§ 4.9 p.m.
§ Mr. Peter Shore (Stepney)
On a point of order, Sir Robert. There are two points which I should be grateful if I could put to you now. One concerns the provisional selection of Amendments—that is the fourth group shown on the Notice Paper today. It may be that it would be more convenient to you if I were to pursue this matter tomorrow rather than today but I should just like to put to you the point that there are here a very large number of regulations brought together in these Amendments and we would be very grateful if you could give further consideration to their grouping.
§ The Chairman
I am grateful to the right hon. Gentleman for raising that point with me. I am giving the matter very careful consideration and hope to be able to give the Committee some important information tomorrow.
§ Mr. Shore
I am grateful to you for that answer, Sir Robert. I do not wish to pursue the matter further.
I make my second submission by way of a point of order with some diffidence because it relates not to an Amendment which stands in my name but to one which has been tabled by other hon. Members. When we turn to the first group of Amendments which we are about to discuss we find that, unfortunately, it covers a very wide area indeed.
I submit to you, Sir Robert, and perhaps through you to the authors of Amendments Nos. 143 and 7, that we are in some difficulty because these two Amendments among all the others take us outside Clause 2(1) and well into Clause 2(2). While I can see that there may be a connection between them, it would in 1291 my view make for a better and more orderly discussion if those Amendments were taken at a later stage.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
Further to that point of order, may I address you on several matters, including the one which the right hon. Member for Stepney (Mr. Shore) has raised with you, Sir Robert? Amendment No. 143 to which he referred is in my name, and I respectfully support his submission that it refers to a different matter. It is, in logic, consequential on Amendment No. 136, which you have placed at the head of another group. I hope, therefore, that you will be able to accede to the suggestion of the right hon. Member for Stepney.
May I incidentally say, Sir Robert, that the Committee generally will feel that the manner in which the selections are now set out, particularly in regard to the order of Divisions, is a helpful innovation, and I am sure that hon. Members in all parts of the Committee are grateful to you for this improvement.
§ The Chairman
I am obliged to the right hon. Gentleman for those comments. I am pleased to be able to tell him and the right hon. Member for Stepney (Mr. Shore) that I am ready to accede to what has been requested in regard to those Amendments. Amendment No. 7 is, of course, in the name of another right hon. Gentleman.
§ Sir Robin Turton (Thirsk and Malton)
May I raise with you, Sir Robert, a point of order regarding the previous selection of Amendments? Amendments Nos. 80 and 54, which relate to the Schedule, were in the first grouping. I notice that they have disappeared. Clearly, they were not really connected with the first group. May I have an assurance that their disappearance does not mean that they have lost your selection but that they will appear in their proper place later on?
§ The Chairman
With respect to the right hon. Gentleman, that has nothing to do with me. I think the Amendments have been taken off for the moment.
§ Mr. John Biffen (Oswestry)
Would you look sympathetically, Sir Robert, at a request that a separate Division be taken on Amendment No. 7, which stands in the name of the right hon. Member for Birkenhead (Mr. Dell) and others, 1292 including myself, as it seems to touch on a point which is substantially different and distinct?
§ The Solicitor-General (Sir Geoffrey Howe)
On a point of order, Sir Robert. May I, for the sake of clarity, ask you to make clear the point at which we have got so far in these matters? I understand that you acceded to the proposition that Amendment No. 143, which stands in the name of my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), should be withdrawn from the first group and added to the third group.
Meanwhile, the right hon. Member for Stepney (Mr. Shore) mentioned Amendment No. 7, which is also in the first group, and was the subject of the point of order raised by my hon. Friend the Member for Oswestry (Mr. Biffen). I am not sure that the Committee is entirely clear whether you indicated that Amendment No. 7 would be withdrawn from the first group or would retain its position in that group. Is it remaining in the first group or moving somewhere else?
§ The Chairman
I think I had better hold my decision for a while on Amendment No. 7, certainly until I receive further representations on the subject. Perhaps we can leave it out of account for the moment.
§ 4.15 p.m.
§ Mr. Powell
In view of what you have said, Sir Robert, perhaps I might raise with you on a point of order, although Amendment No. 7 is not in my name, the question of the position of that Amendment. In the light of your concluding words, I add my support to the plea of my hon. Friend the Member for Oswestry (Mr. Biffen) that at the very least a separate Division should be permitted on Amendment No. 7, which raises a subject not raised by any of the other Amendments.
In clarification of a ruling which you gave a little earlier, Sir Robert, may I inquire whether there was perhaps some ambiguity in your expression "taken off" in regard to the Amendments to the first Schedule originally grouped with Amendment No.79? I take it that by that expression you meant that in view of 1293 their order in the proceedings they did not at present appear on the provisional selection but there was no question of removing them from the Notice Paper.
There are two substantial points to which I direct your attention, Sir Robert. The first refers to Amendments Nos. 216 and 78, both of which you have been good enough to designate for separate Divisions. I submit that it would be for the convenience of the Committee if these could be treated as a separate group as their subject matter, though at first sight closely allied to that of the other Amendments which rightly and logically belong in this group, is in fact very different.
The essential point, which I am not seeking to argue at this stage, is that one or other of these Amendments, if made, would not only give control over the validation of Community legislation but would give control over the Executive at an earlier stage when Community legislation was being prepared.
They therefore raise, not, as many of the other Amendments do, the question of the form of validation by Parliament of Community legislation but the question of the control by Parliament of the co-operation of the Executive with the other parts of the European Community. I therefore submit that Amendments Nos. 216 and 78 logically form a separate group.
My second and final submission—I apologise for detaining the Committee—relates to Amendment No. 141 which stands in my name and which you have selected for separate Division, Sir Robert. This again is different in kind from the other Amendments in the group because it would limit the subject matter to which the procedures in subsection (1) would apply.
You have in your wisdom, Sir Robert, arranged as a separate group Amendments which seek to limit that procedure in point of time. My submission to you is that there is no difference logically, from the point of view of the arrangement of Amendments, between the limitation of time and the limitation of subject, and I therefore submit that Amendment No. 141 is essentially a subject on its own, or, if not, is at any rate distinct from those raised by this group, which it would be more convenient to take separately.
§ The Chairman
I am afraid that I must disappoint the right hon. Gentleman. I have made my selection differently.
I thank right hon. and hon. Members for making submissions to me, and I assure the Committee that I have listened most carefully to all that has been said on this subject. As hon. Members know, I cannot enter into an argument, not that any hon. Member has attempted to enter into an argument with me, on my selection.
I do my best to satisfy as many hon. Members as possible in making my selection of Amendments. This is not an easy task. I am afraid that I cannot offer the right hon. Member for Wolverhampton, South-West (Mr. Powell) anything except my assurance that I listened with great care to the submissions that he and his colleague made to me last night. I cannot, however, alter my selection further.
§ Mr. Michael Foot (Ebbw Vale)
On a point of order, Sir Robert. May I assure you that we appreciate that we cannot argue with you, and would not wish to do so, about your selection of Amendments? I know that hon. Members on both sides wish to express gratitude to you for the extreme patience which you have shown in listening to all the representations that have been made over this matter.
The Amendments that we are now proposing to debate are regarded by some people as the most important group of Amendments in the Bill. We made similar representations to those of the right hon. Member for Wolverhampton, South-West (Mr. Powell) in hoping that these matters could be discussed. But is it not the case that if Amendments of this character raise different issues from those in the principal Amendment this will be bound to affect the time that the Committee must devote to these matters?
§ Mr. Edmund Dell (Birkenhead)
I understand that while I was momentarily out of the Chamber points were raised regarding Amendment No. 7 which stands in my name and that of other of my hon. Friends. I was perfectly happy with the grouping you have made, Sir Robert, but, equally, I am perfectly 1295 happy to co-operate with my right hon. and hon. Friends if they would prefer a different grouping. I leave the matter entirely in your hands without further representation.
§ Sir Derek Walker-Smith (Hertfordshire, East)
I beg to move Amendment No. 79, in page 2, line 24, leave out subsection (1).
May I associate myself with what has been said about the evident care that you have given to this selection, Sir Robert. We are much obliged to you, and, in particular, I am obliged that you have seen fit to select for Division a number of those Amendments in respect of which I ventured to make representations to you. As a result of your ruling we are discussing 17 Amendments covering a wide range of subjects.
Of these Amendment No. 79 is, of course, a radical Amendment proposing the excision of subsection (1). If we omit subsection (1) we emasculate the Bill. Whether this process of legislative vasectomy imposes a suitable restraint or an injurious and undesirable weakness depends upon one's general view of the Bill and of the whole subject of entry into the EEC.
Amendments Nos. 153 to 158 and Amendment No. 55 in effect do seriatim what Amendment No. 79 does compendiously. Amendment No. 216 would impose a further degree of parliamentary control on future regulations, directives and decisions. Amendment No. 78, which also stands in my name, would impose a further degree of parliamentary control but in a more limited context on the regulations emanating from Brussels on the sole authority of the Commission. Amendment No. 141 in the name of my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) puts a substantial limitation on Clause 2 to confine it to specified subjects, and Amendment No. 7 in the name of the right hon. Member for Birkenhead (Mr. Dell) is to some extent a palliative—no one could describe it as a wrecking Amendment, at any rate. It would place a duty of review on the Law Commission and thereby put a sort of patina of respectability on these 1296 matters, which is very necessary no doubt, and, therefore, that Amendment is broadly to be welcomed.
In the Second Reading debate I referred to Clause 2, varying the anatomical metaphor, as the heart of the matter. Certainly, it has the dubious distinction of being the main element in the new and revolutionary constitutional arrangements which entry to the Community would impose. It is this Clause in particular which would incorporate the decrees of Brussels into the laws of Britain, be Parliament never so reluctant, or the people never so resentful. If the Clause and its subsection are passed, the defences are down and the floodgates are open. We shall have yielded the sovereignty of Parliament and turned our backs, in Hugh Gaitskell's phrase, on a thousand years of British history.
We shall have parted with the two basic ingredients which constitutionalists have identified in the characteristically British concept of the sovereignty of Parliament; that is to say, that first, Parliament should be the sole law-making agency because, in the language of the Clause, the decrees of Brussels are to be enforced and followed without further enactment. The exercise of Parliament's will will no longer be unfettered because, instead of the sole criterion for Parliament's legislative action being the interpretation of the will of the British people, its legislative power will be cribbed, cabined and confined within the limits of action left by the superior law of the Community.
I say "superior law" because where there is a conflict between our national law and the law of the Community, the Community law will prevail. The case law of the Community court, as well as the language of the treaty, makes it clear that there will be a superiority of Community law in matters covered by the treaty. In referring to the case law I feel in some difficulty in regard to citation, having regard to the very different logistics of the House and of the courts of law. If I were presenting this case in for example, the Court of Appeal, I would certainly cite a number of those judgments and authorities in extenso, and I think that it would probably be right to do so, but the logistics of the situation forbid that.
1297 Fortunately, the authorities have been conveniently summarised in the September issue of the Modern Law Review in an article "The law of the European Communities and Municipal Law" by Dr. Gerhard Bebr. I hope I pronounce his name right I do not have the honour of his acquaintance, but I would very much like to do so both because he is no less a person than the legal adviser to the Commission and because he has written this very lucid article.
I will keep my citations to what I think is the reasonable minimum, but I am sure the Committee will agree that it is right that in our discussion of the matter we should be aware of what the Community law is. As we have listened to these debates, certainly in the small hours of, I think, last Wednesday, we have heard some rather surprising asseverations in regard to this matter from one right hon. Gentleman opposite. It is right that this afternoon I should put enough of the matter on the record for it to be clear to the Committee, and through the Committee to the British people, precisely what the position is in regard to the predominance of Community rule and the super cession of the sovereignty of Parliament.
The leading case on the subject is Flaminio Costa v. Enel, which is known to the Committee as the Italian nationalisation case. In regard to that case the learned legal adviser to the Community has this to say:In the Enel case, which is undoubtedly the leading case, the Court met this problem"—the problem I have been referring to—squarely and ruled thereon explicitly … having this problem in mind, the Court did not hesitate to state some general principles which in its view had to govern the relation of Community law to municipal law.As the Committee is well aware, "municipal law" is merely the language of lawyers for national law.In the view of the Court the EEC Treaty"—and then the learned author sets out this citation from the judgment:'… has created its own legal order … having real powers resulting from a limitation of competence or of transfer of powers, from the States to the Community …. [It] would be impossible', argued the Court, 'to assert any internal text whatsoever against the law created by the Treaty … without robbing 1298 it of its Community nature and without jeopardising the legal foundation of the Community itself.The Court deduced this supremacy of Community law from the legal character of the Community legal order; from the transfer of limited State powers to the Community, and from the wording and spirit of the Treaty. 'This incorporation into the legal order of each member State of the provisions of the Community law', observed the Court, 'and the letter and spirit of the Treaty in general, have as a corollary the impossibility of States to assert against the legal order accepted by them, on a reciprocal basis, a subsequent unilateral measure which could not be challenged by it.'I should perhaps mention the San Michele case, of which the learned author says:The Court confirmed this ruling"—the Enel ruling—in the San Michele case. Although this decision does not refer to the Enel case, its reasoning leaves no doubt about the supremacy of the Community law.Then in the Walt Wilhelm case the court referred to Article 87(2)(e) of the Treaty as confirming the pre-eminent character of Community law. In regard to that, the court said:The EEC Treaty instituted its own legal order, integrated into the legal systems of the member States and which has priority before their courts. It would be contrary to the nature of such a system to accept that the member States may take or maintain in force measures liable to compromise the useful effect of the Treaty. The imperative force of the Treaty and of the acts issued in implementation of it could not vary from State to State by the effect of internal acts, without the functioning of the Community system being obstructed and the attainment of the aims of the Treaty being placed in peril.There is one more citation I would make before leaving this part of the matter, and that is from a German case, the Handelsgesellschaft case.
On that, the learned author says:In the recent Internationale Handelsgesellschaft case the Court did not hesitate to uphold the supremacy of the Community law even over national constitutional law. The litigation pending before a German administrative tribunal concerned the validity of an agricultural regulation challenged on the ground that it violated some basic rights guaranteed by the Basic Law. As the validity of the regulation was decisive for the outcome of the litigation, the tribunal requested the Court to review its validity. Upholding its validity the Court categorically refused to 1299 review it in the light of the constitutional provisions,"—that means the German national constitutional provisions—maintaining that Community law prevails even over the constitution. In the strong words of the Court:' … The uniform validity of Community law would be impaired if a decision reviewing the validity of acts of the Community institutions would apply norms or principles of municipal law. The validity of Community acts may be reviewed in the light of Community law only ….' Consequently, reasoned the Court, 'no provisions of municipal law, of whatever nature they may be, may prevail over Community law … lest it be deprived of its character as Community law and its very legal foundation be endangered. The validity of a Community act or its application in a member State remains, therefore, unimpaired even if it is charged that the basic rights … or the national constitution were violated'.
§ Mr. Charles Fletcher-Cooke (Darwen)
I do not quarrel with what my right hon. and learned Friend is saying, but does he know that when that case was remitted to the German court last November after that decision of the Luxembourg Court, the German court refused to accept the decision of the Luxembourg Court? I do not know which way that cuts, but that is the present state of play.
§ Sir D. Walker-Smith
I am obliged to my hon. and learned Friend. I am aware of those circumstances. It would take a very staunch proponent of the virtues of the Common Market to pray in aid this jurisdictional conflict as any comfort. It is a strange commentary. I fully agree with the implications of what my hon. and learned Friend says, upon the solidarity and fraternity which we are always led to believe are the basic ingredients of this happy body.
The ground on which the German administrative tribunal was challenging the Community law, and on which it is continuing to challenge it, would not be open to us, because we alone of the 10 member States, if in the event there are 10, have no formal written constitution. Therefore, we should be without the plea which was put forward in this case against Community law. In other words, the other member States have but poor defences against the supremacy of Community law, but our defences would be even poorer than theirs, because of the lack of that one defence which has so far shown, if it can be so called, even a partial success.
1300 I could cite a good deal more authority, but I do not intend to do so for the logistical reasons I gave.
§ Mr. R. T. Paget (Northampton)
Of all the members of the Community, the old ones and the new ones, we alone are making the total act of subjection, and we are making it in this Clause.
§ Sir D. Walker-Smith
The hon. and learned Gentleman put it very felicitously, as always. That is precisely what we are doing. There is no comparable sacrifice in any other country because the sovereignty of Parliament is a distinctively British concept, as was identified by Professor Kahn Freund in a very interesting article in The Times in the early days of this controversy in 1961 or 1962.
The authorities are summarised fairly in the conclusion given by Professor Wade in The Times of 20th April:The present Bill can, and does, make Community law prevail over existing Acts of Parliament. It also expressly attempts to make it prevail over future Acts.Professor Wade refers to Clause 2(4). We shall come to that hereafter. That is the result which this Bill seeks to make. This unique, irreversible and, to many, unpalatable result is achieved primarily by this subsection reinforced as to the future by subsection (4) of this Clause. It is that result which the Amendment I am moving is designed to frustrate.
The mechanism by which the Bill aims to produce this result can be discerned from the provisions of these linked Clauses 1 and 2. Clause 2(1) gives the force of law in the United Kingdom to "… rights, powers liabilities, obligations and restrictions from time to time created or arising by or under the Treaties …".
The phraseology of the opening sentence gives cause for concern: "right and powers" are the first two expressions. Those should be viewed with some reserve, even perhaps with scepticism. In practice they are likely to be less evident, less real and of less consequence than the liabilities, obligations and restrictions. The last three words are fraught with ominous implications. But the extent and effect of them is left at large in the language of the Clause.
We have some clues. "Liabilities" and "obligations" are printed in italics, meaning they have fiscal implications and are likely to be of a financial nature. 1301 They will, or may, involve payments by Britain—that is to say, the obligation to submit to external taxation. Thereby they are in breach of an old, honoured constitutional principle of "no taxation without representation" and of the principle that the taxation of the British people is a matter for the British Parliament alone.
The phraseology is ominous and imprecise. It is as if the draftsman was seeking to cast his net as wide as possible rather than do what the law always should do—define obligations as precisely and narrowly as possible.
What is the precise difference between the terms "liabilities" and "obligations" in this subsection? If they mean the same thing there should be only one word. If they mean different things I should be obliged if my right hon. and learned Friend would say what the difference is, supporting it with citation from the relevant Community documents.
Similarly with the word "restrictions". What is the precise meaning of "restrictions" in this subsection? Does it include "prohibition", the term used, for example, in Articles 85 and 86 of the Treaty of Rome and in Resolution XVII dated 6th February, 1962.
§ Mr. Michael English (Nottingham, West)
Would the right hon. Gentleman agree that one of the results of incorporating the word "restrictions" here is to restrict the rights of action of persons—whether they be corporate or individual persons—to enforce this Act against persons who are breaking Community law, since Community law restricts their rights in that way?
§ [Mr. E. L. MALLALIEU in the Chair]
§ 4.45 p.m.
§ Sir D. Walker-Smith
That may well be. I have listened with respect and attention to the hon. Gentleman's contributions on this aspect of the matter. It is a phrase which might well need to be the subject of judicial interpretation, perhaps by the Community court.
At the moment the hon. Gentleman will appreciate that my request is a more modest one. I ask now what the Government think it means. What it means, in the event, may be a matter of law and interpretation. But at least we as a House 1302 of Commons are entitled to know what they think it means.
My Amendment No. 275 is designed to raise and clarify this matter: so, I apprehend, is the Amendment No. 157 of the hon. Gentleman the Member for Ebbw Vale (Mr. Michael Foot). If those Amendments are not to be accepted—I refer to the Amendments to delete "restrictions"—then an explanation is due to the Committee of the precise meaning, range and effect of the term "restrictions" and of the term "liabilities, obligations", specifying the differences between them.
First, we have to look to the treaties to see what obligations will be imposed by Community law. That is why we found Clause 1 to be so vitally important in the context of this Bill. In name it is only an interpretation Clause, but it is a paving Clause to Clause 2, or what was called the trigger Clause, because it sets off the fatal mechanism of Clause 2(1).
We see from the term "time to time" that the obligations with which we are concerned are both immediate and future. They derive from the two types of treaty identified in Clause 1 and Schedule I. It means that the commitment is open ended. We would have to accept the subordination of British law to Brussels law to an extent which cannot now be identified. Even the pre-accession treaties and obligations are not precisely ascertained or circumscribed.
We have the compendious terms of paragraph 7 of Schedule 1 giving ample scope for the emergence of cats from bags and skeletons from cupboards as we go along. The post-accession treaties and obligations, of their nature, are necessarily at large.
There is no need, in order to make the case for this Amendment, to try to make people's flesh creep by reference to future hazards or perils yet unknown. The evidence is already here in abundance in the existing treaties. In the words of Aneurin Bevan, "Why peer into the crystal when you can read the book?"
I shall not refer again to all the treaties. The logistics of these proceedings forbid it. It is not necessary because the Treaty of Rome is ample enough for that purpose. I must, therefore, now direct the Committee to the treaty and some of the material provisions governing this matter 1303 and showing the extent to which we should have a subordination of British law and the sovereignty of Parliament if this Clause and subsection be enacted.
Article 3 of the treaty sets out the objectives, in particular, under (d),the adoption of a common policy in the sphere of agriculture",under (e),the adoption of a common policy in the sphere of transport",and under (h),the approximation of the laws of Member States to the extent required for proper functioning of the common market".The matter of approximation is pursued in Article 100, which says:The Council shall, acting unanimously, on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment of operation of the common market.On the way to Article 189, I might perhaps refer the Committee in passing to Article 103, because I think it would be a pity if we missed it. This is an improved translation, because the text was different in the original translation. The opening sentence of Article 103 now reads:Member States shall regard their conjunctural policies as a matter of common concern.Not a clue about what it means! At first blush, it looks like some aspect of the permissive society but it is fair to say that Mr. Alan Campbell, Q.C., in his "Common Market Law" has a rather different and less agreeable explanation. In volume 2, page 97, of that admirable and compendious work, Mr. Campbell regards this as a reference to cycles of booms and slumps. Really, it conjures up a terrifying vision. Who is to interpret provisions such as the opening sentence of Article 103? No wonder Professor Wade felt it necessary to call his authoritative article in The Times, "Judges' Dilemma". If judges are to be faced by provisions of this sort, they are going to be in very great difficulty.
§ Mr. Eric Deakins (Walthamstow, West)
Is the right hon. and learned Gentleman saying that there is a difference in Community law between the use of the terms "approximation", "harmonisation" and "conjuncturing policies 1304 together"? Do these terms mean the same or different things?
§ Sir D. Walker-Smith
"Approximation" is the widest word, covering the bringing into line of all aspects of domestic law with the law of the Community. "Harmonisation" is used, I understand, primarily in fiscal matters and perhaps social service matters as well. "Conjunctural"—well, the hon. Gentleman must apply either to Mr. Campbell or perhaps to my right hon. and learned Friend the Chancellor of the Duchy of Lancaster. Why should we leave him out? Perhaps he is able to give us the answer. I do not find the Oxford dictionary very helpful in guiding us to a meaning, although I was interested to see a reference to the word "crises" in its definition of the word "conjunctural". But no doubt my right hon. and learned Friend has made a note of the hon. Gentleman's reasonable and pertinent inquiry and will define the conjunctural aspects of this in due course and make his option between the economic interpretation of Mr. Campbell and the possibilities of a more permissive interpretation.
I come then—and, of course, in this context it is a very vital matter indeed—to Article 189. It says:In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but will leave to the national authorities the choice of form and methods.A decision shall be binding in its entirety upon those to whom it is addressed.So Article 189 quite transparently is the prime reason for subsection (1) of Clause 2. Subsection (1) is cast in wide terms because Article 189 is cast in wide terms. The subsection is draconian because Article 189 is draconian. The subsection erodes the sovereignty of Parliament because Article 189 imposed on nation States the supra-national law of Brussels, and from Brussels there flows this endless flood of regulations, directives and decisions.
But, although there are three categories of these edicts, they vary only in the 1305 extent of their application and the method of their implementation. They have the common factor of subordinating national sovereignty, because each in the language of the treaty is binding in every respect. That means that they are not open to challenge either by the legislatures or by the judiciaries of the member States.
The 42 volumes, which a fortunate public can purchase for the sum of £63, show in English translation the regulations, directives and decisions which would bind us in every respect. But, of course, the 42 volumes are not complete. They set out the regulations, directives and decisions as they were at 10th November, 1971, so already no doubt there are some bulky volumes to be added, and I hope that my right hon. and learned Friend will tell us what proposals he has for keeping us au courant with the continuing spate of regulations. It is the mot juste in this matter because we have to run very hard to keep up with all that is coming to us in the way of extra-national law because the tap is still turned full on. We are bound in every respect for the future—bound to decrees whose purport we cannot forecast and whose content we cannot challenge. These 42 volumes are only the tip of the iceberg, but at least they are some indication.
I do not think that in this Amendment we are really concerned with the precise content of these 42 volumes of regulations, directives and decisions. They can be canvassed and investigated hereafter, more particularly in the fourth group of Amendments.
§ Mr. Raymond Gower (Barry)
Is this not a natural consequence? I take the example of the American States. When a new State was formed in the Middle West and wanted to adhere to the American Union, it had to accept the law as created by the States which were originally members, and to that extent it was in a bad position. Is not the difficulty to which my right hon. and learned Friend is referring a natural consequence of the fact that we are one of the late-comers into the European Economic Community? Will it not be very different if we adhere to the Community since in the future we shall be part of the creative organisation of these regulations?
§ 5.0 p.m.
§ Sir D. Walker-Smith
I am not sure what my hon. Friend means by "the natural result". It is the inevitable result of an unnatural act. If we do join the Community we have to accept this burden. I have been saying that for the last 10 years. I respect the view of my hon. Friend; he has no disinclination to subordinate the sovereignty of Parliament and accept the predominance of Community law. It is one point of view. I am obliged to him for equating the future status of this country, if it does enter, with that of Texas or even some less prosperous and less colourful State within the United States.
§ Sir D. Walker-Smith
That is so, and we might well come to the position if we enter the Community on this basis of finding that the amount of jurisdiction left to us in future may be less than the amount of State jurisdiction as opposed to federal jurisdiction left to the individual States
It may be that the content of some of the regulations in these 42 volumes is innocuous and may even be beneficent. That is not the point. The point is that we have to accept existing regulations, directives and decisions without any power to select, discriminate or amend. What others have decided Britain would be compelled to accept. My hon. Friend the Member for Barry (Mr. Gower) says that in future we would be part of the decision-making process, but it would be as a minority of one in 10, accepting a majority verdict.
May I say a brief word about the pattern of these regulations? Of the 42 volumes in the English text one is an index. Of the remaining 41 only 13 are described as general and 28 deal with agriculture. Some of the agricultural volumes, in particular 14 and 15, are themselves fairly general in content. It is not surprising that we find this preponderance of agricultural directives and regulations because agriculture is the most highly developed part of the Market, 1307 and the most expensive, too. In 1971 with a Community budget of about £1,200 million payments to agriculture reached nearly £900 million.
Britain will be at the paying end, paying for the privilege of conforming to these 28 volumes of agricultural regulations. We have been told in the last few days that this pattern may be modified in the long run and the Community may come to spend more on regional development and less on the subsidy of inefficient agriculture and the like. But we had better be cautious and even sceptical about that. Knowing the strength of the agricultural vote in Western Europe and recalling President Pompidou's assurance of a few months ago to his own constituents, I will believe in this bird in the bush when it comes to settle in the hand but not before.
§ Mr. Neil Marten (Banbury)
My right hon. and learned Friend referred to President Pompidou's speech to his constituents, but he repeated this assurance on his television broadcast and at his Press conference when dealing with the referendum in the last 10 days.
§ Sir D. Walker-Smith
No doubt if he had not done so the response in the referendum would have been even less satisfactory to him.
The other common policies are defined in the Treaty of Rome as well as the common agricultural policies, although they are not as yet so highly developed. That in turn will require an increasing flow of regulations, directives and decisions. I can illustrate this from volume 42, the index volume. The entries for transport and taxation are very small compared with the entries for some agricultural products; for example, sugar. But that will not last. As the Commission gets down to the task of formulating a common transport policy and down to the task of working out the details of tax harmonisation these other entries will swell rapidly.
The number of regulations, for example, for value-added tax and turnover tax are relatively small at the moment, but on the evidence of these volumes, as we can see from the entries on pages 90 and 92 of volume 42, it will not stay that way. It will be said as time goes on 1308 —it is being said now—that the Community cannot work effectively without tax harmonisation, without economic and monetary union. Year by year the regulations, directives and decisions on taxation and transport will grow until at last they reach Frankenstein proportions. All these and much more will bind us in every respect if we accept this Clause and reject the Amendment.
I turn briefly to Amendment No. 78, which has been grouped with this Amendment but for which a separate Division is to be allowed. This Amendment is designed to introduce a special safeguard for a particular type of regulation; namely those regulations which if the Clause is left unamended will have the force of law in Britain merely on the ipse dixit of the Commission. That type of regulation is on the face of it bureaucratic, with no saving processes of democracy in its enactment, not even the consideration and imprimatur of the Council of Ministers. The Committee may feel, and I hope my right hon. and learned Friend will feel, that we should have some form of parliamentary control over this type of regulation.
Amendment 78 would provide this by incorporating the necessity for approval in draft by Resolution of each House before the Commission's regulations could obtain the force of law. If my main Amendment, No. 79, is carried, the question falls and there is no need for Amendment No. 78, nor for the great mass of Amendments that we are discussing with it. If, unhappily, it should be rejected I would submit that the minimum safeguard for an essentially bureaucratic and unrepresentative form of regulation is the necessity of approval in draft as set out in the Amendment.
I have sought to deal with what is a mammoth subject as fully as time allows and as briefly as the subject permits. I have spoken for perhaps nearly 50 minutes, and according to House of Commons conventions I should apologise for the length of my observations.
§ Sir D. Walker-Smith
I am obliged to the hon. Gentleman. When I reflect on the hours I have taken in the courts on matters complex and important but mini-scule in comparison with these transcendental issues, the hours devoted to the 1309 laborious argument and presentation of the case and canvassing the issues without the court feeling that any less presentation would have met its needs, I am minded rather to apologise that my presentation of this case has not been more ample and more detailed. If there appear to be gaps in it I hope hon. and right hon. Gentlemen will accept them as defects of presentation and not evidence of demerit in the case. The case on its merits is overwhelming.
§ Mr. Shore
First, I assure the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) that he has not trespassed on the time of the Committee. We all heard him with great pleasure and considerable profit. Not only has he threaded his way through the maze of Amendments which we have before us in this single swollen group under consideration in a way which was helpful to us all, but he has laid out the main arguments on which we shall engage in our discussion of this important subsection. I am not a lawyer, and he has helped me a great deal by bringing into the argument matters with which he is familiar, in particular the real case law, as distinct from some of the rather bogus references to case law which we have had in the past, on the extent to which the law of the treaty has been tested in the courts. This, too, has helped to throw light, particularly on the case which involved the law of the German constitution in relation to Community law.
I begin by asserting, rather as the right hon. and learned Gentleman did, that we are starting today to consider the extent to which we in Britain shall cease to be self-governing if we enter the European Communities on the basis of the Bill. Subsection (1) is only one part of the wider transfer of political power involved in Clauses1, 2 and 3. If the words in Clause 2(1) mean what they appear to mean, we are enacting that Parliament henceforth will cease to be sovereign and that this country in important areas of policy covered by self-enacting law will cease to be independent. Clause 2(1) asks us to accept without further enactment, without further approval, or even consideration by Parliament, Community legislation as provided for in the Community treaties. The Clause imports into our law the 1,200 regulations in the 42 volumes that the Communities have 1310 manufactured during the past 13 years. It goes much further than that; we have to swallow holus-bolus not only all those past regulations but the outpourings of the future.
I do not believe that any hon. Member on either side of the Committee or on either side of the proposal for entry to the Common Market welcomes this transfer of legislative power from Westminster to European institutions. We do not welcome it if only because we are aware that in transferring our own rights and powers we are at the same time transferring the rights and powers of the British people, powers which we have on loan, powers which we know the British people have not been asked to part with, and powers which we have every reason to believe they do not wish us to abandon.
The key question, which I shall come to later, is whether this transfer of power, particularly in the form in which it occurs in Clause 2(1), is necessary for the purpose of entry to the Common Market. But I want first to deal with two preliminary questions; the size of the area of our sovereignty which Clause 2(1) seeks to transfer to Community institutions, and whether or not our concern about this proposal has been misconceived.
On the first point, one of our major difficulties is that the area of self-enacting Community law is nowhere clearly defined in the Bill or in any Government memorandum. I am aware of the contents of the 1967 White Paper, and I make only two points about it. First, the White Paper, curiously enough, has never been debated in the House of Commons. It is a statement, no doubt drawn up with the best advice then available to the Government of that time, which was not available for the great discussions on our proposal to apply for entry. The vote was taken at the beginning of May, 1967, and the White Paper was published on the last day of May of that year. With the almost immediate rejection by the French of Britain's proposals to open negotiations, there was no reason to pursue the 1967 White Paper, so it was not debated.
§ The Chancellor of the Duchy of Lancaster (Mr. Rippon)
Just to get the record straight, I am sure the right hon. 1311 Gentleman will agree that the Leader of the Opposition when he was Prime Minister expressly stated in 1970 that the White Paper still held good.
§ Mr. Shore
I do not think so, but we can check that. I wish the right hon. and learned Gentleman would not be quite so defensive; I am trying to make a few points—[Interruption.]. If I heard correctly, that was an extraordinary thing to say. I heard a word which the right hon. and learned Gentleman does not normally bandy about.
§ Mr. Rippon
I described the right hon. Gentleman's statement as dishonest. I should not have done that, and I withdraw it unreservedly. We have gone over all this so often; I think we can stand on the previous statements that have been made.
§ Mr. English
On a point of order, Mr. Mallalieu. Is it not entirely out of order for a Minister on the Front Bench to use a phrase of this character? After all, Ministers sit there, do they not, Mr. Mallalieu, under a Prime Minister who made a totally dishonest statement about the full-hearted consent of the British people?
§ Mr. Shore
Thank you, Mr. Mallalieu. I accept the right hon. and learned Gentleman's withdrawal.
The essential point that I am seeking to make is that the White Paper was not debated. Secondly, if anyone today attempted to draw up a White Paper on the legal and constitutional implications of membership, it would be a very different White Paper—at least I hope it would be longer and would cover a number of matters which it was not possible for the authors of the 1967 White Paper to cover; in particular, the immense constitutional and legal implications of the Treaty of Luxembourg, 1970, when the Community for the first time acquired the right to tax.
1312 We know about the contents of the 41 volumes of regulations in the Community, and they are some indication of the scope of the problems. We have had no opportunity to discuss the insertion of Community law into our own law and policies affecting our existing arrangements. Nowhere have we been told the meaning of the various terms used in the subsections as to "rights, powers, liabilities, obligations and restrictions". There are definitions in Part II of Schedule 1, but they relate only to some of the terms used. They are definitions which in certain cases singularly fail to define. Furthermore, despite our pleadings, we have been unable to explore the Schedule as much as we wished to do. Had we been able to do so, we would have had a clearer idea of the meaning of these terms and, above all, in relation to this Clause.
Nor, as we have discovered, is there any firm frontier to the area in which in future self-enacting law can be contained. Existing self-enacting law derives from provisions in the main treaties, but can be added to if they are ancillary to the main treaties. In other words, they can be extended in some areas without the requirement even to notify the Parliaments of member States—and in other ways, all that is required is the affirmative Resolution of both Houses of Parliament.
In this respect, future Community law can be likened to a growth within our body politic. The cancer will grow as it has grown already in the past 13 years. Moreover, under the ancillary provisions the original growth can establish secondaries in other parts of our legal system. That is the extent and potential of growth of this self-enacting legislation.
It will not do for anyone to pretend that the matters covered by self-enacting provisions are small and unimportant. They cover not only a large part of our food and agriculture and some of our basic industries, but also the movement of people and money—and more besides. Moreover, if the Government were more frank and told us what is in the pipeline in Brussels, we should quickly see the many new areas in which Community law is already programmed to advance. Let there be no doubt that this is important already and will increase in importance in the years ahead.
1313 There have been other arguments seeking to lull us as to the importance of what is involved. My right hon. Friend the Member for Manchester, Cheetham (Mr. Harold Lever) in Committee last Wednesday argued that those of us who fear and express concern about the transfer of sovereignty and power in this Bill—and indeed the Government themselves—are all victims of an illusion. He argued that the sovereignty of Parliament cannot be lost or abandoned. That is the heart point he was making—that it is not possible for Parliament to do this.
The same point was made by Professor Wade in an article in The Times on 18th April in which he said:The one thing that our legally omnipotent Parliament cannot do is to fetter its own continuing sovereignty over our law.In other words, he was saying the same thing as my right hon. Friend did on Wednesday.
I was not at the time convinced by my right hon. Friend, although I listened to his speech with great enjoyment. The reductio ad absurdum of his argument would be for Parliament to delegate all powers and functions to European agencies and then still claim, and no doubt claim correctly in constitutional law, that Parliament is omnipotent. It is a matter of degree. The argument advanced on this front by strong pro-Marketeers is matched by the argument of other pro-Marketeers, not about the legal aspects of sovereignty but about the real power which is involved in our accession under these terms.
The point which has been asserted on many occasions is that we have nothing to lose in terms of real power, on the ground not only that this House does not control Ministers effectively at present but that Government and Parliament in Britain no longer command events. If we combine the two arguments, no problem can exist since it disappears between the two contentions. Those who hold this view will sleep happily at night, and Clause 2(1) will cause no distress to them.
I believe that both assertions about sovereignty are wrong. What matters is not the abstract claim about the sovereignty of Parliament but the hard fact of who makes and interprets the laws. It is the transfer of the law-making and 1314 law-interpreting power to European agencies which is so important in these Clauses. I do not accept the view that we have now become so powerless that we have no influence or authority in dealing with external or internal events.
§ Mr. Nicholas Ridley (Cirencester and Tewkesbury)
If the second hypothesis, that we have not de factopower, is wrong, surely it is still possible for the first hypothesis to be right; namely the hypothesis advanced by the right hon. Member for Manchester, Cheetham (Mr. Harold Lever) that we cannot give away our sovereignty. Therefore, the right hon. Member for Stepney (Mr. Shore) appears to be agreeing with his right hon. Friend.
§ Mr. Shore
I am saying that as a purely legal and theoretical point it may be true that if it is said that Parliament's sovereignty cannot be abandoned, delegated or transferred to others, then by definition Parliament cannot do so. But that is not making a meaningful statement about who makes laws and interprets them and about the power and control of power through Government machinery in the real world. One has not made any significant statement about either proposition. One has said something that may be unchallengeable, but it is meaningless.
I come back to what I think is the better part of Professor Wade's article, where, before going off to pursue this hare of abstract and notional sovereignty, he made the point:There is nothing new in abdicating sovereignty—the dismantling of the British Empire was a gigantic exercise in exactly that. But it is undoubtedly revolutionary for this country to accept as law, in advance and automatically, the dictates of the Community's executive organs, the Council and the Commission.The judgment of the most eminent legal authority whom we have today is that it is no more, no less than revolutionary.
Professor Wade went on:Acceptance of the European Court is in form less revolutionary, but may have even more profound repercussions. For the court has proclaimed on many occasions that the Treaty of Rome does not, like ordinary treaties, merely impose obligations on the signatory states: it has brought into being a 'new legal order', i.e. a body of 'community law' which must, if community is to mean anything, apply 1315 proprio vigore in all member states and take precedence over their internal law in any case of conflict.
§ The Solicitor-General
Will the right hon. Gentleman accept the following passage as an accurate paraphrase of what he has just read with astonishment:The constitutional innovation would lie in the acceptance in advance as part of the law of the United Kingdom of provisions to be made in the future by instruments issued by the Community institutions—a situation for which there is no precedent in this country"?Does that not demonstrate exactly how well known all these apparently astonishing propositions have been for at least the last five years?
§ Mr. Shore
Of course they do. The article that I have quoted interprets the significance of that part of the 1967 White Paper, and I have no hesitation in linking the two. What I want to establish is whether it is right. Is Professor Wade correct in his judgment about the importance of the matter? As the Committee will recall, I was arguing on this occasion not with the Treasury Bench. I was having a continuing debate with absent friends who had advanced a different viewpoint slightly earlier.
I turn to the question which I said at the beginning of my speech I would face It is a key question; namely, whether Clause 2(1) is necessary for the purposes of the Common Market, and whether the Common Market requires this kind of self-enacting law?
I deal first with the existing regulations. Clearly, we do not have to swallow them whole, as the Government intend us to do. Clearly, we could have had substantial and separate enactments for the main matters concerned which would have given us the opportunity to examine and amend the contents of these volumes.
A comment of the Prime Minister winding up the Second Reading debate was interesting on this point. He did not really deny that it was possible separately to enact the regulations which 1316 already existed. He made the point, which I found odd, that… what Parliament would be asked to do would be to re-enact all these matters which presumably we would not wish to change, but rather to keep, because they are our existing law; but we would not be able to change that part which arose from Community law."—[OFFICIAL REPORT, 17th February, 1972; Vol. 831, c. 748.]The right hon. Gentleman was making the point that all of this was a pointless exercise. However, I want to distinguish between our ability as a Parliament to amend if it had taken the form of Bills and the other point which lay within the Prime Minister's words, that his conduct of the negotiations was such that he could not change any of those regulations without being in serious dispute with President Pompidou and the other negotiating partners. It is a very important distinction.
As though to confirm my assertion, in his last speech in the referendum campaign the President of France said that one of the reasons why he wanted the French people to vote for Britain's entry was that Britain had accepted all the regulations made under the agricultural policy and all the matters relating to the Common Market. So much for the existing regulations.
I turn to the future and to regulations which may be made under Clause 2(1). Here I want to recall the words of the Chancellor of the Duchy. The right hon. and learned Gentleman had this to say about the future in the course of our Second Reading debate:… we shall of course play a full part in the formulation of future directly applicable Community instruments—as of Community instruments which do not have direct effect. … Before a Community instrument is made, the consultative processes are thorough, lengthy and largely open.So, clearly, they are not locked away. They can be got at and influenced. The right hon. and learned Gentleman went on to speak of regulations which would come to the Council of Ministers:A United Kingdom Minister will sit on the Council where it is recognised that decisions are not taken which may conflict with the vital national interests of a member State. … Where there are conflicting interests to reconcile, the period between initial formulation of a draft proposal by the Commission and its eventual adoption by the Council may be long, stretching even in many cases to years."—[OFFICIAL REPORT, 15th February, 1972; Vol. 831, c. 273–4.]1317 The right hon. and learned Gentleman was making the point that not only can we get at regulations but that normally there is ample time between drafting and their finalisation in which influence can be brought to bear, certainly at the Council of Ministers. As the right hon. and learned Gentleman has told us so often, because we have a built-in national veto in the end nothing can come up at the Council of Ministers of which we disapprove.
§ Mr. Deakins
With regard to the safeguards against regulations passed by the Council of Ministers, my right hon. Friend will be aware, although it is not entirely clear from the Treaty of Rome, that the Commission issues regulations directly binding member States. Would the safeguards that my right hon. Friend read from the right hon. and learned Gentleman's speech cover regulations issued by the Commission?
§ Mr. Shore
My hon. Friend anticipated the trend of my thinking. I will try to answer that in a few moments' time. First, I want to consider and complete my consideration of the right hon. and learned Gentleman's speech of 15th February and the process, as he saw it, of bringing authority to bear on the formulation of self-enacting regulations.
The House will recall that the right hon. and learned Gentleman, having made it clear that Ministers on the Council could influence self-enacting regulations and in the last resort veto them, having told us that there would be time in which all those things could be considered, then surprised us by adding a new ad hoc committee. He then proposed that he could get the House to participate through some form of ad hoc committee in order to influence the shape and the content of regulations.
§ Mr. English
Would my right hon. Friend agree all the right hon. and learned Gentleman had to do was copy into the wording of English law the provisions of the German Act ratifying the Treaty of Rome which provided for the Bundestag to be informed of regulations so that it could discuss them before the Minister went back to the Council of Ministers to finalise them.
§ Mr. Shore
I am grateful to my hon. Friend for that point. I hesitate to 1318 confirm it because I have not had the opportunity of studying the German procedure. It sounds as though something similar could occur here. What we have to consider is whether it would be effective and whether this is the best way of bringing parliamentary scrutiny to bear.
If the Chancellor of the Duchy's words meant anything at all—I have quoted a few of them—they mean that Britain's representatives would have an opportunity to consider future Community regulations and veto those they did not like. That I think is clear. The Solicitor-General made the same point, this time in the context of Community treaties, on 8th March, 1972. He dealt then in particular with treaties under Article 113, trade treaties, which would not come before the House.
He told us that those treaties would go to the Council of Ministers. Although the provision was to qualify majority veto, he took the right hon. Gentleman's view that the qualified majority veto no longer exists and everything has to be unanimous. Such a treaty could also be stopped within the Council of Ministers if it was offensive to us. To complete that line of argument we got the further astonishing proposal that we, too, could be brought into it and the ad hoc committee could look at draft treaties as well as trade regulations. All of this will be within the recollection of the Committee.
If the Chancellor of the Duchy and the Solicitor-General are correct and if there is a British veto on the Council of Ministers affecting both treaties and regulations, it is possible for Parliament to be meaningfully consulted with the help of an ad hoc committee before Community drafts are finalised. If this is the case, is there a transfer of legal and treaty-making power to the Community institution?
There is a deeper point here, and I would like to put it to the Committee. The self-enacting powers under Article 189 as reflected in Clause 2(1) of the Bill were part of the original design of the Rome Treaty. They expressed the supra-nationalism that its first and founder authors thought both desirable and necessary. The Rome Treaty required not 1319 only common institutions at a Common Market level but a manner and method of decision-making which could in the last resort override separate national interest. The supra-national decisions were to be buttressed with the whole force of Community law and courts.
The events that occurred in the beginning of 1966 which led to the Luxembourg Agreement, when France asserted she would no longer accept majority decision-making in the Community and would claim the right of national veto whenever national interests were involved, changed the whole nature of the European Economic Community. As we know, the Prime Minister and the Government have explicitly endorsed President Pompidou's view of the nature of the treaty and the importance of the national veto. They have said it not once but on many occasions. They have asserted this because they think it is the only way in which they can make the proposition tolerable to so many members on both sides.
If the Government mean that they have a national veto and if it is true that supra-national design and ambition has been abandoned, why do the Government still try to insert into this Bill and into our law a principle which is contrary to their own public and political assertions and profoundly repugnant not only to the House but to the British people and all our traditions? Why do they do it?
They cannot have it both ways. Either self-regulating law and supra-nationalism are necessary, in which case let them drop the pretence of the national veto, or they are not necessary, so let them get rid of this odious Clause. There may be a further complication. It may be that the Government want to have Clause 2(1) not because it is necessary to the treaty or the purposes of the Common Market but because it undoubtedly transfers power from this House to Ministers. The whole business of parliamentary scrutiny and control is dreadfully weakened. The Executive, as the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) has said, gains great power from this change. Would it not be intolerable for this Bill under the guise of 1320 abandoning powers in the interests of joining the European Community to take from this House powers it would otherwise enjoy. This is a totally unacceptable development.
The European Commission and how far it can fit in is a more difficult matter. The attempt by my right hon. Friend the Member for Battersea, North (Mr. Jay) to raise this matter and get it properly discussed on Second Reading and subsequently has not met with any adequate reply from the Government. We have not had laid out and put before us to what extent and where in the treaty the business of regulation-making belongs to the Commission alone and not, as is normally the case, the combination of the Commission and the Council of Ministers. If the Government argue that the requirement of Clause 2(1) is to transfer the law-making power to the Commission and that is why they needed Clause 2(1), I think that, too, would be quite unacceptable to both sides of the House.
I will not develop the argument further, because it would take me some time. However, I hope that we shall be given an opportunity to discuss it. I regret that we have not been able to discuss separately and properly the question of the Commission, which would have arisen on Amendment No. 78. That goes to the centre of this complex maze of decision-making processes which comprise the governing bodies of the European Communities.
§ Mr. Nigel Spearing (Acton)
Will my right hon. Friend give me some information on the point about the Commission and the Council? I understand that the very purpose of the House of Commons is of itself consultation on legislation before the Crown actually legislates. If we transfer legislative functions either to the Commission or to the Council, there is to be consultation, about which we have heard. However, are the proceedings of either the Commission or the Council of Ministers set out on public record in the same way as the OFFICIAL REPORT of our proceedings so that people can see that such consultation and consideration has taken place and can see what has been said?
§ Mr. Shore
I am sure that if we had this information it would enable us to 1321 form a judgment. My hon. Friend is right in making the point, which I believe lies at the back of his remarks, that consultation is no substitute for proper parliamentary scrutiny and process.
I do not wish to be misunderstood. My attack on Clause 2(1) was not to end with the conclusion that I thought the arrangements proposed would be satisfactory, but rather to point out that this puny way of inserting a degree of parliamentary control was unacceptable to Parliament. My point is that it is not necessary to have Clause 2(1) and that legislation bringing us into line with what is required of us in terms of the European Communities could be carried through in other more acceptable and respectable ways. That is the point that I am making and the conclusion that I am reaching.
§ Mr. Dell
Is my right hon. Friend now making the point which I have previously made: that what is involved here is not national sovereignty, that national sovereignty is not in practice significantly eroded by membership of the Common Market, which is consistent with national sovereignty, but that the fundamental objection to the Bill is that the way in which it is brought before the House erodes parliamentary control over the Executive? It is that point at which we should be directing our attack.
§ Mr. Shore
My right hon. Friend, whose views on these matters I have often heard and occasionally debated, is absolutely right about the parliamentary sovereignty argument. We all agree that it is far beyond the call of duty to do what so many right hon. and hon. Members on both sides wish to do. In other words, to set up a common agricultural policy and a customs union in Europe and extend it to the four applicant countries does not require this degree of parliamentary self-abnegation, this surrender of parliamentary rights. It is only if we consider that we are joining a political union with a supera-national purpose that this kind of self-abnegation is necessary, and it is the Government's emphatic contention that they have no intention of establishing a political union of any kind.
Like the right hon. and learned Member for Hertfordshire, East, but, I fear, with less excuse, I must apologise for taking so much time to make my remarks. 1322 Our strategy in amending the Clause will be fairly clear. We do not believe that Clause 2(1) is necessary. We think that it is thoroughly undesirable. Therefore, we want to get rid of it. If we are unable to cut it out of the Bill altogether, we shall seek in further Amendments to reduce the evil, to minimise the change, in all the different ways and forms which our other Amendments suggest.
§ Sir Robin Turton
I have great sympathy with the intervention by the right hon. Member for Birkenhead (Mr. Dell). For once, I rather disagree with my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) who talked about Amendment No. 79 as being emasculating. I regard it as a form of vasectomy. The difference is that one can still be potent after vasectomy by having another operation.
I believe that the Government, whether we want to go into the Common Market or not, have adopted the wrong method to effect our entry. The whole system of parliamentary scrutiny of legislation has not been so completely set aside as it is in the Clause since the middle of the seventeenth century. Not since then has Parliament been treated in so cavalier a fashion. In effect, we are photocopying 2,500 or, as my right hon. and learned Friend the Chancellor of the Duchy of Lancaster said, 1,500 instruments into our legislation without allowing Parliament or the people to have copies. I hope that the Government will reconsider this point before the end of the debate.
I want to make a special request to my right hon. and learned Friend the Chancellor of the Duchy of Lancaster or more probably to my hon. and learned Friend the Solicitor-General. Whatever differences we may have about the Bill, whatever the form of the subsection, I hope they will agree that there shall be a procedure for consolidating the laws effected by our entry. It is very much like Amendment No. 7. The right hon. Member for Birkenhead's Amendment covers the first part of the operation. I have been looking at it more from the aspect of the procedure of the House of Commons. The consolidation Bill would proceed under Standing Order 87a to a Committee and have the expedited procedure in the House. This would not be a delaying procedure but it would enable 1323 those who practise the law, and the people of the country, to know what changes have been made as a result of our accession to the Treaty of Rome.
I now turn to the Amendments, which I am advocating, which seek to improve subsection (1). One of the great difficulties about the subsection is its ambiguity. My right hon. and learned Friend the Member for Hertfordshire, East, put it extremely clearly, and I do not want to waste the time of the Committee by repeating anything he said. The first ambiguity concerns what is meant by "obligation" in subsection (1), which comes again in subsection (2). My right hon. and learned Friend asked why we should have liability and obligation. Although it has not been defined, if the Bill is passed in this form, there will be three kinds of obligation. First there will be the self-enacting obligation under subsection (1). Secondly there will be the obligation that arises out of a directive in subsection (2) which will require legislation by Statutory Instrument. Thirdly there will be the obligation arising out of the exceptions in Schedule 2 which will require legislation. I should have thought that from the point of view of removing ambiguity it would have been far better if my right hon. and learned Friend had used different words for the self-enacting obligation in subsection (1) as distinct from the other two obligations that are covered by subsection (2), or will be covered by legislation.
§ [Sir ALFRED BROUGHTON in the Chair]
§ 6.0 p.m.
§ I come now to my Amendments Nos. 314 and 56. I should like to ask the Solicitor-General what he means by "'enforceable Community right' and similar expressions". The odd thing is that the words "enforceable Community right", which are printed in the subsection as if they were a quotation, do not occur at all in the Bill, and I have looked through as many of the treaties as I could to find whether these words appear in the treaties but I have not discovered them. I suggest to my right hon. and learned Friend that to have the words "enforceable Community right", which do not appear in the Bill, defined here and not in the definition Clause and then go on to say "and similar expressions" is making 1324 this proposed Act of Parliament something that all lawyers in all countries will jeer at afterwards. I ask my right hon. and learned Friend, if he really wants to have a definition in subsection (1), to spell out exactly what he is trying to define. This has puzzled a great many lawyers—I have read opinions on this—who have knowledge which I do not possess.
§ My third point refers to Amendment No. 78, to which I and my right hon. and learned Friend the Member for Hertfordshire, East have put our names. This concerns the question why some of the regulations of the Community cannot go through the parliamentary process by statutory instrument in the House of Commons. The Bundestag has done this and it is an effective way of securing scrutiny as the hon. Member for Nottingham, West (Mr. English) interjected. The whole problem of the price of wheat, if I remember correctly, was dealt with effectively, as was the Mansholt Plan, by the Bundestag and the law was changed as a result of the draft regulations going before the Bundestag before they were presented to Ministers.
§ Whatever our view on going into or staying out of the Community, the kind of subsection (1) that I think the Committee would like to see would be one that limited the self-enacting part of it to the barest minimum. I think all of us would agree that certain rights should be self-enacting, but where it is an obligation in the form of taxation Parliament is very loth to see its powers of scrutiny removed. I ask my right hon. and learned Friend to consider whether he can give a definite pledge that such cases will be brought to Parliament in draft form before they are agreed to by the Commission and will be treated under our delegated legislation procedure.
§ I did not quite understand the right hon. Member for Stepney (Mr. Shore) when he was talking about the ad hoccommittee. I thought that committee was to advise how the Government should deal with these matters in the Bill by means of parliamentary procedure. I always felt that the defect of the proposition put forward in the Second Reading debate by my two right hon. Friends was that they were rather too late and that they had proposed the ad hoc committee to advise them on the problem of 1325 how Clause 2 should be framed; but I did not think anybody was suggesting that the ad hoc committee should be a standing or sessional committee to deal with these problems after we had entered the Community.
§ Sir Elwyn Jones (West Ham, South)
Would the right hon. Gentleman be disposed to agree that these matters are of such great importance that they ought to be dealt with expressly by an Act of Parliament rather than by the amendment of Standing Orders in the House of Commons?
§ Sir Robin Turton
That is what I was saying, that I did not understand that the ad hoc committee was to deal with the amendment of Standing Orders; I thought its purpose was to advise my right hon. Friend the Prime Minister exactly what form of parliamentary scrutiny we required and what must be enacted by legislation and not left to Standing Orders, because if the ad hoc committee said that certain matters could not be dealt with by Statutory Instrument in draft form but certain other matters could, quite clearly the latter would require to be enacted by Statute and not left to Standing Order, because without the statutory form the Standing Order would have no effect at all.
That is why I hope that between now and Report my right hon. and learned Friend will consider this matter of parliamentary control. He knows that I have a different view on the wisdom of entering the Community, but for the purpose of this argument the whole of my speech has been directed to trying to make entry work as based on the parliamentary form. One must remember that all the member countries took some form of precaution to preserve their parliamentary rights—except the French, who do not pay quite as much attention to parliamentary control as the other members of the Community. What the Dutch did and what the Germans have done we ought to be doing now in the Bill. I am quite certain that were we, unhappily, to enter, the other members of the Community would respect us if we put in proper parliamentary control. Without some Amendments such as this, Clause 2(1) is really a defiance of the whole parliamentary tradition of this country. For that reason, unless it is amended I must fight it.
§ Mr. Douglas Jay (Battersea, North)
The right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) did an immense service to the Committee this afternoon by making perfectly clear the legal and constitutional effects of the Bill, which the Government have most notably failed to do up to now. There really is no doubt, as the right hon. Member for Thirsk and Malton (Sir Robin Turton) has just said, that the subsection as it stands would do more damage to parliamentary sovereignty and parliamentary control than any subsection of any Bill ever introduced into the House of Commons. Whether one is for or against it, I do not think that can be denied. It is this part of the Bill which takes away from the British people a substantial power to legislate over their own affairs and gives it to the Council of Ministers and the Commission in Brussels. There is no doubt about that, as I shall establish presently.
This, therefore, seems to me the appropriate moment for the Committee to examine the extent of the power—and "power" is one of the key words in the subsection—that is being taken away from the British people, and the undemocratic character of the institution to which those powers are being surrendered. Even some hon. Members—including, apparently, my right hon. Friend the Member for Manchester, Cheetham (Mr. Harold Lever), who has not stayed for an answer—do not seem fully to understand what the EEC constitution is or how it works in practice.
The right hon. and learned Member for Hertfordshire, East was right to bring us back to Article 189 which will be given the force of law in this country by the subsection. Article 189 states—and I emphasise the words—thatthe Council and the Commission"—there is no doubt about this—shall make regulations and issue directives, take decisions, make recommendations or give opinions.That is to say, there is also the power to make regulations.
As we have heard, a regulation is binding in its entirety and takes direct effect in each member State without further enactment, as it is described in the subsection. A directive is binding upon each member State to which it is directed while giving the national 1327 Government the choice of method of application. A decision is binding in its entirety on those to whom it is directed.
There are two vital features of that article as it is enforced by the subsection. First, the Council and the Commission are given all these powers, including self-executing regulations. If there were any doubt about that, it is made clear by Article 155, which the right hon. and learned Gentleman did not quote. It says, among other things, that the Commission shallhave its own power of decision"—that is to say, without any reference to the Council of Ministers.
It needs only a cursory glance at the famous 41 volumes of regulations, decisions and directives made so far by the EEC to see that a large number of them, including a number of the self-executing regulations, are made by the Commission and have never been before the Council, let alone any Parliament, or, therefore, before any elected representatives of the people in any country. The essence of the EEC is legislation by officials meeting in private—that is to say, bureaucracy in the most literal sense of the word.
The Commission has far greater powers, because not merely does it make a large number of decisions, but in the great majority of cases the Council can make decisions only on a proposal by the Commission. I suggest, therefore, that the Committee and the country ought to take a rather closer look at the Commission to which these sweeping powers over British affairs are to be handed.
§ Mr. Deakins
My right hon. Friend is not a lawyer, nor am I. Is he right in his interpretation of Article 155 of the Treaty of Rome that the power to make a decision is the same power legally as the power to issue a regulation implementing that decision?
§ Mr. Jay
There is no doubt from Article 189 that the power to issue a regulation resides with the Commission, and we have had that confirmed in our debates by the Solicitor-General. I take it, therefore, that the word "decision" in Article 155 is not used in a technical sense and refers to regulations, decisions and directives, but I shall be glad to be corrected on that by any lawyer.
1328 6.15 p.m.
If I may return to the nature of the Commission itself, the first thing that emerges, and which still seems to be not fully grasped by many people, including some in the House of Commons, is that there are no national representatives on the Commission. Even the Prime Minister recently fell into error in supposing that there would be a British representative on the Commission. He did so when addressing the Tory faithful at a Central Hall rally. He talked about our future representatives on the Commission. The right hon. Gentleman is wrong about that, as he is about many of his other ideas about the EEC.
The Treaty of Rome is explicit about this, too. It says in Article 157:The Members of the Commission shall be completely independent in the performance of their functions, in the general interest of the Community.In the performance of their duties, they shall neither seek nor take instructions from any Government or from any other body …. Each Member State undertakes to respect this principle and not to seek to influence the members of the Commission in the performance of their task.That is not what one understands by national representation on a genuine international body such as EFTA, OECD or the United Nations.
What the system really is is taxation and legislation without representation, but we shall no doubt be told, as we were last night by my right hon. Friend the Member for Cheetham who has not stayed to discover the facts, that although this is in the holy writ as inscribed in the treaty, it does not really work out like that in practice. The real power, we are told, is with the Council of Ministers and the national Governments, and the practice is different from the theory. That is what we have heard quite often. Even if that were true, I do not think that the intention not to observe the treaty is a strong reason for signing it, but it is not true.
How does the EEC really work in practice, and not in theory? I have here an excellent publication to which I think the Committee has not paid enough attention. Entitled "How the European Communities' Institutions Work", it was published by the European Communities' Press and Information Department in 1971. It is written by M. Emile Noel, O.B.E., Secretary General of the Commission of the 1329 European Communities, and he presumably should know. I suspect that M. Noel, who holds these views, knows even more about the subject than do my right hon. Friends the Members for Cheetham and for Dundee, East (Mr. George Thomson) who spoke about this the other night.
M. Noel says on page 2, quite correctly, when talking about the Commission thatthroughout their tenure of office the members must act in full independence both of the Governments and of the Council …".They are independent of the Council. I think that we should note that, because it does not seem to be fully understood. That is different from what is taken for granted here as the relationship between the Cabinet and the Civil Service, or between the Council of Ministers and officials in any other international organisation to which we belong.
M. Noel goes on to say:The Council cannot remove any membersof the Commissionfrom office; only the Parliament can if it wishes …That is to say, the rather curious Parliament of the EEC can do this; but in practice it never does, because it has to dismiss the whole Commission at one fell swoop if it wishes to do anything at all.
Next we are told—and I emphasise that this is M. Noel and not myself giving this information—that in practice the Commissionis the initiator of Community policy.I ask the Committee to note that. It is not the Council of Ministers, but the unrepresentative Commission, which is not answerable to Ministers, which initiates policy. Far from the Commission's powers having decreased since the early days of the Treaty of Rome, as we have been led to believe, they have greatly increased. In M. Noel's words:The Commission is directly invested by the Treaties with wide executive powers. In addition, it now possesses substantial extra powers conferred on it by the Council, mostly in connection with EEC matters"—as opposed to matters concerned with other treatiesfor securing the implementation of enactments based on the Treaty1330 —another form of legislation by the Commission.
M. Noel then candidly states:Figures speak louder than words. During 1970 alone the Commission enacted 2,448 regulations, mostly relating to the common agricultural policy.I am told that at the time of the Second Reading of this Measure the Parliamentary Liberal Party, the members of which have not troubled to attend our debates today, did not even know that the Commission had power to legislate on its own without reference to the Council.
But this is not the whole story. M. Noel also tells us:Under the Rome Treaties any measure of general application or of a certain level of importance has to be enacted by the Council of Ministers, but except in a very few cases the Council can only proceed upon a proposal by the Commission. The Commission has then a permanent duty to initiate action. If it submits no proposal, the Council is paralysed and the forward march of the Community comes to a halt.To leave the matter in absolutely no doubt, the Secretary General adds:In the Commission's favour there is for a start the fact that it draws up the proposal on which the Council is to deliberate, and only on the basis of that proposal can the Council deliberate at all.I have quoted enough to show that anyone who imagines that in practice, as opposed to in theory, there is anything in the EEC resembling cabinet government, let alone representative government, is displaying great ignorance of the way in which the Community works and of the whole organisation of the EEC.
But even that is not the whole story. To make absolutely certain that most of the real power is in practice with the Commission and not with the unhappy Council of Ministers, M. Noel in his publication invokes Article 149 of the Treaty, which is one of thekey components in the institutional structure"—they are M. Noel's words—and which provides thatWhen pursuant to the Treaty of Rome the Council acts on a proposal of the Commission it"—that is the Council—shall, where an amendment is involved, act only by means of a unanimous vote. If the Ministers are unanimous they can therefore decide on their own authority, even should their decision be contrary to the Commission's 1331 proposal. On the other hand, they can decide by a majority only if their decision is in line with the Commission's proposal.In other words, if the member States are not at one they cannot take a majority decision unless it entails accepting the proposal in toto without amendment. Only the Commission can amend it. Again, therefore, the difference between what we and they understand as cabinet government or government by responsible Ministers is glaring indeed. Taking together the Treaty of Rome, this Clause and that description by the Secretary General of the Commission and how things work in practice, it is clear that substantial power of legislation as well as of executive decision rests with the Commission rather than with the Council.
I come finally to the Commission itself and the question of decision by majority vote. There is no veto there. In M. Noel's words,Although its decision can be taken by a majority, many are in fact unanimous.One would accept that. He goes on to say:Where a vote is taken by a majority the minority always abides by the majority decision, which thereupon constitutes the stance of the whole Commission.That does not sound like the actions of some British political parties, but it is interesting to know the way in which the Commission operates, information which is vital for this debate because it is clear that there is no question of a veto in the Commission.
That, according to the Secretary General of the Commission, is how this institution works in practice, although some people still do not seem to have grasped its full character. It is a travesty of cabinet, responsible or representative government as we know it. This is the body to which we would be handing over power if we accepted the Clause and particularly subsection (1). That in itself is a powerful reason for the Committee rejecting these provisions and accepting at any rate the principle Amendment which we are debating.
§ Mr. Rippon
The right hon. Member for Battersea, North (Mr. Jay) underlined on this occasion, as he has on many other occasions, that we are dealing with the really basic legal consequence of membership of the Communities and the 1332 acceptance of the directly applicable principle for certain Community provisions, past and future. There is no escaping the fact that this principle forms a central provision of the Bill. It has been analysed and considered in our earlier debates, both on the question of the Bill and on the question of accession.
My right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith), in a characteristically powerful oration of the kind we have heard on the Bill on more than several occasions, was perfectly frank. He said that if we were to accept Amendment No. 79 we would emasculate the Bill. There is a slight area of controversy between him and my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) as to the exact medical term that might be most appropriate, but I think that my right hon. and learned Friend, as often in these matters of definition, is not far short of the truth.
This is in fact a wrecking Amendment, and that is the whole purpose of those who tabled it. [Interruption.] They are challenging now, as they have challenged before—this is the purpose of Amendment No. 79—the whole principle of the Bill.
§ Mr. Michael Foot
I am anxious to clear up a matter which has featured prominently in our debates. If that is the right hon. and learned Gentleman's claim and if "wrecking" is the label he puts on this Amendment, may I ask why he thinks that this and other Amendments have been selected by the Chair? How does he reconcile this selection with the ruling of the Chair which he supported in the Lobby? Before describing this as a wrecking Amendment, will the right hon. and learned Gentleman please explain himself?
§ Mr. Rippon
It is not for me to comment on the selection of Amendments by the Chair. I was referring specifically to Amendment No. 79, which I regard as a proposal going to the heart and centre of the Bill. It may be perfectly in order; it would not involve an amendment of the treaty as such. These are not matters for me. I simply said that it goes to the very principle of the Bill.
§ Mr. Foot
We are anxious to clear this matter up because if the right hon. and learned Gentleman is holding to what 1333 he said—that he regards this as a wrecking Amendment—and if he does not regard it as a "nuts and bolts" Amendment, to use the phrase of the Chairman of Ways and Means, we may wish to raise the matter later, particularly as the Chancellor of the Duchy of Lancaster went into the Lobby on precisely this question.
I therefore suggest, to enable us to put our debate perfectly in order and so that this whole question need not be raised again, that the right hon. and learned Gentleman should withdraw his suggestion that this is a wrecking Amendment. Unless he does that we do not propose that the matter shall be disposed of in this manner. We do not propose to accept the situation in which a ruling was given by the Chair—a ruling to which we strongly objected but which we have accepted—and in which the right hon. and learned Gentleman can flout that ruling.
§ 6.30 p.m.
§ Mr. Rippon
Nor do I accept that definition of what I said. We went into this matter in one of the votes of censure in the Committee stage on the Chairman's ruling. The hon. Member for Ebbw Vale (Mr. Michael Foot) has been here throughout the discussion and he has heard what my right hon. and learned Friend the Member for Hertfordshire, East and the right hon. Member for Battersea, North have said. If he prefers the description which my right hon. and learned Friend applies to what is after all his own Amendment—that it emasculates the Bill—well and good. It is sufficient for me to say that it goes right to the core of our membership of the Community. There is nothing new——
§ Mr. English
On a point of order, Sir Alfred. To take up the point made by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot), is it not absolutely clear beyond any doubt, and it has been made clear in a whole day's debate, that the principle upon which the Chair has selected Amendments is on the ground that they do not wreck the Bill and would not prevent us from acceding, were they to be carried, to the European Communities.
Is it not therefore clear that the Chancellor of the Duchy of Lancaster is out 1334 of order in all his recent remarks, because he is challenging either the Chair's good faith or the selection of Amendments, a matter which can be pursued only by a Motion, or he is, alternatively, totally and absolutely wrong.
§ Mr. John Morris (Aberavon)
The Chancellor of the Duchy of Lancaster has used words which are quite clearly within the memory of the Committee. He said that this was a wrecking Amendment. If these words are used and if they are allowed to stand, they are a reflection upon the choice of Amendments by the Chair. The Chancellor of the Duchy has one course open to him and that is to tell the Committee frankly and clearly that he used the wrong words and that he should not have used the word "wrecking", and to withdraw and to confess that he has wasted 10 minutes in discussing the matter.
§ The Temporary Chairman (Sir Alfred Broughton)
The Chairman of Ways and Means selected these Amendments because he considered they were in order. The description that the Chancellor of the Duchy of Lancaster has applied is an expression of his personal opinion.
§ Mr. Rippon
I accept that it was my personal opinion but I do not need to go as far as using the phrase that I used if it is objectionable. I am perfectly prepared to accept that "emasculate" is sufficient for my purpose. I have expressed my opinion as clearly as I can. I think I have caused a lot of agitation because people recognise that this is what the Amendment is all about. The Amendment goes to the very basic legal consequences of our membership of the Community. This has never been in doubt. I freely admitted it in my speech on Second Reading.
There is very little new to be said about the principle involved or, I would submit, on the legislative provision which is needed to give effect to that principle. I said on Second Reading that the concept of direct applicability had been a feature of the Communities from the start. The right hon. Member for Stepney (Mr. Shore) referred to one part of the speech I made but I would simply refer hon. Members to what I said then, particularly from column 271 onwards. I will not read it all again. My right hon. Friend 1335 the Prime Minister reminded the House on the same occasion:The constitutional position has not changed in any single respect since the negotiations of 1961 when it was very fully discussed in this House time and again. It has not changed since the last Government's White Paper of 1967".—[OFFICIAL REPORT, 17th February, 1972; Vol. 831, c. 747.]The source of the principle and also its general effect and the legislative provision needed to cover it were clearly explained in that White Paper. It was also explained by the then Prime Minister, now Leader of the Opposition, the right hon. Member for Huyton (Mr. Harold Wilson) in the House on 8th May, 1967, and by Lord Gardiner, then Lord Chancellor, in the House of Lords on the same date. All these quotations are on the record several times.
I had occasion to apologise to the right hon. Member for Stepney about that 1967 White Paper. Of course I should not have called him dishonest. We all know on both sides that he is perfectly sincere and has been for a long time in his opposition to the Bill. As the right hon. Member for Manchester, Cheetham (Mr. Harold Lever) said, his opposition is pretty root and branch and it does not give much impression of acceptance on any terms. It would make no difference to an hon. Member's attitude what the terms were in any negotiations if he was not prepared to accept the principle.
There was one matter which I would raise with the right hon. Member for Stepney which is a matter of recollection rather than a question of improper motive, and that is the reaffirmation of the principles of the White Paper in 1970. I suggested that the Leader of the Opposition, then Prime Minister, reaffirmed the principles in 1970. The right hon. Member for Stepney preferred to rest on the assertion that when the vote was taken in 1967 the White Paper was not then available. That is quite accurate. What was available was the speech of the Prime Minister on 8th May and that of the Lord Chancellor on the same date. This discussion has been going on since 1967 and for the record I think I ought to remind the right hon. Member for Stepney what was said. In 1970 the right hon. Member for Huyton, then Prime Minister, was dealing with the White 1336 Paper on the legal and constitutional implications when he replied to the hon. Member for West Ham, North (Mr. Arthur Lewis). The hon. Member asked the Prime Minister whether, as a means of estimating the all-inclusive costs of Great Britain entering the Common Market, he would arrange for publication of White Papers, following that on the economic effects to deal with all aspects of the effects on the judiciary, the transferability of labour and the politcal and parliamentary system, if Britain were to enter on the present basis. The then Prime Minister replied:The 1967 White Paper dealt fully and authoritatively with the legal and constitutional implications of membership of the EEC and the general assessment in that White Paper still holds good."—[OFFICIAL REPORT, 17th February, 1970; Vol. 796, c. 98.]Then, on 2nd March, 1970, the right hon. Member for Dundee, East (Mr. George Thomson), who was then Chancellor of the Duchy of Lancaster, explained on behalf of the Government thatAs regards the impact of Community legislation on United Kingdom law and practice, the broad conclusion stated in the White Paper of 1967 on legal and constitutional implications of membership (Cmnd. 3301) are still valid."—[OFFICIAL REPORT, 2nd March, 1970; Vol. 797, c. 5.]That is why we have left that White Paper on the table. Basically it does not require amendment. Most hon. Members of the Committee accept that this is a matter which has been canvassed fairly fully in general principle in the House over five years.
§ Mr. Shore
Because of the traditions of the House, and in particular the very great importance in our constitutional history that has been attached to the control of the right to tax and the right to spend, it is not good enough to say when those two new rights were assumed by the Community that a White Paper written two or three years previously had covered the whole matter. That is not so. I agree that it covered a substantial part of the question of giving the Community the right to legislate. It covered that in its description, but it did not deal with a very important new extension of Community rights. I find it very odd that the right hon. and learned Gentleman and his colleagues do not seem to think it important enough to make this the subject 1337 of a separate and updated publication so that the people of the country, as well as hon. Members on both sides, have the material before them.
§ Mr. Rippon
We have debated that before. It has been at issue for sometime. The right hon. Gentleman has frequently asserted in our debates that all these things were said in 1967 and were not followed in 1970. They were. That is why we can say in our White Paper that we picked up the hand left by the previous Government. They had accepted the basic provisions of the treaties and so did we, subject to the specific items we had said needed to be negotiated.
Article 189 of the 1957 Treaty has been there since 1957. There are some people, like my right hon. and learned Friend the Member for Hertfordshire, East, who have continually drawn attention to that, and who have never been in favour of our joining the Communities, largely for the constitutional and legal reasons which he has explained. He has persisted in that opposition, and that is reasonable. We have all accepted that. He is, however, like others on both sides of the Committee, in a minority.
This principle is raised again and again. It is a fundamental principle. We have voted on it again and again. It is reasonable that we should debate it in the context of the Bill, and we have done so. All I am saying is that it is a principle at the heart of the membership of the Communities. It would have been impossible to make a bona fide application to join the Communities unless we accepted it. That is something my right hon. and learned Friend has known from the outset. That is why before the application was made the then Prime Minister and the then Lord Chancellor spelt out in such considerable detail what was involved. What was involved was the principle embodied in the Clause.
Article 2 of the Act annexed to the Treaty of Accession and to the European Coal and Steel Community Council Decision on enlargement commits the acceding States to acceptthe provisions of the original Treaties and the Acts adopted by the institutions of the Communities1338 as binding on them, and to apply them under the conditions laid down in those treaties and in the Act of Accession.
That is our general commitment. It derives, through the negotiations, from paragraphs 19 and 44 of the statement which was made to the Community on 4th July, 1967, by the then Secretary of State for Foreign Affairs on behalf of the last Government, published in Cmnd. 3345. I will not quote that again because we have heard it often enough.
As I said in the debate on Second Reading,The essence of these provisions"—the directly applicable provisions—is that they apply as law within member States without further action on the part of the States themselves. Of themselves, they confer rights and impose obligations to which the national courts have to give effect."—[OFFICIAL REPORT, 15th February, 1972; Vol. 831, c. 271.]Subsection (1) embodies in our law this system of directly applicable Community provisions. It does so exactly in the way which was foreseen in the 1967 White Paper, and perhaps even more precisely by Lord Gardiner in his speech of 8th May, 1967. I quoted it then and I will not repeat it.
§ 6.45 p.m.
§ Mr. Rippon
What they have done is to bring their adherence to the treaty into effect in accordance with their own constitutional procedures. [Interruption.] I take the view that we should introduce our measures in accordance with our own constitutional procedures and not theirs. That is precisely what we are doing. [Interruption.] I shall come a little later to some of the very pertinent points made by my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton).
§ Mr. Jay rose——
§ The Temporary Chairman
Order. The right hon. Member for Battersea, North (Mr. Jay) must not remain standing if the Minister is not prepared to give way.
§ Mr. Rippon
I shall deal later with the pertinent points of my right hon. Friend the Member for Thirsk and Malton about parliamentary procedures. We adopt our own parliamentary procedures though we may derive advantage from studying other people and they may derive advantage from studying us.
§ Mr. Rippon
There may be some debate on the German procedures. But what we have discussed before in the Committee and elsewhere is how we conduct our parliamentary affairs in our own way. I dealt with this question—this shows how we are becoming increasingly repetitive in our discussions—in the debate on the Question "That Clause 1 stand part of the Bill". I explained then that in previous discussions I had emphasised how the Bill stood on its merits and that any proposals we have made as to the way in which we might deal with these matters simply from the point of view of parliamentary procedure were another matter. We put forward proposals for an ad hoc committee, to consider these matters, not a permanent committee, but something that could have been set up with the approval of the Opposition, through the usual channels. There will be other opportunities and ways in which Parliament may choose to deal with them, not only now but in the future. I have emphasised that we should not deal with them by an Act, because we do not want to bind or fetter future Parliaments as to the way in which they deal with such matters.
§ Mr. Rippon
They have their own procedures and we have ours. We must deal with these matters in our own way—[HON. MEMBERS: "Answer."] We can perhaps go into detail as to the way in which each country has ratified the treaty. For example, Luxembourg provided one method of ratification and Germany pro- 1340 vided another. It would take a very long time to go into the methods by which they gave effect to the treaty. But the ultimate result is the same.
It has been suggested that we might have the same sort of observers in Brussels as are provided from the German Bundesrat. I have had some discussions to see whether that would be a reasonable procedure. It is something we could do quite apart from the provisions in the Bill. I do not think it is any official representation that the Germans have, but a high official who is there in effect monitors what is going on.
As I have said often enough, in practice there will be no difficulty about our finding out by whatever means we feel most appropriate what is happening within the Commission, what new draft proposals and regulations are coming up and whether we wish to debate them in Parliament by way of asking Questions, Adjournment debates, special debates or in any other way. We are much more flexible in these matters than the Germans.
§ Mr. Michael Foot
Would the right hon. and learned Gentleman accept the assurance that we do not think he is being repetitive. He is spilling a bigger basinful of beans than he has ever split before.
Would the right hon. and learned Gentleman looked at these matters—he says we want to get these matters extremely clear—because the whole future of the House of Commons depends upon them? When he says that resort to our procedures in various ways was not included in the Bill because this might have fettered us, who does he mean would be fettered? Would the Government be fettered? Who would be fettered by having a much greater resort to affirmative Resolutions? Who would be fettered by having the provision for Acts of Parliament to enact these matters? Would the Government be fettered if we put these things in? The House of Commons would not be fettered. The House of Commons would be set free if these provisions were put in. Surely the right hon. and learned Gentleman must realise how much he has said.
§ Mr. Rippon
Concerning what I have said, if the right hon. Gentleman will look back at the mass of discussion that 1341 we have had in the past he must draw a distinction between what is properly in the Bill and what properly are matters for procedure under the ad hoc committee.
As I said in the "Clause 1 stand part", debate, the Bill stands on its merits. There are certain propositions put forward in detail. The hon. Gentleman is right to raise matters which may properly be in the Bill.
I was dealing with Amendment No. 79, to start with, and saying that if one were to strike out subsection (1)—as I think my right hon. and learned Friend the Member for Hertfordshire, East has accepted—one would, in his words, emasculate the Bill.
I do not think the Committee will disagree with one thing. We are now at the Committee stage of the Bill. We should be concentrating our attention not on the principles but on what hon. Gentlemen say are matters which concern the method of giving effect in this country to the obligations which joining the Community imposes upon them. There may be argument about that with which we will have to deal, as we come to it, on its merits.
There is no merit in a proposal to omit subsection (1). Hon. Members have said that if they do not succeed in that, we shall come back to something which they regard as less satisfactory than emasculation, and we must deal with those points as we come to them.
§ Mr. Spearing
The right hon. and learned Gentleman has asked us to debate this on its merits. With regard to subsection (1) would he not agree—as his right hon. Friend agreed—that this House could enact legislation obligatory on treaties? In subsection (1) we are told that all these liabilities, obligations and so on must come without further enactment. On the merits of the Bill, would it not be impossible to put into the Clause that it is an obligation on this House to enact those in statutory form, which is our customary constitutional practice? Will the right hon. and learned Gentleman tell us why that was not possible and why it was not negotiated?
§ Mr. Rippon
We have drafted Clause 2(1) for the reasons which I have explained on Second Reading and other 1342 occasions. "Does it give effect to our obligations in the best possible way?" is a legitimate matter for discussion. I believe my hon. and learned Friend the Solicitor-General will have something to say about what is covered by "rights … liabilities, obligations …".
This is an Amendment designed to cut out Clause 2(1). It has no merits and would not be a way of enabling us to fulfil our Community obligations. Its proposers do not wish it to have that effect.
§ Mr. Powell
There is a misunderstanding here concerning the effect of leaving out subsection (1). If subsection (1) were left out it would be necessary to bring these Community enactments into legal effect in this country by other methods, such as by Statutory Instrument. The Committee is discussing what my right hon. and learned Friend said it was possible for us to discuss, the method of carrying out our treaty obligations.
§ Mr. Rippon
Some of those arguments arise on my right hon. Friends' Amendments which are considered with this.
One cannot escape the obligation so far as directly applicable law is concerned. One has to make the necessary legislative provision for that. That has been made clear from the outset of 1967 by successive Governments. This is an obligation which those who wish to join the Community have to accept. It may be an obligation that many members of this Committee have never wished to accept from the outset. But one has to accept that principle. Thereafter one may have to consider how to give effect to it. One will not give effect to it by saying "We will not accept that it is directly applicable". In the case of directives, one can implement them in accordance with one's own national requirements. In the case of regulations one cannot do that. We have gone over all that ground before.
§ Mr. William Molloy (Ealing, North) rose——
§ Mr. Rippon
It would be better if I went on and dealt at some greater length with some of the points already dealt with. Then no doubt, if the hon. Gentleman is unhappy he will be able to revert to his particular points.
1343 When we join, Community law will exist side by side with statute law and common law in this country. It will be applied in our courts as law in this country. This directly applicable principle is the important and essential feature of the Communities but it is not a common policy. It is a means whereby once a Community policy is agreed, the Community institutions—the Council in important matters; the Commission in more routine matters—can give effect to that policy, or individual aspects of it, by agreeing where appropriate on common regulations in the knowledge that those regulations will be applied uniformly throughout the member States.
The right hon. Gentleman the Member for Battersea, North dealt at some length wih provisions in the treaty dealing with respective obligations of the Commission and the Council, the way they work together. That is also dealt with in the 1967 White Paper, though not in such great detail as he gave.
§ Mr. Molloy
I am grateful to the right hon. and learned Gentleman for giving way. I must pursue the point put to the right hon. and learned Gentleman by hon. and right hon. Members from both sides of the House vis-à-vis the German situation. This afternoon we have probably come to one of the most vital issues since we first started discussing the Bill. Some of us are of the opinion that we have been told, with regard to the whole exercise, that we are joining one club and, therefore, have to accept the rules. We have pointed out this afternoon that some members of the club, the Germans, have given an interpretation of the rules as they see fit and which they will claim is to their advantage. The right hon. Gentleman says they are lucky; that we are not able to do that because of our constitution. He has been challenged on that. It is a very serious issue. Would the right hon. and learned Gentleman be prepared to examine this a little more in detail and tell us whether—it does not matter whether it is the German constitution—what they are doing is or is not in accord with the Rome Treaty, and whether we would have the same rights if we were mugs enough to join that organisation?
§ Mr. Rippon
The hon. Gentleman has helped me enormously. He has pointed 1344 to a misunderstanding under which some of his other colleagues still labour.
There is no difference between the applicability of the Community law to each of the member States. It is not that we accept the directly applicable law and that they have some curious procedures whereby they do not. The purpose of having the directly applicable law is that the regulations will be applied uniformly throughout the member States. That is accepted. There is no doubt about that. If the hon. Gentleman is in doubt about that, I am glad to have resolved it.
The only difference of procedure is the way in which a particular Parliament might choose to debate or discuss policy before it becomes directly applicable law. That is what we have explained. The right hon. Gentleman the Member for Stepney quoted what I said on Second Reading concerning how in these procedures—which the Commission or the Council adopt for considering draft regulations or draft directives—matters are considered openly and publicly, and referred from time to time to the European Parliament or the Economic and Social Committee, so that there is every opportunity for every Parliament to consider, in its own way, the draft policy. The Bundesrat may send an observer to Brussels and he may report back.
§ [Sir ROBERT GRANT-FERRIS in the Chair]
§ 7.0 p.m.
§ Mr. English
On a point of order, Sir Robert. Some of us are in great difficulty because the right hon. and learned Gentleman keeps referring to the "European Parliament". In all the law of the Communities, it is the European Assembly—the Assembly of the European Communities. The fact that it has sometimes tried to think of itself as a Parliament does not mean that it is so. Could the right hon. and learned Gentleman keep to the terminology of the documents before us?
§ Mr. Rippon
In terms of language which people can understand, the hon. Member for Nottingham, West (Mr. English) can blame the dry legal jargon of his own Government's White Paper. 1345 Most hon. Members understand what is meant by "European Parliament". It is an assembly of Members of Parliament, and there is a lot of other argument about the powers it should have. The point I am making—it has often been made—is that it is important that our Parliament, when these matters are going through the Commission or the Council of Ministers or the European Parliament, should have the opportunity in good time to express a view before a directive or regulation is made because when a regulation or directive came into effect and was directly applicable it would complain if it had never had a hint of it beforehand and it was a matter of substance.
This is why we have suggested that not only now but in the future there will be many years in which to consider this. We shall consider how best to discuss in Parliament matters which are arising in the Commission or in the Communities or in any of the various institutions of interest to us. That we can do according to our own procedures. That is what the French, the Germans, the Luxembourgers and the Dutch do.
§ Mr. Clinton Davis (Hackney, Central)
The gravamen of the right hon. and learned Gentleman's argument is that the Germans and Dutch have introduced their proposals in accordance with their parliamentary procedures. Is he asserting that what is proposed to be enacted here is the best possible way to introduce these matters in accordance with our parliamentary procedures? Will he confirm, if that is right, that he will not in any circumstances introduce any guillotine of our discussions of these vital matters?
§ Mr. Rippon
This is the best way of giving effect to our treaty obligations. Thereafter, of course, there will be discussions about future Community policies. It will be a very open and public process and it is based essentially on the principle of consent. It is very important to remember for the future that we are joining a living community and not this incredible juggernaut which people present, and that we shall be free, in accordance with our parliamentary procedures, to consider these matters, whether we set up an ad hoc committee or whether the Select Committee on Procedure considers it. We shall not only have debates on orders; we shall have 1346 our own opportunities, as these matters go through the Community, to have Parliamentary Questions, Adjournment debates and, if necessary, votes of censure. There is no question of a future Government giving effect to some major matter of policy like conscription without anyone knowing about it.
One has to remember that many of the regulations and directives of the Community are in the nature of things only of temporary duration. On Second Reading we devoted a lot of time to explaining the nature of the regulations which have now been considered by the Communities, those which are temporary and those which are permanent. What I am emphasising is that we are not absorbing, under subsection (1), the whole corpus of directly applicable instruments issued by the Communities since they were founded. We shall be absorbing those which are expected to be still in force when we join on 1st January, 1973. I indicated the nature of these on Second Reading.
In the future, many of these regulations will come and go. Some are of major importance and will be identified as such early on; others are of an essentially administrative nature. It is also right that we should reiterate on this occasion what has been said many times before, including, inevitably, by the Leader of the Opposition—that by far the greater part of our domestic law will remain unchanged after entry.
Lord Gardiner, in the House of Lords, had this to say:Community law has little direct effect on the ordinary life of private citizens. In so far as it imposes obligations, it does so mostly in relation to industrial and commercial activities and does not touch citizens in their private capacities."—[OFFICIAL REPORT, House of Lords, 8th May, 1967; Vol. 282, c. 1203.]Our basic legal system and legal methods will remain unchanged. Membership of the Communities will have no implications for the general principles of our criminal law and procedure, trial by jury, the presumption of innocence and habeas corpus. All these matters will continue as before. Property, divorce, contract, tort, civil procedure, and so on, will all be unaffected.
Some people may be frightened by the references which my right hon. and learned Friend the Member for Hertfordshire, East made again today to the 1347 existing secondary legislation of the Communities—the 41 volumes and the 42nd volume of index. As he himself said, 28 contain regulations relating to the common agricultural policy which will be carried out in the United Kingdom by the Intervention Board for Agricultural Produce to be set up under Clause 6. A number of the directly applicable regulations contained in the remaining 13 parts of the English text of the Community secondary legislation would not, in fact, have any direct effect in the United Kingdom because they relate mainly to the conditions of service in the various Community institutions, the setting up of various committees and the establishment of research and experimental projects. The remaining 100 or so regulations affect mainly customs matters, restrictive trade practices and transport. It is matters of this sort which Governments have normally dealt with without great difficulty in the past under other treaties.
As for the future, I think it is important—although the right hon. Member for Stepney made a little fun about it—to remember that we shall, of course, as members be playing our full part in the creation of common policy and in the formulation of any implementation of policy.
§ Sir D. Walker-Smith
Before my right hon. and learned Friend leaves the existing regulations, will he give the information for which I asked? What steps are proposed to keep us informed of the regulations made since 10th November, 1971? This is nearly six months more of regulations than are in the 41 volumes, and the House should know and be continuously kept informed.
§ Mr. Rippon
We must certainly keep the Committee informed of what is going on. I forget what particular undertakings have been given on this matter, but I am sure that we have made some statement about this. They are available in the OFFICIAL JOURNAL and we have what we call the official translations. They must be turned into authentic translations by the time we become full members of the Community so that there can be no doubt about the position.
§ Mr. Rippon
I do not know about next week, but we will certainly see that they come out as fast as they can be produced. They are first in official translation, and then they must be made authentic texts by 1st January, 1973.
§ Mr. Arthur Lewis (West Ham, North)
On a point of order, Sir Robert. The Minister has been quoting a number of rules and regulations which have been in existence for six months and which none of us can obtain. I have written to him asking for them. Should these not be made available, because we need them for the debate? It is not good enough for him to say that he will decide whether they are necessary for the debate. I say with respect that it is the duty of the Chair to ensure that if we need papers we are able to get them from the Vote Office or the Library.
§ The Chairman
Order. I have to disappoint the hon. Gentleman, because it has been laid down that it is not the duty of the Chair to see to that.
§ Mr. English
Further to that point of order, Sir Robert. This is a very difficult situation. The Government are failing in their duty, and it ought to be within the province of the Committee to obtain as speedily as possible the texts and translations of these documents. May I give you an example of great importance? Hon. Members have merely seen sentences in the Press about a speech made yesterday by the President of the European Commission. It would appear—presumably he is speaking for the Commission—that when he says that members of the Community should have civil rights anywhere what he means is that they should have electoral rights. By passing this Clause we might be changing the electoral law of this country. Yet the right hon. and learned Gentleman has said nothing about this. He has not given us the documents or told us anything about the proposals.
§ The Chairman
Order. These really are not points of order. They may be matters of argument as between the Government and hon. Members, but they are not for me.
§ Mr. Arthur Lewis
May I give you an example of a time when you have assisted the Committee in days gone by, Sir Robert? We have raised with you the fact that certain orders and papers which we wanted for debate were not available, and you not only gave instructions for them to be made available but you went out of your way to see that they were distributed. I am referring to Ways and Means Resolutions on the Finance Bill and Budget Resolutions. Now we can go to the Library or to the Vote Office, we can write to the Minister, but we are told as I have been, that they are available if I would care to go and get them in Brussels or in France. That is not good enough. Mr. Speaker makes arrangements for the printing and distribution to hon. Members of papers relevant to the debate. Only last evening I found that papers were not available on a matter being debated, and I raised this with the Table. I was told that the paper would be available in the Vote Office, and it was. In the past the Chair has assisted. The trouble is that the Government have not got the papers, they do not know what they are and they will not make them available. If they were available the Government would give them to us.
§ 7.15 p.m.
§ Mr. Rippon
The hon. Gentleman has said that we have had some correspondence on this matter, but I think he has given rather a distorted view of what we have told him. We have given him all the help he required, as we give to anyone interested in a certain matter. What he must understand is that as soon as we are full members of the Community these matters will become very much simpler. As the Committee will appreciate, we are in a difficulty at the moment in that we are not full members of the Community.
§ Mr. Clinton Davis
On a point of order, Sir Robert. The right hon. and learned Gentleman is not in a position to reply to a point of order. Surely this is a matter for you.
§ The Chairman
I was waiting for the right hon. and learned Gentleman to finish so that I could emphasise what I have already said, which is that, whatever may have happened in the past, and I think I remember what the hon. Gen- 1350 tleman is talking about, this is not the same thing. At that time I was trying to facilitate matters involving something which the Government were prepared to do and were giving some undertakings about doing. I cannot compel the Government to do these things. They must do what they think right. I am concerned only with points of order as they affect the procedure and order of the debate. I cannot make Governments do what they do not want to do.
§ Mr. Arthur Lewis
Further to that point of order, Sir Robert. May I go further into this and give an example? One of the orders which I want to quote is one which will mean doubling or trebling motor insurance premiums for all people in this country. The Minister will not supply it, so how can you say whether I am in order if I am quoting from a non-existent document, provided that I get my own translation?
§ The Chairman
Order. The hon. Gentleman should not worry himself about that. He can talk about anything he likes on this Amendment so long as it is in order. Whether it is a correct translation is no concern of mine.
§ Mr. Paget
Further to that point of order, Sir Robert. It is for the Chair to decide whether Amendments are in order and for the Chair in certain circumstances to decide whether Bills are in order. When we go to the Chair with private Bills it is the Chair who decides what is in order. Remembering always that ignorance of the law is no excuse, we are being asked to provide for certain liabilities, obligations and restrictions to have the force of law, maybe creating criminal offences. We do not know what those liabilities, obligations or restrictions are. The citizen can have no opportunity of finding out. A Bill that does that is out of order, and if an hon. Member were to put such a thing in a Private Member's Bill the Chair would rule that it was out of order. I submit that it is available to the Chair to rule that this is out of order.
§ The Chairman
The House has voted on the Bill, and, therefore, the Bill is in order. The Amendment is in order, and nothing has been done which is out of order. If the Committee wishes to raise these points—and it is perfectly entitled 1351 to raise them—I ask the Committee to raise them with the right hon. and learned Gentleman and not with me. There is nothing I can do.
§ Mr. Michael Foot
May I put a question to the right hon. and learned Gentleman at your invitation, Sir Robert? The availability of documents is an extremely important question which should not be treated lightly by the Committee. This episode was initiated by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) asking what was the position about the new regulations which come out in the interval between November, 1971, and January, 1973, when, if the Bill goes through, we join the Community. I understood the right hon. and learned Gentleman to say that some of those regulations would be available to us only in January, 1973.
That is an appalling situation. If there are regulations which will be presented to the House of Commons only after the passage of the Bill, we want to know what they are. If the right hon. and learned Gentleman cannot tell us now, I hope he will tell us later in the debate what is the nature of those regulations, when we shall get them and what steps the Government are taking to ensure that we do get them.
The right hon. and learned Gentleman has already had to make two or three withdrawals this afternoon, and I hope he will withdraw the statement he made a few moments ago that some of these regulations would be available only just prior to or at the time we actually go into the Community, when no remedy whatsoever would be left to the House of Commons. Although the right hon. and learned Gentleman is claiming, we believe falsely, that he is abiding by the procedures of the House of Commons, if he can tell me of any other regulation to which such a proposition has been applied in the ordinary procedures of the House of Commons I shall be interested to hear it.
§ Mr. Rippon
If the hon. Member for Ebbw Vale reads what I had to say, he will see that I made no withdrawals, only helpful explanations. Clearly, there is misunderstanding, even in his mind, on this matter. We discussed on Amendments to Clause 1 authentic texts, official 1352 texts and the difficulty we are in because we are not full members. By the time we are full members we must have authentic texts for everything. Up to now I have been talking about the regulations in the volumes to which my right hon. and learned Friend the Member for Hertfordshire, East referred. There is no doubt that there will be subsequent volumes, and we shall be bringing out further volumes as the Community is evolving.
I have explained to the House of Commons and to the Committee the nature of the interim procedures which were agreed in the course of the negotiations, and why there is this difficulty of the time lapse between our signing of the treaty and our carrying through this legislation and the process of ratification. By the time we become full members on 1st January, 1973, we have to have authentic texts for the courts. Meanwhile, we have had to be satisfied in certain spheres with official texts. We shall produce further volumes——
§ Mr. Rippon
—as soon as it can physically be done. Reasonable people on both sides of the Committee understand that this is in practice the only way in which we can conceivably proceed. The hon. Member for West Ham, North has some curious ideas about insurance policies. This matter is being discussed, but there is no regulation or directive. There is a limit to what we, not being a full member of the Community, can require in terms of authentic texts. We provide as fast as we can as much unofficial information as we can as soon as it is available, and official texts will be provided where it is appropriate as soon as possible.
There has never been any misunderstanding about this, although there has been a lot of song and dance this afternoon. There are some genuine anxieties which we shall do our best to meet, although it is wrong to suggest that these matters have not been discussed before or that any hon. Member on either side of the Committee has been taken wholly by surprise by these procedures.
§ Mr. Marten
When you ruled, Sir Robert, about the submission of the hon. 1353 and learned Member for Northampton (Mr. Paget), I understood you to say that, because the Clause had been given a Second Reading, the hon. and learned Gentleman could not submit that it was out of order. But that Second Reading was on the basis that these documents would be available. This has now changed, and, because it has changed, I respectfully submit that the Clause should be ruled out of order.
§ The Chairman
No, the Clause has had a Second Reading. If undertakings are given during the course of the Second Reading debate, that is not a matter for the Chair. The Chair is concerned only to see that the Clause is read properly a Second time. I can take the matter no further than that.
§ The Chairman
The Clause would have to be validated by a Money Resolution, which is a different matter.
§ Mr. English
On a point of order, Sir Robert. This spate of points of order arose because the right hon. and learned Gentleman was kind enough to give way to me. I wonder whether I may now be allowed to deliver my intervention? We are concerned not only about the House of Commons but about whether the Government are informed of all the documents and regulations. On many occasions we have mentioned to the right hon. and learned Gentleman something which he apparently knows nothing about. We know that if the Bill is passed, after 1st January there will be regular English texts pouring out of Brussels and overwhelming us, but is it not advisable for the sake of the right hon. and learned Gentleman's credibility and the Government's credibility that they should provide themselves with English texts as soon as possible of everything which comes out? If they have done that, it is a simple matter to print extras and give them to us. If they have not done that, are they not in the difficulty that they may not be dealing with all the changes that are taking place in Brussels, such as the one I mentioned earlier?
§ Mr. Rippon
As the hon. Gentleman will appreciate, under the interim procedures we are involved in the discussions which are going on all the time about a vast range of matters. There is no problem there. The problem which faces the Committee is that we cannot produce translations of documents which may not have been agreed even at the official level. On all occasions I have assured the Committee that we will produce as fast as physically possible official translations of relevant documents which are not yet part of the working process but represent a draft regulation, a directive or a decision which has been taken.
§ [Mr. John Brew is in the Chair]
§ 7.30 p.m.
§ Mr. John Morris
The Chancellor of the Duchy said that he could not recollect what undertakings had been given to the House about the availability of documents. If my recollection is right, that is a rather strange view from the right hon. and learned Gentleman about what has been said by him and by his colleagues from time to time. Would he clarify his position in this respect? Since he has already assured us that by January, 1973, the full authentic texts will be available, will he now undertake to fulfil that undertaking by 31st December, 1972? This is a matter of the utmost importance since we are setting out a whole host of legal obligations which will be imposed on the citizens of this country. Will the right hon. and learned Gentleman assure the Committee that before the Bill is given a Third Reading, if it ever gets to that stage, full authentic texts will be available to the House?
§ Mr. Rippon
I have explained on previous occasions that official texts will be produced as they come out. I was saying that I could not recollect the precise terms of the undertakings, but they are well known to right hon. and hon. Members on both sides of the Committee who understand the practical problems and they do not involve any point of principle or substance.
§ Mr. Spearing
Will the right hon. and learned Gentleman clarify a further point since we are not clear about the situation? A number of regulations have been agreed to in Brussels following the appearance of the 41 volumes. Are those 1355 regulations available and, if so, may we be told where? Secondly, will the regulations or directives published after we have finished with Clause 2 be likely to be brought out before Third Reading? Finally, may we be told where we can obtain the directives and regulations which will appear after Third Reading and before 31st December this year?
§ Mr. Rippon
That illustrates the practical difficulty. Even after we have given the Bill a Third Reading, there will be within the Communities a continual process of discussion of future policies and of draft regulations and directives. This is a continuous process. We can make the relevant documents available only as they become available to us and only as they come to be translated.
We are at the moment in a difficult interim period in which we have signed the treaty but we do not become full members until 1st January, 1973. But in every real sense the Community is taking us fully into its discussions about future policy and we can report to the House from time to time as matters develop. What we cannot ask the Community to do is to stop and do nothing until we have joined the Community. As its work goes on we shall produce, as we have undertaken—I forget the exact form of undertakings, but there is no doubt about their purpose—translations of documents as they come before us. This will be a continuing process and no doubt before long the House will receive some more documents in translation.
I move on from that point because clearly it does not go to the heart of Amendment No. 79 and the deletion of subsection (1) or to the matters which genuinely concern the Committee about the role of Parliament in relation to directly applicable Community law. We are discussing the principle of directly applicable Community law, how it is imported into this country and how it impinges on our parliamentary sovereignty.
The right hon. Member for Stepney devoted some powerful arguments to his conception of the way in which parliamentary sovereignty would be under mined. Again, we had a long discussion last week on the Question "That Clause 1 stand part of the Bill" when the right 1356 hon. Member for Cheetham expressed his views, as did the hon. Member for Inverness (Mr. Russell Johnston), and I expressed my views on behalf of the Government. There are genuine differences of opinion as to whether in pooling sovereignty one gains more than one loses.
Those of us who support the Bill and who believe in joining the Common Market believe that in the modern world one gains more by pooling sovereignty than the reverse. As Lord Gardiner said on 8th May, 1967:This United Kingdom legislation would be an exercise of Parliamentary sovereignty and Community law, existing and future, would derive its force as law in this country from it."—[OFFICIAL REPORT, House of Lords, 8th May, 1967; Vol. 282, c. 1202.]Reference was there being made to the concept behind Clause 2(1) of the Bill. Although Parliament will not be able to enact individual Community regulations, it does not mean that it will not have a say in their formulation or that it cannot adopt procedures which will ensure that it has its say in the most effective way.
We discussed all these matters on Second Reading and on the Question "That Clause 1 stand part of the Bill". Indeed my right hon. and learned Friend the Member for Hertfordshire, East described in his dramatic way the long hours, days and even nights of debate.
There are two essential points the Committee must keep in mind and which the country should understand. The first is that the procedures of the Community are so open and so consultative that, aside from participation in the European Assembly—and I describe it in that way rather than calling it the European Parliament—Members of Parliament can be sure of knowing what is proposed. The second point is that United Kingdom Ministers will be involved in the making of all the major policy instruments and will be answerable to Parliament in the normal way for all the action taken on those instruments.
Against that background I suggest to the Committee that we might now concentrate on the drafting of Clause 2(1) and the Amendments proposed to it. We have discussed the principle over and over again, but the drafting of Clause 2(1) and the Amendments are matters which we must consider on their merits.
1357 The first group of Amendments has as its common thread——
§ Mr. Shore
Before the right hon. and learned Gentleman leaves that matter, may I put this point to him? A number of hon. Members who have contributed to this discussion, including myself, have tried to put to him a considerable argument about whether it is necessary to have self-enacting legislation, quite apart from the requirement to conform sufficiently to the treaty to be able to establish a common agricultural policy and a customs union. The particular argument I put was whether this self-enacting method of Community legislation was any longer appropriate after the Luxembourg accord. Surely the Chancellor wishes to say something about that.
§ Mr. Rippon
I have been dealing, so far as members of the Committee have allowed me to deal, with the principle involved. I have now suggested that we should look at the drafting of Clause 2(1) and the Amendments which are proposed to it. I will deal with the situation in general, and perhaps my hon. and learned Friend the Solicitor-General can deal with some of the other points which have been raised.
The first group of Amendments relates to the principle of the subsection and deals with it in various ways. They probe the adequacy of Clause 2(1) as reflecting the principle of direct applicability. I do not think that group of Amendments should have detained us for very long. Here I would claim the support of my right hon. and learned Friend the Member for Hertfordshire, East because during the Second Reading debate he said:Clause 2 is drafted, and impeccably drafted, to give precise effect to Article 189 of the treaty. The key words of the article are that the regulations are to be directly applicable. If Britain were to seek to join the Community and failed to ensure that the regulations are directly applicable in this country, we should be in breach of our treaty obligations. The obligation goes with membership. If we accept the desirability of membership, we accept the necessity of the treaty obligations, and the simplest way of meeting these obligations is to enact as has been done in Clause 2. The Clause has the virtue of honesty. The obligation is clear, and effect is clearly given to it.My right hon. and learned Friend went on to explain that he was against Clause 2, not because of its drafting but for the 1358 same reason that he was against Article 189. Unlike some, he has been against it ever since 1967. He went on to conclude:We cannot logically accept entry and reject its requirements."—[OFFICIAL REPORT, 15th February, 1972; Vol. 831, c. 314.]All I am saying is that my right hon. and learned Friend was right when he said that Clause 2 is impeccably drafted to give effect to our obligations. It may be a matter of judgment, but I do not think that our obligations, so fundamental to our membership, could be better expressed than they are in Clause 2(1).
I come, then, to Amendment No. 79. That would omit the whole subsection. I need spend no further time in explaining why it must be rejected.
There are a great many other Amendments in this group which attack and no doubt are meant to attack the very principle of the subsection and the system of directly applicable law. Amendment No. 216 requires every instrument made after entry to be approved by Resolution of each House of Parliament. But that, too, attacks the principle that Community instruments should apply in this country in their own right. I have explained why direct applicability means and has always meant that the directly applicable provisions have to take effect in their own right without the legislative intervention of Parliament.
Amendments Nos. 77 and 78 raise virtually the same point by requiring instruments made by the Commission to be approved in draft by each House of Parliament. The great bulk of Commission instruments are in the nature of administrative orders. They deal with the detailed implementation of the common agricultural policy in accordance with the principles laid down by the Council of Ministers. It is quite wrong, as the right hon. Member for Battersea, North has tended to suggest, that the Commission is a law-making power entirely at large and without any sort of control. Its powers to make decisions are within the ambit of the treaty. Certainly it is more than a civil service. It has certain powers to initiate and, within the framework of policy laid down by the Ministers, it can make decisions which I suggest that practice has shown to be in the nature of administrative orders.
§ Mr. Rippon
Oh, no, and this is set out in paragraph 15 of the 1967 White Paper. The right hon. Gentleman developed it properly and fairly in more detail.
Amendments Nos. 260 and 261 also seek to introduce specific parliamentary control over Community instruments. Under them, as I understand it, such instruments would not take effect for 28 days and would never take effect if during that time either House so resolved. Here again I submit that such a proposal is inconsistent with the concept of direct applicability.
§ 7.45 p.m.
§ Sir Robin Turton
My right hon. and learned Friend has described Amendment No. 78 as being inconsistent with the treaty. This is the one where regulations are made by the Commission. Surely that is exactly what the Bundestag has. In Article 2 of German law the Bundestag examines proposals in draft. Presumably if there were an adverse decision, the regulation would have to be made by the Council of Ministers and not by the Commission. It cannot be consistent with our Treaty of Accession.
§ Mr. Rippon
I think that Article 2 applies to draft instruments of the Council and not of the Commission. But I will look further into that point.
Amendment No. 141 again attacks the principle by restricting the areas in which directly applicable provisions take effect here. It would confine Clause 2(1) to the common customs tariff, the common agricultural policy, sugar and the European Coal and Steel Community provisions. Obviously that could not be accepted because areas in which there is already important Community policy and law, such as competition and the common transport policy, would be excluded. Even more important, so would the common regional, industrial and social policies of the future. That would conflict with the basic treaty commitment that I have explained.
The other Amendments are in the nature of probing Amendments. It may 1360 be that more will be said about them by those hon. Members who have tabled them as the debate continues, and my hon. and learned Friend the Solicitor-General will be able to deal with them.
There are a number of other Amendments dealing with drafting points. I do not think I should deal with them at this stage in case further matters are raised.
§ Sir Robin Turton
I made an appeal to my right hon. and learned Friend to consider whether we should not deal with the changes by the consolidation Bill procedure under Standing Order 87A, which would require some form of Amendment rather on the lines of Amendment No. 7, which we are discussing. What view does my right hon. and learned Friend take about how any consolidated law would be put to the House?
§ Mr. Rippon
My right hon. Friend asked me to consider that matter before Report. Certainly I undertake to consider his point in that regard. As I understand it, we have agreed not to consider Amendment No. 7 which raises some of these matters. That is why I did not deal with it.
§ The Temporary Chairman (Mr. John Brewis)
I understand that Amendment No. 7 is within the group now being considered.
§ Mr. Rippon
I apologise to the right hon. Member for Birkenhead (Mr. Dell). I recollect that he said he was quite happy, however it was dealt with.
§ Mr. Rippon
My hon. and learned Friend the Solicitor-General reminds me that in fact we were not told that. At any rate, until the right hon. Gentleman has spoken to his Amendment, probably it is right that I should not deal with the substance of it. But certainly there are important issues raised by it about the responsibilities of the Law Commission. 1361 My understanding is that the Law Commission's responsibilities would still be carried on. But the substance of what is raised in Amendment No. 7 is a matter that my hon. and learned Friend proposes to deal with later.
We should now proceed to deal not with principles but with the detailed substance——
§ Mr. Powell
Reverting to the point raised by my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton), I understood my right hon. and learned Friend to undertake that the matter would be considered before Report. If I understood that correctly, it is implicit that my right hon. and learned Friend is assuming that there will be a Report stage.
§ Mr. Rippon
I am grateful to my right hon. Friend. To clear up any misunderstanding, I take it that my right hon. Friend was hoping that I might give more consideration to it than a matter of 15 or 20 minutes subsequent to my right hon. Friend's speech.
§ Mr. Paget
I find the Chancellor of the Duchy of Lancaster's method of debate a little peculiar. The right hon. and learned Gentleman seems to develop to an extreme state that defence reflex which most politicians develop not to listen to their hon. Friends' speeches. He almost seems to be unconscious of what has been said previously in debate. He also seems to produce a lot of arguments which would lead me to the opposite conclusions from those which he asks us to draw from them. His grand slam argument always seems to produce with fine documentary support the fact that somebody has changed his mind and thought differently on a previous occasion. If I change my mind, it is basically because I feel that the second opinion, on further consideration, is better than the first. I am also prepared to give equal credit to other people who change their minds.
The fact that a good many of us who have examined the Common Market and learned more about it and come to the conclusion that it is wrong when we first thought it was right, seems to be an argument against the Market, but the conclusion which the right hon. and 1362 learned Gentleman will always ask us to draw is the opposite.
The right hon. and learned Gentleman quoted Lord Gardiner as saying that European law will draw its authority from the sovereign authority of our Parliament, which will confer that authority on Europe. I do not know that I have it exactly, but I think that is the text.
When a monarch abdicates, the new monarch draws his authority from that abdication, but that does not mean that the first monarch has not lost his power.
I am very grateful to the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) for his research, examination, and the wealth of case law evidence which he brought to show us the extent of the usurpation or the assumption of authority by Brussels and Luxembourg over the domestic courts of the subordinate members of that authority. It is rather tragic that there was such a small audience to hear that.
If people realised—they do not—the extent of what we are doing, their opinions would on the whole be very different indeed. However, people do not come and hear a speech like that, and nobody reports it. Under the system of modern newspaper reporting it will be driven off the parliamentary reports by a ridiculous incident in which somebody makes an ass of himself at Question Time. That is all we shall hear about it in our parliamentary report tomorrow. In fact, we have had a major speech of the greatest importance telling us in great detail what was happening and what we were doing both to a constitution and to a system of common law which we have evolved in a thousand years of history. We have evolved this constitution. It is not something though up by Montesquieu in the nineteenth century with ideas about a sovereignty which can turn a man into a woman.
Our constitution grew upon the powers which we conferred and exercised over our taxation, economy and legislation. These are the things which Parliament can debate, look into, watch, exercise and influence. This authority and constitution has grown. Now, after 700 years in which the legislation which we have implemented, created and brought into being has been read a First time, has been read a Second time, has been 1363 examined in Committee in detail and read the Third time, is to be supplemented and subordinated to 42 volumes which we have never read.
§ Mr. Paget
Which nobody has ever read.
This is to be a superior law put over our law. On the occasion of the Treaty of Brest-Litovsk, Trotsky reported back to Lenin "Have signed without reading." I always understood Trotsky's statement to show the contempt which he felt for the Treaty of Brest-Litovsk by his total lack of inclination to pay any attention to what he had signed. I should be slightly comforted if I thought that was the Government's view, but it is not.
Yet, not only in this period of evolution did we create this constitution of ours, but we created the common law of England. The common law of England is not merely our common law; it is the common law of America, of India, of nearly a third of the inhabitants of this earth. This common law which we developed, which we created and evolved, which has its own systems and principles, is suddenly to have not grafted on to it but placed above it as a higher authority a set of enactments based not upon our legal thinking but upon the Roman and Napoleonic codes, which is a different system of law which has been evolved in Europe. By this single Clause we are proceeding to do that kind of violence to this long evolved law, and we are doing it here and now.
§ Mr. Paget
We are doing it, above all, in ignorance. That degree of ignorance varies from total ignorance of what we are doing, which applies to most of the country, to the modified ignorance of the Government themselves.
The more we hear from the Chancellor of the Duchy of Lancaster, the less we are convinced of his understanding of 1364 what he is doing. It is alarming when we hear him.
The Clause is not expressed to provide precision; it is to avoid precision, because the Government do not know what is happening. It provides:All such rights, powers, liabilities, obligations and restrictions".We have this catalogue, because no more precise catalogue is available. The words are vague. They are intended not to convey meaning but to conceal meaning. They are not intended to define, because definition is not available until the Government have finally discovered what the laws which they are imposing are and add up to.
The Clause states,as in accordance … to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordinglyThat is astonishingly wide, but it is not wide enough. It goes on,and the expression 'enforceable Community right' and similar expressions".In an attitude which is bringing to an end a sovereignty, an authority, a means of government, a living which has been evolved throughout these years, we are asked to submit to Community right and similar expressions.
In line 25 we have,from time to time created or arising by or under the Treaties".What does that mean? What is the difference between "created" and "arising by or under"? Is there something which comes from above and something which comes from underneath?
It is an appalling piece of verbiage which is strange and ill-expressed because the Government do not know precisely what they want to say and feel that they would like to find words which cover anything that they might subsequently wish to say. This is not the way to legislate.
I listen to these debates as they progress with the most profound depression. I have a feeling that it is so very like what happened in the signory in Venice when those final meetings took place, dully, inattentive, without response, as they decided to terminate the history of Venice.
§ Mr. Powell
I generally take pleasure in following, in both senses, the hon. and learned Member for Northampton (Mr. Paget), but this evening I will not do so in the secondary sense of the word because he, like my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) and others who have spoken, took the Amendment and Clause 2(1) as typical or symbolic of the transfer of sovereignty, the ending of parliamentary omni competence and the cession of the right to tax, which is implicit in British membership of the Community. They were entitled so to do. However, the Amendment is much more comprehensive, in the sense that it is an Amendment to which any right hon. or hon. Gentleman might adhere whether or not it was his view that Britain in principle, or even under the present negotiated terms, should join the European Economic Community.
As I shall show, it would not merely be possible but right for any right hon. or hon. Member who believed that parliamentary control or even parliamentary information could be improved to do so in terms both of the Amendment moved by my right hon. and learned Friend the Member for Hertfordshire, East and of a number of other Amendments consistently with a wish to adhere to the Community.
I hope, therefore, that this will not be a debate, as we have had so many, for or against British membership of the Community or about the real and solid issue of sovereignty which that decision involves, but that it will be, as I am sure many of those who put down these Amendments intended, a debate in which all can take part who are concerned to improve parliamentary control. In my view, all these Amendments, except those which are merely probing and drafting Amendments, are amendments to which the right hon. Member for Manchester, Cheetham (Mr. Harold Lever) or the right hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) himself could, without the slightest difficulty, give their support. I have no doubt that later in the evening or tomorrow we shall find that that is the case.
§ Mr. Powell
I like to be optimistic about the readiness of right hon. and 1366 hon. Members in any quarter of the Committee to be persuaded of opportunities for improving control by the House of Commons within the framework of whatever legislation or policy may be proposed.
I am not sure that sufficient attention has yet been paid to the wording of the subsection. The key words are,in accordance with the Treaties are without further enactment to be given legal effect".Those words are the heart of the subsection. All the "rights", and so on, which are enumerated, are subordinate to that qualification. They are, in the terms of the subsection,such rights … as in accordance with the Treaties are without further enactment to be given legal effect".We therefore first inquire: what is the scope of the rights et cetera which the treaties require to be given legal effect "without further enactment"?
From the heart of the subsection I have extracted the very medulla, in those words, "without further enactment". In order to know what they mean, we are referred to Article 189 of the treaty. I have taken it from the debate so far, and from the reply of my right hon. and learned Friend the Chancellor of the Duchy, that it is only under Article 189 that, in the view of the Government, any such rights can arise. We are, therefore, justified in addressing ourselves to Article 189, which sets out three kinds of binding Community law: regulations, directives and decisions.
If I have understood correctly, it is the regulations, as that word is defined in Article 189, which, in the view of the Government—I am not sure; we shall see presently—are, in accordance with that Article, to be given legal effect in this country "without further enactment".
If so—I deal first wtih a minor point, before coming to the central one—that does not apply to decisions, because the terminology for decisions is different. Decisions are not, in the terms of Article 189, "directly applicable"; those words do not occur in Article 189 in the definition of a decision. So we must assume that under the Bill decisions will not take effect in the law of this country automatically under Clause 2(1), that Clause 2(1) does not deal with decisions, and that decisions have to be given effect 1367 in the law of this country by other means and by other procedures.
It is perhaps interesting to remind ourselves what these decisions are. For this purpose I refer, as I am sure is permissible, to the legal and constitutional White Paper of May 1967, paragraph 10:A decision may also have direct internal effect. It is stated to 'be binding in its entirety upon those to whom it is directed'. Decisions are appropriate for imposing obligations or liabilities upon, or granting rights or exemptions to, particular undertakings or individuals.So we know that the Commission or the Council would have the power under the treaty to do all those things to undertakings and individuals in this country, and that those decisions would be binding in accordance with the terms of the treaty. But they are not designated as "directly applicable". It must follow that these are to be enacted separately in each case, presumably by the other procedures under this Clause, notably perhaps subsection (2).
Some very important considerations arise from this. For example, it is no use for anyone on the Front Bench to say that we cannot have a parliamentary procedure because if the parliamentary procedure ended with a negative decision we would be in breach of the treaty; for by this Clause they are providing in respect of decisions which are equally binding in their entirety with the regulations, a procedure by statutory instrument—in other words, by enactment. So it is perhaps not an entirely otoise by-product of this debate to realise that by statutory instruments Community decisions binding upon undertakings and individuals in this country will be given effect in the law of the land. I must say I think some of them will be rather remarkable statutory instruments. Nevertheless, it is gratifying that at any rate they are to be presented to the House, that they are to be published—I take it—in the proper way, and that at least we shall have an opportunity to see and to debate them.
From that I come to the central point, which is the regulations. The terminology in the treaty as to the regulations says that they are to be "binding in their entirety and are to be directly applicable—the alternative translation was "take direct effect"—in each member state. By a sleight of hand the drafts- 1368 men or the Government have substituted the concept "without further enactment" for the concept "directly applicable". However, it does not follow that the one means the other. Indeed, in the context it is perfectly clear what is meant by "directly applicable" under the terms of Article 189. We realise this from the contrast between a regulation and a directive. The regulation and the directive are equally binding, but the directive is to be given effect as to form and method in a way which the member countries can decide, whereas the regulation is textually and in every detail to be the same and uniform in all the member states and throughout the Community. This was a point which my right hon. and learned Friend emphasised. So what the words "directly applicable" mean is not "without further enactment". What happens inside the member countries is not the business of the treaty—that has been brought out already in this debate. The treaty is concerned with securing that, once the regulation is made, that regulation and no other is to be part of the law of all the member countries; but it does not prescribe in what way or by what procedures it is to be become part, or to be validated as part, of the law of the member countries.
I need hardly labour this point with you, Mr. Brewis, as the occupant of the Chair, because we have the view of the Chair upon this matter and it is that which I am putting to the Committee. The Chair has quite clearly ruled, and our debates are governed by this ruling, that nothing can be in order which would be inconsistent with the treaty, that we cannot refuse by means of Amendment—other than on "Clause stand part"—to do that which is necessary for the implementation of the treaty. As it has been loosely expressed, we cannot alter the treaty.
Of course, if the terms in Article 189 really meant the same as the words "without further enactment" in Clause 2(1), you, Mr. Brewis, would have instantly ruled out of order not only the Amendment moved by my right hon. and learned Friend but all the Amendments in this group, because it would have been, in your view, a requirement of the treaty—a requirement which we were attempting by this Amendment to 1369 alter, to break—that regulations became law "without further enactment".
So we are fortified by the ruling which governs these debates, in the conclusion that there is no requirement in the treaty for regulations to become law without further enactment. It is a matter open for us to decide in this Committee. However, I can pray in aid my right hon. and learned Friend himself, who said this afternoon "This Amendment does not require an amendment of the Treaty." I heard him say it in the initial exchanges as he rose to address the Committee.
If the omission of Clause 2(1) does not require an amendment of the treaty, then it follows that the treaty does not require implementation "without further enactment". If the omission of Clause 2(1) does not require an amendment of the treaty, then the treaty does not require Clause 2(1).
Indeed, my right hon. and learned Friend the Chancellor of the Duchy of Lancaster went further and said in praise of Clause 2(1) that in his opinion "it is the best way of giving effect to our treaty obligations". Well, it certainly is "a" way of giving effect to them, and my right hon. and learned Friend, since he finds it in the Bill, is entitled to his opinion that it is the best way; but it would be impossible to say of something to which there was no alternative, of something which the treaty prescribed as it stands in the Bill, that "it is the best way for us to give effect to our treaty obligations".
So we come to an extremely important conclusion: that we have been misled, in so far as we supposed that Clause 2(1) was necessary to implement the treaty. It is not. The treaty would be equally implemented if, as I suggest, the Amendment of my right hon. and learned Friend the Member for Hertfordshire, East were carried, because then subsection (2) and other parts of the Bill would be used to carry out what under Article 189 undoubtedly are our duties under the treaty.
But there is a further conclusion, a further consequence. It is that the Government have made an almighty boob in Clause 2(1), and that Clause 2(1) is itself a complete nonsense. It is a subsection which, on the Government's own view, has no content at all. It refers only to such rights as are to be given 1370 legal effect "without further enactment" "in accordance with the Treaties". They are not rights which are to be given legal effect "without further enactment" if the Government prefer it. Those would not fall under subsection (1). It is only those rights which the Treaties require to be given effect "without further enactment"—not which the Treaties permit, but which the Treaties require—which "are to be" given that effect "in accordance with the Treaties"—which fall under this subsection. As we have seen, there are no such rights, powers, liabilities, obligations, restrictions, remedies or procedures whatsoever.
So this is a subsection about nothing because, as is admitted by my right hon. and learned Friend, as well as by the ruling of the Chair, the Treaties do not require any such rights to be given legal effect in this country in this way. My hon. and learned Friend, the Solicitor-General, in his anxiety to simplify perhaps not only our proceedings under the Bill but future proceedings, if it should by any mischance happen that this country joins the EEC, has chanced his arm too far in the subsection. He hoped that we would not notice it, even though, incidentally, it has been openly admitted by the Prime Minister himself, who argued in his winding up speech on Second Reading against parliamentary enactment of directly applicable Community law, as though it were an alternative which was open and not, as the subsection implies, a procedure expressly forbidden by the Treaties.
My hon. and learned Friend has blundered into drafting what appears to be an operative subsection of the Bill but in fact has no effect at all. Whether or not we take out this nonsensical subsection, even as the Bill stands, all Community law will have to be given effect under other parts of the Bill, because, I repeat for the last time, there are no rights, there are admittedly no rights, which, "in accordance with the Treaties", are to be given legal effect "without further enactment". This is one huge, almighty boob. It is a meaningless subsection purporting to introduce a great mass of Community law into the law of this country, but in fact accomplishing nothing.
I am sure that my hon. and learned Friend the Solicitor-General will be only 1371 too glad to hide away the wreckage of this misconceived subsection as soon as possible by recommending the Committee to accept the Amendment of my right hon. and learned Friend the Member for Hertfordshire, East [Interruption.] I live in hopes—for I am very conscious of the legal rectitude and logical mind of my hon. and learned Friend the Solicitor-General—that he will recognise that there is no content to subsection (1) and will secure its removal from the Bill, and thus render otiose the other Amendments that are grouped with this one. [Laughter.] I do not think that hon. Members ought to laugh at the expense of my hon. and learned Friend.
In case, however, by any mischance that should not happen, I should like to refer to some of the methods of control that are proposed in various Amendments, because I think that they have a value independently of what happens to subsection (1). I refer, first, to the Amendment in the name of my hon. Friend the Member for Oswestry (Mr. Biffen), which requires that anything that is to be made law should be in the form of a Statutory Instrument, that it should be laid before the House of Commons, and that the opportunity at least of a debate upon it should be assured.
Lest anyone should object and say that the Amendment is an insult to the House, because it would be a waste of time of the House, since the Treaties require the Statutory Instrument not to be negatived, I should like to recall not only what I said a little time ago about the manner in which, in any case, binding "decisions" of the Commission and Council are to be given effect, but the fact that in subsection (2) there is a procedure, by Statutory Instrument, for implementing other parts of what would also be our obligations under the Treaties.
I know it can be said that those are obligations over the form and method of which, since they are in obedience to directives, we retain control. However, once a regulation is put before the House, or an affirmative or negative Resolution is moved on a Statutory Instrument, it is not possible to limit either the debate or the vote of the House to a discussion of modalities. If the House negatives it, the House will have negatived the Statutory Instrument as such. Everyone knows that one cannot limit the scope 1372 of the procedure, negative or affirmative, under Statutory Instrument.
So, if it is thought appropriate that directives and decisions of the Commission should be—as they are going to be—embodied in the law of this country by means of Statutory Instruments open to parliamentary procedure, then by parity of reasoning so should be the regulations. I quote my right hon. and learned Friend himself who, when he was confronted with the methods by which other countries had given effect to Article 189, said that he was anxious that we should act, as for ourselves, in accordance with our own procedures. He even said "in accordance with our own constitution". This is it. If that is what my right hon. and learned Friend wants, he has it in the Amendment of my hon. Friend the Member for Oswestry; for short of legislation, that is indubitably, in accordance with our procedures, the way in which we make additions to or changes in our domestic law.
For these reasons I regard the Amendment in the name of my hon. Friend the Member for Oswestry as the minimum requirement for parliamentary registration and debate, for notification to Parliament and for obtaining explanation, at any rate on major matters, from whoever is at the Dispatch Box.
Amendments Nos. 216 and 78, in different contexts—that in the name of my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) refers only to Community law whereas Amendment No. 216 is more at large—introduce a procedure for dealing with regulations when they are in draft. They do more than introduce parliamentary control or surveillance of that which is passing into our law. They would for the first time give some reality to the phrase which is constantly being used by Government spokesmen to the effect that we should participate in the decision-making.
It is sometimes said that we should "take our full part." The acid question is: who is "we"? Unless an Amendment of this kind is made, the "we" will not be the House of Commons. The federation of this and association of that will no doubt be brought into consultation in Brussels, shown successive drafts and asked what they think about 1373 them. No doubt Ministers will be brought into consultation, though always, remember, as a minority, except in certain cases by the grace of God. But the House of Commons will not be brought into consultation.
If the Government really mean what they say when they claim that we—that is, we in the House of Commons—will have a share in the formulation of Community law, let them accept an Amendment on the lines of Nos. 216 or 78, by which this House could, if it wished, debate regulations while in formulation and give Ministers if not their marching orders, then at any rate a fair indication of the wishes of hon. Members and their constituents.
§ [Mr. E. L. MALLALIEU in the Chair]
§ 8.30 p.m.
§ Sir D. Walker-Smith
Does my right hon. Friend appreciate that Amendment No. 78 is concerned specifically with Commission regulations and that, therefore, there need be no consultation, even with Ministers, as he suggested there would be, or at best it would be consultation at the discretion of the Commission?
§ Mr. Powell
I am obliged to my right hon. and learned Friend for emphasising that point. I had appreciated that Amendment No. 78 referred to Commission regulations. I dare say that the Commission will carry out all sorts of consultations with all sorts of bodies; but, be it Commission or Council legislation, it will not come before this House of Commons as things stand until it is a fait accompli. We need some means of ensuring—we need it in legislative form, which is the way to do it—that the House of Commons will be able to exercise the formative influence which we are always being promised. Let the Government give effect to that promise.
It is not simply as though there were a desire to interfere with, or trip up, what the Commission or Council might be intending. It is the commonest experience—a very chastening experience of which those of us who have held ministerial office are aware—that when regulations, drafted with the greatest care and with the best intentions, run the gauntlet of the House of Commons, aspects of them which nobody had previously suspected 1374 —which all the associations, federations, civil servants and Ministers had overlooked—suddenly come to light. That is one of the characteristics of the House of Commonś: some hon. Members or some group of constituents suddenly turn out to be affected in an entirely unsuspected way.
It cannot be the intention that it should be possible for this to happen. It cannot be right, even with the warmest will in the world to comply, as we would if we were in, with the spirit of the Community, that we should find ourselves faced with having to take or leave regulations which would have been made differently if we here had had the opportunity to make representations at an earlier stage. It is clear that both Amendments are in themselves of great constitutional and practical importance.
The Amendment which stands in the name of the right hon. Member for Birkenhead (Mr. Dell) highlights another aspect of Community legislation, in that, when that legislation becomes part of the law of this country, it must be seen in the perspective of our law. Unless it is to be merely a kind of erratic boulder deposited by a glacier, the rest of our law has to take account of it. Everyone knows that law cannot be made in individual pieces, in isolation, without regard to the repercussions; and if that is true of the law which is made in this House, how much more is it true of law which is made primarily for other countries, law which is made on the Continent from a continental point of view, and which is made by bodies on which we have only a minority influence?
It seemed to me that the right hon. Member for Birkenhead was on an extremely important point when he affirmed by his Amendment that from time to time we would have to take a view on where we were getting to. We would have to digest the law of this country as it was developing under the combined impact of Community law and our own legislation. I will not go into details as to the way that he proposed that it should be done; but I entirely agree with him that not only should there be a preceding procedure, which has to be gone through before Community law is embodied in our own, but there should also be a retrospective procedure which enables us to reflect, consider and tidy up afterwards.
1375 I refer finally to Amendment No. 141 in my name, to which my right hon. and learned Friend the Chancellor of the Duchy also referred. I set out in that Amendment the topics of Community law to which I proposed that the power, supposing that it is a power and not, as I have shown, a nullity, in subsection (1) should be applicable. Throughout these debates, whenever hon. Members have voiced anxieties about the nature of the transfer of parliamentary legislative powers we have been assured that it was within a very limited scope, that it would only take place within the scope of three, four or five topics already well-known and already exemplified in the practice and working of the Community. "Very well, then", I say, "so be it". If that is the ground on which we are to be reassured, and if that is the basis on which we are to accept the sort of innovation which Clause 2 as a whole involves, let alone Clause 2(1), let it be limited, in whatever way my right hon. Friends prefer to draft it, to those subjects. At the moment it is not only unlimited in time—we shall come to that in the context of another group ofAmendments—but unlimited in topic, so that in the whole Clause, let alone in subsection (1), we would be legislating blind—not only in the sense which the hon. Member for West Ham, North (Mr. Arthur Lewis) so indefatigably illustrates, but as to the area which Community law might cover and as to the future developments to which the procedures in Clause 2 might be applied.
Whether or not it be right to apply subsection (1) and its methods to existing Community law, it is an entirely different proposition that we should apply them to future Community law—unrestricted as to topic except by the treaties themselves and without any knowledge or foresight of what might be involved. That is indeed to put our legislative capacity into commission. The hon. Member for Ebbw Vale (Mr. Michael Foot) was not exaggerating so greatly in the example with which he challenged the right hon. Member for Manchester, Cheetham last week when he said: "Let us suppose the House of Commons put its legislative powers into commission with some other body." We very nearly have just that by the open-ended nature, as regards topic 1376 as well as time, of the powers in the Clause.
In short, the whole group of Amendments which we are debating, and those on which Divisions are in due course to be called, can and should be supported by right hon. and hon. Members irrespective of their views on the policy of British membership of the Community. They are Amendments which in no way break the treaties—that is admitted—and which in no way derogate from any obligations which we have undertaken. What they do is, so far as is consistent with those obligations, to create or restore the normal forms, or as nearly as possible the normal forms, of parliamentary scrutiny and control. That is what my right hon. and learned Friend himself said he wanted to do. He can do it through these Amendments.
§ Mr. Dell
The right hon. Member for Wolverhampton, South-West (Mr. Powell) said in a very skilful speech that subsection (1) was otiose. If he is right, the Amendment that I and my hon. Friends have tabled will also prove to be otiose. But, against the possibility that the Committee might decide that the right hon. Gentleman is wrong, it is probably better that I should recommend my Amendment to the Government.
The right hon. Gentleman also said that this was not a debate for or against entry into the Community, and that the Amendments within the group which we are now discussing were all consistent with entry. It is certainly true that the Government could not conceivably hold that there was anything in Amendment No. 7 that was inconsistent with our entry.
The vital problem with which we are here concerned is that of ensuring adequate parliamentary control over the Executive when we are in the European Economic Community. The point the Government have never answered—it was never answered during the whole course of these debates—is why there is no proper provision in the Bill for this matter. It is not even that the Government believe that such provision is not necessary, because they suggested setting up an ad hoc committee. If an ad hoc committee could have recommendations to make on this point, there 1377 is no reason why they should not be embodied in the Bill and provide for the House the protection which is necessary if its control over the Executive is to be maintained.
Only two reasons have been given by the Government against including such provisions within the Bill. The first was an extraordinary reason offered by the Chancellor of the Duchy of Lancaster today, when he said that to do so would fetter Parliament. I do not understand that explanation. After all, the whole of our constitution depends on the proposition that no Parliament can fetter its successor. If it were necessary as a result of the passage of time, or the experience of membership of the Community, to change whatever provisions were in the Bill, Parliament could change them. The idea that we should not do it now because it would fetter Parliament is absurd.
The other reason the right hon. and learned Gentleman has given on other occasions is the need to consult the Opposition on the matter. One method of consultation with the Opposition on this point would have been to put the Government's proposals in the Bill. Sometimes Bills are amended. This Bill may prove to be an exception, and it may not be amended, but it would have been possible for the Government to put their proposals on this point into the Bill, and, if the Opposition had desired, they could have been amended.
§ 8.45 p.m.
§ Mr. Michael Foot
I do not wish there to be any misconception about the Opposition's assessment of the ad hoc committee. The ad hoc committee was proposed to us as a method whereby there should be surveillance of examination of the kind of machinery that might be established. We thought this was a matter which could be discussed under the Bill. It would have been intolerable if we had agreed to set up an ad hoc committee which would be discussing exactly the matters which were before the House of Commons. It was on those grounds that we refused the ad hoc committee. We thought it would be an immediate derogation of the discussions taking place in the House of Commons.
§ Mr. Dell
My hon. Friend is re-emphasising my point that it would have been possible to put proposals in the 1378 Bill in this regard; it would have been possible, under the ordinary course of legislation in the House, to amend those proposals if the House had wished them to be amended. Nothing has been done. No adequate explanation has been given of the fact that nothing has been done.
That is not a point which is in any way inconsistent with entry into the Community. Entry into the Community can be argued and has been argued. The Committee knows my views on that. I would wish to see us going into the Community under a Bill drafted carefully to protect the position of the House.
My right hon. Friend the Member for Stepney (Mr. Shore) during his speech discussed the question of sovereignty and the relationship of sovereignty to Clause 2(1) of the Bill. Sovereignty is a practical, not just a legal, matter. My right hon. Friend is right in saying that if this Parliament delegated to some other body—whether in this country or abroad—the whole of its powers, it would be ridiculous to say that this Parliament could then withdraw those powers after a lapse of time. Therefore it is not right to say that this Parliament cannot in practice give away its sovereignty. Whatever the legal position, I believe that this Parliament could in practice give away its sovereignty. But we are not doing that in this Bill. We do not, as a result of entry into the European Community, give away our sovereignty. We have the continuing power to recall what we give away. On that basis I am prepared to say that membership of the European Community is consistent with national sovereignty.
If development went in a federal direction, as some people propose, that would involve surrendering sovereignty. Those who say it is not possible for this Parliament to surrender sovereignty are saying that one cannot move in a federal direction. Many people wish, once we are in, to move in that direction. It would involve the surrender of parliamentary and national sovereignty. I do not believe that is significantly done in this Bill.
For that reason I am prepared, as an inevitable condition of entry into the European Community, to accept that certain types of self-enacting legislation, the regulations, will emerge from the Community institutions. I do not say 1379 that the way this is done in the Bill is the right way to do it but in principle I am prepared to accept it.
There would be various ways of doing it. Above all it would have been desirable to spell out, in far greater detail than is provided in the Bill, exactly what is being done. It would have been desirable to provide in the Bill proper checks on what is being done. But as to the principle of doing it, I am prepared to accept, so far as it goes, that this is a condition of entry into the Community. I would be able to go along with it.
The next and vital point is that of parliamentary control over the Executive. It is one necessary and inevitable implication of international treaties that they have some effect, marginal or more, on parliamentary control over the Executive. That happens not simply with the European Communities Bill, although it probably happens with that Bill to a greater extent. It happens for example by our adherence to the North Atlantic Treaty Organisation. It happened by reason of our adherence to the European Free Trade Area. It happens for one simple, practical reason. Governments negotiate with their partners. They come to agreements which are acceptable to them and their partners. They then come back to the House of Commons and say "You may want to change this agreement, but this is the best agreement we can get."
In that sense there is always, as a result of entry into international treaties, some decline in parliamentary control over the Executive, and to that extent it is inevitable. One has to balance whether that loss of parliamentary control is worth the gains one gets from entry into the international treaty. But the fact that this is an inevitable result of entering into such treaties, the fact that in the case of the Rome Treaty it results to a greater extent than ever before, makes it the more vital that there should be in the Bill provisions for parliamentary control.
If parliamentary control is to be exercised over the Executive, information is vital. We have to know what we are doing and the implications. The fact that at this moment, as the right hon. and learned Gentleman admitted, cer- 1380 tain information about existing regulations that it would be desirable that we should have is not available is unfortunate. It shows the difficulty for Parliament in controlling the Executive when we do not have the information available about what the Executive is in certain circumstances committing itself to. This information as to what the regulations are and the implications for our existing law is essential, because without that information parliamentary control is impossible. Parliament cannot control in the absence of necessary information.
This is why we have put down Amendment No. 7. The right hon. Member for Thirsk and Malton (Sir Robin Turton) said that it really dealt only with the second part of the problem he was concerned with. He was concerned, first with the problem of reviewing drafts of regulations that might be enacted in Brussels, and, secondly, with the implications of whatever was done. I agree that there are these two sides to the problem and that both need to be dealt with. We are here dealing with the second part—the problem of ensuring not merely that we know what is happening but the full implications for the law of our country of what is being done.
We provide for this by means of a piece of machinery—the use of the Law Commissions. My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who drafted the Amendment, has drawn my attention to the fact that on Second Reading of the Law Commissions Act, 1965—on 8th February, 1965, as reported at column 137 of HANSARD—he, with remarkable foresight, indicated that some such provision as this might be necessary if we entered the EEC. That is what we are doing. We wish to make use of the Law Commissions in order to ensure that the House of Commons at regular intervals can have presented to it the full implications of the regulations which have been enacted in Brussels.
I want to consider the wider implications both of this debate and of the Amendment. There is naturally and necessarily deep concern on many questions relating to our entry into the Community. One of the areas of concern relates to the undemocratic nature of Community procedures—the procedures 1381 which produce these regulations. Many people have been searching for all sorts of methods of increasing democratic control over the Community procedures. Various proposals are made. There is the European Assembly, as my hon. Friend the Member for Nottingham, West (Mr. English) would insist on my calling it——
§ Mr. Dell
I know that my hon. Friend is worried about the name. I am discussing proposals which have been put forward for strengthening the European Assembly—for example, holding direct elections to it. It would presumably be the case that the proposals under subsection (1) would fall within the machinery for more democratic control over the actions of the EEC Commission and of the Council of Ministers.
I do not see this sort of development in a practical future as providing the necessary degree of control, first because it is clear that the European Assembly will not for a long time have the reality of sovereignty. One cannot place sovereignty where one wills. It grows where it is believed to be located, where the people of a country invest as the centre of their national sovereignty. The reason why this Parliament has sovereignty is because the people of the country believe it to have sovereignty.
It would be a long time before a European Assembly could achieve that status. I do not see this as a means of achieving the necessary degree of democratic control. Another warning we should bear in mind in considering an increase in the powers of the European Assembly is that we must beware, whatever we do, if we want democratic control, not so to muddle the machinery that in effect we make the Executive even more powerful. We must not give the Executive an opportunity of confusing the lines of responsibility. If a Minister can come to the Box and say to the House "I have done this by reference to the European Assembly and therefore I can ignore what the House of Commons says", we have not created greater control over the Minister; we have reduced our control. I do not regard the European Assembly as an answer to the problem.
1382 For me the only answer is parliamentary control over our Government paralleled, I hope, by parliamentary control over the other Governments of the member countries.
I read in newspapers, and on these matters I have no other source of information, that the Government are considering introducing a guillotine on the Bill.
§ Mr. Dell
I hear my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) say "Impossible" and I hope he is right. It would be undesirable to do that. No doubt the Government make their calculations and they know whether, if they introduce such a Motion, they could get it through the House. I am not able to judge that because I do not have access to the necessary information. But I can say this. The only excuse for the Government introducing the Bill in this limited form without adequate parliamentary control is because they believe that if they introduced a longer Bill there would be protracted debate and they would not get their Bill. If they can impose a timetable Motion they have no excuse for failing to make Amendments which can be made and which are in no way inconsistent with membership of the Community but which would provide for proper control by Parliament.
If the Government are bringing forward such a Motion they must face their responsibilities and introduce the types of Amendment such as my hon. Friends and I have already tabled. These are simply examples of the sort of Amendments which could be made to the Bill to achieve the important object of parliamentary control. I hope that the Government will look sympathetically at Amendment No. 7 and will see it as the type of Amendment which, however it may have to be redrafted, should be accepted for inclusion in the Bill.
§ 9.0 p.m.
§ Mr. John Biffen (Oswestry)
It is a great pleasure to follow the right hon. Member for Birkenhead (Mr. Dell). I say this first because I have signed his Amendment No. 7 and have a lively sympathy with it and hope there will be 1383 a separate Division on it, as was requested earlier. Secondly, he, as a self-confessed supporter of British membership of the Community, has underlined how these debates in Committee can provide Parliament with the opportunity to be a constructive forum for the consideration of the expected future pattern of relations with our sister continental countries in which debates can proceed in a relatively relaxed atmosphere.
One may excuse the Chancellor of the Duchy of Lancaster of having committed a verbal infelicity when he said that some of the Amendments were wrecking Amendments, when clearly it is not the intention of those of us who are addressing ourselves to this set of Amendments to raise the issue of whether or not Britain should be a member of the Community, but rather of the pattern that the association should take in the terms which the House of Commons most intimately understands; namely, the shape of the elective and parliamentary presence in the context of Community law-making.
We are quite right to take advantage of the degree of manœuvre that is available to us in the rules of order, for two reasons. First, we know that the inter-pretion of the Treaty of Rome is not absolutely inviolate. One only has to consider how the qualified voting provisions of Article 148 have been subject to an effectiveness which is different from that envisaged by the authors of the treaty. Secondly, it is not possible to expand the Community from a Community of Six to a Community of Ten, to postulate a Community stretching from Galway to Saxony, from Hammerfest to Messina, without thinking that it will have consequential influences on the way in which we fashion and give effect to law-making.
Therefore, the Amendments address themselves quite properly to two major considerations. The first is the relationship between the Executive and Parliament and how we react to the powers that are vested in the Commission, powers unfamiliar to those of us who are inclined to compare the Commission with the British Civil Service. The second is to what extent the parliamentary presence in Community law-making shall be vested in national Parliaments, rather than in the European Assembly. It was 1384 on that latter point that the right hon. Member for Birkenhead dwelt, and I was delighted again that his judgments concurred with mine.
We have documentary evidence that some hon. Members welcome the prospect of a powerful Commission. These voices have been somewhat muted as the debates have proceeded, but they were there at one stage. I will quote the view that was expressed by my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley) when discussing prospective British membership of the Community in the early months of 1970. He wrote this in a publication called "Solon":If the Commission … could simply stop us subsidising ourselves … we would have cause for gratitude. We … subsidise the inefficient and out of date.It was this experience of the behaviour of domestic politicians which led him to concludeIf the Commission can save us from ourselves, they are welcome to our sovereignty as far as I am concerned.I take a very different view from my hon. Friend. I believe that the concentration of power in the Commission represents an accretion which is recognised as inherently undemocratic within the Community——
§ Mr. Biffen
Indeed, even by one of the Commissioners. One of the arguments which has been adduced to attract the British, and one of the flattering things which has been said about our prospective membership, is that we shall bring with us a political experience which will be able to remedy the inherently unsatisfactory power which now resides in the Commission. This has led to a great deal of concentration on the enhanced parliamentary rôle which there will need to be in Community law-making should Britain and the other applicant countries be successful.
This brings us straight to the point made by the right hon. Member for Birkenhead. The argument is largely whether this enhanced parliamentary authority will reside in national Parliaments or with the European Assembly in Strasbourg. My right hon. Friend the Prime Minister clearly has a predilection for an increase in the powers of the European Assembly. 1385 I should like to quote from the Financial Times of 18th March this year, which in turn quotes from an interview given by my right hon. Friend to Le Monde last month. No doubt it will be for the convenience of the Committee if I make a translation of the French rather than say what was actually said. The Prime Minister said:The first necessity is to enable the European Parliament to function more efficiently. Thereafter we could concern ourselves with gradually developing the powers of that Parliament. On the question of election, I am not dogmatic. I have said already that we have not given very much thought to that affair.Those views have been reinforced, so we are led to understand, by the recent talks which have taken place between my right hon. Friend the Prime Minister and Chancellor Brandt. At this point of time I do not believe it is a realistic option to place a European Parliament or European Assembly as a serious rival for this House.
I say this for two reasons. First, I believe that this House would not wear it. Secondly, I do not believe that the people of this country would wear it. I do not believe the British public would wish to see parliamentary authority exercised by a European Assembly rather than by any national Parliament. There is the danger that there will be a fudged, half transfer of authority between a continental and a national Parliament—a danger which was referred to by the right hon. Member for Birkenhead.
Clearly, it is on this issue, which is probably the most important of those that we are now relating, that this House has to decide whether within the rules of order which have permitted the modest range of Amendments which the Chair said would constitute "nuts and bolts" we can ensure that there is a bridgehead for a more effective parliamentary representation and presence in the whole process of Community law-making than exists in the processes that now apply within the Community.
It is no answer to be told that what is being willed upon us is no worse than now applies within the Community. That would be a fairly unsatisfactory answer for Parliaments with a less independent history than this one, and for Parliaments with a claim upon the history and the affections of the public less strong 1386 than this one. Yet, in reality, that is the argument being addressed to us. We are told that we have to accept the minimum terms of parliamentary presence, and the ad hoc committee which is supposed to be the measure whereby our self-respect is salvaged offers to us consultation in the processes before law is enacted.
This is wholly unsatisfactory. I do not say that the consultation will be on a par with that offered to the British Medical Association. But we cannot hand over or yield the final parliamentary presence in the law-making process in the hope or expectation that that will be recreated on a European scale in a European continental assembly, even if such a prospect commended itself to the instincts and the loyalties of the people of Britain, which I think it does not.
I conclude with a reference to the Press conference of the late President de Gaulle on 5th September, 1960, when he said:Now, what are the realities of Europe? What are the pillars on which it can be built? The truth is that those pillars are the States of Europe … States each of which has its own genius, history and language … but States that are the only entities with the right to give orders and the power to be obeyed.I believe that those words underline a profound reality. They offer the only inspirational basis on which a satisfactory co-operating Europe can be evolved. In parliamentary terms, likewise the rôle of the national Parliaments will remain vital. If we have any sense of self-respect, that alone will drive us into the lobby in support of these Amendments.
§ Mr. English
I want to take up the suggestion made by the Chancellor of the Duchy of Lancaster in saying that we should discuss some of the details of the subsection to which all these Amendments relate. However, before doing that I wish to comment on one of the remarks made by my right hon. Friend the Member for Birkenhead (Mr. Dell).
I was glad to see that my right hon. Friend and others of my hon. Friends had put down a series of Amendments of the type that he so ably described. It saddens me to realise that there are many people in my party, like my right hon. Friend, who believe in going into Europe but who have taken no interest in the 1387 Bill except when they have felt it necessary to justify voting with the Government rather than considering how the Bill should be amended.
My right hon. Friend the Member for Birkenhead and others of my hon. Friends who have signed his Amendment at least have the courage of their convictions in that they have said that they believe in this country joining the European Community and have taken steps to consider the Bill, to take part in its proceedings and to make suggestions which they, and I think many of us, believe would make it a better Bill without, to quote the awkward word used by the Chancellor of the Duchy of Lancaster, putting forward what are in any way wrecking Amendments. I may say that all the Amendments put down in my name, although my views are totally different from those of my right hon. Friend the Member for Birkenhead, endeavour to make the Bill a better Bill without being in any way wrecking Amendments, although I would rather the Bill did not pass at all.
I should like to turn now to the speech of the Chancellor of the Duchy of Lancaster. I am very grateful to him for mentioning that he had looked into the question I raised at an earlier stage in this debate of the observer which the GermanBundesrat has at the Council of Ministers. The Chancellor said that the observer was a high official and I believe him to be quite right technically, but the point is not whether the observer is an official or anything else. The position is a little complicated because the Bundesrat is the House which represents the Länder in the German legislature, but it is a chamber with considerable powers, as is illustrated at the moment by the trouble it is causing the Chancellor of the German Federal Republic. It does not really matter whether an observer of that type is an official, a Member, or what. I hope, therefore, the Chancellor of the Duchy of Lancaster will take up the point and remember that such a person could represent this House of Commons in the same way as one house of the German legislature is represented.
Whether the observer is a Member of this House of Commons or somebody, for example, responsible to the Clerk of the House and therefore an official is 1388 quite irrelevant. The point is whom he represents and whether he has a duty to report on what is going on there to the House of Commons. As I understand it, that is the duty of the observer of the German Bundesrat. His duty is to represent the Bundesrat and to report more particularly to the Lander about what happens.
§ Mr. Raymond Fletcher
I merely wish to underline my hon. Friend's point that the observer's reports to the Bundesrat are part of the official record of proceedings.
§ Mr. English
I am grateful to my hon. Friend. His skill at German is well known to us all and I know he is doing research work into this. This is precisely what is wanted, so I think that the Chancellor of the Duchy of Lancaster was a little offhand when he said that the observer was merely an official. The real point is not who or what does it but whom he represents and whether he reports on the proceedings to us so that we all know what is going on.
At the moment we do not know what is going on. That the House of Commons does not know is quite clear from all that has been said in the course of this debate today. What is even more worrying to many of us is that we are not at all sure how far the Government know what is going on. The reason why I say that is that we see in the newspapers—and this is the only information we have—that the Government's observers are taking part. For instance, we understand that the Chancellor of the Exchequer or his representatives are already taking part in financial discussions. We understand that because of our prospective entry into the European Community—indeed, the Chancellor of the Duchy of Lancaster has said so today—representatives of the Government, be they civil servants or Ministers, are already taking part as observers in the institutions of the Community.
If that is so, it is not a good augury for the future when the Bill is passed because, although the Chancellor of the Duchy of Lancaster gave regular and frequent reports of the progress of his negotiations leading towards the treaty that we are trying to ratify, we have not heard one statement or report from the right hon. and learned Gentleman, or 1389 from anyone else as far as I am aware, of the details of the discussions in which, the newspapers say, the right hon. and learned Gentleman and representatives of the Government have been taking part, even if only as observers. Presumably they have thoughts on the matters being considered by the Council of Ministers and other institutions of the Community. If they have, we ought to be told.
The President of the European Commission—and one presumes that as President he was speaking on behalf of his Commission which can make proposals to the other institutions of the Community—Dr. Mansholt, according to today's newspapers, yesterday made a statement of great importance, in particular to the next debate on the Bill later this evening or tomorrow.
He said that he believed that civil rights should be given to migrant European workers crossing their own national frontiers into other nations of the Community. I asked for a text of the statement. I shall not quote it in its original, because I am not sure of the nature of the text. However, with the aid of the Library I have some sort of text. On reading it, one realises that what he means by civil rights is primarily electoral rights; certainly the right to vote, and presumably the right to stand for election in a country of which people are not nationals but in which they become residents due to the other provisions of the EEC.
What is the Government's attitude to that proposal? I hope that the Government have an attitude to it and that the House of Commons will be told it before 29th May, because I see later in the statement that the next conference of Ministers of Foreign Affairs is to be held in Brussels on 29th May. The statement goes on to relate what will be discussed then. One of the things to be discussed is the problem of political union. Also discussed will be institutional questions which are of deep and the utmost concern to us all. If the problems of political union are to be discussed at Brussels on 29th May, and if the President of the European Commission is suggesting that under this treaty Italians, Frenchmen and Germans should have electoral rights on local authorities and in this House of Commons, I sug- 1390 gest that the Government should have an attitude to that and should tell us what it is. I ask whoever is to reply to the debate to do one simple thing. I ask him to say what instructions have been given on this matter alone to the observers that we have in the institutions of the Community.
§ Mr. Rippon
There may be some confusion about this, and perhaps I can help. I think that the hon. Gentleman is referring to the periodical meetings of Foreign Ministers to discuss the agenda for the summit. What has been announced is the agreement that has been reached on three main subjects for the summit—the Community's external relations and responsibilities, the development of institutions and progress in the political field, which will be taken at the meeting at Luxembourg on 26th May, and a subject that was discussed in general terms yesterday, the third item on the agenda, economic and monetary union and social progress. It was a confidential meeting but some indications emerged of the sort of points that arose. No decisions could or can be taken prior to the summit.
§ Mr. English
I said at the beginning that I was not at all sure of the nature of the text which the Library obtained for me. I am not disputing what the right hon. and learned Gentleman said about what was being discussed. I take it that he is not disputing what Dr. Mansholt suggested yesterday, his suggestion having been reported in what we commonly call the "heavy" newspapers. His suggestion about one of the matters that should be discussed would probably come under the heading which the Chancellor of the Duchy described as "social progress", and I would like to know the Government's attitude towards this aspect.
If this provision were adopted now, before 1st January, 1973, and the Community said that the rights of migrant workers shall include electoral rights—the right to vote and possibly to stand for election—what would be the attitude of Her Majesty's Government? And if it were adopted after 1st January, 1973, could it be changed under our British electoral law, with or without a Resolution of the House of Commons—that is, under the provisions of the existing Treaty of Rome or by one decision of the Cabinet 1391 and one Division of the House of Commons?
This is highly relevant to the Bill because under this Clause all the rights, powers and obligations arise by or under treaties and, as we have discussed at length, the treaties are not only those that now exist but any treaties that come into existence in future.
These are treaties which would normally, according to our constitutional procedure, be ratified after the passage of a Measure such as the one we are discussing rather than by an Order in Council approved by Parliament on one Division. One is bound to go on to ask whether the same could happen to a complete political union such as my right hon. Friend the Member for Birkenhead mentioned.
I come to the more detailed application of the Clause because I am deeply concerned about the results that this provision could have on the rights of individuals. I am, therefore, glad to see the Solicitor-General in his place. I want him to take as my premise that the Bill has been passed, that we are in the Community and that Community law applies to this country.
Under Community law an individual has fewer rights than he has under English law to enforce the law. Suppose that everything in Community law were totally just. That cannot be true of any system of law. However, it would seem to be much less enforceable by the individual than is any element of British law
The criminal law of the Community is limited. Strangely enough, while some might object to its being increased, I would regard that as a defect. The defect is that in English law an Act of Parliament, even if it does not expressly set up a criminal offence, represents one in that it is a criminal offence intentionally to break a provision of that Act, unless it goes out of its way to say the contrary. Under Community law that is not necessarily the case. There are very few criminal offences. It is possible to establish penalties or sanctions, the mark of a criminal offence, under the Treaty of Rome. As far as I am aware, however, this has only been done in respect of two agricultural regulations. There are 1392 certain other instances in the other two treaties but altogether there are very few.
This seems extremely unfortunate. If an individual who is working for, say, the Commission or the Council of Ministers intentionally breaks the law, nothing can be done about it except to dismiss him. The simple example of that concerns confidential information. One of the later Clauses in the Bill provides that information that the Department of Trade and Industry has reecived in confidence from companies can be given to the Commission. One of the Clauses of the Treaty of Rome provides that no member of the Commission or its staff shall reveal confidential information. The regulations which provide for the conditions of service of the staff of the institutions also state that no officer or servant of the Commission shall reveal confidential information. All that is very good—exactly in the traditions of our own Civil Service. But all that can happen to an individual if he reveals confidential information is, after the appropriate procedures, for him to be dismissed. Under our law a civil servant who gave away such information could be prosecuted for the criminal offence that it must constitute if we are to preserve confidentiality of information.
I accept that a little later in the Bill there is provision to apply the Official Secrets Acts to a similar situation in relation to atomic energy. I am concerned not with atomic energy but with the situation where a company provides the Department of Trade and Industry with statistics which it does not want to have revealed to its competitors. The Department would not reveal them, but if a civil servant did, as we had in the recent V. & G. case, he could be prosecuted under the Official Secrets Acts.
If the Bill is passed, that confidential information could be passed to the Commission in Brussels and a civil servant of the Commission could cheerfully reveal it knowing that the worst that could happen would be his dismissal and perhaps the loss of his pension, which, if he was a young man, would not bother him anyway. In future, therefore, we may get rather more leaks from Brussels 1393 than we get from Victoria Street about, for example, British business secrets.
The second respect in which it is difficult to enforce the treaties is in relation to civil actions. In any country where there is a system of English law, such as the United States, there is a safeguard that anyone can bring an action to enforce the law. It may be that he requires an order enforcing the provision of the law or that he wants an injunction preventing someone from doing something illegal. This is not so under the law of the Communities. I accept that any member State can bring such an action. As we have so often found in all our discussions the Government, on behalf of the United Kingdom as a State, could certainly bring an action against almost anybody within the Community in an attempt to enforce the Community law.
But what about an ordinary individual? A French association of producers was simply told it had no right of action on a matter of intimate concern to some of its members and to it as an association. Because it was an association, and even though it had legal personality in French law, it was told it could not bring an action, because individual persons—I include individual and corporate persons other than States and similar institutions—can bring actions under Community law only if something has been directly addressed to them or is of direct and individual concern to them.
What is meant by that is not the broad generality of English law under which, for example, any taxpayer can bring a case saying that someone has illegally imposed taxes upon him, or a ratepayer may bring a case saying that someone has illegally used the rates he has paid. Actions can be brought only by specified groups that can be individually identified, much more akin to what is meant in English law by the sort of person who can bring an action for defamation, a much more restricted group of people.
This is a great contrast with the British system of law, under which an individual once brought an action simply saying that nobody could impose upon him the taxation of the year because it had been dealt with only by Resolution of the House of Commons and not an Act, as 1394 was then required by law. Nobody had ever challenged that procedure before, but he challenged it successfully. Such people would be far too amorphous a group under the law of the Communities, as I understand it, to bring an action.
Even more important, any individual may be concerned about a regulation which has not been specifically addressed to him. It might be of deep concern to me as a mere consumer if, for example, a regulation addressed to a sugar company forced it to undertake certain actions which increased the price or lowered the quality of sugar to me as an individual. If such a regulation had been passed wrongly, illegally, unlawfully, under the processes of Community law, I could not say so in court under Community law, as I understand it. If that is not the case, I hope the Solicitor-General will make the position quite clear. The sugar company could say "The regulation was addressed directly to us. We have a right of action". But what about the people affected by it, who may not be persons to whom the regulation is directly addressed?
The other limitation on actions in the Community concerns the persons against whom actions can be brought. One notable example is the one I mentioned earlier. The European Assembly quite illegally describes itself as a European Parliament. It is not a Parliament in the sense of the French Parliament, which was a court, and it is not a Parliament in the English sense of a directly-elected legislature, which has always included a directly-elected portion. An individual cannot bring an action against the Assembly. Although it is not a sovereign body, it regards itself with even greater arrogance than this House of Commons, which is a sovereign body, has ever regarded itself. On one famous occasion the late A. P. Herbert brought an action against the House of Commons. He did not succeed. But he did not succeed merely upon a point of law. No court said to him "You cannot bring such an action against the House of Commons because it is far too august to be dealt with by the law."
That is what the Treaty of Rome says about the European Assembly. It says that the European Assembly is not justiciable in any court, even if it has 1395 broken the law. No individual, as I understand it, can bring any sort of action against a State which has broken the law. A Federal State, the United States, has less economic power than the European Communities have in certain respects, because the Treaty of Rome is far more detailed than the constitution of the United States.
Although the constitution of the United States covers a broader field—it includes foreign affairs and similar matters—the limited field covered by the Treaty of Rome is far more detailed than any United States constitution. If the State of California or New York breaks the law, an individual can bring an action against it. He cannot do so against the European Communities. The only people who can bring an action against a State for breaking a law are another State or certain institutions of the Community. One cannot bring actions against the employees of the Community. One may be able to bring an action against the Commission if its employee has done something. One cannot bring an action against an employee of the Community for anything done in the course of his duties. There are jurisdictional limitations.
It is typical of the cavalier method in which the House has been given documentation that when I went to the Vote Office to get the amended Treaty of Rome—the yellow covered version—I found Article 173 printed incorrectly. One paragraph of it has mysteriously been lifted from Article 175. I had to have recourse to the original treaty to find out what it said. It is an interesting point. It seems that not only are the Government not providing sufficient translations but that, when papers are provided, nobody adequately checks the documentation we receive.
The treaty does start with an original article to the effect that the Court of Justice shall ensure that in the interpretation and application of the Treaty the law is observed. One would think that that would be sufficient. On the contrary, it goes on with a series of provisions. They are similar in a sense to subsection (1) of the Clause. In many respects they are not powers given to the court but are powers given with restrictions to the court. In many cases the 1396 court does not have jurisdiction such as an English court would have to enforce the law.
What provision is there in many cases for enforcing a decision of the court? We have heard a great deal this week about enforcement. We have seen the largest trade union in the world fined £5,000, then fined £50,000 for contempt of court, and thirdly threatened with complete sequestration of its assets if it continues to disobey a court order.
This is not by virtue of any particular provision of the Industrial Relations Act but by the general provision of the law of England that if a court is given power by an Act of Parliament, by the law, if its order is disobeyed, it may enforce it. There are penalties provided in the Bill for someone who commits perjury before the European Court. What power has the Court to enforce its decisions once it has made them? In particular, how does it enforce a decision against officers or servants of the Communities or against institutions of the Communities? The way that is done in this country, in the United States or in any country where a system of English law prevails is that, although one cannot get rid of the Government of the day, in that no court can order the Government to cease existence because they have done something illegal, a court can literally take hold of the individual Minister who has done something illegal and say that he, if necessary, should suffer for his illegal actions.
What power has the court under the European Communities to do that? As I interpret it, it has no such power. I suggest that this is another aspect of the undemocratic quality of the Rome Treaty and even of the deeper European institutions behind it. Democracy is not merely a matter of casting votes or even of holding referenda. In essence, in the first place it must rest on the right of every individual to go to a court of law and say "someone else is not obeying the law and is thereby infringing my rights." That other person may not necessarily be infringing the individual's personal finances, since his pocket may not necessarily be affected in the case, but is infringing his rights because he is disobeying the law. John Donne saidAny man's death diminishes me".1397 But any illegality of the State against any other person may diminish me because illegalities used against him may one day be used against me or against my friends or my colleagues. One day it may be necessary to go to court in order to protect oneself.
In future, how will we be able to go to court not only to enforce the law but to protect ourselves against infringement of the law? The institutions of the Communities can bring actions against any corporate body or individual person to enforce the law. The reverse is not true. That is the difference and it is a difference which is another aspect of the lack of democracy, because the important point is that the individual should be equal before the law with the institutions of the State or with federal institutions such as those of the Common Market. But that is not and will not be so in this case. We should, therefore, endeavour to put the Bill right in this respect before we put it into the law of England.
§ [Sir ROBERT GRANT-FERRISin the Chair]
§ Mr. Denzil Davies (Llanelly)
By common consent—indeed, by full-hearted consent perhaps—we are agreed that subsection (1) is probably the most important and far-reaching in the Bill.
If it is allowed to become law in its present form, we shall be conferring upon the Executive in this country and also upon the institutions in Brussels an immense extension of powers—and conferring those powers, I believe, at the expense of our Parliament and of our parliamentary democracy. If the subsection becomes law, British citizens will have to obey laws which will not have been passed by majority vote of this Parliament. The laws will become immediately binding. They may be debated in the formative stage or they may not—the Bill does not provide for that—but they will become applicable to our citizens without the majority vote of Members of Parliament. These laws will not have the stamp of the express consent of Parliament.
We are constantly told about the dangers of a section of society not conforming with the law because they feel that the law is unjust in its application to them. I would agree that the basis 1398 of our rule of law is that we accept law in a democratic society despite the fact that we may not agree with it being applied to us. One corollary of the rule of law is that one should be able to go to one's constituents, to the citizens, and say "Look, you may disagree with this law, you may disagree with this Statute, but you must obey it and you must go to the ballot box and seek to change it. I and my colleagues and the party I represent will do our utmost to ensure that your wishes are carried out." That proposition is part and parcel of the concept of the rule of law.
Once we take this away over an area of our lives as we do in this Clause we change the basis on which the rule of law has been established in this country. I shall try to show that Clause 2(1) takes away the powers of this Parliament and changes the law of the country. The undesirable state of affairs introduced by this subsection is brought about by a rigid interpretation of Article 189 of the treaty, the Article which enjoins member States to apply regulations directly once those regulations have been issued. The article provides that these regulations shall have direct legal effect.
When I read the Treaty of Rome the first time I was surprised to find that the framers of the treaty, people whom I had been led to believe were men of vision and imagination, had allowed such an article to creep in to the treaty, should have permitted such an article which is a negation of democracy and parliamentary rights. Not only did they permit it; they intended it. When they enacted Article 189 they took powers from the Parliaments of the Six and concentrated those powers not in their democratic assembly, not in the European Parliament; they deliberately concentrated those powers in the Council of Ministers, meeting in secret in Brussels and in the Commission of civil servants also meeting in Brussels. This has considerably extended the powers of the Executive.
The Governments of the initial Six countries unfortunately have a vested interest in this in the same way as future Governments of this country will have a vested interest in continuing this state of affairs because the result of Article 189 and Clause 2(1) is that Ministers become more powerful, our Civil Service has more authority and the whole power 1399 machine is strengthened at the expense of parliamentary democracy. This is what we are arguing about. This is what is contained in Article 189, a vast extension of the power of the Executive, the provision of another buffer between the Executive and parliamentary control and ultimately the people of the member States.
Much has been said about the power of Parliament to repeal legislation passed now and in future in consequence of and pursuant to treaties. This is not particularly relevant to Clause 2(1). The Chancellor of the Duchy reiterates that the passing of this Bill and the joining of the Community does not involve an ultimate surrender of sovereignty. I would respectfully agree that the emphasis is on the word "ultimate" which has been chosen with some care by the right hon. and learned Gentleman's advisers. In the end there is no doubt that Parliament can repeal the Bill should it become law. In the end there is no doubt that Parliament would extricate this country entirely from the Common Market, but the difficulties of doing so would be great.
Commercial agreements entered into between organisations in this country and European organisations would still be valid according to European law and would still be enforced by the European courts, because the European courts would not recognise an Act of this Parliament breaking the treaty obligations of this country. Our former partners in the Common Market would be able to sue us in one of the European courts for large sums of money.
I accept entirely that ultimately we can break the treaty and withdraw completely, but what worries me is the intervening stage. What happens when we pass laws which repeal parts of the treaty or which are contrary to a few provisions in the treaty? That is where the difficulty arises.
My right hon. Friend the Member for Manchester. Cheetham (Mr. Harold Lever) gave a colourful example recently to illustrate the concept of parliamentary sovereignty. He said that should Parliament decide that Mr. Harold Lever should in future be Miss Brigitte Bardot, as far as the courts were concerned that would be a legal fact. With respect. 1400 I suggest that his analogy was irrelevant. The correct analogy would be as follows. Suppose the Treaty of Rome said that Harold Lever should for ever remain a person of the male sex, and suppose this Parliament passed a law which said that Harold Lever should in future be Brigitte Bardot; that would be the correct analogy, because that is the situation we shall face. English law has not been faced with a dual legal system, having to choose between Community and municipal law. As time goes on there is little doubt that ultimately the courts will provide that Community law shall prevail over municipal law passed by this Parliament.
I cannot speak for the courts, but one can at least look at the practice of continental courts and see what they have done in a similar situation. Their position is no different in this respect from ours, continental courts apply municipal law; our courts apply municipal law. On the Continent the question has been how far municipal law can be overridden by Community law, and the experience of continental courts is relevant to our own.
§ Mr. John Roper (Farnworth)
Will my hon. Friend say a little about the doctrine of precedence as it is applied in our courts and in the continental courts?
§ Mr. Davies
With great respect to my hon. Friend, I cannot believe that the doctrine of precedence has much to do with the question of how far a court of law in this country is prepared to apply a future Act of Parliament contrary to the provision of a treaty as opposed to earlier Community law. Looking at what has happened on the Continent, it is likely that our courts will do the same as continental courts are doing and uphold the precedence of Community law.
I will quote briefly from an article by the Legal Adviser to the Commission which has appeared in the Modern Law Review. I will not quote the passages which the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) quoted. This is what the European Court said in a case which involved the Italian authorities:The transfer by the State from their internal legal system to the Community legal order of rights and obligations entails a definite elimination of their sovereign rights against 1401 which a subsequent unilateral Act would be incompatible with the Community Act.It is clear that the European courts are moving in this direction, and I should be surprised if the courts of this country did not do the same if faced with the same situation. It need never come to that. The limitation of the sovereignty of Parliament will take place at an earlier stage because a future Government of this country will not feel impelled—indeed will be afraid—to pass legislation which could be contrary to an amendment of the treaty
§ It being Ten o'clock The Chairman left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.