HC Deb 13 June 1972 vol 838 cc1271-391

General Implementation of Treaties

4.2 p.m.

The Chairman

I have a short statement which I shall read to the Committee before we commence our proceedings. I have received representations about Amendment No. 429, which is not included in my provisional list of Amendments selected. After giving the matter careful consideration I am prepared to call this Amendment in an amended form: namely, in page 4, line 25, at end add:

  1. (7) Nothing in the foregoing subsections shall enable regulations to be made allocating the representation of the Houses of Parliament at the European Parliament which representation shall only be effected in accordance with the following subsection.
  2. (8) The lists of names of the proposed representatives of the Houses of Parliament at the European Parliament shall be laid in draft before, and shall be subject to the approval of, the House of Commons.
This Amendment will be taken after we have disposed of Amendment No. 253.

I have also decided to allow Amendment No. 349 to be discussed with Amendment No. 253.

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

Sir Robert, as a result of what you have just said there will, or can, be more than one debate falling within a section of the time allotted under the guillotine Motion.

Might I bring to your attention the impropriety of any steps which might be taken to preclude members of the Committee both from discussing the Amendments and coming to a decision in the Lobby on the Amendments that you have thought it proper to call? I express the hope that there will be no repetition of the disgraceful scene which disfigured the last proceedings upon this Bill.

Mr. Ronald King Murray (Edinburgh, Leith)

On behalf of the Opposition, we share the feelings of the right hon. Member for Wolverhampton, South-West (Mr. Powell). We deplore the conduct of the Government's spokesman at the last sitting of the Committee.

The Chairman

In answer to the right hon. Member for Wolverhampton, South-West (Mr. Powell) and the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), as far as I am concerned nothing irregular took place. I am bound by the terms of the business Motion of the House, and upon that I have to act. There is nothing I can see on which I could be criticised on this matter. No doubt what the right hon. Gentleman and hon. and learned Gentleman have said will be noted.

Mr. Ronald King Murray

I beg to move Amendment No. 420, in page 3, line 37, leave out from beginning to 'except' in line 43.

Perhaps, having expressed certain words of disquiet a moment ago, I may, on behalf of the Opposition, thank you, Sir Robert, for the added debates you have enabled to take place in the Committee by reconsideration of your provisional selection of Amendments.

It is my understanding that we are to discuss along with Amendment No. 420 which I have moved, Amendment 182, in page 3, line 40, leave out from 'Parliament' to end of line 46.

Amendment No. 313, in line 40, leave out from 'Parliament' to 'but' in line 43.

Amendment No. 8, in line 41, after 'shall', insert 'unless the contrary appears'. And Amendment No. 183, in line 46, at end insert:

  1. (5) Except as may be expressly provided by any Act passed after this Act, all Acts of Parliament (including Acts of the Parliament of Northern Ireland) and all Orders in Council and all instruments made in the exercise of any statutory power or duty, including all orders, rules, regulations and other subordinate instruments, in force upon the entry date or passed after the entry date, shall be construed and have effect subject to the provisions of subsection (1) of this section.
  2. (6) Except as expressly provided by any enactment to which subsection (5) of this section applies, if in any legal proceedings a con- 1273 flict arises between any such enactment and any provisions of the Treaties or any Regulations made there under or any Decisions of the European Court, the court seized of the dispute in which such conflict arises shall, in resolving such conflict, have regard to the provisions of subsection (5) of this section, and may declare that any such enactment or part of such an enactment is contrary to the Treaties or Regulations or Decisions, and of no effect.
These Amendments have one thing in common, although Amendment No. 183 is rather different in some of its objectives. They have in common that they all unanimously agree that the wording as it stands in subsection (4) will not do. The extent of its obscurity may be in dispute but not the fact of the obscurity.

Amendment No. 183 may have less support on both sides of the Committee because it is rather more restrictive in its objective than the other Amendments. However, Amendment No. 8, which is, clearly, a minor Amendment, clarifies what is otherwise an obscure passage. For the remainder, Amendments Nos. 420, 182 and 313 have common objectives. Indeed, they focus on precisely the same point.

At the outset it is important that the Committee sees what subsection (4) apparently sets out to do. It apparently—Isay this with some diffidence because it is far from clear and one is charting unknown seas in these lines of the Bill—seeks to set limits upon the powers conferred in subsection (2). That is the first objective.

The second objective seems to be to enact residual safeguards for parliamentary control as are contained in Schedule 2.

Clearly, 1 must be careful what I say about the quality of these safeguards. That must be a matter which the Committee will have to consider when we come to debate Schedule 2. However, the apparently innocent purpose of subsection (4), which I have sought to outline, is belied by three circumstances. The first is the qualifications on the powers conferred by subsection (2). If they relate to subsection (2), as they innocently appear to do, and if they have an innocent and praiseworthy objective—namely, to apply even limited parliamentary safeguards to the powers conferred in subsection (2)—why are they not part of subsection (2)? If that is to what they relate and that alone, they should be part of subsection (2). If they are not part of subsection (2) they should be adjacent to it and contained in the following subsection.

Far from that being the case, there is the intervention of subsection (3). That is one of the most important pivots of the whole Bill dealing with the basic structure of finance in the event of our joining the Community.

One must assume that there is some purpose in putting the contents of this subsection after that vitally important provision. If the Committee will pause for a moment and consider the matter, the point I have just made about the position of this so-called safeguard limiting the powers of subsection (2) is such an obvious one that the rôle in which it is cast in subsection (4) must put the motives of the Government in so placing it in an oblique and sinister light.

The second circumstance to which I draw attention is the wording of the first four lines of subsection (4) down to the word "Parliament" in line 40. These words seem to extend rather than to restrict the scope of the already far-reaching powers of subsection (2). It is difficult to understand what those words are intended to do, if not that.

I commend Amendment No. 420 to the Committee because it is the only Amendment which seeks to delete these words entirely. If these words were taken away. I understand that the normal operation of law, and particularly the vires rule, would prevent delegated legislation from wholesale repeal of Acts of Parliament. The normal operation of law would prevent the provisions of subsection (2) from wholesale repeal by delegated legislation.

To put the point in a sharper way, normally secondary legislation must rely upon primary legislation. It would be a unique and unusual departure to do what these lines apparently do; namely, give the power to delegated or secondary legislation wholesale to repeal primary legislation. This seems a unique departure. It seems to be done, as it were, by way of afterthought in a subsection which is apparently innocent and has a praiseworthy purpose. In other words, the Government appear to contemplate with equanimity a wholly new constitutional change; and, far from doing it openly, they have done it obliquely and with subterfuge.

Thirdly, andworst—last, but by no means least—we have the mysterious passage at lines 40 to 43, which is the subject of Amendment No. 313, which, appropriately enough, has the support of both sides of the Committee. This is indeed an enigma wrapped in mystery. The passage does not appear to be innocent. Indeed, guilty subterfuge is written all over it. It is tucked away in the middle of some pretty opaque and turgid prose along with its parenthetical accomplice, at the end of Clause 3(1), lines 29 to 32,which are in brackets. These accomplices together seem to be intended to impose by a side wind or afterthought the supremacy of European jurisprudence over the law of this country. It looks like an afterthought, but I wonder whether it is. It can only bean afterthought or subterfuge. There is no alternative.

The Committee may be reluctant to take my word for it, but perhaps it will consider what Professor Wade said in a learned article published in The Times some weeks ago which has been mentioned in earlier debates. The article, by Professor H. W. R. Wade, was called "The judges' dilemma". I think it is an appropriate title. Dealing with many topics of importance in connection with the Bill, Professor Wade, touching upon the contents of subsection (4), says: 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". I pause to quote the words in lines 40 to 43: any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section". On the face of it, this is a provision seeking to bind future Parliaments.

Professor Wade continues: It also expressly attempts to make it prevail over future Acts, by a few words in clause 2(4)"— those are the words which I have just quoted— awkwardly wedged in the middle of a long sentence about other things, as well as by some words coyly lurking in brackets in clause 3(1). But here it falls foul of the classical principle of Parliamentary sovereignty, which ordains that no Parliament can bind its successors. Where two Acts of Parliament conflict, the later Act must always prevail. It is in that faith that the Government have from time to time said that the sovereignty of the House of Commons is not affected by joining the Community. Whether that faith is justified is another matter.

The learned author goes on to say: nothing that the present Bill can say can make any difference. So at worst for the Government these words are inept because nothing that the present Bill can say can make any difference. if Parliament truly cannot bind its successors.

4.15 p.m.

The other interpretation which is open is that the Government, by means of this passage, are seeking to change the constitution of this country. That alternative possibility is mooted by Professor Wade at another point in his article. Having said that Parliament cannot bind its successors, he points out that judges may, because they may interpret the law in a way different from Parliament under the spell of European jurisprudence which is being put upon the judges in Clause 2(4) and Clause 3(1). Who can say what the judges will decide under the spell of that foreign jurisprudence?

Professor Wade, speaking about that, says: The one thing that our legally omnipotent Parliament cannot do is to better its own continuing sovereignty over our law. But the judges can alter it—just as they did, without any strictly legal warrant, in transferring their allegiance from the Parliament of James II to the Parliament of William III.

He then makes the point which I have already made, and there is considerable weight behind it: Either the Bill's provision about future Acts is meaningless in any case of real conflict; or else the Government is assuming that there will be a constitutional revolution of just the kind it is at pains to deny.

It is important to stress the latter point, because the Government have been at pains to deny that they are proposing such a revolution and change in the sovereign power of the House of Commons.

I should like to focus attention upon one particularly sinister word in line 40; namely, "enactment". It might be convenient if I quote again the words which are sought to be deleted by both Amendment No. 420 and the all-party Amendment No. 313: any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section".

It is significant that the word "enactment" is used. I conceive that it could have three meanings in this passage. First, its obvious meaning would be an Act of Parliament. One can understand that, because it is the usual use of the word "enactment". However, I do not think that can be the purpose of the word here, because the term "Act of Parliament" is mentioned in subsection (4). The subsection says "Act of Parliament" when it means "Act of Parliament". Therefore, although the word "enactment" is assumed to cover an Act of Parliament, it is not used to cover one in line 40.

Secondly, it could mean secondary legislation—regulations or Orders in Council which are enacted by Statutory Instrument. Certainly it could have a meaning there. That would give some kind of sense to the word. But, apart from "Act of Parliament" and "Statutory Instrument"—secondary or delegated legislation—the obvious reason for using a different word in the subsection from words, hallowed by experience, which have been used in other portions of the Bill, is that "enactment" can mean a Community enactment as well as an Act of Parliament, whether primary or secondary legislation.

If that is what it means then the worst years which have given rise to Amendments Nos. 420 and 313, and have given rise to disquiet on the part of Professor Wade and the article which he wrote in The Times, are fully justified.

For those reasons I would commend the Amendments to the Committee. I would commend Amendment No. 420. It is a more wholesale surgery. It has this merit. If Amendment No. 420 were given effect to, then the apparently innocent purpose of subsection (4) would appear to be fully met by the remaining words, because if the Committee will read after the word "but" in line 43 they will see that, although it is not tremendously elegant, it is what is said; it would be apt to convey exactly the innocent purpose of subsection (4). What goes before is unnecessary because the normal operation of law would lead to that result.

Mr. Powell

I wonder why the hon. and learned Member is so sure that the words after "but" in line 43 are innocent. They appear to have the effect of suggesting that a future Act of Parliament could limit the safeguard included in Schedule 2. Indeed, if they do not have that meaning and effect it is difficult to see what they have.

Mr. Murray

I take the right hon. Gentleman's point. I was prepared to sacrifice the lesser evil for the greater good.

There is also the possibility that stronger safeguards could be put in. It is on that sort of position that this Amendment was drafted. It is not without dangers. But the dangers which I foresee are much greater dangers. We would want to have some protection against those.

I would commend Amendment No. 420 to the Committee. Amendment No. 313 has support from both sides of the Committee. On any view—and perhaps the right hon. Gentleman will agree with me—Amendment No. 313 goes right to the evil heart of the matter.

Sir Derek Walker-Smith (Hertfordshire, East)

The Amendment in my name is Amendment No. 313, to which the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) has just referred. It is concerned with the second aspect of the matter to which he directed attention. He rightly said it is a very important one in constitutional principle.

When we were considering subsection (1) of Clause 2 we saw that it constitutes a revolutionary reversal of cherished constitutional doctrine with its self-enacting regulations and its commitment to the future dictates of executive bodies not subject to parliamentary control.

That subsection constitutes a heavy and unprecedented blow to the sovereignty of Parliament in that it impinges on two of its basic ingredients; that is to say, that Parliament should be the sole law-making authority in this country and that its authority should be unfettered. Where such a blow has been inflicted it might be thought that the recipient is so punch drunk as barely to notice in his bruised and battered state any further blows which may be rained upon him.

Nevertheless we cannot, in my view, as Members of the House of Commons, as representatives in our generation of the parliamentary tradition, as heirs to its rights and trustees for their preservation, be insensitive to the further blows contained in this subsection. It may not be as injurious as subsection (1). It hardly could be. Nevertheless its effect is to curtail the rights of Parliament with a severity which could be unthinkable if we had not already considered subsection (1).

Subsection (4) is in its own way just as revolutionary as subsection (1) in that it impinges on this other cherished constitutional principle which Professor H. W. R. Wade has defined as the classic principle of parliamentary sovereignty which ordains that no parliament can bind its successors. It is perhaps a minor inconvenience when discussing matters of constitutional law and practice in this country that there are, in fact, two Professor Wades: Professor E. C. S. Wade of Cambridge, our latter-day Dicey, and Professor H. W. R. Wade—late of Cambridge; now of Oxford—a very eminent younger figure.

The quotations given by the hon and learned Gentleman came from the excellent article of Professor H. W. R. Wade in The Timesof 18th April. That doctrine is impinged on by these subsections and by the few words in subsection (4) which briefly, boldly and brazenly attempt to make the provisions of the Act prevail in perpetuity over the provisions of any future Act which future Parliaments may in their wisdom seek to enact. It is those words which my Amendment No. 313 would seek to omit, and rightly so, because no Parliament can arrogate to itself the right to prejudice future needs and future circumstances which are necessarily unknown and necessarily unpredictable at the time of enactment. To do so would be illogical as well as presumptious since the indispensable ingredient of law-making is the preservation of that flexibility which allows to succeeding generations the right to adapt to their needs, the right to repair here and renew there, to extend and modify as necessary, the solid and serviceable structure of our laws.

Sir Gilbert Longden (Hertfordshire, South-West)

Is my right hon. and learned Friend saying that if these words were to be left they would override the sovereign right of Parliament to override its predecessors?

Sir D. Walker-Smith

That is what they seek to do. Whether they can do it or not is something to which I am coming in my argument. But that is what on the face of it they seek to do. To do that, to deny to future legislators that right, or to seek to deny it, is to place a clear fetter on the sovereignty of Parliament and impose an ineradicable weakness on our law-making machinery. That is what subsection (4), on the face of it at any rate, seeks to do. In so doing it acts contrary to our basic concept of parliamentary sovereignty.

It may be asked where we find the formulation in our law of this classic principle to which Professor Wade refers, the concept that Parliament cannot bind its successors. In a sense we do not find it. Having no written constitution in this country, we do not formulate our constitutional principles in that way. We have no need to in this case because we can pluck this principle straight from the basic characteristics of parliamentary sovereignty as practised over the generations.

The principle that Parliament cannot bind its successors derives directly from the first of three traits of parliamentary sovereignty in this country as identified by Dicey: that is to say, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws. It is part of what Bryce in his Studies in History and Jurisprudence called "the flexibility of the British constitution". Dicey said: Every part of it can be expanded, curtailed, amended or abolished with equal ease. "Can be"? But no longer if this subsection is passed and given effect to. If the Clause were passed, those great masters of constitutional law and practice could not use the same terms today. They would have to substitute "could formerly have been expanded, curtailed, amended or abolished, but now no more" since they would operate within the limitations of these words. We can imagine that it would be a matter of some grief to them to see so radical and retrograde an alteration in their definition of the constitutional position.

Parliament can legislate successfully only if its power is unfettered. It cannot do so on the basis of a constitutional mortmain, with the dead hand of a Parliament of the past laid upon the future so as to prevent enactments in accordance with contemporary needs and current sentiment.

4.30 p.m.

Our constitutional practice has always been clear. In the case of a conflict between two Acts of Parliament the later prevails, in conformity with the rule leges posteriores priores contrarias abrogant. Later laws abrogate earlier laws which are in conflict with them. We are told in the leading textbook," Maxwell on the Interpretation of Statutes," that a later Statute may repeal an earlier one either expressly or by implication. If, therefore, there is a conflict, the earlier Act must give way even if the later Act does not expressly repeal it. The reason for that is clear, and the reason is the same. Each Parliament is unfettered and must be assumed to know best the needs and conditions of the time for which it is legislating.

Mr. Percy Grieve (Solihull)

Does not my right hon. and learned Friend agree that, whilst the first part of what he says may well be right—that is to say, that implied variation by the effect of the Clause on subsequent legislation would not prevail—the power of Parliament expressly to vary it could not for one moment be said to lie within the construction of the Clause?

Sir D. Walker-Smith

My hon. and learned Friend is on the point that my hon. Friend the Member for Hertfordshire, South-East (Sir Gilbert Longden) was on earlier—thatis to say, the effect of this—and I am coming to that. What is clear is that the intention, the will and the desire of these words is to do this unconstitutional thing. There can be no doubt about it. It is expressed clearly in the words we have already heard from Professor Wade's article: It… that is, the Bill, and the Clause— …also expressly attempts to make it prevail over future Acts, by a few words in Clause 2(4)…". Those are the words to which I am addressing myself, and which my Amendment would omit.

There can be no doubt what the Clause seeks to do. It seeks to bind future Parliaments, to fetter their jurisdiction and to breach the principle which has always animated the relationship between earlier and succeeding Parliaments.

Mr. Ian Percival (Southport)


Sir D. Walker-Smith

I am coming to the question which I think my hon. and learned Friend wishes to ask. That is the question whether, in fact, so desiring, they can do so.

Mr. Percival

In what way do these words fetter the action of any future Parliament? If, as I think, they do not fetter a future Parliament in any way, why should one read into them an intention to do so?

Sir D. Walker-Smith

An Act of Parliament abhors a vacuum just as much nature. If my hon. and learned Friend's contention is that the words are meaningless, that they effect nothing, why are we asked to enact them? We are a workshop. Our business and concern are with the fabric of the law, and we have no right to put into it things which can have no effect. With great respect to my hon. and learned Friends, if those are the best arguments for the words they can put forward, they are not very substantial ones.

It may be that my hon. and learned Friends are discharging the rôle familiar in mediaeval tourneys and in the bull ring; that they are put out in advance for a little light skirmishing and we may hear more substantial points from my hon. and learned Friend the Solicitor-General. But I am a little sceptical, because I share the view of Professor Wade and the hon. and learned Member for Leith as to the dilemma that is here imposed.

We have to ask ourselves the question: that being manifestly the intention and the desire of these words, can what is sought to be done be done? Has Parliament the power—

Mr. Percival


Sir D. Walker-Smith

My hon. and learned Friend rises when I am halfway between semi-colons. If he will restrain his impatience for a moment I will certainly give way.

The question we have to pose is: has Parliament the power, even if it has the will, to bind successor Parliaments? There again we have this trenchant answer on the authority of Professor Wade that it has not. The hon. and learned Member for Leith read out the words: The one thing that our legally omnipotent Parliament cannot do is to fetter its own continuing sovereignty over our law". The hon. and learned Gentleman did not read out these words: It is therefore inherent in the whole problem that nothing that the present Bill can say can make any difference. If that be so, there is no point in these words and we are being asked in effect to enact a nullity. We are being asked—does my hon. and learned Friend wish to make an intervention?

Mr. Percival

I wondered whether my right hon. and learned Friend was coming to a colon.

Sir D. Walker-Smith

I will come to an exclamation mark in order to give way to my hon. and learned Friend.

Mr. Percival

I only want to correct what my right hon. and learned Friend said about what I said. I am not saying that the words have no effect. As long as they stand and are not qualified by any later enactment they are effective in relation to that enactment. I was saying that they do not in any way fetter the discretion of the House to say in respect of any future enactment that these words do not apply to it. They are not any fetter on the discretion of future Parliaments.

Sir D. Walker-Smith

I repeat, if they are not that they are nothing. We do not have to say in an Act of Parliament that regard shall be had to that Act in the construction of legislation in the courts, but that is subject to the fact that in any conflict with a later Act the later Act will prevail. It is that which the Clause seeks to get round. It is necessary to get round that because of the obligations imposed upon us by the Treaty of Rome.

There is no mystery in the matter. The only mystery, as Professor Wade has correctly identified, is that the drafting is obscure, or at any rate it is guarded—

Mr. Raphael Tuck (Watford)


Sir D. Walker-Smith

"Woolly" is a term which I was hoping to avoid. Of course it is, because it has to do something which is inherently repugnant to people brought up in the British parliamentary tradition. That is the key to the subsection. There is no mystery about it when we analyse it.

It is right that this no doubt would be a nullity if a subsequent Parliament did not choose to follow it. If a subsequent Parliament, like Samson of old, shakes off the fetters and insists on passing an Act contrary to Clause 2—what then? Which Act of the sovereign Parliament is to prevail—Clause 2(4) or the subsequent Act, which, according to any normal constitutional doctrine, should prevail? That would be for the courts of the day to decide. Although the courts cannot modify an Act of Parliament where the intention of Parliament is clear, where there is doubt they must resolve it.

In attempting to resolve the doubt in which they would find themselves since, as Professor Wade has said, they would find themselves in a dilemma. They could uphold the words of subsection (4) at the expense of our constitutional doctrine that Parliament cannot bind its successors and that the later Act must prevail. There again, Professor Wade has put the position clearly in The Times: Either the Bill's provision about future Acts is meaningless in any case of real conflict"— that seems to be the argument so far as I can interpret it— or else the Government is assuming that there will be a constitutional revolution of just the kind which it is at pains to deny. The fact is that Clause 2(4) seeks to spell out and give express statutory effect to something which is implicit in entry to the Community on the terms of the Treaty of Rome, namely, the denial to future Parliaments of an essential part of our sovereignty. Under the terms of the Treaty of Rome, the commitment is in perpetuity without right of determination. To accept such a commitment is, in honour if not in law, to fetter a future Parliament. To accept it is, as I have been saying over the last decade or more, to impose an inescapable and unwelcome dilemma. To withdraw, or seek to withdraw, after ratification will be a breach of an international obligation, but to deny to future Parliaments the right to withdraw will be a breach of constitutional principle.

That is the painful dilemma in which entry involves us. It is a classic dilemma of Sir Lancelot whose …honour rooted in dishonour stood, And faith unfaithful kept him falsely true. If Parliament does so, if it knowingly accepts the dilemma and its implications, it may be that the dilemma can be resolved only by successive Parliaments voluntarily accepting a restraint that cannot lawfully be imposed—refraining, in the interests of international obligation and the faith of the pledged word, from exercising the right open to them in principle, for open to them in theory and principle it undoubtedly would be. There is no constitutional method of taking it from them. Parliament can accept the restraint as a matter of policy or for the upholding of the sanctity of contract, but it cannot be imposed upon it. Yet the formal imposition of such a restraint, expressly fettering the rights of a future Parliament, is precisely what the subsection seeks to do—if it seeks to do anything at all, and we must assume that it does.

As such it is in my view misconceived in law, wrong in principle, revolutionary in effect and perhaps inoperable in practice. Therefore, I cannot, consonant with my duty to Parliament, consent to its enactment in the Bill.

4.45 p.m.

Mr. Denzil Davies (Llanelly)

I also wish to take up the middle words of the subsection, which will have such a revolutionary effect on our constitutional practice.

The first words of subsection (4) appear to give not only to Ministers but also to Government Departments the power to make law subject to the so-called safeguards in Schedule 2—the power to make law in areas which normally, according to our constitution, one would expect to be made by Act of Parliament. That power is, as I understand it, given to Ministers and Government Departments to make law by means of Statutory Instruments and Orders in Council. I take this to be the effect of the first few words of the subsection. Where normally the law would be made by Statute it shall, subject to subsection (2), be made by negative Resolution; under the subsection a negative Resolution is sufficient to create new law.

We all know that a negative Resolution in the House becomes law without any debate at all, unless somebody prays against it. Even if there is a prayer against it, it is difficult, especially for back benchers, to find time to debate the matter. The effect of the first part of subsection (4)is to transfer power to the Executive to create law different from, and in a manner different from, what would normally be expected in this House. There would be no debate in the House, the matter would not go through a Committee, and would not go through the whole procedure of statutory enactment. Such law will now be able to be created by negative Resolution.

It is a salutary thought that under subsection (4) the head of a Government Department, by negative Resolution, could create a criminal offence punishable by imprisonment of up to two years. Schedule 2, which governs the whole package, refers only to criminal offences punishable by imprisonment in excess of two years. We are giving the Executive power to create a criminal offence involving imprisonment of up to two years by means of a negative Resolution which may never be debated in this House. Many of us feel that this is the kind of power which should not be given by the House to this Executive, or any Executive in future, whatever Government or party is in power. This is what the debate is all about.

The Government do not have to introduce provisions of this kind to subscribe to and join the Common Market. Article 189 of the Treaty of Rome does not require member States to enforce directives in this manner. The first part of subsection (4) and subsection (2) relate mainly to the enforcement of directives, because the regulations come under Clause 2(1) and are self-executing or self-enacting. We are concerned mainly about directives. Article 189 leaves it free to member States to determine their own methods as to how the directives are to be translated into the law of the land of member countries.

There is no need for this procedure in order to take away, as subsection (4) seems to do, the right of Parliament to enforce a directive which may be of substantial importance. That right does not need to be taken from Parliament and conferred on the Executive by means of affirmative or negative Resolution. The Government in the opening words of the subsection are going much further than even the Treaty of Rome requires.

My reading of the Treaty of Rome leads me to believe that the people who framed the treaty were not greatly enamoured of democracy or of parliamentary representation. If they had been conscious of these matters they would never have drafted Article 189 in the way they did. But the present Government are prepared to go further by arrogating to themselves and to the Executive as much power as possible. They are determined to emasculate Parliament.

At least the opening words of the subsection fall in place when one reads them with subsection (2). However it is the middle words of the subsection, "any enactment" in line 40 down to the word "section" in line 43, which have the greater constitutional implication and, on the face of it, seem to have little connection with subsection (4) and subsection (2). Again one wonders why these words have been inserted in this position. They do not seems to fit in with the other words of the subsection.

First, one must look at the word "enactment". My hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) said that in his view "enactment" might not be confined to an Act of Parliament. I do not know about that. There is authority for saying that "enactment" means a Statute but does not mean an Order in Council or Statutory Instrument. But, whatever the word means, clearly it means a Statute. It does not mean a Statute passed pursuant to the safeguards contained in Schedule 2. The draftsman has said specifically "any enactment". As a result of Schedule 2, we know that certain directives will have to be made binding in this country by means of Acts of Parliament.

However, the word "enactment" in subsection (4) goes much further. The draftsman says deliberately "any enactment", and he is referring to any future Statute passed in this House. Whatever else "enactment" means, he is referring to any Statute passed in future. Any Statute by implication will have effect subject to the provisions of the European Communities Act. Next year's Finance Act, whatever its provisions, whether they inadvertently or deliberately transgress any directives emanating from Brussels or any articles of the Treaty of Rome, will have effect subject to the provisions of this subsection of the European Communities Act.

The subsection is trying to fetter future Parliaments. The words are clear. The only question is why the draftsman tried to slip them into subsection (4), which on the face of it looks fairly innocuous. The draftsman is attempting to do something revolutionary. He is trying to prevent a future Parliament passing legislation which may be contrary to any Community law.

The next and more difficult question is whether the draftsman can succeed in doing that, and, assuming that we accept it, how far we shall fetter future Parliaments. I do not want to go into the argument about parliamentary sovereignty, but I have always understood the concept of sovereignty ultimately to be a legal one. Parliament can do what it likes. It can pass any Statute that it likes. But ultimately the question is whether the courts enforce that Statute. As I understand it, that is the true doctrine on which parliamentary sovereignty is based. It is a legal concept and not necessarily a political one.

If a later Act is passed which is contrary to any regulations emanating from Brussels under Clause 2(1), will that later Act prevail in our courts over this Act, given the words contained in the middle of subsection (4)? In other words, has the draftsman been able to create a fundamental Statute or an entrenched Clause which cannot be modified or changed by a future Parliament? In my opinion, if a future Act is passed which is contrary to certain directives, regulations or Articles of the treaty, the courts will enforce the present legislation as opposed to that later Act.

We ought to remember that we are not concerned solely with the rules of statutory interpretation adopted by the House of Lords. Looking further ahead to Clause 3(1), all these matters are to be determined according to principles laid down by the European Court. They will not be determined according to the principles which have been known to apply in English law. The highest court which will decide whether the later Act shall be enforced in preference to the present legislation will not be our House of Lords. That court will not be the supreme authority in these matters. In the end, this difficult question will be decided by the European Court. It is the European Court which will decide whether the later Act is to apply over the former. If we look at the case law of the European Court, there is little doubt that that court, by temperament quite apart from any of its previous decisions, will find in favour of the European Statute—in other words, this legislation—rather than any later attempt to overthrow it.

In respect of a future Statute which seeks to repeal part of the European Communities Act, given the new context in which we are operating and the fact that the European Court will be the final arbiter, I think that the draftsman has succeeded. If we pass this Clause, we shall fetter all future Parliaments in respect of a vast area of our law which is governed by the European Common Market.

The ultimate question is what happens if a future Statute decides to repeal the whole of Section 2(1). If we do that, that is the end of the matter, because the regulations cease to have effect. I do not presume to give an opinion, but I do not think that the answer is completely free from doubt. If it is, and the Government are happy that such a repeal would be effective in law, let the Solicitor-General tell us. The Government have said that there is no surrender of ultimate sovereignty. I believe that they have chosen the word "ultimate" deliberately. But let the Solicitor-General tell us, if a later Act seeks to repeal subsection (2), that the words of subsection (4) will not prevent that repeal from being effective.

As usual, this debate is not necessarily about joining the Common Market. It is about parliamentary control, about representative Government and about control in this House of any legislation which becomes binding on the British people. Subsection (4) is not necessary for joining the Common Market, and I believe that it is in the interests of the pro-Marketeers rather than in those of the anti-Marketeers to ensure that the Common Market has a base of democratic control. If it does not have that base and if that base does not come from member States, the Common Market will not work. Its institutions will break down.

The Government, from the point of view of self-interest and of wanting to see this policy succeed, will not wish to emasculate argument and to arrogate to the Executive the powers that they are seeking in subsection (4).

[Sir MYER GALPERN in the Chair]

5.0 p.m.

Mr. Powell

This subsection is an extremely instructive one. I do not say that it is either luminous or, without considerable study, illuminating. But a study of it is rewarding and will enlighten us as to the reality of what we are doing in the Clause.

In effect, there are three parts to the subsection. The first relates to subsection (2). It is the part of the subsection which qualifies, or rather, extends as far as possible, the effect of subsection (2). Then there is the middle passage, to which most of the debate has so far been directed. It will be noted that this passage does not refer especially to subsection (2); indeed, it has much more relevance to subsection (1). Finally, at the end, after the favourite punctuation mark of my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith); the semi-colon, we come back again to subsection (2), with a proviso affecting the Second Schedule.

I should like to take these three parts not in the order in which they stand in the Bill but first, the first part, then the end of the subsection, and finally the most important part, the central passage.

The first three lines extend as far as possible the power which can be exercised under subsection (2) by saying that, apart from the limitation in the Second Schedule, one can do anything of any extent which could be done by Act of Parliament. That takes us back over a great deal of ground which we have covered in previous debates. In the debates on Clause 1, we were anxious to secure if possible Amendments, but, if not, assurances from the Government, that matters of importance would in future be dealt with by legislation and not by Orders in Council. We were unsuccessful.

We then considered Clause 2, particularly subsection (2). There again, we were anxious that, so far as possible, the proper procedures of legislation should be used in order to make new law in this country. We protested, as the hon. Member for Llanelly (Mr. Denzil Davies) has just done, against the making of law of a major character, as could happen under subsection (2), merely by means of an Order in Council or a regulation.

My right hon. and learned Friend the Chancellor of the Duchy, in a long passage in the debate on 24th May, sought to allay our anxieties. He was speaking of the use of subsection (2) when he said: As new matters arise to be dealt with, the Government of the day will…have to decide whether to proceed by Statute…Nothing in the Bill prevents Parliament…from adopting what procedure it likes…". He went on, even more strongly: It must be left to the good sense of the Government of the day, bearing in mind that any Government is subject to the approval of the House. Finally, he said very emphatically: I cannot conceive of circumstances in which a future House of Commons would allow the Government arbitrarily to put into subordinate legislation what should be dealt with by statute."—[Official Report, 24th May, 1972; Vol. 837, c. 1505–6.] If the words in this subsection mean anything, they are a permission, and, therefore, an encouragement, to a future Administration to do exactly what my right hon. and learned Friend said was not the intention.

My right hon. and learned Friend said that he could not "conceive of circumstances" in which a future House of Commons would tolerate a Government putting into subordinate legislation what should be dealt with by Statute. Now, two allotted days in Committee later, he asks the House itself to insert words in the Bill which say, quite unnecessarily and superfluously, ex abundanti, that one can do under subsection (2) anything whatsoever of any extent that one could do by an Act of Parliament.

I am not accusing my right hon. and learned Friend of seeking to revoke his assurances; but what I wish to make clear to the Committee is the practical importance of this subsection if it passes unamended. It means that, in future, any Government will be able to come to the Dispatch Box with a regulation. When hon. Members say that it is not something that should be done by regulation, that there should be a Bill which can be amended, considered, and reconsidered—perhaps even in a Report stage, although that may have gone out of fashion by then—the Government will say "You have not considered Section 2(4) of the European Communities Act, 1972. That specifically provides that one can do anything under subsection (2) that one can do by Act of Parliament". One can almost write the Minister's speech for him. He would say: "What otherwise would be the point of those words? The Government are fulfilling the intentions of the House, and now hon. Members are inviting us to fly in the face of its deliberately expressed intention."

That is the effect of these words. They are not innocent or ineffective in a practical sense. Of course it can be argued that they are ineffective in the sense that they do not prevent a future Government from doing by Statute what they can do under subsection (2); but they are the most open invitation, which no Government could decline, to do by regulation or Order in Council things which should be done by Statute.

One can imagine the dialogues in the Legislation Committee of Cabinet between the Patronage Secretary and the Leader of the House and some Minister who perhaps had twinges of parliamentary conscience. When the Minister said that a matter was important enough to warrant legislation or that he was a little uneasy about doing it by regulation, the Patronage Secretary, well briefed, would turn up subsection (4) and ask what the point of it is if not to avoid the necessity of a Government ever having to do by Act of Parliament what they can do by regulation or Order in Council.

Therefore, we have the Chancellor of the Duchy on our side. If he cannot conceive of a House of Commons which would allow these things to be done by Order in Council rather than by legislation, then he himself, now that the significance of this is pointed out, will be the first to support the Amendment and wish to remove these words, which are a standing inducement to a breach of the undertaking that he gave to the Committee.

So much for the first portion of this subsection, on which I think we shall have unanimity.

I come now to the last part, which is not strictly covered by the group of Amendments which we are considering. Nevertheless, I hope that you will agree, Sir Myer, that we should consider the subsection as a whole. For the interpretation of the parts specifically covered by the Amendment is appreciably helped by the words at the end of the subsection, after the word "but".

The Committee realises—though we shall be debating this in more detail later—that Schedule 2 contains the safeguards. Despite the words to which I have just been addressing myself, Schedule 2 as it stands prevents certain things from being done by Order in Council or by regulation under Clause 2 (2).

Obviously, under the doctrine of the unimpaired sovereignty of Parliament—my hon. and learned Friend the Member for Southport (Mr. Percival) and others will hasten to point this out—in a future Session of this Parliament, or a future Parliament, we can come back and amend the Second Schedule. So it was not necessary to include the words except as may be provided by any Act passed after this Act. I see that I have the assent of my hon. and learned Friend the Member for Sonuthport. Those are supererogatory words because without those words an Act passed "after this Act" could reduce or extend the safeguard contained in Schedule 2. Nevertheless, for some reason those words are there. This has been a very carefully considered Bill. The drafting has been gone over and over, I assume, with a fine-toothed comb. If there were no point in those words, long before the Bill came to be printed and presented to the House they would have been removed. I assume that they have some point. I assume that someone said, "It will be convenient in the future if we have got those words in." In what circumstances would it be convenient to have words in a Statute saying that one can alter Schedule 2 by a subsequent Act?

I now put the two cases I have in mind to my hon. and learned Friend the Solicitor-General. Was it the idea that the protection in Schedule 2 should be extended, or was it the idea that the protection in Schedule 2 should be reduced? Whoever drafted this or whoever agreed to this insertion had it in mind that it might well be desired to modify Schedule 2 and that it would be just as well, when that moment came, to be able to say to the House of Commons "This was expressly provided for in the parent Act by the words in Section 2(4)."I want to know in which direction it is anticipated that it may be desired to amend the effect of Schedule 2. Is it the idea of the Government—if so, we shall be very glad to hear it—that it may be desirable in future to strengthen Schedule 2, to take more and more matters out of the purview of Clause 2(2), so that more and more matters have to be dealt with by Act of Parliament? That is the effect of reducing the scope of Schedule 2. If that is the intention, that will be some relief to members of the Committee. But it is very difficult to square with the rest of this Clause an intention in the future to amend the Act in such a way as further to limit the scope of Clause 2(2).

I am afraid, therefore, it appears to me more probable that the only intention of those words is to make it easier than it otherwise would be to limit, reduce or abrogate altogether the protection in Schedule 2. I repeat—this will bring me to the last and central part of the subsection—that without those words it would still be possible to do it; but the words are there for a purpose. They are there in order to make it easier to do it, in order to have something to appeal to. I fear that the intention there is in accordance with the rest of the intention in this subsection, to open the way to a further limitation of the legislative processes of the House of Commons.

After all, one can see how it could happen. How inconvenient, especially with the progress of inflation, it might be to have such figures as a fine of more than £400". How inconvenient if in a few years' time we found we had to legislate just because a fine of over £400 was involved. How much better if the irritating and unnecessary limitation in paragraph 1(1)(d) of the Schedule could be removed. When that day came, the Minister in charge would point out that something of this sort was envisaged, because a pointer had been put in by the House of Commons in Clause 2(4) of the Bill.

5.15 p.m.

This leads us to the significance of the central portion of the subsection, which says any enactment passed or to be passed…shall…have effect subject"— here I substitute "subject to subsection (1)". [Interruption.] It does apply to the rest of the Clause as well but the business end is subsection (1). Putting this the other way round, it means that no enactment is to be made, or, if it is made, it is not to have effect, to the extent that it is in conflict with anything which happens as a result of Clause 2(1) or with any laws, etc., which are in force as a result of Clause 2(1).

I have a qualification to add to that. Here I come to meet my hon. Friends who have returned to the doctrine of the omni competence of Parliament, and I draw the opposite conclusion to that of the hon. Member for Llanelly in his last point. I think that an Act of Parliament which expressly said either that "Clause 2(4) shall not have effect for the purposes of this Act" or, "Notwithstanding anything in Clause 2(4) of the European Communities Act", would probably override this subsection as it stands. However, the practical effect is that unless a future Statute expressly amends for the purpose or expressly repeals this subsection, then, automatically and whether or not anybody knows it at the time when they are passing future legislation, it will be overridden by the consequences of Clause 2(1) or, indeed, of anything else in this Clause.

This is where one sees the importance in the debate of the Amendment tabled by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). My hon. and learned Friend the Member for Darwen, though he is a supporter of the principle of membership of the Community, considers it unsatisfactory that there should be a concealed conflict of jurisdiction, that there should be an avoidable unclarity in our law. If I may, for the purposes of my argument, anticipate what I think will be his, he says that as a result of this subsection there will often be an unresolved conflict between what the House of Commons may do and the consequences of Clause 2(1), and that it is better that we should know, here and now, where we stand. Indeed, this was the significance of the portion of the article by the learned professor quoted both by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) and by my right hon. and learned Friend for Hertfordshire, East, when they pointed to the fact that it would be the courts rather than the House of Commons which would be adjudicating in future upon the sovereignty of Parliament, because any such unresolved conflict would be thrown up to be dealt with either by the courts in this country or ultimately by the European Court. So I am with my hon. and learned Friend the Member for Darwen in this, when I say that we had better have it written onto the face of the Bill. If we are saying that Statutes passed by the House of Commons are to be overridden where they conflict with law coming into effect under Clause 2(1), let us say so and look it in the face.

But there is an even deeper sense in which these central words bring us up against the conflict between the Bill and the sovereignty of Parliament. The sovereignty of Parliament has been a theme running through these debates. I have no intention of being drawn into what I consider the arid area of disagreement between the right hon. Member for Manchester, Cheetham (Mr. Harold Lever) and some of his hon. Friends at earlier stages in our debates. Nobody disputes that there could be political circumstances in which the House would exercise its power—and if it would exercise it, could exercise it—to cancel this Act of Parliament or to alter any part of it. There always is, in a sense, albeit a contradiction in terms, a right of revolution. There is always a power to break an agreement if one can get away with doing so. In that sense, of course, though it is a sense devoid of practical content, the sovereignty of Parliament is unaffected and cannot be affected by this legislation. But we are not concerned with the theoretical effect; we are concerned with practice; we are concerned with what it will be possible for those who succeed us in this place to do, and with what it will be possible for them to do as a result of the form in which we are choosing to draw the Bill.

In membership of the EEC there is at any rate a potential practical conflict with the sovereignty of Parliament in that to be a member of a continuing and politically-developing economic community places upon all the members of that community constraints, however they discharge them, to behave in a common manner, even in partial disregard of local and national wishes. In that sense it is true that those who support entry, in this legislative form or any other, are deliberately accepting—indeed, are commending—an abrogation of the sovereignty of Parliament.

But, that admitted, I do not believe that these Amendments should be dealt with in that light. I believe they should be favourably considered by hon. and right hon. Members who are in favour of British membership of the Community. It is significant that in the group of Amendments we are discussing there is one which stands in the names of a number of hon. and right hon. Gentlemen opposite who have declared themselves in favour of the principle of British membership. Nevertheless, they tabled Amendment No. 8, because they baulked precisely at this part of the subsection.

It was not necessary that the House should be presented with this explicit expression of the overriding of a later Act of Parliament by the consequences of an earlier Act of Parliament. Subsection (4) is the consequence of what the Government chose to do in Clause 2(1). Subsection (4) is no more necessary than subsection (1) for the purposes of British membership of the European Community. The Government have admitted that there are alternatives to the method adopted in Clause 2(1). They have admitted that, on a whole series of matters which will be dealt with under Clause 2(1) and (2), they would have legislated as they are legislating in the later Clauses of the Bill. The practical point—and it is a point which I believe can and should draw together members from all parts of the Committee—is that if we were proceeding in this Bill by the alternative and proper legislative method subsection (4) would not be necessary.

If the changes which are to be brought about in our law were brought about as they are in the later Clauses, if the sort of Bill had been introduced which we understand was in the minds of right hon. and hon. Gentlemen of the Opposition, if the sort of Bill had been introduced which was specifically referred to as practicable by the Prime Minister when he wound up on Second Reading, then, of course, Clause 2 would not appear in its present form and we would not be seeking to give that legislation priority over subsequent legislation.

The Act of usurpation implicit in the form of Clause 2(1) is the cause of the usurpation explicit in Clause 2(4). We find, therefore, that we are criticising not the principle of membership of the Community but the manner in which it is proposed to achieve it. Once again, as we have said so often, the debate on these Amendments is not for or against the Community. It is for or against good parliamentary practice. It is for or against the rights and powers of this House. If the Bill had been in proper parliamentary form, it would have meant—and this is how it should be—that in future when new law has to be made as the Community develops, in each case the House of Commons would have to be called upon to consider what it was being asked to do. It would have had to take into account the effects that membership of the Community entailed; but it would have done so as a House of Commons and as a House of Parliament, and it would have done so as a House responsible to the electorate. We can still have that sort of Bill, the sort of Bill which upon any view we ought to have. The way to get it is to accept the Amendments.

5.30 p.m.

Mr. Brynmor John (Pontypridd)

I believe the right hon. Member for Wolverhampton, South-West (Mr. Powell) was right to uncover the double threat to Parliament in the subsection. Not only is it a matter of the sovereignty of Parliament but it is also, in the first few lines of the subsection, a threat to the content of consideration by this Parliament; in other words, the way in which the Government lay before us their intention, and the scrutiny to which this Parliament can subject that evidence of intention. I believe that the inclination of any Executive will be irresistible to put it in a way which truncates parliamentary debate to the maximum.

If we needed any reassurance of that it is the extent to which the Government Front Bench has wriggled upon the question of a Report stage, refusing to adopt even the most reasonable and necessary Amendment in order to preserve its position intact so that it might not even have to sacrifice another couple of days on consideration of the Bill. With that precedent in mind, who can doubt that any future Executive will draw its legislation with the sign and call of the Patronage Secretary, in the way which is most convenient to it and not in a way which is most conducive to good order and good scrutiny by Parliament. That is the first way in which I believe the subsection poses a threat to Parliament.

The second way has already been mentioned. It concerns the inclusion in the subsection of any enactment which has been passed or will be passed; in other words, an attempt by the Government to fetter future Parliaments as to the type of legislation they may enact. Since most of our complaints on the Bill have been about the extreme brevity of our dis-cusssions and about the conciseness of the language involved, I would have thought the most absurd argument yet advanced by pro-Marketeers is that adduced by the interventions during the speech of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), that these words are used unnecessarily and that they are useless.

Whatever else is clear in the Bill, it is that the man who drafted it and the Solicitor-General did not include anything other than that which is strictly necessary to give effect to their intentions. Therefore, we can reject the argument that these words do not really mean anything. They mean precisely what they are intended to mean. They are an attempt to fetter, to bind, to limit the sovereignty of a future Parliament to give effect to its will in the climate of the time.

As a convoy moves at the speed of its slowest ship, it is necessary to revert to the argument about sovereignty, which we have had many times but which some Conservative Members do not appear to have understood. There is a difference between sovereignty, the everyday customary exercise of sovereignty as it has been known to this Parliament, and ultimate sovereignty, which Ministers are careful to say remains to this country. Of course, ultimate sovereignty remains to this country. Ultimately Parliament may enact a Measure which sweeps away all the restrictions upon us. But that is merely the ultimate sovereignty, the ultimate power, to break with the Community. It is no other power, and it can and will be used only when this country believes it is no longer of advantage to be in the Common Market.

Short of that, all sorts of pressures will be put upon us. A future Parliament will be told "We know your case on this is right, but do not exercise the power in this instance because that will only rock the boat. See how many advantages we have from being members of the Community—the wider market, the dynamic", which may even have started by then. At all stages pressures will be put upon us as legislators not to exercise our sovereignty for fear that it will upset the balance, for fear that it will upset the international organisation into which we shall have gone. The real answer is that we shall retain the sovereignty of Parliament only so long as we do not choose to exercise it.

What was said earlier today was that no Parliament is completely fettered, that it can walk out of the Community and enact what it likes. There is a disease known as agrophobia, the fear of open spaces. Nothing binds the sufferer to the room in which he is other than the thought that there is something terrible beyond. At any moment he could open the door and walk the streets a free man, but because of his mental condition he chooses never to exercise that freedom.

If we enact the subsection, future legislators will have a sort of legislative agrophobia. They will have the theoretical possibility of exercising their power, but they will always be afraid to exercise it for fear of upsetting our colleagues, for fear of breaking the alliance. Unless we are prepared to do that we shall not exercise the power. The subsection, when it says passed or to be passed will bind future Parliaments, and it is idle for Conservative Members to pretend otherwise.

I diffidently part from the right hon. Member for Wolverhampton, South-West on the effect of overriding the subsection. Certainly I think that a future Act could expressly provide that the provisions of the subsection were not to take effect for that Act. But for the first time, as a result of our membership of the Common Market, we have a constitutional court which is set above Parliament, which is to consider whether any member State has in its own domestic legislation breached the Treaty of Rome, which alone is sacrosanct to that court. Therefore, whereas a Parliament may say "We shall not do that in a future Act", the European obligation would exist independently of the enactment.

In any event, as the Italian electricity case shows, domestic legislation which is in conflict with the Treaty of Rome will be interpreted by the European Court in such a way as to maintain the supremacy of that treaty. Therefore, whereas we could override the present intention of subsection (4), in effect the European Court would make sure we did not go too far.

The subsection says "subject to Schedule 2". We are given a great apparent concession by Schedule 2, which says that certain powers are excluded from the provisions of the subsection and cannot be imposed other than by enactment. Taxation and the power to create new criminal offences are among the matters covered. But there is power to create new criminal offences punishable by imprisonment of not more than two years or by a fine of not more than £200. That is a great breach of civil liberties. It is idle for the Solicitor-General to say, as he has in many debates, that the criminal law of this country will never be altered, that we are not derogating in any way from our criminal law. We have the imposition of criminal offences which carry fairly heavy penalties without the necessity of enactment in this House, with only the most cursory examination. Therefore, so far from being a concession, this is a way of giving the Executive a further power to affect people's lives and freedom in a way in which adequate consideration by the House is precluded.

It has been the boast of the House of Commons that on behalf of the freedom of subjects in this country it has traditionally exercised such a power. If that is to be given away it is no good presenting the provision to the Committee as if it is a triumph, an extra concession wrung from an unwilling organisation for the protection of the House. It is a derogation of the traditional powers of the House. Therefore, the Solicitor-General should immediately retract the suggestion that the criminal law is not being altered. European offences will take effect against subjects of this country with no more than the briefest scrutiny of the House, when we can bring such scrutiny out of an unwilling Government.

It would be much better to maintain the traditional way of bringing into existence obligations in this country by the passage of Acts of Parliament, which alone gives the House the adequate right not only to listen to general statements upon Second Reading but to give detailed consideration to a Measure in Committee. We should have had no idea of anything but a fraction of the meaning of the Bill before us but for the Committee stage. It is only since we began our detailed scrutiny in Committee that many of the most obscure points have emerged.

If the Government are truly of the mind that any future enactment can be put before the House freely, can stand on its own feet and be looked at honestly, they should abandon the shabby pretence in the subsection and go back to the traditional and still the best and most effective way of passing such obligations into our law; namely, that of enactment.

Mr. Charles Fletcher-Cooke (Darwen)

The shape of these debates is very odd. We have four, five, perhaps six speeches from anti-Marketeers to set one off. We then have a few nit-picking points by myself, who am enthusiastic for the cause but not so enthusiastic for the method. We then have another speech by an anti-Marketeer, and it is not until then that the young lions, or perhaps I should call them the young toreadors, behind me have a chance of getting to the meat.

Mr. Anthony Fell (Yarmouth)

I remind my hon. and learned Friend that there are no young toreadors for Amendment No. 8 on the benches opposite as far as I know.

Mr. Fletcher-Cooke

I am not attributing blame or cause or anything, just pointing to the fact, lest the public should get the impression that a five or six to one majority against the Bill prevails in this Committee.

I am disenchanted by some of the modalities, as we shall have to learn to call these things, in the Bill. I am in favour of subsection (4). I do not think that it is wrong. I just think that it is not enough and that in particular the middle passage is so short as to give the judges no guidance at all on what is going to be an extremely difficult task of conciliation and reconciliation. To say that this vast corpus of continental law …shall be construed and have effect… when it impinges upon the equally vast corpus of Commonwealth statute law, both as regards difficulties of time and as regards difficulties of place, is to my mind insufficient. It owes more to considerations of diplomacy than to considerations of law.

My Amendment No. 183 would bring the issue more specifically to a reality—the issue of the extent to which Acts of the House of Commons subsequent to regulations or decisions of the organs of the Community prevail over those regulations and decisions. It is a difficult problem, and I have sought to spell out the way it should be tackled—that is, that where an Act specifically says that it is flying in the face of Community regulations and decisions, the judges should be told that the Act is to prevail. I think that that is the sense of the Committee on both sides. However, it is where there is no such specific mention in an Act that I think the problem really arises—the problem of where, either by inadvertence or perhaps by cunning, the House of Commons has flown in the face of some Community decision or regulation. What is the poor judge to do then? Therefore I spell out in my Amendment that the judge is to observe the Community's decision. That I believe is the reality of the position.

Objection may be made to stating in express terms that the House of Commons may in future decide not to follow a decision or regulation of a Community organ on the ground that it is a very bad diplomatic thing for a country which is just going into the Community to make express provision for its coming out again. I follow the diplomatic objection to that, although it has less bearing after M. Lipkowski has said that he does not regard the Six as an organisation from which it is impossible to resign. It no longer seems so large a diplomatic blunder to put in such words as I suggest. However, wiser heads than mine object to it. But I would like to point out to the Government only two of the burdens and difficulties that are being placed upon our judiciary—and there are many more—by these small and innocuous words in lines 40 to 43 in subsection (4).

5.45 p.m.

A suggestion which has been canvassed today is that it is not so much the difficulty of the big bang—for example, the defence of the Community by the House, and I myself do not think there is any legal difficulty about that—as of the small day to day problems. What is the poor judge to do when he sees a subsequent Statute, accepted by both Houses of Parliament, assented to by the Sovereign and printed in the normal way with all that authority, which he thinks conflicts, and quite seriously conflicts—and he may not be able to reconcile the two or get out of the difficulty—with some decision, say, of the Commission or some regulation of the Community? Unless the guidance is spelt out stronger than the words, …shall be construed and have effect subject to the foregoing provisions of this section…", which is a very difficult and obscure formula, he is bound to take the plain words of the Statute and prefer them even when in my opinion he should not.

Mr. Powell

My hon. and learned Friend will also agree that such a Community law might be law made subsequently to a Statute.

Mr. Fletcher-Cooke

Certainly. I think the judge is in grave difficulty over both the previous law and the subsequent law.

It is not only a question of regulations. It is not only those strong instruments or regulations dealt with in subsection (1). The judge does not even know, for example, about directives which have not yet been translated into legislation by the House. It is generally assumed that until such directives have been translated into legislative form—whether by Order in Council or by Statute I do not pause to inquire—they have no effect on our courts. If that is right, it is totally contrary to the Belgian precedent. Ministerial acts of the Belgian Government, acts of a fairly fundamental kind, have been held by the Belgian courts to be null and void because they conflicted with directives which had not yet been translated into Belgian legislation but which nevertheless illustrated the policy of Community law.

What is the judge to do when such cases come before him in six months' time? This is a matter which our judges are going to have upon their shoulders very soon in the span of legal life. The Bill puts the burden clearly on the shoulders of the judges and gives them completely insufficient guidance on what to do.

My second point may be considered remote, although I think it is important. It concerns the execution of judgments. Very often the most important part of a judgment lies not so much in its being pronounced by the lips of a judge but in its execution—how it is to be carried out.

Here is an example of an occasion when the judges of this country will find themselves in great difficulties. The decisions—I am using that word in its technically correct sense, I think; that is, the judgments of the Council, of the Commission and of the European Court, which act inter partes; that is, are directed against an individual or corporation—are directly enforceable in member countries. That is in Article 187 of the Treaty of Rome as regards the Court and Article 192 of the Treaty as regards the Council or the Commission. The imposition of obligations on persons other than States may be in other forms of execution than pecuniary obligations. Hon. Members may know that in this country when there is a writ of execution it is possible to go to a judge and ask for modification. If the party is dead the personal representatives can go along; if the company is in liquidation all sorts of considerations apply. There is relief under the writ of fi fa. All sorts of things can be done even though there has been a writ of execution addressed to a particular person. Will a person seeking relief from a directly enforceable execution of the Luxembourg Court or of the Commission or the Council be entitled to go to a Queen's judge and ask for relief? What is the judge to do? Is he to say "No, I cannot give you relief because this is a European judgment even though the writ of execution has been issued in the Queen's name and addressed to the Queen's officers. I cannot give you the relief which the Sovereign would or could give you in almost every other case?" I do not think the judge could. I may be right or wrong, but I instance this because I believe that the judges ought to be told. It is not enough in these cases to say that previous enactments dealing with orders of the Supreme Court, Orders Nos. 46 and 47, or subsequent legislation, if those happen to be amended, shall be construed and have effect subject to the foregoing provisions of this section", that is, with the authorised form which the Council, the Commission and the Luxembourg Court may have instituted.

Is our judge to say "No, you must go back to the Council or the Commission or the European Court. I cannot give you the ordinary relief against execution even though the writ of execution runs in the Queen's name?" That may be right or wrong; I do not know. All I can say is that there is no provision that I can see in this legislation or subsequently to tell the unfortunate judge what he has to do. That is the burden of my complaint against the modality of these seven or eight words. They really are too fragile a vessel to contain the enormous amount of liquid involved, and of which I approve, in wedding together Community law and British common and Statute law.

Sir Gilbert Longden

I rise only to redress the balance because I shall say nothing that has not been said before, and much better said, but it is a coincidence that most of the speeches so far have been by the hon. Members who are known in parliamentary shorthand as anti-Marketeers. They have naturally supported these Amendments because they cannot swallow the prospect of any abrogation of the sovereignty of the House of Commons. I appreciate their point of view but I do not share it. By a large majority the House has decided to join the European Economic Community, on known terms which have been negotiated by the Government.

Mr. Neil Marten (Banbury)

With respect, the terms were known only in January. My hon. Friend referred to "known terms". When we had the Division on the known terms it was won not by a large majority but only by eight.

Sir Gilbert Longden

The House decided on the principle of entering the Community by a very large majority. It must have known in so deciding that there would necessarily be considerable abrogation of its sovereignty. It could not possibly have done so if it had thought otherwise. It follows that the House by that large majority, with its eyes open, is agreeable to accepting the prospect.

There are many reasons for our so doing which have been spelled out by many hon. Members, and it would be both tedious and out of order for me to repeat them now. Suffice it to say that the majority of people believe that we should on balance gain more than we should lose. We do not abrogate sovereignty to a bunch of faceless bureaucrats in Brussels. We shall cede part of our sovereignty over certain of our affairs to a democratically elected European Parliament in which we shall have a powerful voice and in which, should any proposal be made which we consider would infringe a vital national interest, we shall have a veto. That is appreciated by Amendment No. 426. We also know, as my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) has quoted, along with others, that a later Statute passed by the House may repeal an earlier one, that each Parliament is unaffected by what its predecessors have done.

The last part of this Clause expressly envisages subsequent Acts which may amend this Measure. Why, therefore, asks my right hon. and learned Friend, put the words in at all? The answer surely is because they express the present intention of the Government, as do all Acts of Parliament if they are not amended. I shall therefore oppose the Amendments.

Sir John Foster (Northwich)

It might be helpful if the Committee examined subsection (4) in the light of the constitutional conventions. It is well known that the English legal system has avoided a clash in certain matters, for instance between Parliament and the Executive and over the forcing of a Roman Catholic priest to reveal the extent of his confessions. One of the rules of construction which the English legal system has used to prevent a breach of international law is to say that the courts will not interpret any provision of an Act as conducive to a breach of international law. This deals with the judge in the dilemma to which my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) has referred. Subsection (4) reinforces that convention because it says in the early part that subsequent Acts should be interpreted in accordance with the European Communities Bill. Therefore, there will be no suggestion to the judge that this Measure is being infringed.

6.0 p.m.

There are people who believe that the sovereignty of Parliament is not absolute. Mr. J. W. Gough wrote an interesting book called "Fundamental Law in the English Constitutional History". I do not subscribe to that view. A subsequent Act says that notwithstanding anything in subsection (4) of this Clause of the Bill, we hereby do so and so. The sovereignty of Parliament would obtain.

It is to be noticed that it is not the first time that we have entered into treaties of this kind. The European Comission of Human Rights has power to override the provisions of English Acts of Parliament and judicial decisions. If we passed an Act of Parliament saying that no Roman Catholics could marry and that Jews could not marry Christians, we would very soon find that the European Commission of Human Rights would order the English State to abrogate that provision of an Act of Parliament. An individual affected by an Act could petition the European Court of Human Rights and get an order from that court ordering the British Government to abrogate that provision.

Some people believe that even if an Act of Parliament sets out in terms that no Protestant can marry a Roman Catholic, the courts would disregard the English parliamentary provision of the Statute and say that the solemn commitment or the English Government through a treaty, having subscribed to the European Commission of Human Rights, should obtain and the English Statute should be disregarded.

I do not subscribe to that view. However, it shows that there is an area of debate on this attitude of sovereignty and subsection (4). The short answer is that it merely reinforces this canon of construction in English courts. It enables the judge to say with more force than he usually does when the principles of international law are put forward, "I construe the subsequent Act as not invalidating any provision of the European Communities Bill."

Mr. John

Surely the hon. and learned Member for Northwich (Sir .J. Foster) will accede to the proposition that what Clause 2(4) says is that a subsequent Act will be read in the light of previously passed domestic pieces of legislation and not international law. Subsection (4) says that any Act subsequently passed will be read in the light of this Act. It is a domestic Act.

Sir J. Foster

This Measure is implementing international law because it is implementing the treaty agreement with the European Communities countries. In effect, the Bill is saying that any subsequent Act shall be construed as agreeing with the treaty commitments of the British Government.

Mr. John

Does not that beg the argument, which has been adduced many times in Committee, that the Bill in the form and manner in which it is drawn goes much further than is necessary to implement any treaty obligations arising out of our accession to the Community? It is a domestic law binding future Parliaments and not an international obligation.

Sir J. Foster

The hon. Member depends on the premise that the Bill goes further than our obligations under the treaty. I do not think it does. Its purpose is to implement the treaty. Subsection (4) says that any subsequent legislation must be construed as agreeing with it.

I belong to that school of thought, which is pretty general in the House of Commons, that if subsequent legislation said: And notwithstanding what we have agreed with other countries, we will do so and so, the sovereignty of Parliament would obtain. There is a school of thought Which does not agree with that view. As my hon. and learned Friend the Member for Darwen said, the answer is a kind of political argument.

One cannot imagine a Government solemnly passing legislation through the House which they intend to be in breach of their treaty obligations. That is why much of the debate on the Amendments has been unreal. If one wanted to abrogate the treaty, that would have to be done by a declaration or a negotiation with the other countries. It would be within the framework of our obligation under international law to pass legislation which paid attention to the amendment or abrogation of the Common Market Treaty.

It is unreal to imagine that a subsequent Government will start their attack on the European Community by bringing in legislation which is inconsistent with their treaty obligations. It is also unreal to imagine that we would pass a law that people can be put into prison arbitrarily. We would soon find ourselves in the difficulty of facing a petition to the European Court of Human Rights. There would be an order to the British Government to repeal that legislation and to release those imprisoned.

That abrogation of sovereignty, if one likes to call it that, was done years ago. Nobody objected because the whole temper of the country was agreeing with the object that there should not be an infringement of human rights in this country. However, this matter is much more controversial. Therefore, the people who object to the Common Market have sought to say, quite wrongly, that Parliament should have the right to bring in legislation in breach of their treaty obligations.

For those reasons the arguments against the Amendments are founded on unreality because of the premise that the Government of the day will bring in legislation against their treaty obligations. We have always to go back to the treaty obligations first. We must assume that Governments will bring in only legislation which is in accordance with our obligations.

The Solicitor-General (Sir Geoffrey Howe)

The Amendments which the Committee has been debating, as the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) pointed out when he opened the debate, enable us to analyse closely the provisions of subsection (4) because between them they would secure the removal of the whole subsection. I will expound to the Committee why the subsection is a necessary provision, which is included in the Bill for good and sufficient reasons, and explain what its effect is and why it is necessary.

Apart from the three Amendments which seriatim eliminate the subsection, there are two others before it, one being Amendment No. 8 which would have been spoken to by the right hon. Member for Birkenhead (Mr. Dell), in respect of which my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) spoke, regarding the insertion of certain words in line 41 on page 3.Then there are the important pair of Amendments, Nos. 182 and 183, to which my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) has spoken and which have certainly enabled the Committee to see more clearly the factors which are built into subsection (4). I shall, I hope, be able to satisfy my hon. and learned Friend that his two Amendments would not represent an improvement on the Clause as it now stands. [Interruption.] I am sorry that my hon. Friend the Member for Yarmouth (Mr. Fell) should be so astonished by the approach which I seek to adopt. I may not be as successful in his eyes as in the eyes of some of my hon. Friends, but I shall seek to fulfil my responsibility.

Mr. Fell

I was only slightly amused at the fact that the Solicitor-General was saying these things to my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) with his hands tied rigidly behind his back.

The Solicitor-General

I will explain the matter shortly and deal in a little more length with the matters hon. Members have raised. First, I will deal with the three limbs of subsection (4). The first limb, the first four lines of which would be removed by Amendment No. 420, indicates that subsection (2) could be used where necessary and appropriate for the purposes and the effect of repealing or amending Acts of Parliament. I shall explain why, in the context of the Bill, that is not only acceptable, but manifestly necessary, notwithstanding what my right hon. Friend the Member for Wolverhampton, South-West said about that proposition.

The second part of subsection (4), which is sought to be removed by Amendments Nos. 420, 313 and 182, provides, so far as it constitutionally may be achieved—I shall come back to that point—that directly applicable Community law, that which is given effect by subsection (1), should prevail over conflicting provisions of Acts of Parliament. That is a necessary fulfilment of a Community obligation expressly foreshadowed by the 1967 White Paper.

The third part of the subsection, from line 43 onwards—sought to be removed, perhaps unintentionally, by Amendment No. 182—is the enacting provision for Schedule 2 with the safeguards therein contained. No one would wish to see that part of the subsection removed. The hon. and learned Member for Leith tended to suggest that it was in the wrong place. I cannot follow the hon. and learned Gentleman's argument about that. At all events, it is expressly linked to Schedule 2 and is effective to the extent that is necessary.

My right hon. Friend the Member for Wolverhampton, South-West and other hon. Members inquired closely about the significance and reason for the presence, in lines 43 and 44 at the beginning of the third limb, of the words, except as may be provided by any Act passed after this Act". There are two principal reasons for the presence of those words. First, we see that Schedule 2 is referred to in the opening words of subsection (2), which says. Subject to Schedule 2 to this Act". The middle limb of subsection (4) requires any future enactment to be construed and have effect subject to the foregoing provisions of this section", which could include the opening words of subsection (2). It might be argued that a subsequent Statute was inhibited by the middle limb of subsection (4) from making any variation in Schedule 2. Therefore, the first function of those words is to make it plain that any Act passed after this Act can vary the provisions of Schedule 2. It makes it possible for the provisions of Schedule 2 to be varied either upwards or downwards.

Secondly, and perhaps more important, this part of the subsection makes it plain that any variation in Schedule 2 would require an Act of Parliament. If those words were not there, some hon. Members might have suggested that an order under Clause 2(2) could be used to vary the provisions of the safeguards contained in the Schedule. This is to make it plain that the Schedule can be varied only by an "Act pased after this Act". I hope that is sufficient explanation for those words being in the subsection.

I do not intend to say anything more about the third limb, because that was the only controversy about it.

I agree with right hon. and hon. Members on both sides of the Committee who described the first limb as important. Of course it is. I have explained that it contains the power—this was made clear by my right hon. and learned Friend on Second Reading and certainly during our early discussions on Clause 2—to make variations and amendments in and repeals of Acts of Parliament as well as in subordinate legislation. I ask the Committee to conclude that it is a necessary and sensible provision because a number of regulations and directives with which we may have to comply would be of a kind suitable for subordinate legislation. A number of regulations and directives may involve the necessity for consequential changes in United Kingdom Statutes, some of them major and significant, others of small and minor significance. It is therefore sensible, in the interests of Parliament, that consequential changes of a small, minor and insignificant kind in the United Kingdom Statutes should be capable of being effected by orders made under Clause 2(2).

The power to vary the provisions of a Statute by Statutory Instrument is not unprecedented. It is not unique, as the hon. and learned Member for Leith said. Nevertheless it is necessary to acknowledge that it is important in the context of the Bill.

[Miss HARVIE ANDERSON in the Chair.]

6.15 p.m.

My right hon. Friend the Member for Wolverhampton, South-West quoted my right hon. and learned Friend on this matter on 24th May and sought, I thought somewhat unjustly, to diminish and eliminate the significance of what he said. My right hon. and learned Friend said: As new matters arise to be dealt with, the Government of the day will…have to decide whether to proceed by statute.…It is obviously reasonable that we should adopt a flexible attitude.…It must be left to the good sense of the Government of the day, bearing in mind that any Government is subject to the approval of the House. I cannot conceive of circumstances in which a future House of Commons would allow the Government arbitrarily to put into subordinate legislation what should be dealt with by statute.

I emphasise the words in the last part of that sentence. They are not to be discounted and set aside as my right hon. Friend sought to do. The House of Commons would certainly express itself and bring effective pressure to bear on the Government. I have no doubt that argument would be heard from Patronage Secretaries and others in the opposite sense, but it is idle to pretend that what my right hon. and learned Friend was saying was of no significance.

In the next sentence, which my right hon. Friend did not quote, my right hon. and learned Friend said: Whatever view one takes of what is or is not a major change, there is no difference of opinion on either side of the Committee that some changes are on any view suitable for subordinate legislation.—[Official Report, 24th May, 1972; Vol. 837, c. 1505–7.]

It is to provide a power which can be used for changes of that kind that the provisions in the first limb of subsection (4) are necessary.

Mr. Powell

I am obliged to my hon. and learned Friend for what he has said. I expressly said I was not seeking to derogate from or cast doubt upon the intentions and assurances of my right hon. and learned Friend. But, even more after what my hon. and learned Friend has said, one is faced by the extremely broad, indeed maximum, words in this limb of the subsection which appear to go far beyond the reason which my hon. and learned Friend gave for it. After all, there are many formulae for consequential and minor Amendments. If that was necessary—that is the only point my hon. and learned Friend made—it is not beyond the powers of drafting to limit it to that. The difficulty is that this is apparently deliberately drawn as wide as possible.

The Solicitor-General

It is drawn alongside the remaining provisions of the rest of the Bill. This is the important factor which I had not finished mentioning. The fact that all the necessary changes in our existing Statutes that the Government have identified as being necessary are given effect to in the second part of the Bill and the Schedules stands as an earnest of the way the matter would be approached. It is difficult to see why it would be in the interests of Parliament, when we came upon subsequent changes that might be necessary which could be subject to the ordinary scrutiny of delegated legislation, to commit subsequent Parliaments to the scrutiny of every one of those in the ordinary legislative process. If that were required, it would in the long run serve to impair, not to preserve, the effectiveness of parliamentary control.

Regarding the second limb, on which most of our discussion has concentrated, there has been a certain ambiguity on both sides of the Committee about its quality. I do not mean its linguistic quality, but the clarity of what it is setting out to achieve. The hon. and learned Member for Leith said that it was a mysterious passage and suggested that the Government were guilty of subterfuge. My right hon. Friend the Member for Wolverhampton, South-West said that it was explicit and my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) began by saying, with his characteristic alliteration, that the provision did briefly, boldly and brazenly what it set out to do. He did not include the abjective "blatant," used by the Leader of the Opposition, but later—and this was an uncharacteristic inconsistency in what he was saying—he succumbed to the temptation of accepting the words put into his mouth and said that it was guarded, and even accepted the word "woolly".

Sir D. Walker-Smith

The dichotomy to which I was drawing attention was the one between the intent of the Clause, which I believe to be clear and brazen and all those other descriptive epithets which I applied to it, and its effect, which is highly doubtful, because it would appear that it may be a nullity. That proposition is endorsed by the authority of Professor Wade. There is no inconsistency except that inherent in the objects of the Clause.

The Solicitor-General

I am grateful to my right hon. and learned Friend for the tribute paid by him to the linguistic clarity, even if he cannot recollect the epithets which he applied to it, of the Clause. I shall come back to deal with the effectiveness of it because that is a matter of real concern and obviously requires discussion.

To remain for the moment with the linguistic aspects of it, subsection (4) is not something which, as the hon. Member for Llanelly (Mr. Denzil Davies) suggested, the draftsman has tried to slip in as an afterthought. The provisions of the central limb of subsection (4), linked with subsection (1) and Clause 3(1), are a consequence of membership. They follow from accession to the Treaty of Rome. They are designed to provide, so far as it can constitutionally be achieved, for Community law to prevail over conflicting provisions of future Acts of Parliament.

Mr. Denzil Davies

I meant that the middle words go further than merely referring to subsection (2). They are more relevant to subsection (1). The opening and closing words of the subsection refer mainly and perhaps solely to subsection (2), and to that extent something has been slipped into the subsection. It does not refer specifically to subsection (2). It goes wider than that.

The Solicitor-General

I take the point being made by the hon. Gentleman. It is a stylistic criticism. I thought he was suggesting that this had been slipped in as an afterthought. This is a central point, and the provisions of subsections (4) and (1) and Clause 3(1) stand together. It is this which has been regarded by consistent and stalwart opponents of entry into the Common Market, from the hon. Member for Ebbw Vale (Mr. Michael Foot) to my right hon. and learned Friend the Member for Hertfordshire, East, as one of the unattractive aspects, but this is a well recognised principle, starting with the Van Gend en Loos case in 1963 and ending with the Signora Leonisio case in this year of grace.

Provision for the supremacy of Community law has always been there, and subsection (4) does no more than implement the opening words of paragraph 23 of the 1967 White Paper. Community law, having direct internal effect is designed to take precedence over the domestic law of the member States. From that it follows that the legislation of the Parliament of the United Kingdom giving effect to the law would have to do it in such a way as to override existing national law so far as it was inconsistent with Community law.

Mr. Powell

Existing law?

The Solicitor-General

I shall come back to the other aspect because that is different.

This has always been part of the obligation of joining the Community. It would make a nonsense of the necessity for Community law to have the same effect in every member State if the United Kingdom, any more than any other member State, could choose by national law to override what it did not like. The principle of Community law having precedence throughout the Community is one that operates for the mutual benefit of all member States. It is a principle that has been attained in every member State where directly applicable Community instruments take effect directly in their own terms and without further enactment—I invite the Committee to consider, for example, the Leonisio case—and give rise to rights and obligations within member States. It is necessary—and this is recognised by the far-sighted, whether friends or critics—to achieve uniformity. This is one of the grounds of complaint by the critics, but it follows that we must have the provisions of subsections (1) and (4) and Clause 3(1).

My right hon. Friend the Member for Wolverhampton, South-West has returned to the point that he has made before, that my right hon. Friend the Prime Minister said that there was room for variation, that there was room for different ways of approaching the implementation of the introduction into this country of the precedence of Community law, and he referred to the passage in my right hon. Friend's speech on Second Reading on 17th February.

To suggest, as my right hon. Friend the Member for Wolverhampton, South-West has done on a number of occasions, that there are options about the necessity for providing for the supremacy of Community law and for Community law to apply directly in this country, and to go on to suggest that my right hon. Friend the Prime Minister has said that there are other ways of doing it, is to misunderstand the passage in my right hon. Friend's speech. When he was interrupted by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), my right hon. Friend the Prime Minister was dealing with four different packages, namely, the implementation of past as well as future Community law and the method of handling indirect as well as direct Community law.

The passage cannot be relied upon to lead to the conclusion that there is any option or room for variation of the method of giving effect to directly applicable Community law, past and future, within this country. In the passage to which I have been referring my right hon. Friend said that the enactment also has to take care of the future."—[Official Report, 17th February, 1972; Vol. 831, c. 748.] That was in relation to that part of Community law which would automatically become applicable, and that is what the Bill has done.

As my right hon. and learned Friend the Member for Hertfordshire, East said during the same debate, when he again used a series of terse epithets to pay tribute to the clairty of the Bill, We cannot logically accept entry and reject its requirement."—[Official Report, 17th February, 1972; Vol. 831, c. 314.] That is the point, and that has been understood by those who have criticised our joining as well as those who have accepted it. It is upon that basis that I propose to take a few minutes more to explain the way in which I suggest that part two of the subsection is intended to work.

The subsection clearly provides that Statutes existing at the time when the Bill reaches the Statute Book should be construed subject to Community law. The Bill has endeavoured to make all the necessary consequential changes in Part II and the Schedules. But apart from that it provides that any existing Statutes shall be construed and have effect subject to the foregoing provisions", that is to say, the rights, and so on, arising out of subsection (1) which flow from Community law.

On the question of future Statutes, the hon. and learned Member for Leith asked what was the meaning of the words "any enactment" and he postulated three alternatives. "Any enactment" means the second of the three which he suggested, namely, a Statute or secondary legislation of this country. It does not mean and, with respect to the hon. and learned Gentleman, I do not see how it can mean regulations or legislation of the Community.

Equally, I do not see how it would have any significance if it meant that. It would introduce into the Clause an element of circularity which I find difficult to follow. What is happening is that subsection (1) is providing for the effectiveness of Community law in accordance with the treaty, and the second part of subsection (4) is saying that, in future, enactments shall be read subject to that interpretation provision. I do not see how it can have the third meaning that the hon. and learned Member puts on it.

6.30 p.m.

So far as future Statutes are concerned, the question has been put by some hon. Members in its most marked form: could Parliament in the future repeal this Bill? The answer is that if it came to that—nobody contemplates that it should—it could do so. It is wrong in that context and sense to argue that we are here building an ineradicable weakness without precedent and that it is insurmountable. We are giving effect to our treaty provisions. But at the end of the day if repeal, lock, stock and barrel, was proposed, the ultimate sovereignty of Parliament must remain intact.

Mr. John

I am grateful to the hon. and learned Gentleman for dealing with an argument which nobody has put up. What was sought to be argued on this point was that within the so-called ultimate sovereignty safeguard Parliament would practically strip itself of a great deal of its sovereignty because arguments by hon. Mmebers would be to the effect that one could not do this and that we should think of the advantages we would be passing up in the rest of the Common Market provisions. Effectively we would be parting with sovereignty whilst retaining our right to break up the Common Market in the last resort.

The Solicitor-General

I shall deal with the middle ground arguments if the hon. Member will allow me to do so.

The answer to his point is that nobody who has considered this subject over the years is under any illusions that joining the European Communities is a change of fundamental and far-reaching importance. It was so described in glowing terms by the Leader of the Opposition when he made the application in May, 1967.

When we do that we are expressing a will and are joining the Treaty with those intentions in mind. That is a realistic new factor upon the way in which Parliaments work and Governments would accept it. I am dealing with the ultimate sovereignty. That remains intact.

Is there any room for future legislation of this Parliament expressly to exclude or override Community obligations? Several hon. Members have touched upon that. Most people have agreed that a subsequent United Kingdom Statute—even if not designed to pull us out of the Communities—which began with the phrase "notwithstanding the provisions of Clause 2 and Clause X of the European Communities Bill, black shall be white", would mean that the courts of this country would give effect to that limited proposition, certainly as the matter now stands.

It does not follow that it would be right to accept the argument of the right hon. Member for Birkenhead to insert the words "unless the contrary appears" or the argument of my hon. and learned Friend the Member for Darwen that one should provide in the Bill a means whereby Parliament could say "notwithstanding our obligations the following shall take effect."

One cannot provide in advance for the prospective breach of treaty obligations. If it be diplomatic to assert that proposition, my hon. and learned Friend the Member for Darwen has foreshadowed the argument. It is probably unrealistic, as my hon. and learned Friend the Member for Northwich (Sir J. Foster) put it, to include such a provision in legislation designed to give effect to a treaty. In that respect Amendment No. 183 is unacceptable.

The final situation is what will happen if there is a future Act of Parliament which inadvertently, to a greater or lesser extent, may be in conflict with Community law. The courts would—as my hon. and learned Friends the Members for Northwich and Darwen pointed out—try in accordance with the traditional approach to interpret that Statute in accordance with our international obligations. That is as clear a convention of our constitution, as emphasised by my hon. and learned Friend the Member for Northwich, as anything else.

Its effect would be to give the courts so far as possible explicit guidance in the same direction, in the direction of giving precedence to Community law. That is the intention of the new subsection (5) moved by my hon. and learned Friend the Member for Darwen. It does not advance the courts any further towards reaching that result than the provisions of the Clause as it now stands. That is the essential object of this limb of subsection (4). A number of questions can arise thereafter. I prefer not to take time dealing with the questions on execution because they can be dealt with on Clause 3.

Beyond what we do here it is not possible to judge, in resolving the possible conflicts and difficulties, in advance. It is not possible to do it however much one would try to do so by giving the United Kingdom courts, as Amendment No. 183 would, power to determine the United Kingdom enactment to be contrary to the treaties or regulations or to the decisions it may affect. That might not be the right solution in a given case. One cannot do more than that to reconcile the inescapable and enduring sovereignty of Parliament at the end of the road with the proposition that we should give effect to our treaty obligations to provide for the precedence of Community law. This directs the judges and courts, so far as one can in legislation of this kind, in that direction.

It is for those reasons that I invite the Committee to reject the Amendments now before the Committee.

The subsection does not, because it could not, resolve every problem or every possible conflict that could arise in the future. If through inadvertence any such conflict arose, that would be a matter for consideration by the Government and Parliament of the day.

At the present time the subsection does all that we can—as we have to do—to secure that directly applicable Community law will have full effect in the United Kingdom. That is the basis of our policy. It is the basis of accession to the Communities on any terms and at any time. It is on that basis that I commend the subsection to the Committee.

Mr. Ronald King Murray

The Committee is grateful to the Solicitor-General for replying shortly to the debate. I hope to follow his lead.

So far as Divisions are concerned, perhaps it would be of assistance to the Committee if I indicated that the Opposition would wish to vote on Amendment No. 420 together with Amendment No. 313. Amendment No. 313 is just as much an Opposition Amendment, if the right hon. and learned Gentleman the Member for Hertfordshire, East (Sir D. Walker-Smith) will allow me, as is his Amendment. We reached the conclusion that this should be done. The right hon. and learned Gentleman happened to get to the Table Office before we were able to do so.

I would commend both these Amendments to the Committee. If it came to a legal match, perhaps Amendment No. 313 would get greater support in view of the fact that it is supported by all sides of the Committee.

I cannot reply in detail to what the Solicitor-General has said. It seems to me he has virtually conceded the debate against him. What was said from both sides of the Committee was to the effect that this subsection was not explicit and not clear. By developing the principle behind the subsection, rather than its wording, he has virtually conceded the justice of the criticisms we brought to bear. One is left asking why the meaty filling of this sandwich, which refers to subsection (1) as he admits, is concealed by the bread of subsection (2), the only subsection to which reference is made in subsection (4).

The Solicitor-General

I did not wish to give the impression—although I may have done so in the face of interruptions—that the middle part only referred to subsection (1). The alternative suggested by one of my hon. Friends would have done so. This refers to the full provisions of this subsection.

Mr. Murray

I was not in doubt about that. That is why I concentrated on the meaty filling. There is plenty of other filling. I was not bothered about the butter. I was after the other filling.

My hon. Friend the Member for Llanelly (Mr. Denzil Davies) spelt out with vigour and clarity the impact of the supremacy of European jurisprudence which necessarily follows from the provisions of subsection (4) of Clause 2 together with the provisions of subsection (1) of Clause 3. The Committee is indebted to him for that. In doing so he answered the defence of subsection (4) which has not been advanced from the Government side of the Committee but which was foreshadowed by the hon. and learned Member for Southport (Mr. Percival). We have not, unfortunately, heard him on that, but the defence was unnecessary because a greater concession was made by the Solicitor-General.

My hon. Friend the Member for Llanelly referred to the authority on the meaning of "enactment". I think perhaps he had in mind the case of Rathbone v. Bundock, reported in [1962] 2 Queen's Bench Division. If he looks at that he will find that the meaning is a little different from what he said. What the court was deciding was that the meaning depended on the context that it could include a regulation, and we have heard from the Solicitor-General that it is intended to do that in this context.

The Solicitor-General has fulfilled the worst fears of the right hon. Member for Wolverhampton, South-West (Mr. Powell) in dealing with the third limb of subsection (4). It now becomes clear that the argument goes far beyond what the right hon. Gentleman put forward to the Committee. It now appears that the words to which he attached importance, except as may be provided by any Act passed after this Act", are the sole reservation of parliamentary sovereignty, subject only to the general proposition which the Government have again put forward, that the Bill could be repealed but that repeal would be in the face of commitments to join the Community and would be an act of revolution in terms of international law.

It is on that point I wish to dwell. The question posed by the Solicitor-General was: Could Parliament repeal the Bill? He said that it could. That is the point of form. We want the point of substance which has been made by my hon. Friend the Member for Llanelly. If the majesty of European jurisprudence is brought to bear on the courts of this country, how can we be certain that if a Bill to repeal the present Bill did pass through the House of Commons the European Court of Justice in Luxembourg would regard that as a legal act of this Parliament? That court will be the ultimate arbiter. The question that should be posed is not: could this Parliament after the Bill is enacted repeal it? It should be: could this Parliament effectually and legally repeal it? That is the question which must be posed to the Committee.

It may well be that joining the Community imposes an obligation to commit suicide, but surely it does not impose an obligation to do so clumsily. The Government are seeking in this obscure provision of this obscure Bill to commit suicide, but they have made a botched job of it. They have tried to cut their throats and failed.

Mr. Percival

I rise only because the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) tempted me into doing so by referring to what I said. I adhere word for word to what I said. As the arguments have developed no one has seriously said that the subsection imposes any fetter on Parliament. There may be a diplomatic fetter. There may be good diplomatic and practical reasons for Parliament not to amend these provisions, but, as a matter of law, I adhere to the opinion I expressed, that there is nothing to prevent any subsequent Parliament from changing the provisions in any way it chooses expressly and specifically.

6.45 p.m.

That does not apply only to the ultimate safeguard of repealing the whole Act. That is one of the extravagant ideas that have been put forward today. What we are dealing with in this part of the Bill—I can hardly bring myself to use the word, but it seems to be the mode, as my hon. and learned Friend the Solicitor-General used it—is the modality. I prefer "mechanics". We all know that, upon whatever terms we enter the Common Market, it will be necessary for the Government to implement thereafter a good deal of Community law, and that that can be done either by Act of Parliament, which will be subject to the scrutinies of Second Reading, Committee and Third Reading, or by subordinate legislation. No one has ever suggested that it can all be done by Act of Parlia-

ment, which would overload the business of the House and in any case be unnecessary.

What remains entirely unfettered is the power of Parliament to alter the balance between those laws which have to be implemented by Act of Parliament and those which can be implemented by subordinate legislation. There is nothing whatever in these provisions which fetters in the slightest the freedom of Parliament to decide those important matters for itself. As I said before, there is nothing here, because there cannot be anything, which imposes a fetter in law upon the action of any future House of Commons or Parliament.

Question put, That the Amendment be made: —

The Committee divided: Ayes 268, Noes 283.

Division No. 214.] AYES [6.45 p.m.
Abse, Leo Davis, Terry (Bromsgrove) Hart, Rt. Hn. Judith
Allaun, Frank (Salford, E.) Deakins, Eric Hattersley, Roy
Allen, Scholefield de Freitas, Rt. Hn. Sir Geoffrey Healey, Rt. Hn. Denis
Archer, Peter (Rowley Regis) Dell, Rt. Hn. Edmund Hilton, W. S.
Armstrong, Ernest Dempsey, James Hooson, Emlyn
Ashley, Jack Doig, Peter Horam, John
Ashton, Joe Dormand, J. D. Houghton, Rt. Hn. Douglas
Atkinson, Norman Douglas, Dick (Stirlingshire, E.) Howell, Denis (Small Heath)
Bagier, Gordon A. T. Douglas-Mann, Bruce Huckfield, Leslie
Barnett, Guy (Greenwich) Driberg, Tom Hughes, Rt. Hn. Cledwyn (Anglesey)
Barnett, Joel (Heywood and Royton) Duffy, A. E. P. Hughes, Robert (Aberdeen, N.)
Baxter, William Dunn, James A. Hughes, Roy (Newport)
Benn, Rt. Hn. Anthony Wedgwood Dunnett, Jack Hunter, Adam
Bennett, James (Glasgow, Bridgeton) Edwards, Robert (Bilston) Hutchison, Michael Clark
Bidwell, Sydney Edwards, William (Merioneth) Irvine, Rt. Hn. Sir Arthur (Edge Hill)
Biffen, John Ellis, Tom Janner, Greville
Bishop, E. S. English, Michael Jay, Rt. Hn. Douglas
Blenkinsop, Arthur Evans, Fred Jeger, Mrs. Lena
Boardman, H. (Leigh) Ewing, Henry Jenkins, Hugh (Putney)
Body, Richard Faulds, Andrew Jennings, J. C. (Burton)
Booth, Albert Fell, Anthony John, Brynmor
Bottomley, Rt. Hn. Arthur Fernyhough, Rt. Hn. E. Johnson, Carol (Lewisham, S.)
Bradley, Tom Fisher,Mrs.Doris(B'ham.Ladywood) Johnson, James (K'ston-on-Hull, W.)
Brown, Bob (N'c'tle-upon-Tyne,W.) Fitch, Alan (Wigan) Johnson, Walter (Derby, S.)
Brown, Hugh D. (G'gow, Provan) Fitt, Gerard (Belfast, W.) Jones, Barry (Flint, E.)
Brown, Ronald (Shoreditch & F'bury) Fletcher, Raymond (Ilkeston) Jones, Dan (Burnley)
Buchan, Norman Fletcher, Ted (Darlington) Jones, Gwynoro (Carmarthen)
Buchanan, Richard (G'gow, Sp'burn) Foley, Maurice Jones, T. Alec (Rhondda, W.)
Butler, Mrs. Joyce (Wood Green) Foot, Michael Judd, Frank
Callaghan, Rt. Hn. James Ford, Ben Kaufman, Gerald
Campbell, I. (Dunbartonshire, W.) Forrester, John Kelley, Richard
Cant, R. B. Fraser, John (Norwood) Kerr, Russell
Carmichael, Neil Freeson, Reginald Kinnock, Neil
Carter, Ray (Birmingh'm, Northfield) Gilbert, Dr. John Lambie, David
Carter-Jones, Lewis (Eccles) Ginsburg, David (Dewsbury) Lamborn, Harry
Clark, David (Colne Valley) Golding, John Lamond, James
Cocks, Michael (Bristol, S.) Gordon Walker, Rt. Hn. P. C. Latham, Arthur
Cohen, Stanley Gourlay, Harry Leadbitter, Ted
Concannon, J. D. Grant, George (Morpeth) Lee, Rt. Hn. Frederick
Cox, Thomas (Wandsworth, C.) Grant, John D. (Islington, E.) Leonard, Dick
Crawshaw, Richard Griffiths, Eddie (Brightside) Lestor, Miss Joan
Cronin, John Griffiths, Will (Exchange) Lever, Rt. Hn. Harold
Crossman, Rt. Hn. Richard Hamilton, James (Bothwell) Lewis, Arthur (W. Ham, N.)
Cunningham, Dr. J. A. (Whitehaven) Hamilton, William (Fife, W.) Lewis, Ron (Carlisle)
Dalyell, Tam Hamling, William Lipton, Marcus
Davidson, Arthur Hannan, William (G'gow, Maryhill) Lomas, Kenneth
Davies, Denzil (Llanelly) Hardy, Peter Loughlin, Charles
Davies, Ifor (Gower) Harper, Joseph Lyon, Alexander W. (York)
Davis, Clinton (Hackney, C.) Harrison, Walter (Wakefield) Lyons, Edward (Bradford, E.)
Mabon, Dr. J. Dickson O'Malley, Brian Spearing, Nigel
McBride, Neil Oram, Bert Spriggs, Leslie
McCartney, Hugh Orbach, Maurice Stewart, Donald (Western Isles)
McElhone, Frank Oswald, Thomas Stoddart, David (Swindon)
McGuire, Michael Padley, Walter Stonehouse, Rt. Hn. John
Mackenzie, Gregor Paget, R. T. Strang, Gavin
Mackie, John Palmer, Arthur Strauss, Rt. Hn. G. R.
Mackintosh, John P. Pannell, Rt. Hn. Charles Summerskill, Hn. Dr. Shirley
Maclennan, Robert Parker, John (Dagenham) Swain, Thomas
McMaster, Stanley Parry, Robert (Liverpool, Exchange) Taverne, Dick
McMillan, Tom (Glasgow, C.) Pavitt, Laurie Thomas,Rt.Hn.George (Cardiff,W.)
McNamara, J. Kevin Peart, Rt. Hn. Fred Thomson, Rt. Hn. G. (Dundee, E.)
Maginnis, John E. Pendry, Tom Tinn, James
Mahon, Simon (Bootle) Pentland, Norman Tomney, Frank
Mallalieu, J. P. W. (Huddersfield, E.) Powell, Rt. Hn. J. Enoch Torney, Tom
Marks, Kenneth Prentice, Rt. Hn. Reg. Tuck, Raphael
Marquand, David Prescott, John Turton, Rt. Hn. Sir Robin
Marsden, F. Price, J. T. (Westhoughton) Varley, Eric G.
Marshall, Dr. Edmund Price, William (Rugby) Wainwright, Edwin
Marten, Neil Probert, Arthur Walden, Brian (B'm'ham, All Saints)
Mason, Rt. Hn. Roy Rankin, John Walker, Harold (Doncaster)
Meacher, Michael Rhodes, Geoffrey Walker-Smith, Rt. Hn. Sir Derek
Mellish, Rt. Hn. Robert Richard, Ivor Wallace, George
Mendelson, John Roberts, Albert (Normanton) Watkins, David
Mikardo, Ian Robertson, John (Paisley) Weitzman, David
Millan, Bruce Roderick, CaerwynE.(Br'c'n & R'dnor) Wellbeloved, James
Miller, Dr. M. S. Rodgers, William (Stockton-on-Tees) Wells, William (Walsall, N.)
Milne, Edward Roper, John White, James (Glasgow, Pollok)
Mitchell, R. C. (S'hampton, Itchen) Rose, Paul B. Whitehead, Phillip
Moate, Roger Ross, Rt. Hn. William (Kilmarnock) Whitlock, William
Molloy, William Rowlands, Ted Willey, Rt. Hn. Frederick
Molyneaux, James Sandelson, Neville Williams, Alan (Swansea, W.)
Morgan, Elystan (Cardiganshire) Sheldon, Robert (Ashton-under-Lyne) Williams, Mrs. Shirley (Hitchin)
Morris, Alfred (Wythenshawe) Shore, Rt. Hn. Peter (Stepney) Wilson, Alexander (Hamilton)
Morris, Charles R. (Openshaw) Short,Rt.Hn.Edward (N'c'tle-u-Tyne) Wilson, Rt. Hn. Harold (Huyton)
Morris, Rt. Hn. John (Aberavon) Silkin, Rt. Hn. John (Deptford) Wilson, William (Coventry, S.)
Moyle, Roland Silkin, Hn. S. C. (Dulwich) Woof, Robert
Mulley, Rt. Hn. Frederick Sillars, James
Murray, Ronald King Silverman, Julius TELLERS FOR THE AYES:
Oakes, Gordon Skinner, Dennis Mr. Ernest G. Perry and
Ogden, Eric Small, William Mr. Donald Coleman.
O'Halloran, Michael Smith, John (Lanarkshire, N.)
Adley, Robert Chapman, Sydney Foster, Sir John
Alison, Michael (Barkston Ash) Chataway, Rt. Hn. Christopher Fowler, Norman
Allason, James (Hemel Hempstead) Chichester-Clark, R. Fox, Marcus
Amery, Rt. Hn. Julian Churchill, W. S. Fry, Peter
Archer, Jeffrey (Louth) Clark, William (Surrey, E.) Galbraith, Hn. T. G.
Astor, John Clarke, Kenneth (Rushcliffe) Gardner, Edward
Atkins, Humphrey Clegg, Walter Gibson-Watt, David
Awdry, Daniel Cockeram, Eric Gilmour, Ian (Norfolk, C.)
Baker, Kenneth (St. Marylebone) Cooke, Robert Gilmour, Sir John (Fife, E.)
Balniel, Rt. Hn. Lord Coombs, Derek Glyn, Dr. Alan
Barber, Rt. Hn. Anthony Cordle, John Godber, Rt. Hn. J. B.
Batsford, Brian Corfield, Rt. Hn. Sir Frederick Goodhart, Philip
Beamish, Col. Sir Tufton Cormack, Patrick Goodhew, Victor
Bennett, Sir Frederic (Torquay) Costain, A. P. Gorst, John
Bennett, Dr. Reginald (Gosport) Critchley, Julian Gower, Raymond
Benyon, W. Crouch, David Grant, Anthony (Harrow, C.)
Berry, Hn. Anthony Crowder, F. P. Green, Alan
Biggs-Davison, John Davies, Rt. Hn. John (Knutsford) Grieve, Percy
Blaker, Peter d'Avigdor-Goldsmid, Sir Henry Grylls, Michael
Boardman, Tom (Leicester, S.W.) d'Avigdor-Goldsmid,Maj.-Gen. James Gummer, J. Selwyn
Boscawen, Robert Dean, Paul Gurden, Harold
Bossom, Sir Clive Deedes, Rt. Hn. W. F. Hall, Miss Joan (Keighley)
Bowden, Andrew Digby, Simon Wingfield Hall, John (Wycombe)
Braine, Sir Bernard Dixon, Piers Hall-Davis, A. G. F.
Bray, Ronald Dodds-Parker, Douglas Hamilton, Michael (Salisbury)
Brinton, Sir Tatton Drayson, G. B. Hannam, John (Exeter)
Brocklebank-Fowler, Christopher du Cann, Rt. Hn. Edward Harrison, Brian (Maldon)
Brown, Sir Edward (Bath) Dykes, Hugh Haselhurst, Alan
Bruce-Gardyne, J. Eden, Sir John Hastings, Stephen
Bryan, Sir Paul Edwards, Nicholas (Pembroke) Havers, Michael
Buchanan-Smith, Alick(Angus,N & M) Elliot, Capt. Walter (Carshalton) Hawkins, Paul
Buck, Antony Elliott, R. W. (N'c'tle-upon-Tyne, N.) Hayhoe, Barney
Burden, F. A. Emery, Peter Heseltine, Michael
Butler, Adam (Bosworth) Eyre, Reginald Hicks, Robert
Campbell, Rt.Hn.G.(Moray & Nairn) Fenner, Mrs. Peggy Higgins, Terence L.
Carlisle, Mark Fidler, Michael Hiley, Joseph
Carr, Rt. Hn. Robert Fisher, Nigel (Surbiton) Hill, John E. B. (Norfolk, S.)
Cary, Sir Robert Fletcher-Cooke, Charles Hill, James (Southampton, Test)
Channon, Paul Fookes, Miss Janet Holland, Philip
Holt, Miss Mary Miscampbell, Norman Shelton, William (Clapham)
Hordern, Peter Money, Ernle Simeons, Charles
Hornby, Richard Monks, Mrs. Connie Sinclair, Sir George
Hornsby-Smith.Rt.Hn.Dame Patricia Monro, Hector Skeet, T. H. H.
Howe, Hn. Sir Geoffrey (Reigate) Montgomery, Fergus Smith, Dudley (W'wick & L'mington)
Howell, Ralph (Norfolk, N.) More, Jasper Soref, Harold
Hunt, John Morgan, Geraint (Denbigh) Speed, Keith
Iremonger, T. L. Morgan-Giles, Rear-Adm. Spence, John
James, David Morrison, Charles Sproat, Iain
Jenkin, Patrick (Woodford) Mudd, David Stainton, Keith
Jessel, Toby Murton, Oscar Stanbrook, Ivor
Johnson Smith, G. (E. Grinstead) Nabarro, Sir Gerald Steel, David
Jones, Arthur (Northants, S.) Neave, Airey Stewart-Smith, Geoffrey (Belper)
Jopling, Michael Noble, Rt. Hn. Michael Stodart, Anthony (Edinburgh, W.)
Joseph, Rt. Hn. Sir Keith Normanton, Tom Stoddart-Scott, Col. Sir M.
Kaberry, Sir Donald Nott, John stokes, John
Kellett-Bowman, Mrs. Elaine Onslow, Cranley Stuttaford, Dr. Tom
Kershaw, Anthony Oppenheim, Mrs. Sally Tapsell, Peter
Kimball, Marcus Osborn, John Taylor, Sir Charles (Eastbourne)
King, Evelyn (Dorset, S.) Owen, Idris (Stockport, N.) Taylor, Frank (Moss Side)
King, Tom (Bridgwater) Page, Rt. Hn. Graham (Crosby) Taylor, Robert (Croydon, N.W.)
Kinsey, J. R. Page, John (Harrow, W.) Temple, John M.
Kirk, Peter Pardoe, John Thatcher, Rt. Hn. Mrs. Margaret
Kitson, Timothy Parkinson, Cecil Thomas, John Stradling (Monmouth)
Knight, Mrs. Jill Peel, John Thomas, Rt. Hn. Peter (Hendon, S.)
Knox, David Percival, Ian Thompson, Sir Richard (Croydon, S.)
Lambton, Lord Peyton, Rt. Hn. John Thorpe, Rt. Hn. Jeremy
Lamont, Norman Pike, Miss Mervyn Trafford, Dr. Anthony
Lane, David Pink, R. Bonner Trew, Peter
Langford-Holt, Sir John Price, David (Eastleigh) Tugendhat, Christopher
Legge-Bourke, Sir Harry Prior, Rt. Hn. J. M. L. van Straubenzee, W. R.
Le Marchant, Spencer Proudfoot, Wilfred Vaughan, Dr. Gerard
Lewis, Kenneth (Rutland) Pym, Rt. Hn. Francis Vickers, Dame Joan
Lloyd, Rt.Hn.Geoffrey(Sut'nC'dfield) Quennell, Miss J. M. Waddington, David
Lloyd, Ian (P'tsm'th, Langstone) Raison, Timothy Walder, David (Clitheroe)
Longden, Sir Gilbert Ramsden, Rt. Hn. James Walker, Rt. Hn. Peter (Worcester)
Loveridge, John Rawlinson, Rt. Hn. Sir Peter Walters, Dennis
Luce, R. N. Redmond, Robert Ward, Dame Irene
McAdden, Sir Stephen Reed, Laurance (Bolton, E.) Warren, Kenneth
MacArthur, Ian Rees, Peter (Dover) Weatherill, Bernard
McCrindle, R. A. Rees-Davies, W. R. Wells, John (Maidstone)
McLaren, Martin Renton, Rt. Hn. Sir David White, Roger (Gravesend)
Maclean, Sir Fitzroy Rhys Williams, Sir Brandon Wiggin, Jerry
Macmillan,Rt.Hn.Maurice (Farnham) Ridley, Hn. Nicholas Wilkinson, John
McNair-Wilson, Michael Ridsdale, Julian Winterton, Nicholas
McNair-wilson, Patrick (New Forest) Rippon, Rt. Hn. Geoffrey Wolrige-Gordon, Patrick
Maddan, Martin Roberts, Wyn (Conway) Wood, Rt. Hn. Richard
Madel, David Rodgers, Sir John (Sevenoaks) Woodhouse, Hn. Christopher
Marples, Rt. Hn. Ernest Rossi, Hugh (Hornsey) Woodnutt, Mark
Mather, Carol Rost, Peter Worsley, Marcus
Maude, Angus Royle, Anthony Wylie, Rt. Hn. N. R.
Maudling, Rt. Hn. Reginald St. John-Stevas, Norman Younger, Hn. George
Mawby, Ray Sandys, Rt. Hn. D.
Maxwell-Hyslop, R. J. Scott, Nicholas TELLERS FOR THE NOES:
Meyer, Sir Anthony Scott-Hopkins, James Mr. Tim Fortescue and
Mills, Peter (Torrington) Sharples, Richard Mr. Hamish Gray
Mills, Stratton (Belfast, N.) Shaw, Michael (Sc'b'gh & Whitby)

Question accordingly negatived.

Amendment proposed: No. 313, in page 3, line 40, leave out from 'Parliament' to 'but' in line 43.—[Sir D. Walker-Smith.]

Question put, That the Amendment be made: —

The Committee divided: Ayes 270. Noes 285.

Division No. 215.] AYES [7.0 p.m.
Abse, Leo Bishop, E. S. Carmichael, Neil
Allaun, Frank (Salford, E.) Blenkinsop, Arthur Carter, Ray (Birmingh'm, Northfield)
Allen, Scholefield Boardman, H. (Leigh) Carter-Jones, Lewis (Eccles)
Archer, Peter (Rowley Regis) Body, Richard Clark, David (Colne Valley)
Armstrong, Ernest Booth, Albert Cocks, Michael (Bristol, S.)
Ashley, Jack Bottomley, Rt. Hn. Arthur Cohen, Stanley
Ashton, Joe Bradley, Tom Concannon, J. D.
Atkinson, Norman Brown, Bob (N'c'tle-upon-Tyne,W.) Cox, Thomas (Wandsworth, C.)
Bagier, Gordon A. T. Brown, Hugh D. (G'gow, Provan) Crawshaw, Richard
Barnett, Guy (Greenwich) Brown, Ronald (Shoreditch & F'bury) Cronin, John
Barnett, Joel (Heywood and Royton) Buchan, Norman Crossman, Rt. Hn. Richard
Baxter, William Buchanan, Richard (G'gow, Sp'burn) Cunningham, Dr. J. A. (Whitehaven)
Benn, Rt. Hn. Anthony Wedgwood Butler, Mrs. Joyce (Wood Green) Dalyell, Tam
Bennett, James (Glasgow, Bridgeton) Callaghan, Rt. Hn. James Darling, Rt. Hn. George
Bidwell, Sydney Campbell, I. (Dunbartonshire, W.) Davidson, Arthur
Biffen, John Cant, R. B. Davies, Denzil (Llanelly)
Davies, Ifor (Gower) Jones, Dan (Burnley) Pavitt, Laurie
Davis, Clinton (Hackney, C.) Jones, Gwynoro (Carmarthen) Peart, Rt. Hn. Fred
Davis, Terry (Bromsgrove) Jones, T. Alec (Rhondda, W.) Pendry, Tom
Deakins, Eric Judd, Frank Pentland, Norman
de Freitas, Rt. Hn. Sir Geoffrey Kaufman, Gerald Powell, Rt. Hn. J. Enoch
Dell, Rt. Hn. Edmund Kelley, Richard Prentice, Rt. Hn. Reg.
Dempsey, James Kerr, Russell Prescott, John
Doig, Peter Kinnock, Neil Price, J. T. (Westhoughton)
Dormand, J. D. Lambie, David Price, William (Rugby)
Douglas, Dick (Stirlingshire, E.) Lamborn, Harry Probert, Arthur
Douglas-Mann, Bruce Lamond, James Rankin, John
Driberg, Tom Latham, Arthur Rhodes, Geoffrey
Duffy, A. E. P. Leadbitter, Ted Richard, Ivor
Dunn, James A. Lee, Rt. Hn. Frederick Roberts, Albert (Normanton)
Dunnett, Jack Leonard, Dick Robertson, John (Paisley)
Edwards, Robert (Bilston) Lestor, Miss Joan Roderick, Caerwyn E.(Br'c'n & R'dnor)
Edwards, William (Merioneth) Lever, Rt. Hn. Harold Rodgers, William (Stockton-on-Tees)
Ellis, Tom Lewis, Arthur (W. Ham, N.) Roper, John
English, Michael Lewis, Ron (Carlisle) Rose, Paul B.
Evans, Fred Lipton, Marcus Ross, Rt. Hn. William (Kilmarnock)
Ewing, Harry Lomas, Kenneth Rowlands, Ted
Fair, John Loughlin, Charles Sandelson, Neville
Faulds, Andrew Lyon, Alexander W. (York) Sheldon, Robert (Ashton-under-Lyne)
Fell, Anthony Lyons, Edward (Bradford, E.) Shore, Rt. Hn. Peter (Stepney)
Fernyhough, Rt. Hn. E. Mabon, Dr. J. Dickson Short,Rt.Hn.Edward (N 'c'tle-u-Tyne)
Fisher,Mrs.Doris(B'ham.Ladywood) McBride, Neil Silkln, Rt. Hn. John (Deptford)
Fitch, Alan (Wigan) McCartney, Hugh Silkin, Hn. S. C. (Dulwich)
Fitt, Gerard (Belfast, W.) McElhone, Frank Sillars, James
Fletcher, Raymond (Ilkeston) McGuire, Michael Silverman, Julius
Fletcher, Ted (Darlington) Mackenzie, Gregor Skinner, Dennis
Foley, Maurice Mackie, John Small, William
Foot, Michael Mackintosh, John P. Smith, John (Lanarkshire, N.)
Ford, Ben Maclennan, Robert Spearing, Nigel
Forrester, John McMaster, Stanley Spriggs, Leslie
Fraser, John (Norwood) McMillan, Tom (Glasgow, C.) Stewart, Donald (Western Isles)
Freeson, Reginald McNamara, J. Kevin Stoddart, David (Swindon)
Gilbert, Dr. John Maginnis, John E. Stonehouse, Rt. Hn. John
Ginsburg, David (Dewsbury) Mahon, Simon (Bootle) Strang, Gavin
Golding, John Mallalieu, J. P. W. (Huddersfield, E.) Strauss, Rt. Hn. G. R.
Gordon Walker, Rt. Hn. P. C. Marks, Kenneth Summerskill, Hn. Dr. Shirley
Gourlay, Harry Marquand, David Swain, Thomas
Grant, George (Morpeth) Marsden, F. Taverne, Dick
Grant, John D. (Islington, E.) Marshall, Dr. Edmund Thomas,Rt.Hn.George (Cardiff,W.)
Griffiths, Eddie (Brightside) Marten, Neil Thomas, Jeffrey (Abertillery)
Griffiths, Will (Exchange) Mason, Rt. Hn. Roy Thomson, Rt. Hn. G. (Dundee, E.)
Hamilton, James (Bothwell) Meacher, Michael Tinn, James
Hamilton, William (Fife, W.) Mellish, Rt. Hn. Robert Tomney, Frank
Hamling, William Mendelson, John Torney, Tom
Hannan, William (G'gow, Maryhill) Mikardo, Ian Tuck, Raphael
Hardy, Peter Millan, Bruce Turton, Rt. Hn. Sir Robin
Harper, Joseph Miller, Dr. M. S. Varley, Eric G.
Harrison, Walter (Wakefield) Milne, Edward Wainwright, Edwin
Hart, Rt. Hn. Judith Mitchell, R. C. (S'hampton, Itchen) Walden, Brian (B'm'ham, All Saints)
Hattersley, Roy Moate, Roger Walker, Harold (Doncaster)
Healey, Rt. Hn. Denis Molloy, William Walker-Smith, Rt. Hn. Sir Derek
Hilton, W. S. Molyneaux, James Wallace, George
Hooson, Emlyn Morgan, Elystan (Cardiganshire) Watkins, David
Horam, John Morris, Alfred (Wythenshawe) Weitzman, David
Houghton, Rt. Hn. Douglas Morris, Charles R. (Openshaw) Wellbeloved, James
Howell, Denis (Small Heath) Morris, Rt. Hn. John (Aberavon) Wells, William (Walsall, N.)
Huckfield, Leslie Moyle, Roland White, James (Glasgow, Pollok)
Hughes, Rt. Hn. Cledwyn (Anglesey) Mulley, Rt. Hn. Frederick Whitehead, Phillip
Hughes, Robert (Aberdeen, N.) Murray, Ronald King Whitlock, William
Hughes, Roy (Newport) Oakes, Gordon Willey, Rt. Hn. Frederick
Hunter, Adam Ogden, Eric Williams, Alan (Swansea, W.)
Hutchison, Michael Clark O'Halloran, Michael Williams, Mrs. Shirley (Hitchin)
Irvine,Rt.Hn.SirArthur(Edge Hill) O'Malley, Brian Wilson, Alexander (Hamilton)
Janner, Greville Oram, Bert Wilson, Rt. Hn. Harold (Huyton)
Jay, Rt. Hn. Douglas Orbach, Maurice Wilson, William (Coventry, S.)
Jeger, Mrs. Lena Oswald, Thomas Woof, Robert
Jenkins, Hugh (Putney) Padley, Walter
Jennings, J. C. (Burton) Paget, R. T. TELLERS FOR THE AYES:
John, Brynmor Palmer, Arthur
Johnson, James (K'ston-on-Hull, W., Pannell, Rt. Hn. Charles Mr. Ernest G. Perry and
Johnson, Walter (Derby, S.) Parker, John (Dagenham) Mr. Donald Coleman.
Jones, Barry (Flint, E.) Parry, Robert (Liverpool, Exchange)
Adley, Robert Atkins, Humphrey Beamish, Col. Sir Tufton
Alison, Michael (Barkston Ash) Awdry, Daniel Bennet, Sir Frederic (Torquay)
Allason, James (Hemel Hempstead) Baker, Kenneth (St. Marylebone) Bennet, Dr. Reginald (Gosport)
Amery, Rt. Hn. Julian Balniel, Rt. Hn. Lord Benyon, W.
Archer, Jeffrey (Louth) Barber, Rt. Hn. Anthony Berry, Hn. Anthony
Astor, John Batsford, Brain Biggs-Davison, John
Blaker, Peter Hannam, John (Exeter) Noble, Rt. Hn. Michael
Boardman, Tom (Leicester, S.W.) Harrison, Brian (Maldon) Normanton, Tom
Boscawen, Robert Haselhurst, Alan Nott, John
Bossom, Sir Clive Hastings, Stephen Onslow, Cranley
Bowden, Andrew Havers, Michael Oppenheim. Mrs. Sally
Braine, Sir Bernard Hawkins, Paul Osborn, John
Bray, Ronald Hayhoe, Barney Owen, Idris (Stockport, N.)
Brinton, Sir Tatton Heseltine, Michael Page, Rt. Hn. Graham (Crosby)
Brocklebank-Fowler, Christopher Hicks, Robert Page, John (Harrow, W.)
Brown, Sir Edward (Bath) Higgins, Terence L. Pardoe, John
Bruce-Gardyne, J. Hiley, Joseph Parkinson, Cecil
Bryan, Sir Paul Hill, John E. B. (Norfolk, S.) Peel, John
Buchanan-Smith,Alick (Angus,N & M) Hill, James (Southampton, Test) Percival, Ian
Buck, Antony Holland, Philip Peyton, Rt. Hn. John
Burden, F. A. Holt, Miss Mary Pike, Miss Mervyn
Butler, Adam (Bosworth) Hordern, Peter Pink, R. Bonner
Campbell, Rt.Hn.G.(Moray & Nairn) Hornby, Richard Price, David (Eastleigh)
Carlisle, Mark Hornsby-Smith,Rt.Hn.Dame Patricia Prior, Rt. Hn. J. M. L.
Carr, Rt. Hn. Robert Howe, Hn. Sir Geoffrey (Reigate) Proudfoot, Wilfred
Cary, Sir Robert Howell, Ralph (Norfolk, N.) Pym, Rt. Hn. Francis
Channon, Paul Hunt, John Quennell, Miss J. M.
Chapman, Sydney Iremonger, T. L. Raison, Timothy
Chataway, Rt. Hn. Christopher James, David Ramsden, Rt. Hn. James
Chichester-Clark, R. Jenkin, Patrick (Woodford) Rawlinson, Rt. Hn. Sir Peter
Churchill, W. S. Jessel, Toby Redmond, Robert
Clark, William (Surrey, E.) Johnson Smith, G. (E. Grinstead) Reed, Laurance (Bolton, E.)
Clarke, Kenneth (Rushcliffe) Jones, Arthur (Northants, S.) Rees, Peter (Dover)
Clegg, Walter Jopling, Michael Rees-Davies, W. R.
Cockeram, Eric Joseph, Rt. Hn. Sir Keith Renton, Rt. Hn. Sir David
Cooke, Robert Kaberry, Sir Donald Rhys Williams, Sir Brandon
Coombs, Derek Kellett-Bowman, Mrs. Elaine Ridley, Hn. Nicholas
Cordle, John Kershaw, Anthony Ridsdale, Julian
Corfield, Rt. Hn. Sir Frederick Kimball, Marcus Rippon, Rt. Hn. Geoffrey
Cormack, Patrick King, Evelyn (Dorset, S.) Roberts, Wyn (Conway)
Costain, A. P. King, Tom (Bridgwater) Rodgers, Sir John (Sevenoaks)
Critchley, Julian Kinsey, J. R. Rossi, Hugh (Hornsey)
Crouch, David Kirk, Peter Rost, Peter
Crowder, F. P. Kitson, Timothy Royle, Anthony
Davies, Rt. Hn. John (Knutsford) Knight, Mrs. Jill St. John-Stevas, Norman
d'Avigdor-Goldsmid, Sir Henry Knox, David Sandys, Rt. Hn. D.
d'Avigdor-Goldsmid,Maj.-Gen. James Lambton, Lord Scott, Nicholas
Dean, Paul Lamont, Norman Scott-Hopkins, James
Deedes, Rt. Hn. W. F. Lane, David Sharples, Richard
Digby, Simon Wingfield Langford-Holt, Sir John Shaw, Michael (Sc'b'gh & Whitby)
Dixon, Piers Legge-Bourke, Sir Harry Shelton, William (Clapham)
Dodds-Parker, Douglas Le Marchant, Spencer Simeons, Charles
Drayson, G. B. Lewis, Kenneth (Rutland) Sinclair, Sir George
du Cann, Rt. Hn. Edward Lloyd,Rt.Hn.Geoffrey(Sut'nC'dfield) Skeet, T. H. H.
Dykes, Hugh Lloyd, Ian (P'tsm'th, Langstone) Smith, Dudley (W'wick & L'mington)
Eden, Sir John Longden, Sir Gilbert Soref, Harold
Edwards, Nicholas (Pembroke) Loveridge, John Speed, Keith
Elliot, Capt. Walter (Carshalton) Luce, R. N. Spence, John
Elliott, R. W. (N'c'tle-upon-Tyne,N.) McAdden, Sir Stephen Sproat, Iain
Emery, Peter MacArthur, Ian Stainton, Keith
Eyre, Reginald McCrindle, R. A.. Stanbrook, Ivor
Fenner, Mrs. Peggy McLaren, Martin Steel, David
Fidler, Michael Maclean, Sir Fitzroy Stewart-Smith, Geoffrey (Belper)
Fisher, Nigel (Surbiton) Macmillan.Rt.Hn.Maurice (Farnham) Stodart, Anthony (Edinburgh, W.)
Fletcher-Cooke, Charles McNair-Wilson, Michael Stoddart-Scott, Col. Sir M.
Fookes, Miss Janet McNair-Wilson, Patrick (NewForest) Stokes, John
Foster, Sir John Maddan, Martin Stuttaford, Dr. Tom
Fowler, Norman Madel, David Tapsell, Peter
Fox, Marcus Marples, Rt. Hn. Ernest Taylor, Sir Charles (Eastbourne)
Fry, Peter Mather, Carol Taylor, Frank (Moss Side)
Galbraith, Hn. T. G. Maude, Angus Taylor, Robert (Croydon, N.W.)
Gardner, Edward Maudling, Rt. Hn. Reginald Tebbit, Norman
Gibson-Watt, David Mawby, Ray Temple, John M.
Gilmour, Ian (Norfolk, C.) Maxwell-Hyslop, R. J. Thatcher, Rt. Hn. Mrs. Margaret
Gilmour, Sir John (Fife, E.) Mayer, Sir Anthony Thomas, John Stradling (Monmouth)
Glyn, Dr. Alan Mills, Peter (Torrington) Thomas, Rt. Hn. Peter (Hendon, S.)
Godber, Rt. Hn. J. B. Mills, Stratton (Belfast, N.) Thompson, Sir Richard (Croydon, S.)
Goodhart, Philip Miscampbell, Norman Thorpe, Rt. Hn. Jeremy
Goodhew, Victor Money, Ernle Trafford, Dr. Anthony
Gorst, John Monks, Mrs. Connie Trew, Peter
Gower, Raymond Monro, Hector Tugendhat, Christopher
Grant, Anthony (Harrow, C.) Montgomery, Fergus van Straubenzee, W. R.
Green, Alan More, Jasper Vaughan, Dr. Gerard
Grieve, Percy Morgan, Geraint (Denbigh) Vickers, Dame Joan
Grylls, Michael Morgan-Giles, Rear-Adm. Waddington, David
Gummer, J. Selwyn Morrison, Charles Walder, David (Clitheroe)
Gurden, Harold Mudd, David Walker, Rt. Hn. Peter (Worcester)
Hall, Miss Joan (Keighley) Murton, Oscar Wall, Patrick
Hall, John (Wycombe) Nabarro, Sir Gerald Walters, Dennis
Hall-Davis, A. G. F. Neave, Airey Ward, Dame Irene
Hamilton, Michael (Salisbury)
Warren, Kenneth Winterton, Nicholas Wylie, Rt. Hn. N. R.
Weatherill, Bernard Wolrige-Gordon, Patrick Younger, Hn. George
Wells, John (Maidstone) Wood, Rt. Hn. Richard TELLERS FOR THE NOES:
White, Roger (Gravesend) Woodhouse, Hn. Christopher Mr. Tim Fortescue and
Wiggin, Jerry Woodnutt, Mark Mr. Hamish Gray.
Wilkinson, John Worsley, Marcus

Question accordingly negatived.

Mr. Peter Shore (Stepney)

I beg to move Amendment No. 426, in page 3, line 46, at end insert: (5) Where, in regard to any determination of any of the Communities or their institutions or organs giving rise to rights or obligations within the meaning of subsections (1), (2), or (3) of this section, or giving rise to enactment within the meaning of subsection (4) of this section, the consent of the United Kingdom is withheld on the ground that a vital national interest of the United Kingdom is involved, the said determination, if still proceeded with, shall not apply to or take effect in the United Kingdom. We have rather less time to consider this Amendment than is normally available in an Adjournment debate on some relatively minor matter which we can raise with Ministers every day of the week. The matter I am putting forward is a major one and a test of the Government's intentions.

What we are seeking to introduce into the arrangements of the Bill is no more than the Government have claimed in every major debate on the Common Market—that we have the right of veto when, in our judgment, our vital national interest is involved or threatened by a Community decision. Clearly this is a matter of major importance.

We have been dealing in Clause 2 with the powers of the Community to make laws and impose taxes on the British people. That was the essence of Clause 2(1) and (3). We have also covered the Government's right to issue Orders in Council to give effect to Community directives and if necessary to change existing Statutes which stand in the way. That is what subsections (2) and (4) have been about.

I say this because it is right that, when the main powers of the Community have been established in earlier provisions, we should now interpose the one serious countervailing power which the Government claim we would possess—the right of veto where our major national interest is involved. That is what our Amendment sets out to do.

7.15 p.m.

I declare myself a sceptic about the existence of the right of veto, the area in which it could play a part if it existed and the potential benefit of the use of the so-called national veto. But no such scepticism is open to the Government. They have invested very heavily in this device. It of course played an essential part in their presentation of the terms of entry. We need not go into detail over that again, but on most of the issues where the House and the country have been most unhappy, the Government have sought to reassure their critics by claiming that all will be well because, at the end of the various transitional periods, when new arrangements have to be agreed, the Government will get good terms under the threat of using our national veto.

Second, the Government have invested heavily in the veto in order to make just a little less unacceptable the massive transfer of power from this House of Commons to the European institutions which is involved in the various parts of Clause 2. We have asserted, for instance, under subsection (1) that laws could be made without regard to the wishes of the House of Commons or the British people. The Government's reply has been roughly, "Yes, we admit the danger, but what we are looking for—this is why we put forward this rather belated proposal for an ad hoc committee—is a way of consulting Parliament at the draft stage of a Community law. If it became clear to us that Parliament was strongly opposed to a particular proposal, then inside the Council of Ministers we could exercise the right of veto".

So there can be no doubt just how important a place in the Government's thinking this vital national interest veto occupies. That being so, it is important that we should look with some care at this device and seek to ask and get answered certain questions about it. My first question is whether this device exists at all.

It does not exist in the Bill. That is the reason for our Amendment. But, more important, the alleged national veto does not exist in the Treaty of Accession either. It is not the case that that treaty has nothing to say about decision-making generally inside the enlarged Community. It has a great deal to say about the position of the new institutions or the changed institutions, about how many votes are needed in the Council of Ministers and on what occasions decisions should be taken either by a majority vote or by unanimous agreement.

In all this, the treaties of accession follow the provisions of the Treaty of Rome itself, which carefully lays down the propervoting formula to be used on the different matters that it covers. So does the right of veto exist? Clearly, not in the treaty documents. The only evidence that can be adduced of its existence is the famous dispute which arose between France and the other five in 1965.

That dispute was patched up in January, 1966, in Luxembourg, when the Council of Ministers, in the famous phrase, agreed to disagree. How they did this is of some importance to the Committee. The statement which appeared after that meeting said: The French delegation considers that, where very important interests are at stake, the discussion must be continued until unanimous agreement is reached. As for the other five, they simply recorded the fact that they noted that there is a divergence of view on what should be done in the event of failure to reach complete agreement". So, to the extent that France believes that the veto exists, it does exist. However, the other five clearly do not share this view.

But it is also clear that this doctrine, held as it is by one of the Six and expressed as it has been in a Council statement, has no other foundation, so far as I can judge, in the practice of the Community, and certainly not in the law. In other words, it has not become the subject of any amendment to the Treaty of Rome or to any other treaties. Nor has the claim to a national interest veto been allowed to interfere with any of the judicial processes of the Community, which have, of course, continued to be operated throughout the period since 1966.

I turn to a second and related question. What are the areas in which this very thin national veto can be deployed? If we were to believe the Government, it could be used to stop virtually anything of which they disapproved in the future. But that is not the reality of the situation. I can do no better than to urge those hon. Members on both sides of the Committee who have invested everything in the right of a national veto to look again very carefully at the text of the Luxembourg accord. It relates here the particularly circumstances in which France claimed national interest rights and the other five, as it were, agreed to disagree about them: Where in the case of decisions which may be taken by majority vote on the proposal of the Commission, very important interests of one or more partners are at stake. The importance of those words is that if they are properly examined it is seen straight away that they leave out two categories of decision which are not covered by the formula, "Where on the proposal of the Commission decisions are to be taken by majority vote". Those are two important categories. The first is where the decision is to be taken not by the Council of Ministers but by the Commission, about which I shall speak shortly. The second is that this form of words excludes all those matters which have already been agreed and are part of the policies of the Community. Clearly one cannot veto the continuation of laws and policies which can be changed only by either majority or unanimous voting.

With these considerations, I shall look very briefly at how far this rather precariously based alleged national veto power can help us in the future. It is not very comforting. In the negotiations we remember all the anxieties about New Zealand, Commonwealth sugar and the fisheries agreement. All the arrangements made were derogations from the existing Community law. When the derogations expire, as they will in 1974, 1977 and 1982, the derogations end but the Community law goes on. That is a fact. Those derogations could be renewed, in full or in part, only if there was a majority or a unanimous decision to that effect. That is the point. So there is no veto operating on our behalf. The veto operates on the side of the continuation of those underlying arrangements from which we have sought and obtained temporary derogations.

One other matter of considerable importance, which has been raised previously, is regional policy under Articles 92 and 93. The claim that we shall be able to assert our will on regional policy matters is incorrect. It is incorrect because Article 92 of the treaty gives the Commission powers in relation to the operation of State aids for regional purposes, and if a State objects to the Commission's decision it can go, under Article 93, to the European Court of Justice—as some have gone—or alternatively it can seek a political remedy in the Council of Ministers which, if it agrees unanimously that the State should continue to operate its particular State aid against the judgment of the Commission, can then authorise that State to do so. But once again, the method by which this most important decision is to be taken does not allow for the operation of a national veto in the way that hon. Gentlemen on the Government side believe and their Front Bench leaders and Ministers have given the country and the House to understand.

I come to the last part of my submission on this matter, and perhaps the most important part of all. The point that seems to have eluded so many people about the alleged national veto is this. While the past cannot be changed, for obvious reasons, by a veto, but can be changed only by a unanimous agreement or, in certain cases, by majority vote, where the veto can operate is on new policies in the future. That is why, in other words, we cannot look optimistically for changes in the agricultural policy of the Six, because it is an existing and continuing policy which we have no right to veto. But there are matters on which the Community might develop new policies of benefit to us, such as common industrial policies or, in certain circumstances, Community-financed regional policies. These can come about only if there is unanimity. In other words, the power of veto will lie in the hands of those who may not wish to see a tilt in the balance of advantage, which is at present so heavily against this country, through the introduction of new policies which would swing it back in our favour. Certainly this is a predicament we face.

When the Prime Minister returned flushed, as he thought, with success from his weekend in the Elysée over a year ago he announced that he found himself in total agreement with the thinking of the President of France about future decision-making in the Community. The Prime Minister was prepared to accept that nothing that had already been agreed should be changed and that therefore, on that, unanimity would be required, with great benefit to France. But as for the future he accepted the French President's view that the introduction of new policies which might conceivably be of benefit to us should be subject to a veto, particularly a French veto. I found it difficult to understand why the right hon. Gentleman had so much self-satisfaction in the report he gave to the House and to the country. It was certainly not justified.

Returning to the Amendment, I put my question to the right hon. and learned Gentleman straight away. The Government must resolve this matter. Will they accept the Amendment or will they themselves introduce an Amendment which is substantially similar? Time is short, and the right hon. and learned Gentleman does not need to speak. He can get away with it if he is prepared to nod. If he is prepared to nod that he will accept the introduction of the Amendment, we shall be very grateful to him.

Let me encourage the right hon. and learned Gentleman a little more. I have emphasised that the words used in our Amendment do nothing more than introduce the great claim that the Government have made at every stage of the negotiations. No more than that do we seek to do; to put into the Bill what the Government proclaimed to the whole country. That is what we ask of them. If they have any doubt, or if the right hon. and learned Gentleman has any doubt about his ability to do this, let me remind him of paragraph 29 of the July White Paper, which says: On a question where a Government considers that vital national interests are involved, it is established that the decision should be unanimous. So there is no barrier here to the right hon. and learned Gentleman's assent. To encourage him even more, the White Paper continues: All the countries concerned recognise that an attempt to impose a majority view in a case where one or more members consider their vital interests to be at stake would imperil the very fabric of the Community. Clearly the right hon. and learned Gentleman would not even offend the partners of this country or our would-be partners in the Community if he were willing to accept the Amendment, as I hope he will.

I realise that I am leaving the right hon. and learned Gentleman only two minutes in which to indicate the quality of his assent to the Amendment, which I am glad to recommend.

The Chancellor of the Duchy of Lancaster (Mr. Geoffrey Rippon)

As the then Prime Minister, now the Leader of the Opposition, said on 17th November, 1966: The Luxembourg compromise is not part of the treaty, but it is of the greatest importance to anyone who seeks to examine the way in which the Community, with or without Britain, is likely to operate in future."—[Official Report, 17th November, 1966; Vol. 736, c. 762.] This is the legal position. The purpose of the Bill is to give effect to the changes in our domestic law which are required to give effect to our legal obligations under the treaty.

We had a very full debate on this matter on 16th December last year, and we have gone into all these matters over and over again. For the very brief reason I have given, it is clearly inappro-

priate that the Amendment should be accepted.

Mr. R. T. Paget (Northampton)

Before the right hon. and learned Gentleman sits down will he say whether he is aware that we are altering the laws of England? Whether or not the undertaking is performed, if such a resolution is passed at Brussels it becomes part of the law of England. It is not the intention that it should be. Why cannot we have in the Bill something that will provide that the law of England shall be as he promised and as he put in his White Paper? That is all that is being asked.

Mr. Shore

It is clear that the right hon. and learned Gentleman finds no real difficulty with the substance of the Amendment, but he thinks that it is not actually necessary. Surely this is a good reason for him to accept it.

Mr. Rippon

It would be wrong to give legal effectto something which is not part of the treaty. We cannot give internal legal effect to a state of affairs which has not been defined in the treaty. The Leader of the Opposition has explained all this perfectly.

It being half-past Seven o'clock, The Chairman proceeded, pursuant to Order [2nd May], to put forthwith the Question already proposed from the Chair.

Question put, That the Amendment be made: —

The Committee divided: Ayes 273, Noes 288.

Division No. 216.] AYES [7.30 p.m.
Abse, Leo Buchanan, Richard (G'gow,Sp'burn) Dell, Rt. Hn. Edmund
Allaun, Frank (Salford, E.) Butler, Mrs. Joyce (Wood Green) Dempsey, James
Allen, Scholefield Callaghan, Rt. Hn. James Doig, Peter
Archer, Peter (Rowley Regis) Campbell, I. (Dunbartonshire, W.) Dormand, J. D.
Armstrong, Ernest Cant, R. B. Douglas, Dick (Stirlingshire, E.)
Ashley, Jack Carmichael, Neil Douglas-Mann, Bruce
Ashton, Joe Carter, Ray (Birmingh'm, Northfield) Driberg, Tom
Atkinson, Norman Carter-Jones, Lewis (Eccles) Duffy, A. E. P.
Bagier, Gordon A. T. Clark, David (Colne Valley) Dunn, James A.
Barnett, Guy (Greenwich) Cocks, Michael (Bristol, S.) Dunnett, Jack
Barnett, Joel (Heywood and Royton) Cohen, Stanley Edwards, Robert (Bilston)
Baxter, William Concannon, J. D. Edwards, William (Merioneth)
Benn, Rt. Hn. Anthony Wedgwood Cox, Thomas (Wandsworth, C.) Ellis, Tom
Bennett, James (Glasgow, Bridgeton) Crawshaw, Richard English, Michael
Bidwell, Sydney Cronin, John Evans, Fred
Biffen, John Crossman, Rt. Hn. Richard Ewing, Henry
Bishop, E. S. Cunningham, Dr. J. A. (Whitehaven) Faulds, Andrew
Blenkinsop, Arthur Dalyell, Tam Fell, Anthony
Boardman, H. (Leigh) Darling, Rt. Hn. George Fernyhough, Rt. Hn. E.
Body, Richard Davidson, Arthur Fisher, Mrs. Doris(B'ham,Ladywood)
Bottomley, Rt. Hn. Arthur Davies, Denzil (Llanelly) Fitch, Alan (Wigan)
Bradley, Tom Davies, Ifor (Gower) Fitt, Gerard (Belfast, W.)
Brown, Bob (N'c'tle-upon-Tyne, W.) Davis, Clinton (Hackney, C.) Fletcher, Raymond (Ilkeston)
Brown, Hugh D. (G'gow, Provan) Davis, Terry (Bromsgrove) Fletcher, Ted (Darlington)
Brown, Ronald (Shoreditch & F'bury) Deakins, Eric Foley, Maurice
Buchan, Norman de Freites, Rt. Hn. Sir Geoffrey Foot, Michael
Ford, Ben Loughlin, Charles Rankin, John
Forrester, John Lyon, Alexander W. (York) Reed, D. (Sedgefield)
Fraser, John (Norwood) Lyons, Edward (Bradford, E.) Rhodes, Geoffrey
Freeson, Reginald Mabon, Dr. J. Dickson Richard, Ivor
Gilbert, Dr. John McBride, Neil Roberts, Albert (Normanton)
Ginsburgh, David (Dewsbury) McCartney, Hugh Robertson, John (Paisley)
Golding, John McElhone, Frank Roderick, Caerwyn E.(Br'c'n & R'dnor)
Gordon Walker, Rt. Hn. P. C. McGuire, Michael Rodgers, William (Stockton-on-Tees)
Gourlay, Harry Mackenzie, Gregor Roper, John
Grant, George (Morpeth) Mackie, John Rose, Paul B.
Grant, John D. (Islington, E.) Mackintosh, John P. Ross, Rt. Hn. William (Kilmarnock)
Griffiths, Eddie (Brightside) Maclennan, Robert Rowlands, Ted
Griffiths, Will (Exchange) McMaster, Stanley Sandelson, Neville
Hamilton, James (Bothwell) McMillan, Tom (Glasgow, C.) Sheldon, Robert (Ashton-under-Lyne)
Hamilton, William (Fife, W.) McNamara, J. Kevin Shore, Rt. Hn. Peter (Stepney)
Hamling, William Maginnis, John E. Short,Rt.Hn.Edward(N'c'tle-u-Tyne)
Hannan, William (G'gow, Maryhill) Mahon, Simon (Bootle) Silkin, Rt. Hn. John (Deptford)
Hardy, Peter Mallalieu, J. P. W. (Huddersfield, E.) Silkin, Hn. S. C. (Dulwich)
Harrison, Walter (Wakefield) Marks, Kenneth Sillars, James
Hart, Rt. Hn. Judith Marquand, David Silverman, Julius
Hattersley, Roy Marsden, F. Skinner, Dennis
Healey, Rt. Hn. Denis Marshall, Dr. Edmund Small, William
Heffer, Eric S. Marten, Neil Smith, John (Lanarkshire, N.)
Hilton, W. S. Mason, Rt. Hn. Roy Spearing, Nigel
Hooson, Emlyn Meacher, Michael Spriggs, Leslie
Horam, John Mellish, Rt. Hn. Robert Stallard, A. W.
Houghton, Rt. Hn. Douglas Mendelson, John Stewart, Donald (Western Isles)
Howell, Denis (Small Heath) Mikardo, Ian Stoddart, David (Swindon)
Huckfield, Leslie Millan, Bruce Stonehouse, Rt. Hn. John
Hughes, Rt. Hn. Cledwyn (Anglesey) Miller, Dr. M. S. Strang, Gavin
Hughes, Robert (Aberdeen, N.) Milne, Edward Strauss, Rt. Hn. G. R.
Hughes, Roy (Newport) Mitchell, R. C. (S'hampton, Itchen) Summerskill, Hn. Dr. Shirley
Hunter, Adam Moate, Roger Swain, Thomas
Hutchison, Michael Clark Molloy, William Taverne, Dick
Irvine,Rt.Hn.SirArthur(Edge Hill) Molyneaux, James Thomas,Rt.Hn.George(Cardiff,W.)
Janner, Greville Morgan, Elystan (Cardiganshire) Thomas, Jeffrey (Abertillery)
Jay, Rt. Hn. Douglas Morris, Alfred (Wythenshawe) Thomson, Rt. Hn. G. (Dundee, E.)
Jeger, Mrs. Lena Morris, Charles R. (Openshaw) Tinn, James
Jenkins, Hugh (Putney) Morris, Rt. Hn. John (Aberavon) Tomney, Frank
Jennings, J. C. (Burton) Moyle, Roland Torney, Tom
John, Brynmor Mulley, Rt. Hn. Frederick Tuck, Raphael
Johnson, Carol (Lewisham, S.) Murray, Ronald King Turton, Rt. Hn. Sir Robin
Johnson, James (K'ston-on-Hull, W.) Oakes, Gordon Varley, Eric G.
Johnson, Walter (Derby, S.) Ogden, Eric Wainwright, Edwin
Jones, Barry (Flint, E.) O'Halloran, Michael Walden, Brian (B'm'ham, All Saints)
Jones, Dan (Burnley) O'Malley, Brian Walker, Harold (Doncaster)
Jones, Gwynoro (Carmarthen) Oram, Bert Walker-Smith, Rt. Hn. Sir Derek
Jones, T. Alec (Rhondda, W.) Orbach, Maurice Wallace, George
Judd, Frank Orme, Stanley Watkins, David
Kaufman, Gerald Oswald, Thomas Weitzman, David
Kelley, Richard Padley, Walter Wellbeloved, James
Kerr, Russell Paget, R. T. Wells, William (Walsall, N.)
Kinnock, Neil Palmer, Arthur White, James (Glasgow, Pollok)
Lambie, David Panned, Rt. Hn. Charles Whitehead, Phillip
Lamborn, Harry Parker, John (Dagenham) Whitlock, William
Lamond, James Parry, Robert (Liverpool, Exchange) Wiley, Rt. Hn. Frederick
Latham, Arthur Pavitt, Laurie Williams, Alan (Swansea, W.)
Leadbitter, Ted Peart, Rt. Hn. Fred Williams, Mrs. Shirley (Hitchin)
Lee, Rt. Hn. Frederick Pendry, Tom Wilson, Alexander (Hamilton)
Leonard, Dick Pentland, Norman Wilson, Rt. Hn. Harold (Huyton)
Lestor, Miss Joan Perry, Ernest G. Wilson, William (Coventry, S.)
Lever, Rt. Hn. Harold Powell, Rt. Hn. J. Enoch Woof, Robert
Lewis, Arthur (W. Ham, N.) Prentice, Rt. Hn. Reg.
Lewis, Ron (Carlisle) Prescott, John TELLERS FOR THE AYES:
Lipton, Marcus Price, J. T. (Westhoughton)
Lomas, Kenneth Price, William (Rugby) Mr. Joseph Harper and
Probert, Arthur Mr. Donald Coleman.
Adley, Robert Bennett, Dr. Reginald (Gosport) Bruce-Gardyne, J.
Alison, Michael (Barkston Ash) Benyon, W. Bryan, Sir Paul
Allason, James (Hemel Hempstead) Berry, Hn. Anthony Buchanan-Smith, Alick(Angus,N & M)
Amery, Rt. Hn. Julian Biggs-Davison, John Buck, Antony
Archer, Jeffrey (Louth) Blaker, Peter Burden, F. A.
Astor, John Boardman, Tom (Leicester, S.W.) Butler, Adam (Bosworth)
Atkins, Humphrey Boscawen, Robert Campbell, Rt.Hn.G.(Moray & Nairn)
Awdry, Daniel Bossom, Sir Clive Carlisle, Mark
Baker, Kenneth (St. Marylebone) Bowden, Andrew Carr, Rt. Hn. Robert
Balniel, Rt. Hn. Lord Braine, Sir Bernard Cary, Sir Robert
Barber, Rt. Hn. Anthony Bray, Ronald Channon, Paul
Batsford, Brian Brinton, Sir Tatton Chapman, Sydney
Beamish, Col. Sir Tufton Brocklebank-Fowler, Christopher Chataway, Rt. Hn. Christopher
Bennett, Sir Frederic (Torquay) Brown, Sir Edward (Bath) Chichester-Clark, R.
Churchill, W. S. Iremonger, T. L. Pym, Rt. Hn. Francis
Clark, William (Surrey, E.) James, David Quennell, Miss J. M.
Clegg, Walter Jenkin, Patrick (Woodford) Raison, Timothy
Cockeram, Eric Jessel, Toby Ramsden, Rt. Hn. James
Cooke, Robert Johnson Smith, G. (E. Grinstead) Rawlinson, Rt. Hn. Sir Peter
Coombs, Derek Jones, Arthur (Northerns, S.) Redmond, Robert
Cooper, A. E. Jopling, Michael Reed, Laurance (Bolton, E.)
Cordle, John Joseph, Rt. Hn. Sir Keith Rees, Peter (Dover)
Corfield, Rt. Hn. Sir Frederick Kaberry, Sir Donald Rees-Davies, W. R.
Cormack, Patrick Kellett-Bowman, Mrs Elaine Renton, Rt. Hn. Sir David
Costain, A. P. Kershaw, Anthony Rhys Williams, Sir Brandon
Critchley, Julian Kimball, Marcus Ridley, Hn. Nicholas
Crouch, David King, Evelyn (Dorset, S.) Ridsdale, Julian
Crowder, F. P. King, Tom (Bridgwater) Rippon, Rt. Hn. Geoffrey
Davies, Rt. Hn. John (Knutsford) Kinsey, J. R. Roberts, Rt. Hn. Goronwy (Caernarvon)
d'Avigdor-Goldtmid, Sir Henry Kirk, Peter Rodgers, Sir John (Sevenoaks)
d' Avigdor-Goldsmid, Maj.-Gen. James Kitson, Timothy Rossi, Hugh (Hornsey)
Dean, Paul Knight, Mrs. Jill Rost, Peter
Deedes, Rt. Hn. W. F. Knox, David Royle, Anthony
Digby, Simon Wingfield Lambton, Lord St. John-Stevas, Norman
Dixon, Piers Lamont, Norman Sandys, Rt. Hn. D.
Dodds-Parker, Douglas Lane, David Scott, Nicholas
Drayson, G. B. Langford-Holt, Sir John Scott-Hopkins, James
du Cann, Rt. Hn. Edward Legge-Bourke, Sir Harry Sharples, Richard
Dykes, Hugh Le Merchant, Spencer Shaw, Michael (Sc'b'gh & Whitby)
Eden, Sir John Lewis, Kenneth (Rutland) Shelton, William (Clapham)
Edwards, Nicholas (Pembroke) Lloyd,Rt.Hn.Geoffrey(Sut'nC'dfield) Simeons, Charles
Elliot, Capt. Walter (Carshalton) Lloyd, Ian (P'tsm'th, Langstone) Sinclair, sir George
Elliott, R. W. (N'c'tle-upon-Tyne,N.) Longden, Sir Gilbert Skeet, T. H. H.
Emery, Peter Loveridge, John Smith, Dudley (W'wick & L'mington.)
Eyre, Reginald Luce, R. N. Soref, Harold
Fenner, Mrs. Peggy McAdden, Sir Stephen Speed, Keith
Fidler, Michael MacArthur, Ian Spence, John
Fisher, Nigel (Surbiton) McCrindle, R. A. Sproat, Iain
Fletcher-Cooke, Charles McLaren, Martin Stainton, Keith
Fookes, Miss Janet Maclean, Sir Fitzroy Stanbrook, Ivor
Fortescue, Tim Macmillan.Rt.Hn.Maurice (Farnham) Steel, David
Foster, Sir John McNair-wilson, Michael Stewart-Smith, Geoffrey (Belper)
Fowler, Norman McNair-Wilson, Patrick (NewForest) Stodart, Anthony (Edinburgh, W.)
Fry, Peter Maddan, Martin Stoddart-Scott, Col. Sir M.
Galbraith, Hn. T. G. Madel, David Stokes, John
Gardner, Edward Marples, Rt. Hn. Ernest Stuttaford, Dr. Tom
Gibson-Watt, David Mather, Carol Tapsell, peter
Gilmour, Ian (Norfolk, C.) Maude, Angus Taylor, Sir Charles (Eastbourne)
Gilmour, Sir John (Fife, E.) Maudling, Rt. Hn. Reginald Taylor, Frank (Moss Side)
Glyn, Dr. Alan Mawby, Ray Taylor, Robert (Croydon, N.W.)
Godber, Rt. Hn. J. B. Maxwell-Hyslop, R. J. Tebbit, Norman
Goodhart, Philip Meyer, Sir Anthony Temple, John M.
Goodhew, Victor Mills, Peter (Torrington) Thatcher, Rt. Hn. Mrs. Margaret
Gorst, John Mills, Stratton (Belfast, N.) Thomas, John Stradling (Monmouth)
Gower, Raymond Miscampbell, Norman Thomas, Rt. Hn. Peter (Hendon, S.)
Grant, Anthony (Harrow, C.) Mitchell, David (Basingstoke) Thompson, Sir Richard (Croydon. S.)
Gray, Hamish Money, Ernle Thorpe, Rt. Hn. Jeremy
Green, Alan Monks, Mrs. Connie Trafford, Dr. Anthony
Grieve, Percy Monro, Hector Trew, Peter
Grylls, Michael Montgomery, Fergus Tugendhat, Christopher
Gummer, J. Selwyn More, Jasper van Straubenzee, W. R.
Gurden, Harold Morgan, Geraint (Denbigh) Vaughan, Dr. Gerard
Hall, Miss Joan (Keighley) Morgan-Giles, Rear-Adm. Vickers, Dame Joan
Hall, John (Wycombe) Morris, Charles R. (Openshaw) Waddington, David
Hall-Davis, A. G. F. Mudd, David Walder, David (Clitheroe)
Hamilton, Michael (Salisbury) Murton, Oscar Walker, Rt. Hn. Peter (Worcester)
Hannam, John (Exeter) Nabarro, Sir Gerald Wall, Patrick
Harrison, Brian (Maldon) Neave, Alrey Walters, Dennis
Haselhurst, Alan Noble, Rt. Hn. Michael Ward, Dame Irene
Hastings, Stephen Normanton, Tom Warren, Kenneth
Havers, Michael Nott, John Weatherill, Bernard
Hawkins, Paul Onslow, Cranley Wells, John (Maidstone)
Hayhoe, Barney Oppenheim, Mrs. Sally White, Roger (Gravesend)
Heseltine, Michael Osborn, John Wiggin, Jerry
Hicks, Robert Owen, Idris (Stockport, N.) Wilkinson, John
Higgins, Terence L. Page, Rt. Hn. Graham (Crosby) Winterton, Nicholas
Hiley, Joseph Page, John (Harrow. W.) Wolrige-Gordon, Patrick
Hill, John E. B. (Norfolk, S.) Pardoe, John Wood, Rt. Hn. Richard
Hill, James (Southampton, Test) Parkinson, Cecil Woodhouse, Hn. Christopher
Holland, Philip Peel, John Woodnutt, Mark
Holt, Miss Mary Percival, Ian Worsley, Marcus
Hordern, Peter Peyton, Rt. Hn. John Wylie, Rt. Hn. N. R.
Hornby, Richard Pike, Miss Mervyn Younger, Hn. George
Hornsby-Smith.Rt.Hn.Dame Patricia Pink, R. Bonner
Howe, Hn. Sir Geoffrey (Reigate) Pounder, Rafton TELLERS FOR THE NOES:
Howell, Ralph (Norfolk, N.) Price, David (Eastleigh)
Hunt, John Prior, Rt. Hon. J. M. L. Mr. Marcus Fox and Mr. Kenneth Clarke.
Proudfoot, Wilfred

Question accordingly negatived.

Mr. J. C. Jennings (Burton)

I beg to move Amendment No. 253, in page 4, line 1, leave out subsection (5).

The Temporary Chairman

With this Amendment we are to discuss Amendment No. 349, in line 9, after 'include', insert: 'the Secretary of State for Northern Ireland or'.

Mr. Jennings

This is an exploratory Amendment, a probing and proving Amendment. The word "proving" is a new one on me. But it has been used upstairs in the Committee considering the Finance Bill quite a lot in the past 2½ weeks.

The purpose of the Amendment is to find out the Government's intentions with regard to subsectiton (5). Necessarily, this will be a short speech because the details of the subsectiton will no doubt be debated when we come to Schedule 2. But it is necessary to try to explain in simple lay language what the subsection says and does, as far as I understand its expert wording.

The main point is that there is now no Government of Northern Ireland. They are suspended. The subsection deals with the powers and duties of the Northern Ireland Government or Parliament if and when—I say "if" advisedly—we join the Community on 1st January.

It is necessary to look a little more closely at the subsection to see what I am aiming to delete from the Bill. We must look at the wording of the subsection, which falls into roughly four parts, to see whether it can have any validity in the entirely new situation. The first sentence says: The limitations on the legislative power of the Parliament of Northern Ireland…shall not be construed to prevent that Parliament"— there is no that Parliament at present, and, therefore, that part of the subsection is no longer valid and should not be in the Bill— from enacting provisions for any of the purposes mentioned in subsection (2)(a) and (b) above". In other words, under the subsection the Northern Ireland Parliament, if it were in existence, would have under the provisions of the Government of Ireland Act, 1920, certain powers to act within the Community according to the directives and other legislation from Brussels. But there is now no Northern Ireland Parliament, and, therefore, it cannot enact provisions under that Act.

7.45 p.m.

The subsection continues and the references in that subsection to a Minister of the Crown or government department. There is no Minister of the Crown, in the sense that we understand the term, in the Northern Ireland Parliament. My right hon. Friend the former Lord President of the Council is acting on behalf of this Parliament, and there is, in effect, direct rule. Stormont has been suspended for a year, and, therefore, has no powers under the subsection to do anything. The subsection has no validity, and should not be in the Bill. The subject of the subsection is in suspension for a year, and we do not know how long that suspension will eventually last.

If I am told that the Amendment would denude Stormont of all its powers, my reply is that Stormont has already been denuded of all its powers and, therefore, can have no power to bring into effect any of the directives, regulations or legislation of the Community constitutional organisations.

The subsection states: …a statutory power or duty shall include a Minister or department of the Government of Northern Ireland…". But the Government of Northern Ireland no longer exists, and, therefore, again this subsection has no validity. I cannot get away from the simple lay fact that the subsection no longer applies and should not be in the Bill in view of the constitutional position which has been created since the Bill was drafted and printed. All I am asking is for my right hon. and learned Friend the Chancellor of the Duchy of Lancaster or my hon. Friend the Minister of State for Northern Ireland to tell us the Government's intention with regard to the subsection and the powers it gives to the Parliament of Northern Ireland.

Mr. Dennis Skinner (Bolsover)

Has it crossed the hon. Gentleman's mind that there may be further complications? What sort of powers will subsection (5) have over those areas of Northern Ireland over which even the Secretary of State has no control at present?

Mr. Jennings

That, to meat the moment, is beside the point, but it is valid and something which will have to be considered by the Committee and the House itself when considering the general terms of the Northern Ireland situation.

I come to the last lines of subsection (5)— …a statutory power or duty…". One cannot have a statutory power unless one has a statutory authority, and the statutory authority in Northern Ireland has been suspended and no longer exists. I keep coming back to this matter. It is the fundamental cause of my desire to delete subsection (5).

Mr. Norman St. John-Stevas (Chelmsford)

Is my hon. Friend not ignoring a fairly fundamental distinction between suspension and abolition? The very fact that something is suspended must mean that it is in existence. One cannot suspend something which has gone out of existence. If my hon. Friend will accept this argument, I think that his difficulties are solved. It is really—to use scholastic definitions—a difference between existence in potentia and existence in actu.

Mr. Jennings

I talk in plain English. We have to get down to the practical fundamentals of the situation. Does my hon. Friend envisage that by 1st January, when—or if—we are destined to go into the EEC, Stormont will have been brought back with its full powers? Not on your life! Not even the most optimistic person believes that. If subsection (5) is not deleted, we shall be entering the EEC with a provision relating to powers and duties of an authority which no longer exists because it is in suspension, and there may be grave doubts whether it will ever come back in the form it possessed before.

I shall not go into the prognostications of what may happen in Northern Ireland. I am dealing with the situation as it is now and as I think it will be on 1st January. The straight answer to my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) is that I am trying to anticipate the Minister's answer, because I think I shall be told that I am stripping Stormont of all its powers. I am saying, however, that Stormont has already been stripped of all its powers and that it is likely to have lost them for an inconceivable time in the future. Therefore, again coming back to the last few lines of subsection (5) I say, politely—

Mr. J. T. Price (Westhoughton)

The hon. Gentleman is arguing his case so persuasively that I am attracted by what he is saying. But would he be satisfied merely to receive a kind of bureaucratic answer from the Chancellor of the Duchy of Lancaster on the matter? Would it not be better, this constitutional question having been raised, to have either the Attorney-General or the Solicitor-General, or some of those clever lawyers who have drafted this infernal legislation, here to answer the debate? We should not just have a layman's answer. Indeed, I shall appeal to the Chair on a point of order. Mr. Brewis, a constitutional issue has been raised, and, in my opinion, we should have the presence of Law Officers to answer.

The Temporary Chairman

That is a point of comment and not a point of order.

Mr. Jennings

The hon. Member for Westhoughton (Mr. J. T. Price) is an old Mend of mine and I know how sincerely he feels about constitutional matters, as I do. He is right in saying that this is a great constitutional issue. I should be flattered if Law Officers of the Crown came in to answer this substantial and valid constitutional point. But the hon. Gentleman knows as well as I do, because we have both had years of experience of the House of Commons, that I cannot demand that certain Ministers should come in to answer a debate. I shall be happy with an answer from either of the two Ministers now on the Front Bench if it is favourable. But what the answer will be I do not know.

Perhaps I may now get back to the last few lines of subsection (5) again. It refers to …a power or duty arising under…an Act of the Parliament of Northern Ireland: It is not "a" Parliament, but "the" Parliament of Northern Ireland, which no longer exists. I repeat what I have said at least half a dozen times in the last 10 minutes—that since Stormont no longer exists this subsection is no longer valid and should not be in the Bill. I am interested to know what the intentions of the Government are towards the subsection.

Mr. J. T. Price


Mr. Michael Foot (Ebbw Vale)

Strictly dishonourable.

Mr. Jennings

I do not agree. I am a good Tory. I have always said that I am the best Tory in the House of Commons. I do not agree with the strictures of hon. Members opposite. I am sure I shall get an honourable answer, and I hope that it will be a sensible one acknowledging the realities and practicalities of the situation. I hope I shall be told that the Government are to withdraw subsection (5)and perhaps on Report bring in a new provision which will deal with this fantastic situation, which is an entirely new one.

Mr. Ronald King Murray

The Committee is grateful to the hon. Member for Burton (Mr. Jennings) for the very moderate and cogent way in which he presented the arguments for Amendment No. 253. I think that his arguments would commend themselves to the Opposition and I would be inclined to follow entirely along the road he set out. I am bound, however, to admit that I cannot help agreeing with the hon. Member for Chelmsford (Mr. St. John-Stevas) in his intervention. The way I understand it, the result of the enactments which we have made in this Parliament with regard to Northern Ireland is not that Stormont does not exist but that it is, as it were, in cold storage. I do not think it is material, but I think we can agree on the essentials. Perhaps that small element of disagreement can be set aside.

Amendment No. 349, which we are considering with Amendment No. 253, is a very narrow one. It is also a drafting and technical one. I think it is slightly more substantial than that, however, and that it raises a genuine difficulty which the Government have to face and to resolve if they can. The resolution of the difficulty may not be quite so easy as the posing of it. The difficulty arises from the last three lines of subsection (5), and I think the hon. Member for Burton touched on this difficulty amongst the others which he adumbrated.

8.0 p.m.

The problem arises in this regard. The subsection clearly deals with the purposes mentioned in subsection (2)(a) and (b) above. It then goes on and refers to a Minister of the Crown or government department and to a statutory power or duty shall include". Up to that point it is clear that we are dealing with the Minister of the Crown or government department in Clause 2(2). There is no ambiguity there.

Then we come to the words which pose the difficulty. The subsection goes on to say: the references in that subsection…shall include a Minister or department of the Government of Northern Ireland and a power or duty arising under or by virtue of an Act of Parliament of Northern Ireland. The problem, if I may anticipate it and put it in a nutshell at the outset to make it clear, is that the Secretary of State for Northern Ireland wears two hats. He is a United Kingdom Minister. That was the point of the Northern Ireland (Temporary Provisions) Act, 1972. The idea was direct rule which meant that a United Kingdom Minister would hold the responsibility for that troubled Province. If he is a United Kingdom Minister the question arises: does he have another hat as a Minister of the Government of Northern Ireland in some sense?

If we want to discover the answer to that, we have to look in detail at the Northern Ireland (Temporary Provisions) Act. This says in Section 1(1): So long as this section has effect". Then follow the words which the hon. Member for Chelmsford would wish to dwell upon, as I would: the Secretary of State shall act as chief executive officer as respects Irish services instead of the Governor of Northern Ireland". The functions with regard to that aspect of his work are set out in paragraph (a). Clearly that is not a ministerial function. It is rather a type of legal function.

We come to paragraph (b) which reads: all functions which belong to a department of the Government of Northern Ireland may be discharged by the Secretary of State". We have clearly got a hat which the Secretary of State for Northern Ireland wears in Northern Ireland, that is the hat of being able to discharge all functions which belong to a Department of the Government of Northern Ireland.

If I may now take the Committee back, because it will be clearer if I do so, to the wording on page 4 of the Bill, and the last three lines of subsection (5) we find that there is the reference to include a Minister or department of the Government of Northern Ireland". Obviously there can be no such Minister, because we have said in the Temporary Provisions Act that there may be no Minister. If we are to operate this subsection, and this was very much the content of what the hon. Member for Burton argued, the words "a Minister" do not apply because the 1972 Act has made sure that during this period, there will be no Minister of the Government of Northern Ireland.

That is the content. To discover how the content relates to the present status of the Government of this country in Northern Ireland we look against at Section 1(1)(b) of the 1972 Act, which says: all functions which belong to a department of the Government of Northern Ireland"— I stress the words "functions which belong to a department of the Government of Northern Ireland"— may be discharged by the Secretary of State". That is a Northern Ireland hat which the Secretary of State gets in Northern Ireland, and on the face of it he gets it on the basis of legislation in existence on 30th March, 1972, because the hypothesis upon which the Northern Ireland Act was passed was that the law of Northern Ireland as at that date would be constant, unless and until it was specifically altered by this Legislature. That was the point of direct rule.

We return to subsection (5) of the Bill and ask ourselves: is it clear that the words "department of the Government of Northern Ireland" and the following words are apt to convey to the Government of Northern Ireland—in the refrigerator or in cold storage at the moment—under the aegis of the Secretary of State the necessary powers of subsection (2)(a) and (b) of Clause 2. Does it make the necessary connection? Is the link forged which enables these powers to be regarded as functions belonging to a department of the Government of Northern Ireland within the meaning of the Temporary Provisions Act?

Mr. Jennings

Would the hon. and learned Gentleman make it clear that the Secretary of State for Northern Ireland is directly responsible to this Parliament, not fully, but he comes here and answers Questions and debates? I would like the hon. and learned Gentleman to make it clear that the Secretary of State is not responsible to any Parliament in Northern Ireland.

Mr. Murray

I am obliged to the hon. Gentleman. That exactly underlines the argument I am presenting and puts it cogently. This is the major hat which the Secretary of States wears. He wears the hat of the United Kingdom, responsible in Northern Ireland to this House for what happens there. I do not invite the Committee to take the view that this is a case in which it is obvious that the provisions of the Northern Ireland (Temporary Provisions) Act are not apt to carry what is said to be transferred by the terminal words of subsection (5). What I am saying is that there is a doubt, and I would have thought a serious doubt, which could be readily resolved by the Government accepting this Amendment.

It would be as plain as a pikestaff that the Secretary of State was being given responsibility in respect of both the hats he wears but he will be responsible to the House of Commons and will get powers directly from the House to exercise under subsection (5). Otherwise the situation is very unsatisfactory because it is necessary to say—and no doubt this is what the Government spokesman will say—that we go to these rather obscure words in Section 1(1)(b) to get the necessary deduction of title which enables this provision to operate for Northern Ireland as subsection (5) would wish it to operate.

I have one crucial observation. This is to avoid dubiety, to avoid doubt and obscurity. The Amendment does not affect the principle of Community entry, it does not bear upon anything except clarity and safeguards, ensuring responsibility of Ministers to the House in the difficult and dangerous situation existing in Northern Ireland. It might not be tactful but it would certainly be apposite of me to remind the Government that they got themselves into difficulties in this area, which they had to resolve by the 1972 Act, because of doubts of this type about the legality of the operation of United Kingdom Forces in Northern Ireland. No one thought there were doubts until suddenly a court saw them, and then all the peace-keeping activities, or whatever they are called by the opponents of the Government, of Her Majesty's Government's Forces in Northern Ireland were placed at peril and at risk. Surely it would not be right to repeat doubt and dubiety of that kind?

Mr. Kenneth Lewis (Rutland and Stamford)

I apologise if the point I am about to make has already been made, as I believe it may have been. The point is that the Parliament of Northern Ireland still exists, it has not altogether disappeared and could well return in a matter of months or weeks.

Mr. Murray

I think that the hon. Gentleman might have a conversation with his hon. Friend the Member for Chelmsford, with whom I agree.

Mr. Barney Hayhoe (Heston and Isleworth)

It seems that the case of my hon. Friend the Member for Burton (Mr. Jennings) wholly rested upon a proposition which he repeated, and said that he would continue to repeat many times, that the Northern Ireland Parliament no longer existed.

That proposition, as the last interchange showed, is, clearly, ill-judged because the Northern Ireland Parliament still exists. Whether it is operating or not is covered by the Northern Ireland (Temporary Provisions) Act which was passed earlier this year.

The existence of the Northern Ireland Parliament is not in doubt. As a result, the whole of my hon. Friend's argument is in doubt. He rests his case upon a proposition which, clearly, has no standing in law or in fact. The Northern Ireland Parliament was not abolished by the Northern Ireland (Temporary Provisions) Act, although I readily accept that some hon. Members, particularly those sitting opposite, may well have liked that to have been the effect of the legislation. That legislation merely put that Parliament into suspension. Therefore, the argument fails that my hon. Friend adduced in support of his Amendment.

My hon. Friend does a grave disservice in presenting his argument on the basis that the Northern Ireland Parliament has been abolished when it has not. There will be people in Northern Ireland who will listen to or read his words. They may be misled into believing that the effect of the Act, which this Parliament passed, was different from what was intended.

Mr. Jennings

My hon. Friend must not put words into my mouth which I never used. Not once in my short speech did I use the word "abolish". He is wrong to attribute that word to me. He must withdraw.

Secondly, he must not impute wrong motives to me. That is too easy a thing to do in this House. My motive is, and always has been, completely constitutional. My motive is as good as my hon. Friend's motive. He must not impute to me the motive of my wanting to cause mischief by asking for this subsection to be deleted.

Mr. Hayhoe

I impute no motive. If I put words into my hon. Friend's mouth which he did not use I withdraw them. The words I should have rested on, which he used many times, are that the Northern Ireland Parliament no longer exists.

Mr. Jennings

That is true.

Mr. Hayhoe

It was perhaps my desire not to be repetitive and slightly to vary the wording which led me to use the phrase to which my hon. Friend objects. In those circumstances I readily withdraw.

I am making no imputation of motive. I have the highest respect for my hon. Friend. I have been in this House only a short time and I would not dream of imputing motives to what he has done. However, surely it is right and reasonable for me to express a point of view, a judgment of my own, that the effect of what he has been saying, I am sure from the highest possible constitutional and moral principles, could, without his desire or knowledge, have an adverse result. That is what I am saying could happen as a result of using these words and resting his argument upon the words that the Northern Ireland Parliament no longer exists.

If those words are taken by the people in Northern Ireland to reflect the reality, then, albeit without any desire to have done so, he will have created an unfavourable impression in the part of Northern Ireland that would be affected by those words. That could lead to the difficulty of people believing that hon. Members have done something which they did not do. The expression "no longer existing" is, clearly, not true. Therefore, my hon. Friend's argument fails.

8.15 p.m.

If I may take the rather narrower point of the Amendment moved from the Opposition Front Bench, Amendment No. 349, I take the legalistic point made by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray). It seems so often that arguments of this sort are a joy for the lawyers. If the doubts which have been expressed from the Opposition Front Bench cannot be resolved by a clear statement from our Front Bench, I hope that that Amendment, if it is a belt and braces measure making quite certain that the legalities are observed because the situation has changed, will be accepted.

Although I respect the drafting abilities of some lawyers, probably the eventualities feared by the hon. and learned Member for Leith are covered by the words in subsection (5) and are totally adequate to the purposes of the Bill. If they are not totally adequate, I suspect that we are saying that there is a deficiency not in the wording of the Bill but in the wording of the Northern Ireland (Temporary Provisions) Act. If the words there used are not sufficient to cover and lay on top of the words used here, if there is that deficiency, it will apply to a whole row of other legislative provisions in which words about the Parliament, Ministers or departments of Northern Ireland appear. We shall be in grave difficulties not just on this issue but on an enormous wide range of issues.

It struck me that the point being made from the Opposition Front Bench was a criticism of the wording of the Bill which they wholeheartedly supported this year. Perhaps they were as inconsistent in putting forward their Amendment as I believe my hon. Friend the Member for Burton was in putting forward his Amendment.

Mr. Gerard Fitt (Belfast, West)

On many occasions I have had the opportunity to vote with my right hon. and hon. Friends against the terms of entry into the EEC. This is the first occasion that I have had the opportunity to address the Committee.

The arguments which have been advanced by the hon. Member for Heston and Isleworth (Mr. Hayhoe) can redound or rebound. I fully accept the argument put forward by the hon. Member for Burton (Mr. Jennings). When this legislation was originally drafted there existed a Northern Ireland Parliament. That Parliament is now in cold storage, abolished, non-existent or whatever it may be. I do not believe that that Parliament will ever be reactivated.

Irrespective of my ambitions in that direction, let us talk about the pure academic aspect of the situation. Since the Stormont Parliament was abolished we have had the Secretary of State and his advisers and colleagues coming to the Dispatch Box and saying that any legislation which had been enacted in the Northern Ireland Parliament, even if it was halfway through, would be accepted by this Parliament.

I was a Member of the Northern Ireland Parliament. Technically I am a Member of a Parliament which is no longer in operation. I took part in a Common Market debate in Stormont. It was on a White Paper. No decision was taken, so we do not know what the wishes were of the Northern Ireland people. We do not know whether they want to become members of the Common Market.

If we are to follow the logical sequence of the argument adduced by the hon. Member for Heston and Isleworth, who attempted to use it to the disadvantage of his hon. Friend the Member for Burton, that the Parliament of Northern Ireland has been abolished or suspended for a year—that is all the legislation says, so people can live in hope that it may be brought back into operation at the end of 12 months—what will happen if, at the end of the 12 months, by a clearly expressed vote, it decides that it does not want anything to do with the EEC on the present terms?

This Parliament, having suspended the Northern Ireland Parliament, in which no vote has ever been taken, has no clear idea of the wishes of the people of Northern Ireland, because they have never been voiced through their own Parliament. Therefore, in the 12 months during which the Northern Ireland Parliament has been put into temporary suspension, the Westminster Parliament will override the wishes of the Northern Ireland people, because they are being told: "We know better than the people of Northern Ireland what they want in relation to this commitment to the EEC."

This will be a dramatic departure from what we have seen so far. All the legislation enacted by the Northern Ireland Parliament, including the notorious Special Powers Act, has been accepted by the Westminster Parliament. The Government are saying "We will accept all the legislation which the Northern Ireland Parliament has passed", but if the Northern Ireland Parliament had expressed opposition to entry into the EEC on the present terms—I pose this question sincerely and honestly—would the Government have said "Irrespective of the wishes of the people of Northern Ireland, you are now going into the EEC on our terms, whether you like it or not"? Although there is a water barrier between Northern Ireland and the rest of the United Kingdom, the same question should apply to everyone.

I know that many hon. Gentlemen opposite, particularly Ulster Unionist Members, are opposed to entry into the Common Market for reasons which differ greatly from my own. I hope they will go into the Lobby tonight in support of the Amendment. I do not accept their reasons for going into the Lobby, but I understand they will be voting against the Government because they are not satisfied with the statement made by the Secretary of State for Northern Ireland yesterday. However, I can only restate my own position and pose this question.

Mr. James Molyneaux (Antrim, South)


Mr. Fitt

I understand there will be an opportunity for hon. Gentlemen repre- senting Northern Ireland constituencies to put forward their views.

At present Northern Ireland is represented here by 12 Members. It is clear that the majority of those Members are opposed to entry into the EEC on the present terms. In what way do the Government intend to take into consideration the wishes of the Northern Ireland people? Many of us differ greatly in our political approach to the problems of Northern Ireland. Many hon. Gentlemen would be diametrically opposed to my political attitude, but I think they are legitimately and honestly expressing the wishes of their constituents when they stand up and oppose entry into the Common Market on the present terms.

In England, Scotland and Wales there may be considerable doubt about the attitudes of constituents in different constituencies, but in Northern Ireland the position is different. If the majority of hon. Members representing Northern Ireland do not agree with entry on the present terms, will the Committee completely disregard their wishes?

Mr. William Baxter (West Stirlingshire)

My hon. Friend need be in no dubiety about the attitude of hon. Members representing Scottish constituencies towards the Common Market. The majority of them are opposed to entry, so what he says about Northern Ireland applies to Scotland.

Mr. Fitt

I accept what my hon. Friend has said. However, Northern Ireland is a case in point as it differs to a great extent from Britain. That is why many hon. Members who support the Government are not exactly clamouring for total integration at the moment.

It is clear that the majority of hon. Members representing Northern Ireland constituencies do not want entry into the Common Market on the present terms. However, the Government are now saying "We have abolished your Parliament; it no longer exists. Therefore, we will dictate that you agree with these terms whether you like them or not."

I have been consistent in my opposition to this legislation in its present form. Amendment No. 349 would perhaps tie up the technical and academic ends by inserting the Secretary of State for Northern Ireland or". But what happens if we bring Stormont back into existence? Will it be too late for Stormont to express its opposition to entry into the Common Market? Has it been denied the opportunity of expressing its wishes?

It may be that not all my constituents support my opposition to entry. The Republic had a referendum. I supported those in the Republic, particularly the Irish Labour Party, who were opposed to the entry of the Republic of Ireland into the Common Market on the present terms. I concede that they lost out. It may be that the vast majority of people in Northern Ireland want to enter the Common Market on the terms negotiated by the Government. But who knows? All we know is that the majority of hon. Members representing Northern Ireland constituencies in this place are opposed to entry. I believe that the majority of Ulster Unionist or Nationalist Members, including the hon. Members for mid-Ulster (MissDevlin) and Fermanagh and South Tyrone (Mr. McManus), have a close involvement with the hopes, aspirations and needs of their constituents. If we stand up in the House of Commons and say that because of an intimate knowledge of the views of our constituents we believe that they do not want to enter the EEC on these terms, our political future may be at stake.

The Temporary Chairman

Order. The hon. Member is going rather wide and making almost a Second Reading speech. We are operating under a guillotine. Will the hon. Member please come back to the Amendment.

Mr. Fitt

I do not want to take advantage of the first opportunity I have had to intervene in these debates. I have pointed out that the people in Northern Ireland, as represented by their Members in this House, are not in agreement with the terms of entry which have been negotiated by the Government. I therefore support the Amendment.

Mr. Stanley R. McMaster (Belfast, East)

I should like to return to the two Amendments which the Committee is considering. I do not agree with much of what has been said by the hon. Member for Belfast, West (Mr. Fitt), and I am sure that that will not surprise him. Also, I am not as content as my hon. Friend the Member for Heston and Isleworth (Mr. Hayhoe) is with the provisions of the Clause.

I feel that subsection (5) is a complete nonsense, and it is important that the Bill, which is presumably to become law and take effect from the beginning of next year, should make sense. The wording of subsection (5) is extremely permissive. It says: The limitations on the legislative power of the Parliament of Northern Ireland which are imposed by section 4 (1) (4) (treaty matters) of the Government of Ireland Act 1920 shall not be construed to prevent that Parliament, on matters otherwise within their powers, from enacting provisions for any of the purposes mentioned", and it goes onto refer, as my hon. Friend the Member for Burton (Mr. Jennings) said, to Ministers and Departments of the Government of Northern Ireland.

8.30 p.m.

As all hon. Members who have taken part in the debate have said, the Parliament at Stormont is in suspense, and, therefore, that subsection does not make sense. The Bill should, therefore, be amended by omitting the subsection, or in the way suggested by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), or in some other way so that it makes sense.

Nobody knows what will happen in Northern Ireland. It is most unlikely that at the end of the year provided by the Northern Ireland (Temporary Provisions) Act, 1972—that is, at the end of March, 1973, about three months after the Bill is designed to come into effect—the Parliament of Northern Ireland will be restored in its old form.

I believe and, indeed, hope that the Parliament of Northern Ireland will quickly be restored to power, but, knowing the situation as I do, it would be totally unrealistic to expect, and, indeed, be misleading to expect, that after a short interim period the Parliament and Government of Northern Ireland will come back in their old form. The matter should, therefore, be much more clearly and concisely dealt with.

One finds the same nonsense repeated in paragraph 3 of Schedule 2. There one finds not only a permissive provi- sion but something which requires positive action. It says: Nothing in paragraph 2 above shall apply to any Order in Council made by the Governor of Northern Ireland or to any regulations made by a Minister or department of the Government of Northern Ireland; but where a provision contained in any section of this Act confers power to make such an Order in Council or regulations, then any Order in Council or regulations made in the exercise of that power, if made without a draft having been approved by resolution of each House of the Parliament of Northern Ireland, shall be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 as if the Order or regulations were a statutory instrument within the meaning of that Act. In other words, that paragraph requires positive action by the Parliament of Northern Ireland, but as that Parliament has been suspended it is impossible for such positive action to be taken and, therefore, as drafted, both the subsection and the Schedule are nonsense. If the Bill is to come into effect on 1st January, 1973, these provisions must be amended.

I therefore welcome this opportunity to probe the Government's intention with respect to the situation in Northern Ireland. I hope that the Government will indicate an intention to introduce an Amendment on Report to cover these important points.

The hon. Member for Belfast, West made many provocative statements, although he did not allow any interruption. I want it to be clearly on the record that I do not agree with anything that he said. He implied that Ulster Unionist Members at Westminster resisted certain parts of the legislation—some of us resisted the entire Bill—out of pique or because we were annoyed at what my right hon. Friend the Secretary of State said yesterday.

Nothing could be further from the truth. Many of my constituents and I firmly believe that all this legislation will operate to the detriment of the United Kingdom as a whole, and more particularly to the detriment of Northern Ireland. Important Measures such as the Safeguarding of Employment Act will be swept aside. The temporary or transitional provisions may or may not be renewed at the end of five years. This will presumably be subject to a veto by the Government of Eire, who have expressed an intention, confirmed by plebis- cite, of joining the Common Market. It may not be in their interests to allow a renewal of the Safeguarding of Employment Act. There is also the question of the effect on the cost of food, which will be particularly heavy in Northern Ireland, partly because of the present disturbances and also because of the lower standard of living there.

These are matters which make Unionist Members very concerned about this legislation. Whether it will create further employment in Northern Ireland is greatly in doubt. We are remote from the Market. Even in the best of all worlds, assuming that the disturbances rapidly ceased, which is a very big assumption, it is most unlikely that many firms will wish to set up in Northern Ireland to take advantage of the United Kingdom's accession to the Treaty of Rome. There are many reasons why Unionist Members view this legislation critically.

These Amendments are important. I should like the Minister to deal with these points and indicate to the Committee how he intends to deal with the transitional period and what the Government's longer-term intentions are with respect to the whole position of Northern Ireland as covered by the provisions of the Bill.

Mr. St. John-Stevas

When I first saw these two Amendments I was foolish enough to think that they were very simple Amendments which could be swiftly disposed of. I should have known that anything concerning Ireland immediately betrays ramifications which one had not suspected. Many fears have been expressed which I believe are totally illusory.

The basis of the argument must rest on whether Stormont is abolished or whether it has been suspended. If it has been abolished, the Clause is otiose and unnecessary. It is clear from the Northern Ireland (Temporary Provisions) Act, 1972, that Stormont is suspended only and is capable of coming into existence again as soon as that Act expires. It is called the Northern Ireland (Temporary Provisions) Act, 1972. If this House does nothing further—if that Act is not renewed—we shall return to the status quo. Stormont will be back in existence. I would have thought that was incontrovertible.

I made no impression on my hon. Friend the Member for Burton (Mr. Jennings). I was wrong perhaps to use the words "potentiality" and "actuality", which may have put him off. It is Aristotelian. It is Aristotle's philosophy. I would hope it would be commendable to my hon. Friend on those grounds.

Mr. Jennings

Feet on the ground!

Mr. St. John-Stevas

It is an illusion to think that philosophy is abstruse and not concerned with things as they are. It is attempting to answer questions about what constitutes the essence of things. In debates on subjects such as these it is important to know what one is talking about. Philosophy can help us there.

This subsection was originally put in to apply to a situation: it is kept in to apply to a contingency. One contingency could be the restoration of Stormont as it was. If we did nothing else, that is what would happen. There are other contingencies which may be more or less desirable. Some form of legislative assembly, which would be different from Stormont, may well come into existence in the future. This Clause looks after that situation.

The alternatives in the future are fairly stark. They are: either a system which integrates Northern Ireland completely into the United Kingdom or some form of legislative assembly operating in Northern Ireland. Those are the only two alternatives that are likely to be before us.

In the other argument, advanced by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), this was dismissed as legalistic. It seems to me, however, to have something to recommend it. There is an answer to it.

There is one source of all these rights and obligations under the Ireland Act of 1920, the Northern Ireland Act of 1972, and this Bill when it becomes an Act: namely, this Parliament. If the jurisdiction of the Secretary of State for Northern Ireland extends to Northern Ireland, that does not mean he derives his powers from Northern Ireland with regard to legislation that the Parliament of Northern Ireland has passed, from that Parliament alone. The ultimate source of all rights and obligations must be—if I may use the phrase of the Leader of the Opposition—the imperial Parliament, not the local Parliament.

Mr. Ronald King Murray

Following the argument used by the hon. Member for Chelmsford (Mr. St. John-Stevas), he ought to support Amendment No. 349. This makes it clear that the Secretary of State for Northern Ireland, if he did not derive the power derivatively through the Northern Ireland (Temporary Provisions) Act, 1972, would get it directly.

Mr. St. John-Stevas

One could spell that out in that way, I agree. It does not seem to me to be necessary to spell it out in that way because it is clear from an examination of the Statute.

The Amendment that the hon. Member has proposed, while it would not damage the Bill, would add nothing to it except three or four or more words.

The point made by the hon. Member for Belfast, West (Mr. Fitt), that in some way Stormont—or a Stormont which would come into existence in the future—was deprived of the right to legislate against the EEC,is ill-founded. The Stormont Parliament never had that power. If it had been in existence today and passed a resolution saying that Northern Ireland did not want to become part of the EEC, that would be otiose and have no effect. There are hon. Members from the Northern Ireland Parliament sitting in this Parliament to express their views on legislation of that character.

Mr. Douglas Jay (Battersea, North)

The hon. Member for Chelmsford (Mr. St. John-Stevas) has spoken of the possibility of Stormont, or the Parliament of Northern Ireland, coming into existence at some hypothetical date in the future. Does it not follow—on the grounds of the philosophical argument on which the hon. Gentleman is so keen—that, if there is a question of the Government and the Parliament coming into existence in the future, they are not in existence at the present time?

8.45 p.m.

Mr. St. John-Stevas

It is a question of modes of existence. There can be two modes of existence; a mode of existence as a potential mode, and a mode of existence as an actual mode. I would say that the Northern Ireland Parliament exists potentially, but it cannot be brought into being—

Mr. Jennings

Not actually.

Mr. St. John-Stevas

—not actually, using it in that Aristotelian sense—until certain events come about, one of which might be the lapse of that Act. My hon. Friend the Member for Burton may not be able to see it, but it is obvious to all.

To return to the intention of the Clause, as it makes clear, it is intended, first, to ease the restrictions imposed by Section 4 of the 1920 Act. That Section prevents the Northern Ireland Parliament from making laws in respect of treaties and matters which affect international relations. Community obligations which affect Northern Ireland can be either legislation on transferred matters or direct United Kingdom legislation which covers Northern Ireland. If it is United Kingdom legislation covering Northern Ireland, no difficulty will arise. It is only in the former case where Northern Ireland has legislation of its own similar to Westminster legislation that a problem could arise. It then could be held that that legislation could be amended by Westminster only if the purpose was to conform to the Community treaty.

That could seriously inconvenience a Northern Ireland Parliament of the future, and the legal position could become increasingly complex. So the Clause has that practical point in its favour. It provides that the limitations imposed by the 1920 Act shall not prevent the Northern Ireland Parliament from legislating to meet the requirements of Community treaties provided that there is no other statutory objection.

The second purpose of the Clause is to enable Northern Ireland Ministers and Departments, should they once again come into existence, to be designated under Clause 2(2). This power of designation was necessary for United Kingdom Ministers and Departments so that subordinate instruments could be made for the United Kingdom. Here again, this power of designation may be necessary for Ministers and Departments in Northern Ireland in the future for the making of appropriate regulations for Northern Ireland.

The third purpose of the Clause is to provide that the reference in Clause 2(2) to statutory powers and duties shall include those arising under an Act of the Northern Ireland Parliament.

It may be thought that these provisions are unlikely to come into operation, but we cannot be the judge of that. They may be needed in the future or they may not be, but it is perfectly reasonable to include them in the Bill, and it is unnecessary to make such heavy weather of them.

Mr. John E. Maginnis (Armagh)

I rise to attempt to bring a little sanity into the debate. The confusion arising in the Committee comes from hon. Members not understanding the position of Stormont before its suspension. Everyone imagines that direct rule came into being on 24th March this year, but direct rule in certain services had been in operation since the existence of Stormont. We had the transferred services and the reserved services.

It is erroneous for the hon. Member for Belfast, West (Mr. Fitt) to say that the Stormont Parliament had not the right to decide whether Northern Ireland would enter the EEC. It never had the right to do so since it was a reserved service. It is completely false for the hon. Member to keep saying that Stormont was abolished. The hon. Member is still drawing his salary as a Member of Parliament for Stormont. He could not draw a salary for an institution which had been abolished.

When we in this House of Commons debate legislation relating to Northern Ireland it is like driving a motor car without shock absorbers—one is liable to have a bumpy ride. The last thing we want to do is to put abroad the impression that Stormont has been abolished, and indeed that we have agreed to its abolition. Stormont is suspended and during the suspension we must find an answer to the question of who is responsible under the various Acts.

We shall await the Minister's reply with interest. If we allow this provision to go through in its present form we may find ourselves in great difficulty if Stormont is not brought back into being quickly after 1st January, 1973. It must be remembered that the present Bill was drafted before the Northern Ireland (Temporary Provisions) Bill was introduced. Something will have to be done to get over this difficulty and we shall be interested to hear the Minister's reply.

Mr. Powell

I wish to put one precise question to the Minister of State which I hope he will be able to answer. It refers to the period during which the Northern Ireland (Temporary Provisions) Act shall be in force. Are the regulations during that period made under Clause 2(2) for the purpose of implementing the Community law to be made for the whole of the United Kingdom by United Kingdom Order in Council and by United Kingdom Ministers or, alternatively, are there to be any specific Northern Ireland regulations or Orders in Council or regulations and Orders in Council modified for Northern Ireland?

My hon. Friend will observe that, as the Bill stands, there is a difficulty in either case. In the first case it will mean that instead of the Minister responsible to this House of Commons for Northern Ireland affairs making the regulation and having to defend it to this House and to answer a debate, he will be cut out and it will be a United Kingdom Minister who will carry that responsibility. On the other hand, if he takes the course which is implicit in the drafting of the Bill, and which surely is the right course, that the special circumstances or the law of Northern Ireland require different or modified regulations or Orders in Council for Northern Ireland, under Schedule 2 those would have to be subject to the affirmative or negative procedure in an assembly which at present is prorogued and cannot function. I hope that my hon. Friend will address himself to this question, if he is not to accept that either these Amendments or some others are imperatively necessary.

Mr. Molyneaux

I, too, regret that the hon. Member for Belfast, West (Mr. Fitt) has left the Chamber. He seemed to imply that somehow our voting patterns were related to certain action or inaction on the part of hon. Members on this side. As my hon. Friend the Member for Belfast, East (Mr. McMaster) pointed out, that is not the case. If the hon. Member for Belfast, West cares to inspect our Division record, he will find that we were present in the Division lobby on many an occasion when he was absent, which is strange considering that the hon. Gentleman has such a passionate regard for the views of his constituents. If I may be excused the pun, it is surprising that the hon. Gentleman has not seen fit to come here to represent their views in Parliament.

Two of my hon. Friends have been at great pains to attempt to enlighten my hon. Friend the Member for Burton (Mr. Jennings) about the precise state of the Stormont Parliament. I suggest that in their speeches they have themselves fallen into error. They seemed to imply, perhaps by accident, that Stormont could be reconvened tomorrow or at any time during the existence of the Temporary Provisions Act if that was found necessary. I remind them that even after the passage of less than three months, three Stormont seats are vacant. I do not know what the position will be nearer the end of the current year, supposing that it is found necessary to bring back the Stormont Parliament to exercise some of the functions described in the subsection. Will it then have to go through the ritual of issuing writs and holding by-elections to fill the vacancies? If it comes to that, there is the great inconsistency in the Temporary Provisions Act which guarantees that no change shall be made in the status of Northern Ireland without the consent of the Parliament of Northern Ireland. Here again, there is a need for a great deal of clarification and explanation on the part of Her Majesty's Government.

Much has been said in the past about the shortcomings of the present arrangement with regard to the Government of Northern Ireland. My hon. Friend the Member for Burton perhaps gave the impression that this Parliament was trying by this Amendment further to weaken the democratic processes in Northern Ireland. Goodness knows, they have suffered enough already. However, we know that that was not my hon. Friend's intention and I accept his assurance on that point.

The vast majority of people in Northern Ireland quite rightly have strong views about entry into the EEC. I shall not weary the Committee with a long catalogue of their reasons. I have listed them before. I mention only three. It will add yet another stretch of water between manufacturers in Northern Ireland and the centre of gravity of their market. Secondly, the pattern of agriculture in Northern Ireland is very different from that in Great Britain. Thirdly, the vast increase in the cost of animal feeding-stuffs will affect Northern Ireland agriculture adversely. One point which made this prospect bearable for the people of Northern Ireland was their knowledge that the Government at Stormont were in some degree able to look after their detailed interests.

If we in this House can direct that a plebiscite should be held in Northern Ireland to decide the constitutional position, is it sensible to say that there should not be a plebiscite in Northern Ireland to decide whether the people should enter the EEC? I leave it to right hon. and hon. Members representing constituencies on this side of the Channel to decide whether it is right and logical to withhold such a tremendous privilege from the people of the United Kingdom in general.

9.0 p.m.

[Miss HARVIE ANDERSON in the Chair]

The Minister of State for Northern Ireland (Mr. Paul Channon)

We are not debating whether or not Northern Ireland should join the Common Market—one or two of the speeches have ranged wider than that of my hon. Friend the Member for Burton (Mr. Jennings)—or, with respect to my hon. Friend the Member for Antrim, South (Mr. Molyneaux), whether or not there should be a plebiscite on entry. We are debating the comparatively narrow point of what should be the powers of the Parliament of Northern Ireland.

As has been made clear by my right hon. Friend and other Ministers and by the Northern Ireland (Temporary Provisions) Act, that Parliament has been prorogued, not abolished. This Bill is intended to be permanent. We have to make permanent arrangements in it to deal with the situation in Northern Ireland both before and after the passage of the Temporary Provisions Act. It is true that the Bill was drafted before the passage of that Act, but its passage makes no fundamental change in the permanent position; nor should it make us wish to amend this Clause.

If the Temporary Provisions Act had not been passed, we would then need this subsection because the Government of Ireland Act, 1920, placed on the Northern Ireland Government certain restrictions to prevent it from legislating on certain matters. Under Section 4 (1) (4) the Northern Ireland Parliament was not permitted to legislate on matters relating to treaties. Therefore, without this subsection, it could not have legislated in accordance with Clause 2 to implement obligations and other matters under treaties into which Her Majesty's Government have entered. That provision of the 1920 Act said that Treaties, or any relations with foreign states were matters specifically excluded from that Parliament's legislative powers.

Therefore, with or without the Temporary Provisions Act, if we did not have this subsection any legislation or Orders in Council to comply with Clause 2, even upon those matters which had been transferred to the Northern Ireland Parliament, would have had to be enacted at Westminster because the Northern Ireland Parliament would have been stopped from so legislating by Section 4 of the Government of Ireland Act. That is why it was necessary to have the first part of the subsection in the Bill.

Mr. McMaster

I am not clear about this. The Government of Ireland Act provides, in Section 4(4), that the Parliament of Northern Ireland shall not have power to enact treaties. But what we are dealing with is not so much treaties as the consequential legislation. The subsection does not deal with consequential legislation. I do not follow what my hon. Friend is saying. If that is the only reason for subsection (5), I do not see the necessity for having it in the Bill.

Mr. Jennings


Mr. Channon

I hesitate to say this to my hon. Friend but perhaps it would be better if I answered the point raised by my hon. Friend the Member for Belfast, East (Mr. McMaster) rather than to give way to two of my hon. Friends consecutively.

Mr. Jennings

I was on the same point.

Mr. Channon

If my hon. Friend the Member for Belfast, East looks at Section 4of the Government of Ireland Act, 1920, he will see that it does not say that the Government of Northern Ireland cannot make a treaty. What it says is that it shall not have power to make laws—I emphasise that— in respect of the following matters in particular, namely, Treaties". That is why it is necessary to enable the Northern Ireland Parliament to legislate in such a way that the limitation imposed by Section 4 of the Government of Ireland Act is removed.

Mr. Jennings

I should be grateful if my hon. Friend would take notice of the point that regarding the limitations imposed by Section 4(1)(4) of the Government of Ireland Act the subsection goes on to say that these limitations shall not be construed to prevent that Parliament"— that is, the Northern Ireland Parliament— on matters otherwise within their powers, from enacting provisions for any of the purposes mentioned in subsection (2)". Subsection (2)(a) and (b) deal with the principle not of making or agreeing treaties but, in the words of subsection (2)(a), implementing any Community obligation of the United Kingdom. The machinery of that phrase is embodied in Schedule 2. This is what we are talking about; not the making of treaties but the subordinate legislation for which the Northern Ireland Parliament would be responsible but which no longer exists for the purposes of carrying out that machinery.

Mr. Channon

With respect to my hon. Friend, the Northern Ireland Parliament at present is prorogued; it is not abolished. This is a permanent piece of legislation, it is hoped, but the Northern Ireland (Temporary Provisions) Act is a temporary piece of legislation. No doubt in the future there will be matters which will have to be dealt with under Clause 2 of the Bill. It may be that Her Majesty may, by Orders in Council, have to make regulations under Clause 2(2) of the Bill, as may designated Ministers—though I suspect very few in the temporary provisions that exist at present—and it may be that such provisions will have to be included in order to meet the liabilities and obligations imposed upon us by entry to the EEC.

Therefore, this is a continuing duty upon the Parliament of Northern Ireland and unless the limitation imposed upon it by Section 4 of the Government of Ireland Act is to be waived in the ways provided in the subsection, it would not then have been competent for that Parliament so to legislate, and all these matters, though they relate in all other ways to matters to be transferred for the Parliament of Northern Ireland to legislate upon, would have had to be legislated upon by the Parliament at Westminster rather than that of Northern Ireland. That is the primary reason for the subsection being in the Bill in the first instance.

Where our treaty obligations affect legislation which applies throughout the United Kingdom, there is no special difficulty in relation to Northern Ireland. For example, alterations in or additions to the relevant United Kingdom legislation, such as the Customs and Excise Acts and the Import Duties Acts, would apply in Northern Ireland as in Great Britain and no action in Northern Ireland would be required. But where the treaty obligation would affect legislation which is enacted in Northern Ireland under transfer powers, the difficulty I have outlined would mean that the United Kingdom Parliament would have to legislate on these matter although they have been transferred to the Northern Ireland Parliament to be dealt with.

Also it would have created curious problems of demarcation. There might have been a Statute dealing generally with the transferred matter but which had one or two provisions arising out of the treaty rules or obligations. It would have made the legal situation in Northern Ireland extremely complex and I think the Committee will see that there would have been no sensible justification for that. Where treaty rights and obligations have been accepted by the United Kingdom as a whole, there is no reason why the Northern Ireland Parliament should not continue to legislate for its own powers in accordance with the general principles accepted by the United Kingdom Parliament. That is why the first half of the subsection removes the limitation I have tried to outline.

The Northern Ireland Parliament can continue to legislate in respect of its transferred powers at the conclusion of the temporary provisions, regardless of whether the legislation arises from our accession to the European Communities. In normal circumstances the Northern Ireland Parliament could have enacted its own legislation empowering Northern Ireland Departments to make regulations for Community purposes. But powers were taken in the second part of the subsection because they would not have been able to do these things until the Bill had received the Royal Assent. The Bill provides that the powers of subordinate legislation should be conferred upon Northern Ireland Ministers and Departments.

Another and more important reason for the second half of the subsection is that if the Northern Ireland Parliament provides powers of subordinate legislation they could have been used only to deal with regulations which clearly dealt with transferred matters. There are problems of demarcation, as I know many hon. Members, especially those representing Northern Ireland constituencies, will appreciate. The difficulty is of demarcation between matters which are "transferred" and matters which are "reserved".

The effect of the second Amendment referred to by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) would be specifically to provide for the Secretary of State for Northern Ireland to be designated and to to be able to make regulations. The Amendment is wholly superfluous. Subsection (2) already contains powers for Ministers of the Crown to be designated and to make regulations. It would not be harmful to make the provision but it would be superfluous, and it is not necessary to write the provisions specifically into Clause 2(5). The situation I have described is, of course, affected by the Northern Ireland (Temporary Provisions) Act. It is a temporary Act and all its provisions, as hon. Members who were present through the long night we debated it will remember, are based on the assumption that in due course the Stormont Parliament will resume its duties. This is one of the reasons why we need the subsection. I would submit to my hon. Friend the Member for Belfast, East that he would not wish to argue the contrary proposition that it will not resume or seek to take away from the Northern Ireland Parliament in the future a power to legislate which it always had in the past.

It therefore follows that legislation drafted while the Act is in force should be drafted as though the Stormont Parliament was still operative. The European Communities Bill should not alter the normal constitutional position of the Northern Ireland Parliament and Government.

9.15 p.m.

Mr. McMaster

The whole debate has taken on a new aspect, particularly when we refer to Section 4 of the Government of Ireland Act. Is my hon. Friend telling the Committee that he believes that the temporary provisions will have expired by the end of this year? Many of the provisions giving effect to the Treaty of Rome will have to be enacted soon after 1st January, 1973. If it is envisaged that the temporary provisions will continue until 31st March or even, as is provided for in Section 1(5) of the Government of Ireland (Temporary Provisions) Act, a year later, the whole purpose of subsection (5) will have run out. When is the Government's intention that the Northern Ireland (Temporary Provisions) Act should come to an end?

Mr. Channon

I shall have to come to that point in answer to the question raised by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). My hon. Friend and others concerned with the matter know well that the Northern Ireland (Temporary Provisions) Act expires at the end of a period of one year beginning at the passing of that Act. It is true, and a fair point, that regulations will have to be made during the intervening period—not many, but some. Under Section 1 of that Act all functions which belonged to the Governor, the Governor in Council, the Government or any Minister or head of a Northern Ireland Department are to be discharged by the Secretary of State while the Act remains in force, unless the Secretary of State directs that a Department shall discharge its functions.

As to subordinate legislation, the effect of the provision in the Bill is that the Secretary of State, on matters I will not go into tonight, can make orders under Clause 4(3) to bring Northern Ireland legislation into line with United Kingdom legislation. He can also be designated to make regulations under Clause 2(2). However, it is the common constitutional practice in Northern Ireland for Departments rather than Ministers to be empowered to make subordinate legislation. That is made clear in Section 8 of the Government of Ireland Act, 1920.

Perhaps surprisingly to us, it is drafted in terms of such powers being exercised by Departments. Both United Kingdom and Northern Ireland legislation which delegates powers of subordinate legislation normally refers to Northern Ireland Departments rather than Northern Ireland Ministers. It would therefore be usual for Northern Ireland Departments to be designated to make regulations under Clause 2(2). There is no reason why they should not be so designated before or after the Northern Ireland (Temporary Provisions) Act is in force. This will mean that Northern Ireland Departments will be carrying out their normal functions as far as possible in spite of the Northern Ireland (Temporary Provisions) Act. I am sure that is welcome to my hon. Friend and other Northern Ireland Members.

Any regulations made will have the further advantage that they will appear in their proper place in the series of Northern Ireland statutory rules. Most important of all, perhaps, when the Northern Ireland (Temporary Provisions) Act is repealed there will be no need to take action under the Bill to adjust to the new situation. Under Section 1 of that Act Northern Ireland Departments are subject to the direction and control of my right hon. Friend, who is answerable to this House of Commons.

My right hon. Friend the Member for Wolverhampton, South-West asked how such regulations could be made. They can be made by Departments of the Government of Northern Ireland. My right hon. Friend then rightly pointed to Schedule 2. I am not sure how far I should be in order in dealing with Schedule2 in detail. Of course, my right hon. Friend will recall our debates on the Northern Ireland (Temporary Provisions) Act, and will see, under paragraph 4(5) in particular of the Schedule of that Act but also under the whole of paragraph 4, what happens to provisions similar to those in Schedule 2 of this Bill.

He will see what happens to Statutory Instruments coming into operation by powers conferred in this way. Paragraph 4(5) of the Schedule to the Northern Ireland (Temporary Provisions) Act deals with instruments of this kind.

This is an extremely complicated matter and I do not wish to weary the Committee at length. I believe I have shown that it is right and in the interests of the Parliament of Northern Ireland, which is only prorogued and not abolished, that subsection (5) should remain in the Bill. Amendment No. 349 is unnecessary. I hope, therefore, that my hon. Friend the Member for Burton will now feel that subsection (5) should remain in the Bill.

Mr. Michael Foot

The Committee is indebted to the Minister of State for Northern Ireland for the way in which he has stated an extremely complicated matter to us. He has done his best to get the Government out of an awkward hole. What we have to discover is whether he has succeeded. We have not a great deal of time to do so because many of us wish to clear the Amendments to Clause 2 out of the way so that the whole of tomorrow's proceedings, brief as they will be, can be devoted to the extremely important question, "That the Clause stand part of the Bill". We are all in difficulty on that account. But the hon. Gentleman has certainly done his best.

We are not here to discuss whether the people of Northern Ireland are in favour of joining the EEC. Like the people of England, Scotland and Wales, they have not been asked their opinion, so that does not arise. Nor are we discussing whether the Parliament of Northern Ireland has been abolished and what is the proper term to use to describe the situation in which it is placed. We are not saying that the Parliament of Northern Ireland is abolished. It is not abolished in any technical sense, but suspended, prorogued, not in operation. That alters the situation in our belief, but not in the belief of the Government.

The proposition which the hon. Gentleman has been seeking to put to us, although he disguised it skilfully, was that the position of Northern Ireland and its Parliament in relation to this Bill is the same as it was before the passing of the Northern Ireland (Temporary Provisions) Act, and that the Government were so clever and their draftsmen so perspicacious that they foresaw all the possibilities which would arise when this Bill was on the Statute Book, even though no one had any idea at the time of what would be in the Northern Ireland (Temporary Provisions) Act. That is what the hon. Gentleman has been trying to describe to us.

Here, therefore, we have, apparently, subsection (5) of Clause 2 and Schedule 2 put into the Bill to deal with a situation which did not envisage direct rule of Northern Ireland at all and did not envisage not merely the abolition of Stormont but its prorogation or suspension or any of the other interferences which the British Parliament has undertaken to deal with the Northern Ireland situation.

Of course, all this is another tribute to the immaculate nature of this Bill. So skilful were the draftsmen that they not only dealt with a matter of novel importance and significance which has never before been dealt with by the Government and their draftsmen but devised a Bill which not merely required no amendment of the matters contained in it but no amendment to deal with matters which were not in the cognisance of the Government when it was drafted. Therefore the hon. Gentleman has been sent along here, and he has done it extremely well, to try to persuade us that the change in the whole situation does not require even the slightest alteration in the Bill. We do not believe it.

One of the difficulties that the hon. Gentleman has been in is that he has not been able satisfactorily to answer the dilemma presented by the right hon. Member for Wolverhampton, South-West (Mr. Powell). We are still confronted by the situation over the Schedule which was referred to by the hon. Member for Belfast, East (Mr. McMaster). The Schedule lays down that the Parliament of Northern Ireland should act in certain situations. It says that certain instruments should become operative by the process of being presented to the Northern Ireland Parliament. But there is no Northern Ireland Parliament to which such things can be presented, whether that Parliament is prorogued, abolished, not in existence, or whatever. It is in a state of, not animated suspension, but a state where it cannot have any effect whatever on any statutory instrument.

We are now invited to pass a Bill which will say that it is perfectly proper that we should solemnly decide that we send to Northern Ireland, or that there shall be provisions made for the Northern Ireland Parliament to deal with, statutory instruments that will go to it, even though we know there is no such body to deal with those statutory instruments. That is the position, and we say it is not a satisfactory way of dealing with things because there ought to be a clear arrangement about who is to carry out these operations now that there is no Northern Ireland Parliament to carry out the operations which the Bill says it should carry out. It is not there to do so, so how will it be done?

We do not say that our Amendment is the best way of dealing with this. We say that we think it is one safeguard, although it may not be the best way. I do not say that the best way is to abolish the whole of the subsection; I only know that it is the only way to force the Government to look at the matter and present us with a proper Amendment to deal with a situation which the Government could not possibly have envisaged when they introduced the Bill. Therefore, if we invite the Committee to vote for the Amendment put forward by the hon. Member for Burton (Mr Jennings) everyone can join us.

There is no question of a Division on Ireland; indeed, by this we can unite Ireland, not in a sense which would be offensive to the hon. Member for Belfast, East, because we want him, too. We can invite all men of good will to deal with this in a proper constitutional fashion. There is no division on the question. All hon. Members will be doing is asking the Government to ensure that they take away the parts of the Bill dealing with Northern Ireland and come back with Amendments which will deal with the post-provisional Act situation in a way which will meet the situation that prevailed earlier.

If the Government try to persuade us through the hon. Gentleman, who says that nothing needs to be altered or changed, then this is merely confirmation of the fact that they intend to force through any provisions in this Bill, however ridiculous they may be, rather than risk the conceivable possibility of a Report stage. On that basis I ask everyone on all sides of the Committee to agree with us. I would have thought that the best course for the Government would be to accept the Amendment, and then they would have the time for reflection which, everyone knows and on their own confession, they could not possibly have had before introducing this part of the Bill.

Question put, That the Amendment be made: —

The Committee divided: Ayes 266, Noes 282.

Division No. 217.] AYES [9.30 p.m.
Abse, Leo Forrester, John McMillan, Tom (Glasgow, C.)
Allaun, Frank (Salford, E.) Fraser, John (Norwood) McNamara, J. Kevin
Allen, Scholefield Freeson, Reginald Maginnis, John E.
Archer, Peter (Rowley Regis) Garrett, W. E. Mahon, Simon (Bootle)
Armstrong, Ernest Gilbert, Dr. John Mallalieu, J. P. W. (Huddersfield, E.)
Ashley, Jack Ginsburg, David (Dewsbury) Marks, Kenneth
Ashton, Joe Golding, John Marquand, David
Atkinson, Norman Gordon Walker, Rt. Hn. P. C. Marsden, F.
Bagier, Gordon A. T. Gourlay, Harry Marshall, Dr. Edmund
Barnett, Guy (Greenwich) Grant, George (Morpeth) Marten, Neil
Barnett, Joel (Heywood and Royton) Grant, John D. (Islington, E.) Mason, Rt. Hn. Roy
Baxter, William Griffiths, Eddie (Brightside) Meacher, Michael
Benn, Rt. Hn. Anthony Wedgwood Griffiths, Will (Exchange) Mellish, Rt. Hn. Robert
Bennett, James (Glasgow,Bridgeton) Hamilton, William (Fife, W.) Mendelson, John
Bidwell, Sydney Hamling, William Mikardo, Ian
Biffen, John Hannan, William (G'gow, Maryhill) Millan, Bruce
Bishop, E. S. Hardy, Peter Miller, Dr. M. S.
Blenkinsop, Arthur Harper, Joseph Milne, Edward
Boardman, H. (Leigh) Harrison, Walter (Wakefield) Mitchell, R. C. (S'hampton, Itchen)
Booth, Albert Hart, Rt. Hn. Judith Moate, Roger
Bottomley, Rt. Hn. Arthur Hattersley, Roy Molloy, William
Bradley, Tom Healey, Rt. Hn. Denis Molyneaux, James
Brown, Hugh D. (G'gow, Provan) Heffer, Eric S. Morgan, Elystan (Cardiganshire)
Buchan, Norman Hilton, W. S. Morris, Alfred (Wythenshewe)
Buchanan, Richard (G'gow, Sp'burn) Horam, John Morris, Charles R. (Openshaw)
Butler, Mrs. Joyce (Wood Green) Houghton, Rt. Hn. Douglas Morris, Rt. Hn. John (Aberavon)
Callaghan, Rt. Hn. James Howell, Denis (Small Heath) Moyle, Roland
Campbell, I. (Dunbartonshire, W.) Huckfield, Leslie Mulley, Rt. Hn. Frederick
Cant, R. B. Hughes, Rt. Hn. Cledwyn (Anglesey) Murray, Ronald King
Carmichael, Neil Hughes, Robert (Aberdeen, N.) Oakes, Gordon
Carter, Ray (Birmingh'm, Northfield) Hughes, Roy (Newport) Ogden, Eric
Carter-Jones, Lewis (Eccles) Hunter, Adam O'Halloran, Michael
Clark, David (Colne Valley) Hutchison, Michael Clark O'Malley, Brian
Cocks, Michael (Bristol, S.) Irvine,Rt.Hn.SirArthur(Edge Hill) Oram, Bert
Cohen, Stanley Janner, Greville Orbach, Maurice
Coleman, Donald Jay, Rt. Hn. Douglas Orme, Stanley
Concannon, J. D. Jeger, Mrs. Lena Oswald, Thomas
Cox, Thomas (Wandsworth, C.) Jennings, J. C. (Burton) Padley, Walter
Crossman, Rt. Hn. Richard John, Brynmor Paget, R. T.
Cunningham, Dr. J. A. (Whitehaven) Johnson, James (K'ston-on-Hull, W.) Palmer, Arthur
Dalyell, Tam Johnson. Walter (Derby, S.) Pannell, Rt. Hn. Charles
Darling, Rt. Hn. George Jones, Barry (Flint, E.) Parker, John (Dagenham)
Davidson, Arthur Jones, Dan (Burnley) Parry, Robert (Liverpool, Exchange)
Davies, Denzil (Llanelly) Jones, Gwynoro (Carmarthen) Pavitt, Laurie
Davies, Ifor (Gower) Jones, T. Alec (Rhondda, W.) Peart, Rt. Hn. Fred
Davis, Clinton (Hackney, C.) Judd, Frank Pendry, Tom
Davis, Terry (Bromsgrove) Kaufman, Gerald Pentland, Norman
Deakins, Eric Kelley, Richard Perry, Ernest G.
de Freitas, Rt. Hn. Sir Geoffrey Kerr, Russell Pounder, Rafton
Dell, Rt. Hn. Edmund Kinnock, Neil Powell, Rt. Hn. J. Enoch
Dempsey, James Lambie, David Prentice, Rt. Hn. Reg.
Doig, Peter Lamborn, Harry Prescott, John
Dormand, J. D. Lamond, James Price, J. T. (Westhoughton)
Douglas, Dick (Stirlingshire, E.) Latham, Arthur Price, William (Rugby)
Douglas-Mann, Bruce Leadbitter, Ted Probert, Arthur
Driberg, Tom Lee, Rt. Hn. Frederick Rankin, John
Duffy, A. E. P. Leonard, Dick Reed, D. (Sedgefield)
Dunnett, Jack Lestor, Miss Joan Rhodes, Geoffrey
Edwards, Robert (Bilston) Lever, Rt. Hn. Harold Richard, Ivor
Edwards, William (Merioneth) Lewis, Arthur (W. Ham, N.) Roberts, Albert (Normanton)
Ellis, Tom Lewis, Ron (Carlisle) Robertson, John (Paisley)
English, Michael Lipton, Marcus Roderick, Caerwyn E.(B'rc'n & R'dnor)
Evans, Fred Lomas, Kenneth Roper, John
Ewing, Henry Loughlin, Charles Rose, Paul B.
Faulds, Andrew Lyon, Alexander W. (York) Ross, Rt. Hn. William (Kilmarnock)
Fell, Anthony Lyons, Edward (Bradford, E.) Rowlands, Ted
Fernyhough, Rt. Hn. E. Mabon, Dr. J. Dickson Sandelson, Neville
Fisher,Mrs.Doris(B'ham,Ladywood) McBride, Neil Sheldon, Robert (Ashton-under-Lyne)
Fitch, Alan (Wigan) McCartney, Hugh Shore, Rt. Hn. Peter (Stepney)
Fitt, Gerard (Belfast, W.) McElhone, Frank Short,Rt.Hn.Edward(N'c'tle-u-Tyne)
Fletcher, Raymond (Ilkeston) McGuire, Michael Silkin, Rt. Hn. John (Deptford)
Fletcher, Ted (Darlington) Mackenzie, Gregor Silkin, Hn. S. C. (Dulwich)
Foley, Maurice Mackie, John Sillars, James
Foot, Michael Maclennan, Robert Silverman, Julius
Ford, Ben McMaster, Stanley
Skinner, Dennis Thomson, Rt. Hn. G. (Dundee, E.) Wells, William (Walsall, N.)
Small, William Tinn, James White, James (Glasgow, Pollok)
Smith, John (Lanarkshire, N.) Tomney, Frank Whitehead, Phillip
Spearing, Nigel Torney, Tom Whitlock, William
Spriggs, Leslie Tuck, Raphael Willey, Rt. Hn. Frederick
Stallard, A. W. Turton, Rt. Hn. Sir Robin Williams, Alan (Swansea, W.)
Stewart, Donald (Western Isles) Varley, Eric G. Williams, Mrs. Shirley (Hitchin)
Stoddart, David (Swindon) Wainwright, Edwin Wilson, Alexander (Hamilton)
Stonehouse, Rt. Hn. John Walden, Brian (B'm'ham, All Saints) Wilson, Rt. Hn. Harold (Huyton)
Strang, Gavin Walker, Harold (Doncaster) Wilson, William (Coventry, S.)
Strauss, Rt. Hn. G. R. Walker-Smith, Rt. Hn. Sir Derek Woof, Robert
Summerskill, Hn. Dr. Shirley Wallace, George
Swain, Thomas Watkins, David TELLERS FOR THE AYES:
Taverne, Dick Weitzman, David Mr. James Hamilton and
Thomas,Rt.Hn.George (Cardiff,W.) Wellbeloved, James Mr. James A. Dunn.
Thomas, Jeffrey (Abertillery)
Adley, Robert Eden, Sir John Joseph, Rt. Hn. Sir Keith
Alison, Michael (Barkston Ash) Edwards, Nicholas (Pembroke) Kaberry, Sir Donald
Allason, James (Hemel Hempstead) Elliot, Capt. Walter (Carshalton) Kellett-Bowman, Mrs. Elaine
Amery, Rt. Hn. Julian Elliott, R. W. (N'c'tle-upon-Tyne, N.) Kershaw, Anthony
Archer, Jeffrey (Louth) Emery, Peter Kimball, Marcus
Astor, John Eyre, Reginald King, Evelyn (Dorset, S.)
Atkins, Humphrey Fenner, Mrs. Peggy King, Tom (Bridgwater)
Awdry, Daniel Fidler, Michael Kinsey, J. R.
Baker, Kenneth (St. Marylebone) Fisher, Nigel (Surbiton) Kirk, Peter
Balniel, Lord Fletcher-Cooke, Charles Kitson, Timothy
Barber, Rt. Hn. Anthony Fookes, Miss Janet Knight, Mrs. Jill
Batsford, Brian Fortescue, Tim Knox, David
Beamish, Col. Sir Tufton Foster, Sir John Lamborn, Harry
Bennett, Sir Frederic (Torquay) Fowler, Norman Lamont, Norman
Bennett, Dr. Reginald (Gosport) Fox, Marcus Lane, David
Benyon, W. Fry, Peter Langford-Holt, Sir John
Berry, Hn. Anthony Galbraith, Hn. T. G Legge-Bourke, Sir Harry
Biggs-Davison, John Gardner, Edward Le Marchant, Spencer
Blaker, Peter Gibson-Watt, David Lewis, Kenneth (Rutland)
Boardman, Tom (Leicester, S.W.) Gilmour, Ian (Norfolk, C.) Lloyd, Ian (P'tsm'th, Langstone)
Boscawen, Robert Gilmour, Sir John (Fife, E.) Longden, Gilbert
Bossom, Sir Clive Glyn, Dr. Alan Loveridge, John
Bowden, Andrew Godber, Rt. Hn. J. B Luce, R. N.
Braine, Bernard Goodhart, Philip McAdden, Sir Stephen
Bray, Ronald Goodhew, Victor MacArthur, Ian
Brinton, Sir Tatton Gorst, John McCrindle, R. A.
Brocklebank-Fowler, Christopher Gower, Raymond McLaren, Martin
Brown, Sir Edward (Bath) Grant, Anthony (Harrow, C.) Maclean, Sir Fitzroy
Bruce-Gardyne, J. Gray, Hamish Macmillan, Maurice (Farnham)
Bryan, Paul Green, Alan McNair-Wilson, Michael
Buchanan-Smith,Alick(Angus,N & M) Grylls, Michael McNair-Wilson, Patrick (New Forest)
Buck, Antony Gummer, Selwyn Maddan, Martin
Burden, F. A. Gurden, Harold Madel, David
Butler, Adam (Bosworth) Hall, Miss Joan (Keighley) Marples, Rt. Hn. Ernest
Campbell, Rt.Hn.G.(Moray & Nairn) Hall, John (Wycombe) Mather, Carol
Carlisle, Mark Hall-Davis, A. G. F. Maude, Angus
Cary, Sir Robert Hamilton, Michael (Salisbury) Maudling, Rt. Hn. Reginald
Channon, Paul Hannam. John (Exeter) Mawby, Ray
Chapman, Sydney Harrison, Brian (Maldon) Maxwell-Hyslop, R. J.
Chataway, Rt. Hn. Christopher Haselhurst, Alan Meyer, Sir Anthony
Chichester-Clark, R. Hastings, Stephen Mills, Peter (Torrington)
Churchill, W. S. Havers, Michael Mills, Stratton (Belfast, N.)
Clarke, Kenneth (Rushcliffe) Hawkins, Paul Miscampbell, Norman
Clarke, William (Surrey. E.) Hayhoe, Barney Mitchell, David (Basingstoke)
Clegg, Walter Heseltine, Michael Money, Ernle
Cockeram, Eric Hicks, Robert Monks, Mrs. Connie
Cooke, Robert Higgins, Terence L. Monro, Hector
Coombs, Derek Hiley, Joseph Montgomery, Fergus
Cooper, A. E. Hill, John E. B. (Norfolk, S.) More, Jasper
Cordle, John Hill, James (Southampton, Test) Morgan, Geraint (Denbigh)
Corfield, Rt. Hn. Frederick Holland, Philip Morgan-Giles, Rear-Adm.
Cormack, Patrick Holt, Miss Mary Morrison, Charles
Costain, A. P. Hordern, Peter Mudd, David
Critchley, Julian Hornby, Richard Murton, Oscar
Crouch, David Hornsby-Smith. Rt.Hn. DamePatricia Nabarro, Sir Gerald
Crowder, F. P. Howe, Hn. Sir Geoffrey (Reigate) Neave, Airey
Davies, Rt. Hn. John (Knutsford) Howell, Ralph (Norfolk, N.) Noble, Rt. Hn. Michael
d'Avigdor-Goldsmid, Sir Henry Hunt, John Normanton, Tom
d'Avigdor-Goldsmid,Maj.-Gen.James Iremonger, T. L. Nott, John
Dean, Paul James, David Onslow, Cranley
Deedes, Rt. Hn. W. F. Jenkin, Patrick (Woodford) Oppenheim, Mrs. Sally
Digby, Simon Wingfield Jessel, Toby Osborn, John
Dodds-Parker, Douglas Johnson Smith, G. (E. Grinstead) Owen, Idris (Stockport, N.)
Drayson, G. B. Jones, Arthur (Northants, S.) Page, Graham (Crosby)
du Cann, Rt. Hn. Edward Page, John (Harrow, W.)
Dykes, Hugh
Pardoe, John Scott, Nicholas Trafford, Dr. Anthony
Parkinson, Cecil Scott-Hopkins, James Trew, Peter
Peel, John Sharples, Richard Tugendhat, Christopher
Percival, Ian Shaw, Michael (Sc'b'gh & Whitby) van Straubenzee, W. R.
Peyton, Rt. Hn. John Shelton, William (Clapham) Vaughan, Dr. Gerard
Pike, Miss Mervyn Simeons, Charles Vickers, Dame Joan
Pink, R. Bonner Sinclair, Sir George Waddington, David
Price, David (Eastleigh) Skeet, T. H. H. Walder, David (Clitheroe)
Prior, Rt. Hn. J. M. L. Smith, Dudley (W'wick & L'mington) Walker, Rt. Hn. Peter (Worcester)
Proudfoot, Wilfred Soref, Harold Wall, Patrick
Pym, Rt. Hn. Francis Speed, Keith Walters, Dennis
Quennell, Miss J. M. Spence, John Ward, Dame Irene
Raison, Timothy Sproat, Iain Warren, Kenneth
Ramsden, Rt. Hn. James Stainton, Keith Weatherill, Bernard
Rawlinson, Rt. Hn. Sir Peter Stanbrook, Ivor Wells, John (Maidstone)
Redmond, Robert Steel, David White, Roger (Gravesend)
Reed, Laurance (Bolton E.) Stewart-Smith, Geoffrey (Belper) Wiggin, Jerry
Rees, Peter (Dover) Stodart, Anthony (Edinburgh, W.) Wilkinson, John
Rees-Davies, W. R. Stoddart-Scott, Col. Sir M. Winterton, Nicholas
Renton, Rt. Hn. Sir David Stokes, John Wolrige-Gordon, Patrick
Rhys Williams, Sir Brandon Stuttaford, Dr. Tom Wood, Rt. Hn. Richard
Ridley, Hn. Nicholas Tapsell, Peter Woodhouse, Hn. Christopher
Ridsdale, Julian Taylor, Sir Charles (Eastbourne) Woodnutt, Mark
Rippon, Rt. Hn. Geoffrey Taylor, Frank (Moss Side) Worsley, Marcus
Roberts, Wyn (Conway) Taylor, Robert (Croydon, N.W.) Wylie, Rt. Hn. N. R.
Rodgers, Sir John (Sevenoaks) Tebbit, Norman Younger, Hn. George
Rost, Peter Temple, John M.
Royle, Anthony Thatcher, Rt. Hn. Mrs. Margaret TELLERS FOR THE NOES:
St. John-Stevas, Norman Thomas, John Stradling (Mon mouth) Mr. Hugh Rossi and
Sandys, Rt. Hn. D. Thomas, Rt. Hn.Peter (Hendon, S.) Mr. Michael Jopling.
Thompson, Sir Richard (Croydon, S.)

Question accordingly negatived.

Mr. Michael Foot

In accordance with the Chairman's statement at the beginning of our proceedings I beg to move as a manuscript Amendment a modified form of Amendment No. 429, in page 4, line 25 at end add:

  1. (7) Nothing in the foregoing subsections shall enable regulations to be made allocating the representation of the Houses of Parliament at the European Parliament which representation shall only be effected in accordance with the following subsection.
  2. (8) The lists of names of the proposed representatives of the Houses of Parliament at the European Parliament shall be laid in draft before, and shall be subject to the approval of, the House of Commons.
The Amendment is being taken thanks to the response to the representations that we made to the Chairman of Ways and Means. The meaning of this Amendment to line 25 is the same as that of the original Amendment to line 1, and the effect of it, if carried, will be the same. I hope, therefore, that it is in a form understandable to the Committee generally.

Under the guillotine we have available to us tonight an hour and a quarter. This is a subject which could be debated for much longer than that, because this is the first occasion during our debates on the Bill that we have had an opportunity to discuss in depth the form of representation or the ways in which the acceptance of representations should be made to the European Assembly, as it is correctly called, or the European Parliament.

This is the first opportunity that we have had to discuss that matter, and yet we shall have to compress our debate into the derisory amount of time available to us. [AN HON. MEMBER: "Why?"] Because if we do not do that and conclude our debate before the guillotine falls at 11 o'clock we shall invade the time available tomorrow for the important debate on the Question, "That the Clause stand part of the Bill".

Mr. Fell

I should like to get this straight, and perhaps the Chair could help. Is it the case that we can invade tomorrow's time for as long as we like?

Mr. Foot

We could, if we wished, continue the debate on this subject until 7.30 tomorrow evening, but if we did that would usurp the whole of the time which could be given to debating whether the Clause should stand part of the Bill. That would be deeply offensive to hon. Members on both sides of the Committee and, indeed, would be an improper thing for the Committee to do. This is an illustration of the burdens imposed upon the Committee by the Government's insistence on curtailing the debate.

9.45 p.m.

We are told that we have had plenty of time to discuss all new matters. However, discussion, not merely of the question of the British representation in the European Assembly but also of whether such representation should be acceptable to the House of Commons, is to be curtailed in the manner I have described. It is a scandalous way for a Bill of this importance to be pushed through.

It is all the more scandalous in the light of what happened last Thursday. This is the first opportunity I have had of saying this since last Thursday's events. The right hon. Member for Wolver-hampton, South-West (Mr. Powell) referred to this at the beginning of our proceedings. We on this side regard what happened last Thursday as an added offence. It was an additional interference by the Government with the rights of those who want to criticise this Measure in debate and an interference with those who want to vote on matters of specific importance.

The Government denied us the right to vote. We had to choose whether we would vote on one Amendment or on another. Two important Amendments had been selected for debate. Because of the right hon. and learned Gentleman's tactics we were denied the right to vote on both Amendments. This was an aggravation of the injuries inflicted upon the House of Commons by the guillotine procedure.

How a European Assembly is to operate, its composition, what powers it is to have and whether it is to be given extra powers over the flimsy powers it now possesses are questions which have been widely debated in the Press and elsewhere, although not in the House of Commons, in recent weeks and months. I will not lay down what I think should be the conclusion on these matters. I am not saying that I want the European Assembly to be given greater powers and that that is one way of dealing with the undemocratic nature of the Brussels Commission and of the operation of the Council of Ministers, because I believe that there are dangers in that proposal in the sense that the stronger the European Assembly was made, the greater would be the injury inflicted upon the rights of the British House of Commons.

Long before we reach that stage we are confronted with the position that the Members of the House of Commons will have to decide what representation is to be sent from the British Parliament or from Britain altogether to the European Assembly, from 1st January onwards, assuming that the Government's will is paramount and that we join the Community. From 1st January some decision will have to be made about our representation in the European Assembly.

The Government have made proposals to deal with the situation. The Government's proposal was that the matter should be dealt with through the usual channels—[Interruption.]—and that there should be an arrangement whereby discussions took place between the usual channels to fix not merely the names of people who would be sent there—[Interruption.]—but also how many representatives from another place should go to the European Assembly.

Mr. Arthur Lewis (West Ham, North)

This is how they fix it.

Mr. Foot

If my hon. Friend the Member for West Ham, North (Mr. Arthur Lewis) could manage to subdue the chorus for a while it might assist the process.

The suggestion was made that a considerable number of Members from another place should represent the British Parliament and Britain in the European Assembly. There was also a suggestion that there would have to be a number of Members of Parliament who would have to be absent, who would be given leave of absence from their duties in this House to participate for the lengthy period required—about 100 days throughout the parliamentary year—and when a number of Members of Parliament would have to be paired in order to deal with this situation. That was the way in which the Government thought this matter could be dealt with.

Whatever we may think of the future powers that a European Assembly should or may have, that is not a proper way of dealing with the matter. The proper way is that any proposals about the form of representation in the European Assembly and the precise list of Members who are to be sent there should be subject to decision by the House of Commons. That does not seem very much to ask for. It should be included in the Bill.

The simplest way for the hon. and learned Gentleman to deal with this Amendment would be to say "Yes". Never has such a modest Amendment been placed upon the Order Paper. All it asks is that proposals for settling the form of representation in the Assembly, and the names of those to be sent there should be subject to the House of Commons.

When we set up a Kitchen Committee the names are brought forward. The House of Commons is entitled to decide the matter. Amendments can be put forward. When we appoint any of the other Committees the matter is brought forward for the House to settle.

Mr. Rippon

There is no need to make legislative provision for that.

Mr. Foot

We have legislative provision because we want to ensure that the Government do not proceed as they have suggested. They have suggested that this matter should be dealt with through the usual channels. We felt this was a matter that should be dealt with in the open; that we should have discussions about the form of representation and about the individuals; that both matters should be subject to the decision of the House of Commons.

On the question of form, it is no good hon. Members thinking that this is a trivial affair. The Parliaments of the Six have different methods of dealing with this situation. Some of their methods might be thought intolerable, in this House for example.

The French Parliament has a method of deciding the representation to be sent to the European Parliament. Under that system it secures that the Communist representatives shall be excluded from such representation. That is one way of doing it. It could be done in that way in this House. I am not sure how they achieve that result in France.

In Italy the representation is subject to decision by the Parliament. It is done on an elected basis. They do not exclude the Italian Communist Party or any party represented in the Italian Parliament.

Both the French and the Italian Parliaments think it is right that there should be a proper system of election. The Members who are sent from those Parliaments to the European Assembly are elected by the Parliaments concerned. They have different methods in the other Parliaments, where they are nominated in a different manner. But in each case it is done with Parliament giving its full approval.

By this Amendment we are saying we should have the same rights in two respects. First, we want the understanding that the Government—if this Amendment is passed—will have to do two things. They will have to consult Parliament at some stage—not necessarily before the end of this Bill; we are letting them off very lightly, in my opinion. It should all have been done in the Bill. The form should be in the Bill.

If the Amendment is passed, the Government will have to bring forward proposals on the manner in which Britain is to be represented in the European Assembly. For example there is the question whether the House of Lords is to be represented. Some of us do not think it proper that non-elected representatives should play a part, and this is a matter which should be settled by the House of Commons.

Then there is the question of a considerable number of Members of Parliament being absent from their duties in the House over a long period. I well remember the arguments during the war when Mr. Malcolm MacDonald and others were given lengthy leave of absence from the House of Commons. Important constitutional questions arose whether it was right for the House of Commons to decide that the constituents of certain hon. Members should be deprived of their representation in the House for a considerable period. I am doubtful whether it is proper for the House of Commons to say that the 30 or 40 constituencies that may be affected should be deprived of their Members of Parliament for a considerable period. Whatever one may think of the way in which it is settled, it must be settled by proper proposals which are debatable and can be voted upon.

Further, names will have to be submitted as they have to be submitted for Committees of the House. It would be a change from the way in which nominations are made to many bodies, but we say that appointments to the European Assembly are of greater significance and should be made not through the usual channels but with the approval of the House of Commons.

The question of how this Parliament is to be represented in another Parliament is surely a matter for this Parliament to decide. That is all we are asking. I ask the righthon. and learned Gentleman to accept our extremely modest suggestions. They do not commit him to any view about the Assembly or to any names or numbers. They commit him to nothing other than bringing the proposals before the House before they are accepted.

That is a proposition which most hon. Members expected to see in the Bill. We are seeking to remedy this obvious oversight. If the Government cannot accept this simple Amendment they will confirm more clearly than ever that they are more determined to drive the Bill through in its present form than they are to protect the rights of the House which the Bill invades. The Government would be making the rights of the House and, therefore, the rights of the people subordinate to the exigencies of the Government timetable. That would be a most discreditable reason for opposing the Amendment.

Although the right hon. and learned Gentleman has rejected the possibility of amendment on a whole range of matters I hope he will say "Yes" to this Amendment, so that we can proceed. If by any mischance the right hon. and learned Gentleman rejects the Amendment, the House and the country will draw the conclusion that the Government are not prepared to commit themselves to submitting questions of the form and representation of the European Assembly to the House of Commons.

Sir D. Walker-Smith

I was a little disappointed at the beginning of the speech by the hon. Member for Ebbw Vale (Mr. Michael Foot) when he intimated that in his view this discussion must end tonight. I appreciate his reasons and the importance of a debate on the Question, "That the Clause shall stand part of the Bill", but it so happens that on these occasions most of the points have been made in the various Amendments to the Clause—

It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.