chairman of the Committee, to know. The hon. Member for Hammersmith rightly quoted the Committee as saying:

“It is difficult to overstate the significance of the Commission’s proposal.”

Against that background, and knowing the number of member states required for the yellow card procedure—we currently have the United Kingdom Parliament and the Scottish Parliament, unless some others have come into the framework and I am not yet aware of that—there is clearly no prospect of this reasoned opinion receiving the kind of attention from other member states that it should receive. I say that because we still have a window in which to sort the matter out, but it is not a very long one, and I must say that it does not bode well given the significance of the issues at stake.

[Mr David Nuttall (Bury North) (Con)]

On that point, surely the Commission will not regard the Scottish Parliament’s submission as relevant to this matter. Surely only a submission from this Parliament will be regarded as relevant.

[Mr Cash]

I am grateful to my hon. Friend for that intervention, because I rather agree with him. Whatever the aspirations of the Scottish nationalists and those campaigning for independence, I am afraid that at this juncture what they have to say, however worthy it may be, will not be within the criteria set out for reasoned opinions under the yellow card system.

I ought to say that I have had grave reservations about the yellow card system from the very beginning. I have never thought that it is a matter that should be decided by an aggregation of member states—if they choose number X, why not choose number Y? The fact is that if a member state wishes to act, in its own national interests—the Minister, judging by what he said, regards this as a matter of critical national interest—I suggest that the reason for disapplying or vetoing laws should rest with one member state, as my Committee’s report made clear, because it becomes invidious to choose a particular number rather than another.

The real question is whether the matter is sufficiently important in the interests of the democracies, the legislatures and the constitutional arrangements of a given country for there to be a veto. Indeed, I must commend my right hon. Friend the Prime Minister, who vetoed a treaty only a few months ago, and what is sauce for the goose is sauce for the gander. For this purpose, I think that there is a very strong case, where it is sufficiently important in the national interest, to go beyond the yellow card system.

--- Later in debate ---

[Mr Nuttall]

Absolutely. I for one certainly hope that the Government will not feel that it is necessary to bow to the will of Brussels on this measure. Although I am at one and in accord with the Government on their proposal this evening, I would have to depart from that course if they tried in future to suggest that we should adopt it given that the European Commission seems likely to pursue it. Bearing in mind this country’s proud history of establishing our own system of common law and the rights of an individual to be regarded as innocent until proven guilty, I see no reason why we need lecturing from the EU on this matter.

[Mr Cash]

Has my hon. Friend noticed that this matter has received almost no coverage in the media, particularly the BBC? Perhaps they will rectify that as a result of this debate. This is a serious matter and the British public must know what is going on, but there are limited opportunities for them to find out about it. If this proposal were in a Bill that dealt with the abolition of trial by jury, it would have to go through at least three stages in each House and would be subject to amendments in both Houses. Because it is in a directive, all we are left with is putting up a reasoned amendment that will be doomed if other member states disagree.

[Mr Nuttall]

The Chairman of the European Scrutiny Committee, as ever on these matters, is right. This proposal has not received adequate scrutiny in the media. There may be many reasons for that.

This is another example of the EU interfering in matters that are a million miles away from the areas that the vast majority of the British people want us and our European neighbours to deal with. The British people want us have free trade with our European neighbours; they do not want the European Union to interfere in matters of criminal justice. This is just one example of why, when it comes to a referendum, I believe that millions of my fellow citizens will agree with me that we would be better off out of the European Union and that we should simply trade with our European neighbours on a free trade basis.

Section 5 of the European Communities (Amendment) Act 1993

Debate between William Cash and David Nuttall

Tuesday 24th April 2012 Commons Chamber

[Mr Nuttall]

I am most grateful, as I am sure are all Members, for that confirmation from the Minister. That answer raises the following question, however. No doubt many officials at the Treasury have been engaged in the preparation of this convergence document, spending many hours of precious time and energy on it, but why? What a complete waste of time! As was ascertained last year, anybody who is interested in this information could glean all of it from the internet, without any need to move any paper about. This is a complete, gigantic waste of time. It is a giant, paper-shuffling exercise.

[Mr Cash]

As someone who took a very active part in the Maastricht debates, I can say that this current debate is a case of déjà vu. As my hon. Friend said, we are being required to submit this report under the provisions of section 5, even though everything has changed and it is utterly impossible for us to set out to achieve the stated objective, because it is impossible for us, in the national interest, to attempt to apply the convergence criteria. The whole thing is a complete mess, which is why we need to have a referendum on the whole issue, including our relationship with the European Union.

[Mr Nuttall]

I entirely agree with my hon. Friend on both those points: first, this is a complete waste of time, and secondly, we certainly ought to have a referendum. That is not, of course, the matter before us tonight, however. Instead, this is the question under discussion tonight: what is the point of sending this document to Brussels?

The Minister admits that we pay no attention to what Brussels says to us, and that we govern our own affairs, so what is the point of producing this document? We should be honest with the people in Brussels and say, “Look, we’re not going to listen to you anyway. We’re independent in these matters, and we’re going to stop sending you this document every year.” It is a complete waste of time to send it this year—and I would be very interested to know what happened to last year’s document.

European Budgets 2014 to 2020

Debate between William Cash and David Nuttall

Tuesday 8th November 2011 Commons Chamber

[Mr David Nuttall (Bury North) (Con)]

As ever, it is a great pleasure to follow my hon. Friend the Member for Brigg and Goole (Andrew Percy), who speaks straightforward common sense. I also rise to support the motion. We have had a good debate, and I want to make some brief points.

First, we must not lose sight of the fact that, under the proposed new EU budget, there remain very few net contributors to the budget. Perhaps if more EU nations contributed to it, the EU might become a more prudent organisation. Secondly, I agree with the wording of the motion that states that the Commission’s proposal for an increase is

“unacceptable, unrealistic, too large and incompatible with the tough decisions being taken in the UK”.

Those words would be a good candidate for the winner of the understatement of the year competition.

The Government state, in paragraph 97 of their explanatory memorandum on the EU budget, that their provisional estimate of the UK contribution to the next EU financial framework is 11.5%, after the UK rebate has been taken into account. The Commission’s proposed ceiling for EU payments within the financial framework over the period from 2014 to 2020 is €972 billion, so a UK contribution of 11.5% on that level of EU payments would see this country paying in almost €112 billion, which is about £96 billion at an exchange rate of £1 to €1.6.

[Mr Cash]

Is my hon. Friend aware that, according to the European Commission’s proposal for the lump sums “adjusted for relative prosperity”—the annual lump sums relating to the period from 2014 to 2020—Germany’s would be adjusted to €2.5 billion and the United Kingdom’s to €3.6 billion, which is more than Germany’s?

[Mr Nuttall]

No, I was not aware of that, and I am grateful to my hon. Friend for bringing it to the attention of the House.

This country will need to contribute about £70 billion to the EU budget during the Parliament that will run from 2015 to 2020. Finally, the EU is proposing a substantial extension of its ability to collect its own revenues by introducing new, EU-wide taxes—the so-called own resources decision. It is also proposing a new, dedicated EU VAT and a new financial tax. And, just to rub it in, it is proposing to end the UK’s rebate.

EU officials should spend more of their time ensuring that eurozone nations start to live within their means and less time devising new ways to tax my constituents. The EU wants to spend more and wants the UK to pay more. The EU wants to scrap the UK rebate, and the UK wants to bring in new Euro-taxes. To each of these, and to echo the words of Baroness Thatcher, it is absolutely right that our Government should say no, no, no.

Access to a Lawyer

Debate between William Cash and David Nuttall

Wednesday 7th September 2011 Commons Chamber

[Mr Nuttall]

My hon. Friend makes another extremely valid point. Whenever I have discussions on European matters with constituents and other members of the public—not surprisingly, I have such discussions fairly frequently—time and again they refer to the fact that they are dissatisfied with our membership of the EU because they believed that the EU was to do with business and trade. They believe that the EU should have no part in justice or home affairs. When we entered the EU all those decades ago, it was never envisaged that the EU would play a part in justice and home affairs. That is one reason why I will continue to push for a referendum. Such things may have been in the minds of those who were pushing for the European project, but they were never in the minds of our electorate. They were never told about that and it was not part of their consideration when they went to vote back in the 1970s.

[Mr Cash]

May I remind my hon. Friend that the Conservative party, for the first time since 1972, was completely united in opposing the implementation of the Lisbon treaty? Only as a result of entering into the coalition agreement did we end up having to accede to many of the provisions that result from the introduction of a treaty that we were previously united in opposing.

[Mr Nuttall]

My hon. Friend makes an excellent point. That is one reason why opposition to our membership of the EU is growing in this country. As I often say to people, in many ways every directive that passes is another nail in the argument of those who will one day argue in a referendum—I believe we will eventually have one—that we should stay in the EU. People are increasingly fed up with the ever-growing competences of the EU. It is all very well to argue that the European Union Act 2011 will put an end to all these things, but we can see—day by day, week by week, month by month—that slivers of competence are going to Europe, and this would be another of those slivers. If the directive were adopted, it would be a classic example of this country’s handing over a further tiny piece of its competence. It might be only a sliver, but this is still a matter of sovereignty. At present, we can decide what our rules are.

Common Consolidated Corporate Tax Base

Debate between William Cash and David Nuttall

Wednesday 11th May 2011 Commons Chamber

[Mr David Nuttall (Bury North) (Con)]

It is always a great pleasure to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who sets out with such great clarity the grounds for my opposition to the measure. We have heard tonight a number of reasons why the proposal for a common Euro corporation tax, as I would like to call it, is wrong. This is yet another stage towards what the eurocrats are determined to proceed with—ever closer union.

We are here on a regular weekly or fortnightly basis, looking at the latest directive that comes before the House. Sometimes the directives could be described as dealing with relatively minor matters. This one most certainly cannot. The harmonisation and the Europeanisation or European Unionisation of the corporation tax base is a step too far. We have heard that its legal basis is unsound. It would, in my opinion, fall foul of the principle of subsidiarity. I believe that it is economically wrong.

It would be interesting to know how many FTSE companies in this country would be in favour of this crazy proposal. It seems that the only people who would benefit if it ever came into force would be those companies and tax jurisdictions that were outside such an arrangement. I accept that in the early days they could arrange their affairs in such a way as to make it attractive in order to encourage companies to come into the euro corporation tax area, but I am absolutely certain that before long, because of the bureaucratic and regulatory burden, they would have to increase their corporation tax rates to such a level that any companies that were ensnared within such arrangements would quickly wish that they had never become involved.

[Mr Cash]

Does my hon. Friend also accept that the objective at the heart of this is to move towards a harmonised tax system for one reason: to complete the circle of political union that will enable this to be one country, driven by fiscal direction, and at the same time to fill the belly of the European Leviathan with the money that will enable it to continue to create circumstances that will inevitably lead to more turmoil, implosion and a greater disaster than we already have?

[Mr Nuttall]

My hon. Friend hits the nail on the head. I see this as the thin edge of the wedge. It is the opening of a whole new war, and a whole new phase of European harmonisation. In fact, it is almost the final frontier, because it is the step towards a euro-wide sales tax and, ultimately, a euro-wide income tax that we would all be subject to. It is extremely difficult indeed.

I heard the Minster’s opening remarks, and it is to be welcomed that we will at least go back to our European partners and state our reasoned opinion for not proceeding with this. I am slightly concerned, to say the least, that we are not saying no outright, which would be a far simpler way of dealing with it. It reminds me of the message of the drugs campaign run when I was at school: “Just say no”. The simplest solution to the problem facing the House tonight would be just to say no. I see no great danger if other countries want to get together and operate a common corporation tax system—that may be ultimately what they want to do—but this EU proposal for a common corporation tax throughout Europe could be described as nothing other than giving away sovereignty, which, to come back to our national politics, is specifically outlawed in the coalition agreement, which states that there is to be

“no further transfer of sovereignty or powers”

to the EU over the course of this Parliament. If this would not be a transfer of sovereignty and powers, I do not know what would.

When the Minister responds to this short debate, will she give an estimated time scale for when she is likely to be able to come back and report on what success there has been in persuading other countries to adopt our position on this matter, and will she give an absolute confirmation that there will be no signing up to the proposal in any way, shape or form without the matter being brought back to the House for further consideration?

United Kingdom Parliamentary Sovereignty Bill

Debate between William Cash and David Nuttall

Friday 18th March 2011 Commons Chamber

[Mr Cash]

We would not have to beat the European bounds, that’s for sure, but my hon. Friend makes a valid point. The problem has overtaken the history of this Parliament, so it is important that we get back to first principles—that we should legislate in accordance with the wishes of the electorate. My hon. Friends the Members for Wellingborough and for Christchurch, I and many other Members here today have argued for a full and effective referendum to deal with this question in line with the wishes of the electorate, but in between times, we are being affected in our daily lives by a stream—a tsunami—of legislation emanating from the European Union, much of which is an obstruction and an obstacle to the generation of economic growth in this country at a time of austerity when the deficit requires us to improve our legislation in a manner consistent with creating growth and business opportunities. All that shows that this is not just a theoretical question; it is about the practical impact of the European Union on the daily lives of the electorate. [Interruption.]

I am delighted to see that the House is filling up with Members, but I have a feeling that it has to do with something other than the Bill proposed by my hon. Friend the Member for Christchurch. However, it provides an opportunity for us to get our case across to the more exalted Members of this House—at any rate, members of the Executive—so that they can benefit from knowing that we are engaged in these difficult times in ensuring that we reaffirm the sovereignty of the UK Parliament.

I also see the Deputy Prime Minister, so I point out to him as he assumes his place that his suggestion that we will not repatriate our laws, despite the Conservative manifesto which said that we would, is in the minds of many people in the Conservative part of the coalition and it is still absolutely on the agenda. We repudiate his suggestion that there will be no “backward step”, as he puts it; we will repatriate, because we will insist on doing so. We will do so through the aegis of the sovereignty of this Parliament when there is a clear threat from European legislation or legislation emanating from the European convention on human rights or the European Court of Human Rights—whether it is on votes for prisoners, or whatever. We will insist that the legislation we pass in this House reflects the wishes of the electorate, not just those of the cognoscenti, the elite, the establishment or those who form part of the present coalition. We respect the Executive, but we beg to differ, and we insist that under no circumstances whatever will we allow the sovereignty of the UK Parliament to be overridden by assertions from the Deputy Prime Minister or anybody else.

[Mr Nuttall]

My hon. Friend heard from many experts when he chaired the investigation of the European Scrutiny Committee into clause 18 of the European Union Bill. Will he clarify that the matters of concern expressed this morning about this House’s loss of sovereignty were confirmed by many of the experts from whom he heard?

[Mr Cash]

They certainly were; most of the experts took this view.

Now that the Prime Minister has come into the Chamber, may I take the opportunity to congratulate him on the manner in which he asserted in his own way the sovereignty of this country in his determination to ensure there is to be a no-fly zone over Libya? The very fact that he was able to do that, notwithstanding the impediments put in place by the European Union and others, demonstrates precisely what we are saying in this debate—that it is the sovereignty of the UK Parliament that lies at the heart of how we conduct our affairs in this country. In respect of the no-fly zone and related matters, the Prime Minister has done this country a great service. He has demonstrated that, notwithstanding the obstacles put forward by other members of the European Union, we still have residual powers, although I wish they were much greater.

If this Bill were to go through, we would override the amendment that was, unfortunately, passed a few weeks ago, which did not reaffirm the sovereignty of the UK Parliament, and we would put it right. I am extremely glad for the opportunity to debate this matter at this auspicious time.

There are many practical aspects to the Bill, which I shall come on to later. I understand that the Prime Minister has an important statement to make to bring us up to date about Libya. I shall move on to the more practical issues afterwards. I shall seek to demonstrate why we must insist that the European Union does not ride roughshod over the wishes of the electorate, as it has done so frequently in the past. We must reassert the supremacy of this House, whether it be on issues like prisoners’ votes or—

Proceedings interrupted (Standing Order No. 11(4)).

Court of Auditors 2009 Report

Debate between William Cash and David Nuttall

Wednesday 2nd February 2011 Commons Chamber

[Mr Nuttall]

Does my hon. Friend agree that one of the problems is that it apparently takes 25 months on average—more than two years—for OLAF to conduct its investigations, and that only 56% of cases have led to follow-up action?

[Mr Cash]

That is the problem. It is easy for us in this House to make scattergun criticisms of bureaucrats, civil servants and the rest of it, but the real problem is that if something does not work, we have to mend it—and there is no evidence of that happening.

I had an exchange with Lord Kinnock when he was responsible for these matters, and set up the new OLAF arrangements. He got a bit shirty with me in a Select Committee some years ago. People like Marta Andreasen were thrown out, and even before then, there was another chap whose name I cannot remember—

Fixed-term Parliaments Bill

Debate between William Cash and David Nuttall

Wednesday 24th November 2010 Commons Chamber

[Mr Cash]

As the former adviser to Quebec in the Canadian constitutional dispute of 1982, I am not unfamiliar with the problems that arise in the Canadian constitution. Of course, Canada has a Governor-General, and there is a completely different situation there. There was a similar situation in Australia some time ago involving Gough Whitlam.

I would strongly deny, however, that we should be guided by what goes on in other countries: the real issue is what we do in this House. We have an established position that is dependent on the views of the House. My strongest objection to the phrasing of the previous amendment was that it referred to the number of seats in the House rather than those voting in the House. There is a big difference. In Germany, the question of whether a Government might fall would depend on the number of persons present if, under its written constitution, two thirds vote in a particular division, whereas in the case of this coalition Government, it would be dependent on the number of seats. It is necessary to take into account the Deputy Speakers and the people who might be absent. In fact, the clause includes, in brackets, the words “including vacant seats”, so the arithmetic is extraordinarily difficult. The real question is whether the Government have lost confidence.

[Mr David Nuttall (Bury North) (Con)]

Would not one solution be to stipulate that any motion of no confidence must specifically relate to this clause, so that there could be no doubt that the motion before the House was covered by the Bill as enacted?

[Mr Cash]

That is an interesting idea, but that is not what the Bill says, although I am not criticising my hon. Friend for that. The Bill simply says that

“on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)”.

I described in an earlier debate the shenanigans of the 14-day period after a day had ended without the House having passed any motion expressing confidence in any Government of Her Majesty. What happens next is that all these people get together in a huddle and then rush up and down Downing street and Whitehall going to see the Cabinet Secretary and receiving some instructions about what they should do, in his view, if they want a stable Government. The net result is that we have a completely chaotic situation driven by behind-the-scenes, unknown negotiations that are then announced—

Parliamentary Voting System and Constituencies Bill

Debate between William Cash and David Nuttall

Monday 18th October 2010 Commons Chamber

[Mr Cash]

I am intrigued by the proposals. The first of the two amendments—amendment 153—deals emphatically with an important question of administrative law. Under paragraph 42(3)(a), the regional counting officer or chief counting officer has a permissive power to give a direction. Importantly, sub-paragraph (3) says:

“The Regional Counting Officer or Chief Counting Officer must then either—

(a) direct the counting officer to have the votes re-counted, or”—

this is the crucial proposal—

“(b) direct the counting officer to make the certification under section 128(5) of the 2000 Act.”

From paragraph 42(4), it is clear that the Government’s intention is that the provision should be permissive only. I pay tribute to my hon. Friends the Members for Milton Keynes South (Iain Stewart), and for Epping Forest (Mrs Laing), for insisting that the provision be not permissive but mandatory. That would put the whole question of the administrative arrangements for such a proposal on a compulsory footing, and that, when applied to the Bill, makes a significant difference. If the provision were merely permissive, almost anything could happen, but if it were compulsory, the regional counting officer or chief counting officer would be under a legal obligation to give a direction under paragraph (3)(a)

“if the officer thinks that there is reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area.”

There will be enormous difficulty and ambiguity if that is done purely on a permissive footing, so I strongly recommend that the Government accept the proposal of my hon. Friends, who insist that the provision be made compulsory.

Under paragraph 42(5), there is a compulsory requirement, in that

“A counting officer who is given a direction under paragraph (3)(a) must—

(a) begin the re-count as soon as practicable, and

(b) if the officer does not begin the re-count immediately, notify the counting agents of the time and place at which it will take place.”

The most extraordinary situation would arise if, under sub-paragraph (5), action was compulsory, while under sub-paragraph (4) it was only permissive. I make the point strongly that a compulsory requirement, enforceable by law, seems the right way to proceed. However, all that would arise

“only if the officer thinks that there is reason to doubt the accuracy of the counting of the votes”.

As is well known, the question is not simply whether the provisions should be permissive or compulsory. We then move on to the question of what is in the mind of the officer.

How are we to establish what the officer thinks there is a reason to doubt? After all, if we are asking in legislation for a potential judicial interpretation—a compulsory requirement to depend upon what somebody thinks—how, short of bringing in the shrink, can we determine whether the person thought that or not? We are faced with an extraordinary situation, which is not uncommon in certain kinds of legislation, where the issue ultimately turns on what is going on in the mind of an official.

[Mr David Nuttall (Bury North) (Con)]

Is not the problem the fact that the Bill gives no guidance as to what matters should be in the mind of the returning officer when he comes to his decision? He is given no guidance as to what matters should be taken into account.

[Mr Cash]

I am grateful to my hon. Friend for that extremely intelligent and useful intervention, which demonstrates the very point that I am making. If we do not establish criteria, there is nothing by which the court, in a judicial action in administrative law, would be able to judge what was going on in the official’s mind. Is it to be merely a matter of opinion or is it to be a matter of judgment by certain criteria?

I notice that those on the Front Bench are watching me with some interest. I have been watching them with much interest throughout the proceedings as we were moving towards clause 6, but we were not getting there, so we will have to see.

I am sure my hon. Friend and others want more elucidation on the point. We get used to the fact that some legislation states “where, in the opinion of a Minister” and subsequently says that the proceedings shall not be challenged in any legal proceedings whatsoever. That occurs in another interesting and somewhat controversial Bill, the Fixed-term Parliaments Bill, which I do not need to go into today because we will have plenty of opportunity to examine it on another occasion.

If the provision merely states that if the officer thinks there is a reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area, and does not say “in the opinion of”, we are using different language from the language that the courts are used to in administrative legal challenges, which is the precise wording, well established in the courts and in administrative law, “if, in the opinion of the officer, there is a reason to doubt the accuracy of the counting of the votes”.

As my hon. Friend the Member for Milton Keynes South made clear at the beginning, this is a matter of great importance when there is a knife-edge vote. He mentioned the experience of the hon. Member for Rhondda (Chris Bryant) in relation to elections. We must bear it in mind that the Bill is not just about an election. It is about a referendum with a range of percentages that may be applied as a result of the threshold provisions. Those will become highly controversial in the context of clause 6, which we will reach later on—much later on.

[Mr Nuttall]

When one is considering whether a recount should be requested, one must take account not just of the number of votes, but of the manner in which the election process has taken place.

[Mr Cash]

I greatly admire my hon. Friend’s perspicacity. He puts his finger on an important point—the context in which these events take place. This is about whether or not, in relation to a matter of such importance as the issue of alternative vote, we end up with a decision which could be on a knife-edge and which is decided merely on the basis of what an officer thinks.

I do not know about hon. Gentlemen in the Committee at large, but sometimes I do not have that much faith in bureaucratic thinking; in fact, I have a strong aversion to it. But if the measure were to say, “In the opinion of the officer,” we would at least know that we were on what I would describe as generally understood judicial ground. The measure does not provide for that, however; it provides for the question of what is in his mind, not his opinion, and there is a very big and important distinction to be drawn between those two things. My hon. Friend is entirely right in believing that there ought to be a context and some criteria.

Furthermore, the measure includes the wording,

“if the officer thinks”—

whatever that means—

“that there is reason to doubt the accuracy of the counting of the votes in the counting officer’s voting area”.

What is or is not reasonable is, again, a question that the courts are well used to determining. There is a whole stream of case law, which I am quite capable of spending some time describing, on the question of what is or is not reasonable, and for that matter what is or is not practicable. I am afraid to say, however, that when the Bill simply states,

“only if the officer thinks that there is reason to doubt”,

it applies yet another spurious objective test, which is actually highly subjective, and that is not the way to legislate.

We want clarity and impartiality, and to be sure that, if there is a knife-edge vote, there will not be some unfortunate mistake in the mind of the officer—and I shall make no mistake whatever about what I say this evening.