HC Deb 21 December 1972 vol 848 cc1741-53

Order read for resuming adjourned debate on Question [18th December]: That a Select Committee be appointed to consider procedures for scrutiny of proposals for European Community Secondary Legislation and to make recommendations.—[Mr. Murton.]

Question again proposed.

11.55 p.m.

Mr. Richard Body (Holland with Boston)

When the debate was adjourned I was in the process of putting a number of questions to my right hon. Friend the Leader of the House as to the effect this Select Committee would have. In the first place, I draw his attention to the report of the Select Committee on Procedure and to the anxieties which it expressed as to how powerful any such Committee as this could be.

There is a distinction between regulations and directives, which are obviously binding and, therefore, can be deemed secondary legislation, and recommendations and opinions, which are not binding and, therefore, cannot be called secondary legislation. What shall we in this House be able to do about recommendations and opinions? Shall we have any opportunity of discussing them on the Floor of the House? We shall have no opportunity elsewhere. There will be no Select Committee, no body of any kind, with the power to examine recommendations and opinions, either in their final form or in their draft form. If we have not that power, it is some diminution of what powers we have now.

All the member States of the Community at present have Parliaments with specialist committees on agriculture, trade and all the other subjects that are legislated on by the Commission—that is to say, those subjects upon which there may be regulations or directives have corresponding specialist committees in all the assemblies of the present member States. Those specialist committees have the power to summon before them the Ministers responsible before they attend the Council of Ministers, with the result that those Ministers, before they set off to Brussels to legislate, know exactly what is in the minds of their respective Parliaments and, indeed, have had their marching orders. Moreover, once the Council of Ministers has met, those same Ministers have to return and report back to their specialist committees.

We have no corresponding committee so far. Are we going to have one? Is there any proposal whereby this House may have corresponding specialist committees no less than those of the other member States and able to exercise some control over the Executive and our own representatives and to influence their views and actions once they are in Brussels?

These are the two principal matters I put to my right hon. Friend. I hope that he has given thought to them and that we shall have some answers from him about both.

11.59 p.m.

Mr. Peter Shore (Stepney)

I would not disagree with anything said by the hon. Member for Holland with Boston (Mr. Body) so far, except, of course, to say that the questions he has put are among those which the proposed Select Committee, if its terms of reference are wide enough, could properly consider and that it is precisely the question of the width of the terms of reference that we should be concerned with now.

The reason why this Select Committee has been called into existence is that we face a quite unprecedented situation. We are contemplating, as we approach 1st January, a situation in which laws, policies and taxes will be made and imposed upon us by agencies outside this country which are not responsible to this Parliament. The task of the Select Committee is to find ways, if possible, of making the Ministers taking part in the institutions of the European Community responsible to this House. We want to know whether we can get at them before they take part in the law-making procedures in the Council of Ministers and elsewhere. Once regulations are issued, they have effect without any further parliamentary scrutiny here. The matter is of the utmost importance and consequence. We should not have any doubt about that.

Let me remind the Leader of the House what the then Chancellor of the Duchy of Lancaster said when he was piloting the European Communities Bill through this House. He made a number of references to the proposal for an ad hoc committee to look at our procedures. The first reference that he made was on 15th February, in the Second Reading debate. He said, and I hope that he meant it: The Government are deeply concerned that Parliament, as well as United Kingdom Ministers, should play its full part when future Community policies are being formulated, and in particular that Parliament should be informed about and have an opportunity to consider at the formative stage those Community instruments which, when made by the Council, will be binding in this country."—[OFFICIAL REPORT, 15th February 1972; Vol. 831, c. 274.] That was interpreted at the time and in the cross-examination of the right hon. and learned Gentleman which followed as referring in the main to regulations, the principal form of legislation of the Community.

However, on 7th March, when we had explored the capacity of the Communities to make ancillary treaties, the right hon. and learned Gentleman said: As for the ad hoc committee, I said on Second Reading that the Government believed there was a need for the House to have special arrangements under which it would be apprised of draft regulations and directives, and that the ad hoc committee would consider the most suitable arrangements. I did not specifically refer then to treaties, but clearly the committee would wish to consider the scope of parliamentary consideration in respect of treaties as in other matters."—[0FFICIAL REPORT, 7th March 1972; Vol. 832, c. 1397.] The Chancellor of the Duchy was quite specific that he wished this ad hoccommittee to consider not only regulations and directives but also ancillary treaties. These are draft treaties, and I remind the Leader of the House that there are two kinds of treaty, one of which is made under article 114 of the Rome Treaty and under the European Communities Act does not require any statutory procedure in this House. Therefore, we must get at these treaties, as well as at those which require an act of approval in this House, before they are agreed in Brussels or wherever it may be.

Those two points go somewhat wider than the terms of reference of the proposed Select Committee, and the Leader of the House will see why we feel a good deal of unease about the way in which the terms of reference have been expressed in the motion.

I shall take the argument a little further than that. I mentioned the treaties, as the right hon. and learned Gentleman mentioned them in the course of the European Communities Bill debates, and I mentioned regulations and directives, but, as the hon. Member for Holland with Boston reminded us, if we are concerned with influencing the course of events and the evolution of policy in the Communities we cannot be confined to the formal instruments, although they are obviously important.

The Council of Ministers has resolutions which are treated seriously. If anyone is in doubt about that, let them consider the events that led to the "snake in the tunnel" agreement about the narrowing of the movement of margins around our parities in relation to the currencies of the Six. That agreement into which we entered, in May 1972, apparently had very nearly the force of a treaty, and £1,000 million later, and eight weeks later, we were forced to float the £, having found the business of maintaining the narrow margins beyond our power.

It was not a treaty, a regulation or a directive that led to the agreement to narrow the currency margin. It was a resolution of the Council of Ministers. The whole of the next step of economic and monetary union is large proposals affecting the course of the British economy —namely, the resolutions of March 1971 and March 1972, which delayed the meeting of the summit until last month—which have only the status of resolutions, yet they appear to carry a considerable obligation and to impose a considerable obligation upon the member States.

We would be dealing with only a narrow point if we took literally the words of the motion: That a Select Committee be appointed to consider procedures for scrutiny of proposals for European Community Secondary Legislation and to make recommendations. I do not know whether it is the right hon. Gentleman's intention that the Select Committee should be narrowly confined. I hope it is not. In a sense, I hope that there has been some slight misunderstanding on the Government's part about what we wish to do. If that be so, let me assure the right hon. Gentleman that we take the Select Committee very seriously. We consider that it has an enormously important job. We do not think that it can do it properly unless it is clearly understood that it has wide terms of reference.

Can I have a specific assurance that the right hon. Gentleman's interpretation of "secondary legislation" includes all the formal processes of the Community? In other words, does it include regulations, directives and decisions, the ancillary treaties relating to the European Communities, and subsidiary matters such as resolutions of the Council of Ministers? Such an assurance will go a considerable way to satisfying me at present.

However, if "secondary legislation" is widened in that way, it will still fall a long way short if we are confined to considering those matters without a proper and full consideration of the impact of membership on the procedures of the House.

I refer to the original words of the Chancellor of the Duchy of Lancaster on 15th February: The Government are deeply concerned that Parliament, as well as United Kingdom Ministers, should play its full part when future Community policies are being formulated. …"—[OFFICIAL REPORT, 15th February 1972; Vol. 831, c. 274.] That goes a good deal further, and I hope the right hon. Gentleman will be able to give me the assurance for which I ask.

12.10 a.m.

Mr. J. Enoch Powell (Wolverhampton, South-West)

Obviously, the Select Committee, if the House decides to set it up, will exercise its own discretion in interpreting its terms of reference. Nevertheless, we must have regard to its terms of reference, and it is important that we should get them right. If there are two or more ways in which those terms can be interpreted, the House and my right hon. Friend, by making our wishes clear, should indicate to the Select Committee how we wish those terms of reference to be interpreted.

I wish to re-emphasise the point made by the right hon. Member for Stepney (Mr. Shore) that the natural meaning of secondary legislation, as we in this House are accustomed to it, would be statutory instruments. We already have a means of scrutinising those, and they already come to, and can be brought before, the House. I am ready to believe that the term is intended to include, in draft as well as in final form, the three major sorts of law which the Community can make: regulation, directive and decision.

One difficulty arises in connection with the regulation. There are two sorts of regulation. There are the regulations which are made ultimately by the Council of Ministers, but there are also regulations which the Commission makes of its own motion and which are not made by the Council of Ministers. While I can conceive a fairly precise meaning for a draft regulation where that regulation is to come in draft before the Council of Ministers to be made by it, I think that there may be more difficulty in defining what is meant by the draft of a regulation which is to be made by the Commission itself. Presumably there are a number of stages at which such a regulation might be in draft and at which its contents might come to the knowledge of persons outside the Commission. It would be useful to be somewhat clearer than we are at the moment, at what stage in the various cases those drafts are regarded as proposals for the purposes of the work of the Select Committee.

Unless the drafts come before whatever be the body or means ultimately proposed in a sufficiently malleable form, the scrutiny will be little more than an empty formality. I hope that my right hon. Friend will not overlook the points made by the right hon. Member for Stepney both as to Community decisions of a binding character which do not fall within any of those three classic definitions and also—and this appears to me to be an oversight—the omission in the terms of reference of any word which could conceivably cover treaties or draft treaties.

I understand that treaties are not secondary legislation, whatever they are, but are the primary legislation of the Community. If that be right, it will be necessary for my right hon. Friend tonight, or subsequently, to fulfil the undertaking of the former Chancellor of the Duchy, to move to amend or to extend these terms of reference.

Finally, I wish to say a few sentences about the word "scrutiny". We are accustomed to the word "scrutiny" in the context of what is loosely called the Scrutiny Committee, the Select Committee on Statutory Instruments, which scrutinises all the statutory instruments which are made. But my right hon. Friend will be aware how narrowly in that context the word is interpreted. It is interpreted to exclude all questions of policy whatever. Indeed, I think I am right in saying that it is only under our new decision, arrived at a few days ago, that even the question of vires comes within the scope of the scrutiny of the Select Committee.

I do not believe that it can be the intention that the term "scrutiny" should be so understood in these terms of reference. But, if not, it had better be stated plainly—I hope that my right hon. Friend will do so—that scrutiny goes to all matters and all processes which the House itself or any of its Committees might carry out or wish to carry out—that is to say, it includes consideration of policy, consideration of consequences, consideration of implications—and the work of the Select Committee will include the pro- posal of methods whereby the results of any such scrutiny may in good time be submitted to the House so that the House may, if it wishes, take action upon them.

I emphasise that this is by no means a quibble, since, if that is the intention—I hope that my right hon. Friend can assure the House that it is—we are using, and intending to use, the term "scrutiny" in an entirely new and much wider sense than it has normally been used before. We are, I take it, intending to ask this Select Committee to survey the whole field of the knowledge and control by the House of all proceedings of the European Community which may result in commitments of law or policy binding upon this House. I do not believe that hon. Members, however few may be attending this debate, will be satisfied if in the outcome the Select Committee covers less than that.

12.18 a.m.

The Lord President of the Council and Leader of the House of Commons (Mr. James Prior)

I think it is the wish of the whole House that the ad hocSelect Committee which it is proposed should consider our procedures for scrutinising proposals for European Community secondary legislation should be set up as quickly as possible.

Perhaps I may deal straightaway with the point about scrutiny which my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) has raised. I must tell him that I interpret the word "scrutiny" in the usual parliamentary sense. I do not see why we should try to give its meaning a wider interpretation than we give it at any other time; nor is it my intention that we should give it a narrower meaning than at any other time. The word "scrutiny" means an examination of all the proposals for European Community secondary legislation, and I should have thought that that was a perfectly fair interpretation and one which the House ought to be able to accept.

I ought, perhaps, to point out that it is the establishment of the Committee that we are debating tonight, and, although it is tempting to be led into speculation about the recommendations which the Committee might make, I propose to resist it.

The right hon. Member for Stepney (Mr. Shore) said the other night: we shall take very seriously, and will be very diligent in, the Select Committee which we hope will soon be set up to look at the procedures of this House in relation to what goes on in, and what comes out of Brussels. We shall keep a close watch on Ministers and we shall find ways of calling them to account".—[OFFICIAL REPORT. 19th December 1972: Vol. 848, c. 1288.] I regard that as a very proper attitude for the right hon. Gentleman and his right hon. and hon. Friends, as well as for my right hon. and hon. Friends, to take.

We all want to see this Select Committee set up quickly so that we can speedily establish the new procedures which will be needed. There has been considerable delay, not of the Government's making, in setting up the Committee, and it is now urgently needed. I hope, therefore, that the House will now agree to the motion.

The terms of reference which the Government have proposed for the Select Committee were based upon an amendment which the Opposition tabled to the European Communities Bill. We understood that these terms of reference were acceptable to the Opposition. Had I heard earlier that they might wish them to be worded differently, I should have been glad to consider any alternative proposals. If experience shows that these terms of reference are not correct, I am prepared to look at them again. I give that undertaking to the right hon. Member for Stepney.

My experience of Select Committees so far, which is still a bit green, is that they find ways of discussing pretty well whatever they like anyhow. But we shall see how we get on. At this late stage I hope that the House will feel able to accept the motion.

I think there would be general agreement that our procedures for scrutinising proposals for European Community secondary legislation most urgently need to be studied; that is, while this proposed secondary legislation is still in the draft stage. I make it clear to my right hon. Friend the Member for Wolverhampton, South-West that it is in relation to the draft stage that we think most of the work by this Committee will take place. I think that should be the Committee's first priority.

My hon. Friend the Member for Holland with Boston (Mr. Body) asked me to make clear the meaning of the term "secondary legislation". It means the regulations, directives and decisions enacted by the institutions of the Community on the authority of the treaties. The treaties themselves rank as primary legislation. I think, therefore, that right hon. and hon. Members will agree that the terms of reference are appropriately widely drawn.

The right hon. Member for Stepney asked whether the arrangements for parliamentary scrutiny of proposals by the European Commission for significant changes in the Community treaties would be matters into which the Committee could inquire. Such proposals could be scrutinised by Parliament in the same way as proposals by the Commission to the Council of Ministers for secondary legislation. This matter could, therefore, certainly be considered by the Select Committee.

Furthermore, any amendment to the treaties would require ratification, and Parliament would no doubt have the opportunity of further debates at that stage in addition to any scrutiny at the proposal stage. I hope that that explanation has made that point clear.

I think it would he right for the Committee to give its prime attention to those draft instruments on which the House would wish to express its views. This suggests that the category of drafts within the scope of any new machinery ought to be the drafts of regulations and directives proposed to be made by the Council of Ministers. I think that in some ways this would give the House an opportunity to discuss policy, which often it does not have under the present procedures.

I should like to quote an example which my hon. Friend the Member for Holland with Boston has probably heard me give before. At the moment the House of Commons has no opportunity to discuss the Farm Price Review until the announcement is made from this Dispatch Box as to what it is. It always leaks to the papers a few days before, but there is no opportunity for the House to discuss it. Here for the first time there will be an opportunity for draft regulations made by the Commission for recommendation to the Council of Ministers to be discussed by a Committee of this House. So the House will be able to make its views known before any decision is reached.

That, I believe, in no way detracts from the sovereignty of Parliament. In fact, I believe that it adds considerably to its sovereignty, and certainly to the scrutiny powers of hon. Members.

Mr. Powell

The Leader of the House referred to regulations made by the Council of Ministers. Does he include the other category of regulations to which I referred which are made by the Commission?

Mr. Prior

I am coming to that. My next paragraph says that the Committee may not wish to give the same attention to Commission instruments since the Government will have no formal ability to influence the exercise of powers delegated to the Commission, nor to Council decisions of a quasi-judicial character addressed to individual persons, firms or member States. But, and I emphasise this, that is entirely a matter for the Select Committee. Its terms of reference are sufficiently wide so that it can, if it likes, discuss this.

I have been looking at the number of instruments. The annual volume of Community instruments varies considerably. In 1971, which was a period of modest activity, there were about 3,000 instruments, of which about 90 per cent. were issued by the Commission. Many of those instruments were concerned merely with the detailed determination of levies and refunds under the CAP. These things go up and down every day. The hon. Member for West Ham, North (Mr. Arthur Lewis) sometimes chides us with the fact that he would need a lorry to bring in all the Community legislation. He would find himself no better placed if he were to take home every night all the legislation that this House has passed or has dealt with. Most of these instruments are very temporary, but there will be nothing to stop the Committee from looking at them if it wishes. I think that the Committee will find itself getting pretty bored if it does look at them, but that will be for the Committee to decide, not for me.

The novelty of the new arrangements will arise especially from the wish of Parliament to scrutinise these instruments in draft. Because Britain is only one of the members of the Community it will certainly happen, sometimes at any rate, that the draft instruments scrutinised by the new machinery and the instruments finally negotiated in and approved by the Council of Ministers may differ in some respects. This again is obvious, because it may well be that a Minister will listen to and take note of the discussions on a draft instrument, but when he gets to Brussels or Luxembourg he may find himself having to negotiate for something else that he requires. Therefore, there will in all probability be changes to the draft instrument but I do not think that the House should worry about that. When the instrument is approved and the regulation comes in the ordinary procedures of the House will apply.

Mr. Powell

What are they?

Mr. Prior

It would become part of our law but the House would have the opportunity either to ask questions on a statement or to debate it, if it wished, in the ordinary way. I should have thought that that was a reasonable position for the House to be in.

I accept entirely that all this entails a major constitutional change. I do not accept that it means that Parliament's voice will, therefore, be any the less effective. On the contrary, Parliament will have the opportunity to make its views known to Ministers and to the country before important decisions are taken. If Ministers are subsequently unable to negotiate instruments which give full expression to those views they will have to explain to the House why they agreed to what they did agree to. I believe this to be a highly democratic process, and I hope that the House will agree to it.

It is now up to the Select Committee to recommend to us machinery which will enable the House of Commons, with all its traditions and all its authority, to exercise these powers in the most effective possible way.

Question put and agreed to.

Ordered, That a Select Committee be appointed to consider procedures for scrutiny of proposals for European Community Secondary Legislation and to make recommendations. And the Committee was nominated of Mr. Brian Batsford, Mr. Eric Deakins, Mr. Michael Foot, Sir John Foster, Mr. Michael Hamilton, Mr. Robert Hicks, Mr. Russell Johnston, Mr. Angus Maude, Mr. Ronald King Murray, Mr. Ian Percival, Miss Quennell, Mr. Peter Shore. and Mrs. Shirley Williams.

Ordered, That the Committee have power to send for persons, papers and records; to sit notwithstanding any adjournment of the House; to adjourn from place to place; to report from time to time; and to report Minutes of Evidence from time to time.

Ordered, That the Committee have power to confer with any Committee appointed by the Lords to consider the same matter.

Ordered, That Four be the Quorum of the Committee.—[Mr. John Stradling Thomas.]

Forward to