HC Deb 14 June 1972 vol 838 cc1607-37

DECISIONS ON, AND PROOF OF, TREATIES AND COMMUNITY INSTRUMENTS ETC.

Mr. Ronald King Murray (Edinburgh, Leith)

I beg to move Amendment No. 445, in page 4, line 26, leave out subsection (1).

The Temporary Chairman

I understand that it will be convenient with this Amendment to take Amendment No. 347, in page 4, line 29, leave out from 'law' to end of line 32.

Mr. Murray

The Committee will appreciate that we are now turning to the third chapter of Part I of the Bill. I should like to present two arguments in seeking to exclude subsection (1) from Clause 3. The first argument is a general one which is concerned with the subsection and with the structure of Part I; I shall raise yet again, as I must, the question of sovereignty in its legal aspect. The second argument I wish to present is a more detailed legal argument in which I shall hope to satisfy the Committee that, if there is a legitimate purpose in subsection (1), this way of dealing with it is hopelessly bad and will not suffice.

I come to my first argument. It has been said that the Bill does not honestly and openly fulfil the objectives which the Government have set themselves. It was noted by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) that in page 3, lines 5 to 10, one had a Louis XIV provision. It is fair to say that in Part I of the Bill what is out- standing is the draconian nature of the provisions that are sought to be enacted. No less a word than "draconian" will do for this situation. The defence propounded by the Government to this type of criticism has been to say, in effect, that the Labour Opposition when they were the Government knew that draconian measures were needed. That is no argument at all. The Government have to justify these draconian measures, and I am sure that this point of criticism has a considerable degree of force.

We are struck by the Bill's failure to fulfil the elementary rule that justice should not only be done, but manifestly should be seen to be done. It is one thing to introduce draconian measures but it is another thing to introduce them by way of a Chinese puzzle in which one cannot even see the dragon's shape. Sometimes I think the Bill is a Chinese puzzle; at other times I see it as something in the nature of a jigsaw puzzle, in which once the pieces are put together the dragon will appear. If it is a jigsaw puzzle, it would appear to have four corner pieces: Clause 1(3), Clause 2(1), Clause 2(4) and Clause 3(1).

Mr. Arthur Lewis

I was interested in my hon. and learned Friend's remark that justice must not only be done but must be seen to be done. He will know that I have 25 Motions on the Order Paper which draw attention to cases in British law, and under British rules and procedure, in which justice does not appear to have been done. Is he saying that if we go into the Common Market I shall not be able to table Motions condemning irregularities and lack of justice in the Common Market courts—and indeed, will not be able to table Motions which seek to bring about a change in the Common Market courts?

Mr. Murray

I am afraid my hon. Friend will find his style considerably cramped. I, like many other Committee Members, have greatly admired his manifest sense of legality.

8.30 p.m.

I was dealing with the Bill as a puzzle and I suggested that it perhaps was a jigsaw puzzle. Again, perhaps it is an anagram. Perhaps it is an anagram of the word "automaticity". Whatever the puzzle, it is quite clear that we have to find clues to crack the code. The Bill is in code and one has to find clues. One of the clues—not the most important but one of them—is contained in Clause 3(1).

To discover what Clause 3 is intended to do, one can do no better than to turn to the Explanatory Memorandum at the beginning of the Bill. This appears on page ii of the Explanatory Memorandum where it says this about it: Clause 3 deals with the treatment and proof of the Treaties and Community instruments in legal proceedings in the United Kingdom and makes it clear that questions of their validity, meaning and effect are to be determined in accordance with the jurisprudence of the European Court. It is quite clear, therefore, when we turn to page 4 of the Bill proper and apply our minds to Clause 1(3), that we are here dealing with that, nothing less and nothing more—the application of the jurisprudence of the European Court to this country, the introduction of the full panoply and majesty of European justice. It is that and no more, emphatically no less.

It is in that light that I want to go over the debates we have had on earlier subsections. These are fresh in our minds, so fresh indeed that it will come as no surprise to the Committee if I stress that it is in this subsection that the wig is set upon the judge who is chairing the European Court. There is the complete panoply. The scene is set.

Now we have the situation where the fears and anxieties, which have in no way been requited by the Government's replies, find their force. Our fear, and certainly the fear on the Government side of the Committee, is that once these enactments have been made the House of Commons will find itself bound by these draconian measures and robbed of its essential sovereignty. There was the example mooted in yesterday's debate, of whether one could legally repeal the Bill. That may be dealt with by the kind of answer that my right hon. Friend the Member for Manchester, Cheetham (Mr. Harold Lever) has sought to give, or it may be dealt with in more sophisticated ways.

But of course there are minor problems which may pose acute difficulties in the same way. For example, even some change in Clause 2(4) may give rise to a genuine difficulty. In the end the decision as to whether an attempt to pass an Act of Parliament altering the detailed words or the first four lines of subsection (4) can be done legally by this Parliament will ultimately not be taken by any court in this country and not by the House of Commons. This House will cease to be the High Court of Parliament in that sense because the final decision on the legality of what is done will lie with the European Court in Luxembourg.

I do not express any value of judgment. I am simply stating the bald facts. They cannot be gainsaid. Indeed, the indictment of subterfuge, of lack of honesty and oppenness is proved to the hilt, not on a balance of probability, not merely beyond reasonable doubt, but conclusively by the course of these debates.

So much, therefore, for the first of the general arguments which I seek to present. It may be that some of my hon. Friends and some hon. Gentlemen on the other side of the Committee will wish to raise—and this debate will give them an opportunity as long as they relate it to the jurisdiction of the Court—questions about the meaning and effect of the treaties and how judicial decisions upon these may have an impact upon our native institutions in this country. These are important matters, and I hope that the debate will be a wide-sweeping one and will not be confined to the narrow legalities which might otherwise dominate the forum.

The second argument which I wish to present is, admittedly, a narrower one and perhaps a little legalistic. I do not mean legalistic in the sense that I want to make it so, but perhaps inevitably it will appear so. The intention is good, and I hope I do not stray into legalism too far. It is important that the Committee should apply its mind to the possible deficiencies in this way of enacting what Clause 3(1) possibly legitimately, certainly for those who believe in going into the Community, seeks to do. To this extent, perhaps the temper of the Committee has changed. We have now gone from Clause 2. Clause 1 and Clause 2 are, at this stage at any rate, past praying for. We must at least take them as so far enacted, not completely enacted but so far enacted, and to that extent the room for debate is narrow.

The question therefore concerns the quality of subsection (1) to achieve the purpose for which it was designed. When it is examined in detail, the Committee will find it seriously wanting. To begin with, if one reads the passage in the Explanatory Memorandum to which I have referred and compares it with the wording of Clause 3(1), one is overcome by a sense of surprise. The central idea in the Explanatory Memorandum is that of European jurisprudence. But that is a mere parenthesis when one considers the wording of the subsection. Why is it done like this? Why this sleight of hand? Why is it not in the forefront?

Then, when one applies one's mind to the first four words of the subsection, one becomes aware that they are not crystal clear. They will not be clear to a layman, and I do not think that they will be transparently clear to a lawyer. However, it may be that lawyers more learned than I will be able to show that they are clear. But certainly they are not transparent.

The opening words of the subsection are: For the purpose of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law… Why is that put in?

First, why narrow it to legal proceedings? We have been told—and there seems to be ample reason for this fear and anxiety—that the effect of Clause 1(3) and Clause 2(1) is to impose Community law as superior law upon the law of this country. If that is right, in some respects these words are otiose. If these earlier subsections have imposed directly applicable law on the domestic law of the United Kingdom, manifestly that law will apply for the purposes of legal proceedings. No other consequence can flow.

Is it meant to narrow it down? Is it to be said that we have to apply European jurisprudence in legal proceedings and not elsewhere? Is there a subtle distinction? We do not know. It is a question that I can only throw to right hon. and hon. Member son the Government side hoping for an answer. I may pose a possible answer myself, but it may not be right. There is some doubt about the reason for using these words at the beginning of the subsection.

It goes on: …any question as to the meaning or effect of any of the Treaties…shall be treated as a question of law.. Manifestly it would be a question of law. The treaties are international law and they are directly applicable in the domestic jurisdiction of the various countries.

Why, then, are those words there? The answer that has come to me is that it is arguable that although questions involving the interpretation of the treaties would be questions of foreign law in this country and accordingly would have to be proved in evidence, if the words were not there Community law might be treated as foreign law and have to be proved as fact. If that is the purpose of subsection (1), Community law is domesticated or naturalised to this country in a way that goes far beyond what we have done to our own domestic jurisdiction. Scottish law is foreign law in England. English law is foreign law in Scotland. We are giving Community law a birth certificate which we have not given to our domestic legal systems.

I have mentioned our domestic legal jurisdictions. I should raise a point relating to the subsection as it contains the first mention of the European Court, a point which has exercised the minds of members of the public and some Members on this side of the Committee. I refer to the question of jurisdiction.

This country, although it is a single State—it is a kingdom or an amalgam of kingdoms with one Monarch—has three legal jurisdictions. They are not jurisdictions which have ever been combined. That is why the law of each is foreign law in the jurisdiction of the others. In that situation one has to pose the question of whether the arrangements for entry which are reflected in the subsection will be adequate for the legal problems which this tripartite jurisdiction will present. It is a serious problem.

Some commentators on the treaties and on the Community have put forward a theory for the number of judges. The figure was seven and it will be increased to 11 in the event of the applicant countries succeeding. One explanation for the number of judges is that at least one judge must come from the jurisdiction of each of the member States because judicially he will know the law of his jurisdiction. There must be an odd number to ensure that there will be an absolute majority, so that there are no tied votes, which would create the embarrassment of presidential casting votes. That explains the odd number and it explains the minimum number of judges.

If there are 11 judges, on British entry the judge representing the United Kingdom will presumably have to deal with three jursidictions. It poses this question Is the arrangement that led to the decision that there should be six judges in the Community of Six, plus one to make the numbers odd—if that is the decision—satisfactory if we have only one judge to represent three jurisdictions, which are foreign law still to each other? The problem may be answered, but I so far have heard no answer.

The problem does not stop at the level of the European Court because the same problem must run through all the activities of the Community, because the Community will have its being in three separate jurisdictions in the United Kingdom. The three separate jurisdictions will similarly reflect themselves in the operations of the central organs of the Community in Brussels and elsewhere.

Mr. Ivor Stanbrook (Orpington)

I follow the point that the hon. and learned Gentleman is making. We have solved that problem for this country. The decisions of the House of Lords are binding on all three jurisdictions. That court has to consider these problems in the three jurisdictions and resolve them. As it is the superior court for the three jurisdictions, its decisions have the force of law in all three. The problem is not a new one for us. We have solved it for a long time.

Mr. Murray

I take the point. When the House of Lords sits to hear a Scottish appeal it is a Scottish court. When it sits to hear an English appeal it is an English court. When it sits to hear a Northern Ireland appeal it is an Irish court. There are representatives on the court from each jurisdiction. That is an interesting point. The hon. Gentleman may find that the argument leads beyond where he would wish to take it.

We must pose the problem of whether the tripartite legal character of the United Kingdom has been adequately dealt with. The Opposition would like an answer to that. I do not press for an answer today. The Opposition would be entitled to say that this is a matter of some anxiety. It is a matter of importance. It may not be a matter of major importance in the sense that the issues of entry, which we are discussing in detail, in this Part of the Bill are of major importance. It has an importance which cannot be gainsaid. At some stage before the Bill is enacted, we must be satisfied of the detailed arrangements made in these regards.

8.45 p.m.

I turn now to other words among the opening words of subsection (1). I took in parentheses, as it were, the words …any question as to the meaning or effect of any of the Treaties…shall be treated as a question of law…". But we must also apply to the words I left out: …or as to the validity, meaning or effect of any Community instrument". We find words there which appear to sound an echo from Article 177 of the Treaty of Rome, which begins: The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

  1. (a) the interpretation of this Treaty;
  2. (b) the validity and interpretation of acts of the institutions of the Community;
  3. (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide".
These words appear to be echoed at least to some extent in the words of subsection (1) that the court will deal with the validity, meaning or effect of any Community instrument". I pause here to point out that this does not say, "any Community act". The word "instrument" is used. But in Article l17(b) the word is "acts"— the validity and interpretation of acts of the institutions of the Community". Therefore, another question of detail which I throw across to the Government to answer is why the word "instrument" is used in the subsection instead of the word "act". Is it sought to narrow jurisdiction so that there will be no power under the terms of the subsection to scrutinise and examine the validity of an act of a Community organ? This is a very important matter. If subsection (1) does not extend to acts of the Community, clearly whatever is being done in subsection (1) is being done in a very much narrower way than might appear on the face of it.

I should point out here that in Part II of Schedule 1 "Community instrument" is defined—or at least mentioned—as meaning …any instrument issued by a Community institution. That is not a very illuminating definition because it still poses the question of what is an instrument. It is not for me to speculate, but I would have thought that "an instrument" means perhaps a document in writing which has legal effect. If that is what is meant, it would be helpful if the Government were to say so, especially since definition is claimed in the Bill, because Part II of Schedule 1 is headed, "Other Definitions". It would be useful to know what "instrument" is intended to mean. I have put a suggested connotation for it and perhaps it may be confirmed or refuted tonight. These are the matters which are to be treated as questions of law and which are to be domesticated, as I conceive it, rightly or wrongly, in the early wording of subsection (1).

Then we come to the words in brackets in subsection (1)—the parenthetical accuracy of the concealed wedged passage we sought to delete in subsection (4) of Clause 2 yesterday. Perhaps I should pay tribute here to the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) for Amendment No. 183. I am afraid that he is not in his seat at present and I should have said this while he was here. It did not appeal very strongly to the Opposition, but not because it was a bad means of doing what the hon. and learned Gentleman sought to do.

The Committee will remember that the hon. and learned Gentleman sought to lay down some positive guidelines for judges about what they were supposed to do and how they were intended to operate the Bill when faced with the specific task of trying to do justice to people who appeared before them, and that, after all, is the task of a judge. The Bill gives scant guidelines of any kind to judges. If the hon. and learned Gentleman had applied his mind to subsection (1), that would have been of assistance to the Committee. He sought to add a new subsection after subsection (4) of Clause 2 to give guidance and the line of thought which he was pursuing could have been useful to the Committee.

Mr. Clinton Davis (Hackney, Central)

I find it as difficult as my hon. and learned Friend does to comprehend the Government's failure to offer guidelines. Consider, for example, the question of precedents. Is it my hon. and learned Friend's view that where there is some difficulty in interpreting Community law the courts of this country should take expert evidence from other member States as to the interpretation which they have applied to the point at issue? Where there is a conflict between those member States, where do we get to?

Mr. Murray

As subsection (1) does not apply to these other jurisdictions, to the law of other foreign States, that possibility arises. One may get a court in this country having the law of a foreign State upon a matter of Community law led before it as a matter of fact.

The effect of the second Amendment, No. 347, which perhaps will be moved in due course, is to delete altogether the passage in brackets. That Amendment might commend itself to the Committee for reasons—

The Temporary Chairman

Perhaps I can help the hon. and learned Member. We are dealing with that Amendment, too.

Mr. Murray

I was aware of that, Mr. Godman Irvine, and I was merely saying that I could not move it now.

The Temporary Chairman

The second Amendment cannot be moved at any point.

Mr. Murray

In that case, I am a wiser if sadder Member of the Committee.

The merit of the Amendment is that it deletes the words in parenthesis. This is perhaps an occasion on which the Government can show their backbone in this matter—if they have one—by accepting the Amendment, or at least undertaking to reconsider the drafting of the subsection, because it surely cannot be satisfactory to have the essential objective of a subsection contained in parenthesis. That cannot be the right way to introduce European jurisprudence. Is this great edifice to be capped as an afterthought? Is it to be done in the dark, instead of in the daylight? I ask the Government to think again about this. No one in the Committee, and no one outside the House, would criticise the Government for having a Report stage because they found downright bad drafts-manship such as this.

I do not criticise the draftsmen in technical terms. I criticise the political draftsmen who have imposed this condition in this form upon the legal intentions which they have. There can be no answer to that, and even if the Government were to do no more than get rid of the brackets the Committee would have made some progress.

I think I have put the key arguments on the wording of the subsection. I could say more about it but I think that I have raised enough problems about the drafting for the Committee to get its teeth into the problem. If we can have a wide-ranging debate in which the full consequences of the legal capping of the structure of the Community can be explored to its limit, that will be of great help.

Sir Derek Walker-Smith (Hertfordshire, East)

The hon. and learned Gentleman the Member for Edinburgh, Leith (Mr. Ronald King Murray), as is his wont in these matters, has given the Committee an interesting and informative insight into the complexities of the subsection. Insofar as I can discern—it is not always easy in the Bill to do so—I do not dissent from the basic, general principle underlying the subsection. That is to say, I do not dissent from the general principle that the interpretation of Community law and matters affected by Community law is the business of the Court of Justice of the European Communities, which in the Bill is given the name of the European Court.

Nor do I dissent from the general proposition that if this country enters the Community our courts must, in the application of Community law, be guided by the Court of Justice of the Community and its decisions. Clearly the Community could not function on any other basis. It could not function on any basis other than that a single Community Court was the final arbiter and interpreter of matters of Community law. Otherwise, one could not hope for a consistent pattern of law and practice if each national court in the Member States had its own independent jurisdiction in the interpretation of Community law. They need the guidelines of a common Community Court in the interpretation of Community law.

That being so, Clause 3, on which we are now embarked, is in a different category to the two Clauses which have so far occupied us in Committee. The Clause does not deserve the description which I gave a good many months ago to Clause 2, on the Second Reading, as being the heart of the matter. It is an important Clause, but for these reasons it is not the heart of the matter.

The points that I propose to put in the few minutes which I shall detain the Committee are primarily of an interrogatory and qualifying nature. As the Committee sees, subsection (1) refers to two matters; first, the meaning or effect of any of the treaties and, secondly, the validity, meaning or effect of any Community instrument.

The first question I want to ask is about jurisdiction. The general jurisdiction of the Court of Justice is given in Article 164 of the Treaty of Rome in the short words: The Court of Justice shall ensure that in the interpretation and application of the Treaty the law is observed". That is an admirable, simple sentiment shortly and concisely expressed. The specific jurisdiction regarding parliamentary rulings is given in Article 177, to which the hon. and learned Gentleman has referred.

We find in Article 177 of the Treaty of Rome a specific jurisdiction to give preliminary rulings concerning (a) the interpretation of this Treaty". 9.0 p.m.

Article 177(b) is presumably intended to cover the second limb of subsection (1), the validity, meaning or effect of any Community instrument". Like the hon. and learned Member for Leith, I noticed this discrepancy of language between subsection (1) and Article 177(b) of the Treaty. The Clause refers to "Community instruments", which have that singularly unhelpful definition later in the Bill, whereas the Treaty refers to acts of the institutions of the Community. When my hon. and learned Friend the Solicitor-General replies to the debate, perhaps he will ascribe some reason for that difference of language. The language of the Treaty existed when the Bill was drafted, but there is this different phraseology. No doubt my hon. and learned Friend will also confirm that the jurisdiction regarding Community instruments is, in his view, covered by Article 177(b) of the Treaty.

Where do we find the jurisdiction of the Court of Justice of the Communities to give rulings on the accession treaties? I appreciate it is logical that it should have it, but where is that jurisdiction identified? I ask that because the pattern of the Treaty is to give express jurisdiction where jurisdiction is to be conferred, as we have seen from the Articles I have quoted.

Subsection (1) refers to any question as to the meaning or effect of any of the Treaties. As the Committee has reason to know, after the laborious hours we spent on Clause 1, "any of the Treaties" includes not only those in Schedule 1—the Treaty of Rome, the Euratom Treaty and the Coal and Steel Community Treaty—but the accession treaties by express incorporation in Clause 1(2). In addition, it includes any other treaty entered into by of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom. We find that at the end of Clause 1(2).

I repeat: where is the jurisdiction regarding those matters conferred upon the Court of Justice of the Communities—the European Court as it is called in the Bill—in order that it may give preliminary rulings about them? That is the first series of questions I put for clarification of this subsection.

I turn now to my second group of questions. What is the legislative machinery, if any, by which it is proposed to give to the British courts the power and, in some cases, the duty to refer these matters of interpretation to the Court of Justice at Luxembourg?

The Committee will see that two matters are dealt with in this context in Article 177 of the Treaty of Rome. The first of these is contained in the second paragraph and is permissive: Where such a question is raised before any court or tribunal of a Member State"— such a question of course referring back to these matters of interpretation— that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. That is a power conferred upon the court of the Member State, in this case the British court, to refer a matter to the European Court for a preliminary ruling.

The next paragraph, however, imposes a duty: where any such duty is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. So in that case it is mandatory. Obviously, both of these provisions must be given effect to in British law for the courts under the second paragraph to exercise their powers. It may be a power coupled with a duty, in the language of the law, but the second one is an express, specific, mandatory duty.

I should like my hon. and learned Friend to tell us what is the machinery to give effect to all this. How will it operate in practice? Is there to be fresh legislation to confer upon the courts the power and to impose upon the courts the duty, to do these things in accordance with Article 177? Or do the Government consider that the provisions of Article 177 are self-enacting under Clause 2(1)? Do they consider that they constitute, in the language of that subsection, with which we have been so familiar over the last few weeks, rights, powers, liabilities, obligations and restrictions which are, without further enactment, to be given legal effect in the United Kingdom?

The Committee should know what the position is in regard to those matters—whether they are regarded as being self-enacting and therefore automatically coming into force if and when the Bill reaches the Statute Book, or whether it is proposed to make specific legislative provision in regard to these matters, and if so where and when.

Finally, Article 177 says: Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law… I should be grateful for my right hon. and learned Friend's understanding of that last phrase: no judicial remedy under national law". Is that intended to mean no appeal to a higher court, or has it a meaning more restricted than that? It is difficult to think that it has any other meaning because of the words "court or tribunal". It is difficult to see how there could be no judicial remedy with regard to the decision of a court presided over by a judge unless judicial remedy is being equated with a right of appeal to a superior court.

Mr. Eric Deakins (Walthamstow, West)

Is not the right hon. and learned Gentleman's second possibility unlikely to arise in the light of the evidence we have been given by the Government as to the practical effect of Clause 2(1), namely, that that very important subsection, which we debated at some length, applies only to regulations because under the Treaty of Rome it is only regulations which are self-enacting? Surely the Treaty itself is not a regulation and cannot be self-enacting. Indeed, it is only enacted in English law by virtue of the Treaty of Accession. Therefore, although I am not a legal expert, I should have thought that that was not a possibility. Is not the other possibility, to which the right hon. and learned Gentleman may care to turn his attention, that the Government may well want to proceed in this, as in other things, by Order in Council, simply telling our courts what they need to do to comply with Article 177?

Sir D. Walker-Smith

Yes. On the hon. Gentleman's last point, the Order in Council is a form of subordinate legislation. When I said "legislative machinery", that was a compendious term to cover either a Bill preceding an Act of Parliament or some form of subordinate legislation such as that to which the hon. Gentleman refers. On his first point, I am not sure that one can dismiss the other possibility quite as quickly as that. It is true that in our consideration of Clause 2(1) we were naturally concerned with the regulations under Article 189, not because the subsection identifies those regulations, still less confines its operation to them; it was simply that we indentified in the Treaty the regulations which, under the Treaty, must be self-enacting. Therefore, we very properly linked Clause 2(1) to Article 189, but non constat that the language of subsection (1), is restricted to the regulations under Article 189. It covers them and is intended to do so, but it may cover other things as well, and the language of it rights, powers, liabilities, obligations might be considered apt, the words "rights" and "powers" to self-enact the power to refer under Article 177, and the word "obligations" to self-enact the duty under the third and last paragraph of Article 177 to refer in certain cases.

The Solicitor-General

If my right hon. and learned Friend has finished answering the previous intervention by the hon. Member for Walthamstow, West (Mr. Deakins), which was related to my right hon. and learned Friend's penultimate point, may I ask exactly what is the question being put by my right hon. and learned Friend on Article 177? He asks whether the phrase against whose decisions there is no judicial remedy in the last paragraph of Article 177 means "in respect of which there is no appeal to a higher court". I think that that was the way in which he put it. I fancy that he put an alternative possible meaning for it. If he did, I did not comprehend what it was, and I should like to be clear about it.

Sir D. Walker-Smith

I am sorry if I did not make myself clear. I suggested that that might be the interpretation of it because if it was not, I could not see very readily what the interpretation would be. So I put it in a interrogative way. Does "judicial remedy" have to be equated, in effect, with the right of appeal to a superior court? I hope we can be enlightened about that.

9.15 p.m.

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

My right hon. and learned Friend has opened up before the Committee a very alarming dilemma, namely that the power, and in some cases the duty, of a court to refer cases outside the realm might either be self-enacting under Clause 2(1) or might be provided for by regulation under Clause 2(2). Does he consider that either of these methods would be a satisfactory way of authorising such a fundamental change in the law and, in the absence of appropriate provision, would he consider whether the penalties of praemunire, so far as they still exist, might be involved.

Sir D. Walker-Smith

The penalties of praemunire might be involved, I suppose, if national jurisdiction was transferred to a foreign court. I have not had many cases of praemunire in the course of my professional forensic experience and I do not suppose I am alone in that. I will leave my hon. and learned Friend the Solicitor-General, with all the expert assistance he has, to enlighten the Committee on the penalties of praemunire to which so courageously he may be exposing himself.

I do not think it is a very happy situation for these sorts of provisions to be self-enacting, because as I made clear in our debates on Clause 2(1) I do not favour the self-enacting mechanism. It is not in accordance with our constitutional practices and it is only seen to be permissible, in so far as it is permissible at all in the Bill, if Article 189 expressly requires it.

[Mr. E. L. MALLALIEU in the Chair]

I apologise for detaining the Committee, but owing to these helpful interventions I have taken longer than I intended. Is any guidance to be given to our courts as to the permissive powers to refer which are contained in Article 177(2)? How are the courts to be guided round the pitfalls of Community law and how are they to know in every case whether there is an impact of Community law and, if so, what it is? On whom is the burden of exposition and explanation to be cast?

No one has a greater respect for Her Majesty's judges than I, but it would be asking too much to ask them to assume overnight that they will become immediately familiar with the whole conspectus of Community law. Equally, I have great admiration for members of the Bar, but are they to be under a duty to guide the court in each case on the implications of Community law? Are they to be at hazard for an action of professional negligence if they fail to do so? I can see the premiums increasing quite a bit in the Temple and in Lincolns Inn if this is to be so.

Sir Elwyn Jones (West Ham, South)

Would the right hon. and learned Member bear in mind—happily he is no longer in danger of having to face these problems, having left the Bar—that the Bar will have to be familiar with mere expressions of opinion by the European Court on any question according to the next subsection?

Sir D. Walker-Smith

I am much obliged to the right hon. and learned Gentleman. That had not escaped me. It is not only judgments, as it would be in this country, but expressions of opinion. I suppose that the nearest we would get to that would be an advisory judgment or opinion of the Judicial Committee of the Privy Council, which is but rarely indulged in. The opinions of the Community Court will presumably be much more frequent.

Or is counsel's burden to be lightened in these matters and the judiciary to be assisted by the admissibility of expert evidence on Community law? That is a possibility. Expert evidence in this as in other contexts is an expensive matter. I hope that my hon. and learned Friend the Solicitor-General will say something about costs. Who is to bear the costs of the ventilation and adumbration of the Community law aspects in our cases? The Community law will bring a substantial new element into a wide range of cases of a contract and commercial character. It will make them last longer and cost more. We should know what consideration has been given to that aspect and what will be the arrangements for the costs incurred in references to the Court of Justice in Luxembourg for its preliminary rulings, some of which are permissive in the courts here but some of which are mandatory. For example, will there be a special system of legal aid, perhaps irrespective of the ordinary income limits, to cover the taking of cases to the Community Court for preliminary rulings over and above the ordinary costs of litigation?

Mr. Clinton Davis

May I, as a humble solicitor, seek the guidance of the right hon. and learned Gentleman, as a leading counsel, on what is to happen to the time-honoured maxim in English law that ignorance of the law should be no excuse, taking into account the enormous body of new law that is to be imposed? The right hon. and learned Gentleman has painted a horrifying picture for the lawyers, but is not the position infinitely more horrifying for the ordinary British subject?

Sir D. Walker-Smith

I take the hon. Gentleman's point. We must admit that the maxim, "Ignorance of the law excuses no man", is already a little threadbare, with the complexity of modern Statute law, but the impact of Community law aggravates the position. If I was looking at the matter mainly from the point of view of lawyers, it was because I could apprehend great difficulty for them, and a fortiori for those who are not qualified in the law.

Those are the groups of questions I wanted to put. I put them in an interrogative way, mildly critical perhaps, but certainly not a hostile way. I am in no way hostile to the Court of Justice of the Community. Of course not.

On the contrary it would be, I hope, one of the bright spots if we had to enter the Community. We might find that we needed the Court of Justice in several contexts. We might find that we needed it as a nation under Article 170 for example which says: Any Member State which considers that another Member State has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice. We may very well find that we need to invoke its jurisdiction under that Article or perhaps more important under Article 173 the second sentence of the first paragraph of which says: It"— that is the Court of Justice shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. There we get the jurisdiction of the Court of Justice on what in this country we call vires and on the Continent is called de'tournement de pouvoir. That may be an important help from this country's point of view and very useful to help keep the bureaucratic activities of the Community and the encroachments of the Executive in check. It may well be a welcome and powerful supplement to the efforts this country would have to make, as I said yesterday, as a member State, if we become a member State, to strengthen the democratic content of decision-making. In that spirit of goodwill but with some doubts about the content, purport and consequences of this Clause I put forward these remarks and would be grateful if my hon. and learned Friend could, when he comes to reply tonight or on Tuesday address himself to these questions.

Mr. Deakins

I wish to follow the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) in my remarks. Unlike him I am not a lawyer but I hope that I can read a Bill, if not as well as he can, at least well enough for the purposes of the Amendment. I must admit that the more I read subsection (1) of Clause 3 the more I realise that it contains the seeds of some future conflicts between the courts of this country and perhaps the Court of Justice and, even more important, between the courts of this country and individual citizens and even the Government of this country, because of the way in which the Government have approached the whole task of getting us into the Common Market.

I want to address my remarks first to the wording of the Clause where it speaks of the meaning or effect of the Treaties". The assumption in the use of the word "treaties" is that it is well known what the treaties are. I do not want to weary the Committee but it is a fact that one of the things we have elucidated in our discussion of Clause 1 is that this Committee, the House and the country do not know what are the Community treaties. We know what most of them are, we probably know what 99 per cent, of them are, but we do not know what all of them are.

I submit—not being a lawyer perhaps I should not submit, but rather suggest or assert—that we need to know, our courts need to know, whether in each case a treaty is a Community treaty because it has a bearing on whether the Clause applies to a foreign instrument which claims to be a Community treaty. The reason for my disquiet is that the Government have told us by no less a person that the Chancellor of the Duchy of Lancaster that they cannot spell out, in place of paragraph 7 in Schedule 1, all the Community treaties because they are not absolutely certain that they know what all of them are. Therefore, if they were to set them out there would be a danger of omitting one. That is an admission in itself.

The Government go further and say that there is also a danger that by spelling out the treaties in paragraph 7 of Schedule 1 they might include one that was not a Community treaty. I am virtually quoting verbatim the words of the Chancellor of the Duchy of Lancaster in our earlier discussion in Committee. If the Government do not yet know precisely what are the treaties, it is a poor lookout for the courts when they have to work under Clause 3.

9.30 p.m.

The Government may claim that there will be no difficulty for the courts because, under Clause 1(3), an Order in Council will be issued to explain to the courts and other persons and institutions who need to know saying that such-and-such treaty is a Community treaty. But that does not relieve us of the problem. If the Government cannot say what is a Community treaty, how can they issue an Order in Council explaining what are Community treaties? Most of them are well-known and listed in the first six paragraphs of Schedule 1, but the Government will not be able to give that guidance to the courts until they have made up their mind on the full list of Community treaties.

Mr. Clinton Davis

Would it not in litigation be arguable by one of the parties that even if the Government had failed to introduce the Order in Council under Clause 1(3), a Community treaty alleged to be in being affected that litigation? One would therefore have to got expert evidence which would add to the cost of litigation and we should get into the horrendous position described by the right hon. and learned Member for Hertfordshire, East.

Mr. Deakins

If my hon. Friend will wait a few moments, I shall be coming to the point of when the courts will be getting to know not only what are the treaties but what are the Community instruments. The precise timing is important from the point of view of costs of litigation and of the rules of natural justice which apply in our courts.

The treaties themselves—particularly the Treaty of Rome—use language of a vagueness which is virtually unknown in English legislation. Sometimes the language is inconsistent. To quote one example, Article 137 of the Treaty of Rome refers to representatives in the European Assembly whereas Article 138 refers to them as delegates. I am sure the distinction between the two is well-known to the Committee, but I am worried that the distinction between "representative" and "delegate" is not known to the judicial authorities on the Continent. This vague, contradictory and inconsistent language may well pose problems for our courts.

I turn now to the effect of the treaties. Reference has been made by the right hon. and learned Member for Hertfordshire, East to the validity and interpretation of Community instruments under Article 177 of the Treaty of Rome. That is to be a matter for the Court of Justice. I pose the question whether it would be within the competence and powers of the courts of this country to rule that a particular Community instrument could be adjudged to be ultra vires. From a reading of Article 177 is would appear that they could not so rule. That would deprive the courts of this country of power which they retain at present to protect the subject against the unauthorised exercise of power which was given legitimately in the first place.

Again, on the question of interpretation by the courts in terms of the effect of treaties we have the problem involving the question whether regulations can be made independently by the Commission or whether Commission regulations have to be made on the basis of previous and prior regulations which originated in the Council of Ministers.

The Treaty of Rome is extremely vague on this point. Nothing said by either the Chancellor of the Duchy of Lancaster or the Solicitor-General has done anything to clear up the confusion which lies in the wording and nature of the Treaty of Rome. Yet if our courts are to seek to operate under the terms of the Treaty of Rome and the instruments and regulations which stem from it, they may be in some difficulty because of this vagueness of language.

The right hon. and learned Member for Hertfordshire, East quoted extensively from Article 177 and said that this could mean some delay while references were made to the European Court in deciding whether a Community regulation or instrument had a bearing on a case and, if so, whether it was valid and what its interpretation would be.

Apart from questions of delay and slowing up the legal procedure in this country—which in many cases is slow enough already—there is a basic principle which our courts will have to accept, a principle which so far they have not accepted. This relates to the fact that the Treaty of Rome is regarded in the Treaty of Rome as a sacred text. The only organisation which is allowed to pronounce on its interpretation is the European Court of Justice. According to the Treaty of Rome, no other national court can pronounce on the interpretation of that treaty. That is very different from the present position in the courts of this country in respect of Acts of Parliament.

It is now open to a court of first instance to interpret an Act of Parliament and, if that interpretation is wrong or is held to be wrong, a defendant can appeal to a higher court and ultimately to the House of Lords. Therefore, the case is not necessarily held up because of doubts about the interpretation of the Act of Parliament which is the basis of litigation before the court. However, in any case affecting the Treaty of Rome or Community instruments it will not be open to any court in this country, whether it be a court of first instance or the House of Lords, to attempt its own interpretation. The matter will have to be suspended until the European Court has made a decision on it. That is a new departure in the legal practice of this country.

My next point relates to the difficulty that is likely to be faced by courts in respect of Clause 3(1) and is concerned with the regulations—which will flow faster and faster at the rate of 20 or 30 a week, if not more—under Clause 2(1). These become law automatically and we have already had big debates about the breach in the principle of parliamentary sovereignty.

I come to the point made by my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) on the question of the timing of these regulations and their legal effect in this country. Under Article 189 of the Treaty of Rome these regulations will have immediate effect in member States. The regulations usually end with a provision stating that the regulations will come into force one, two or three days after publication in the Official Journal of the European Communities. After 1st January, 1973, that journal will be published in English and there is no doubt that from a Community point of view the regulations will become law almost immediately upon publication in the Official Journal. But in some cases we have to issue regulations or Orders in Council in this country because of consequential amendments which will be necessary to existing United Kingdom law—law which in some respects contradicts the new regulations from the Community.

Unless the Government are absolutely spot on here—and I do not think any Government can necessarily be relied upon in this direction—one may well find that a Community regulation has become law a considerable time before there has been an Order in Council promulgated to remove any inconsistencies or contradictions in existing United Kingdom legislation.

I merely pose the problem—and it is a problem, of course, not so much for the House of Commons—of what is to happen in the time gap between a Community regulation of a certain date and an Order in Council under the law of this country removing a contradictory provision of a previous Act of Parliament of a subsequent date. I hope that the Solicitor-General will be able to settle this for us.

There is also the point that there may be regulations on 1st January, 1973, which have not been translated into English. As at 1st January, 1973, under Clause 2(1) of the Bill they will immediately become part of the law of the country. However, until they are published officially in the Official Journals of the European Communities they will not be known to the people of this country. I would respectfully suggest that that position is intolerable not only for the courts but for our people, the businessmen and others who will have to abide by the rules of the Community. It is quite contrary to the rules of natural justice that a person can be affected by an instrument, whether it be a Community instrument or a Statutory Instrument here, which has not been published at the date on which it comes into effect.

My next point is to come back to the wording of Clause 3(1) and to point out that the meaning and effect of the treaties and Community instruments have a bearing on the interpretation of Clause 2(2) in which Ministers may have regard to the "objects" of the Communities. The word "objects" is singularly semi-literate, since what the Government mean are the things the Community is aiming at, which are objectives and not objects. Leaving aside the question of who is responsible for this piece of semi-literate draftsmanship, the other fact of which account must be taken is that the Treaty of Rome nowhere mentions the word "objects". That may well pose a difficulty for the Courts of this country in trying to ascertain—when considering a regulation which is the subject of a dispute—what are the objects of the Communities. Article 2 of the Treaty of Rome refers to the "task" of the Communities. Article 3 refers to the "purposes". Articles 4 and 5 refer to "tasks" in the plural, and Article 5 also adds confusion to confusion by referring to "objectives". This is very loose phraseology. I have already referred to this. It poses, and is likely increasingly to pose, problems to those, particularly the courts, who will have to interpret the legislation coming from the Communities.

I do not want to bore the Committee by referring to the contradictory nature of some of the objectives of the European Communities—for example, the objective of having an accelerated raising of the standard of living combined with an objective of having an increase in stability. One cannot have an accelerated raising of the standard of living unless one is in a dynamic, rapidly evolving and changing society—and that, of course, is the reverse of stability.

9.45 p.m.

My next point on Clause 3(1) is that we are told in the subsection that there are to be different standards of interpretation for our courts depending on whether a Statutory Instrument or a legal instrument before them which is the subject of a dispute is a Community instrument. As I understand it, for any Community instrument the interpretation is to be that put upon it by the European Court of Justice; in other words, the interpretation standards of European jurisprudence.

However, for domestic legislation, even for our secondary legislation which purports to put into effect Community legislation such as directives or decisions of the Communities, the courts are to use not the European method of interpretation but the traditional United Kingdom method. There again, there is the danger of conflict and certainly of difficulty for our courts in trying to reconcile two different and perhaps inconsistent systems of interpretation.

That brings me to my major points. Our courts will be placed in increasing difficulty. In my view they will face the possibility of a serious constitutional conflict by virtue of the Government's constantly reiterated claim that this country has a right of veto where important national interests are at stake.

The Treaty of Rome is exceptional. It is for ever. It follows that Article 148 dealing with majority voting in the Council of Ministers is also for ever. Both Article 148 and the Treaty of Rome, as from 1st January of next year under the Treaty of Accession, will become part of our law as well as the law of the Community. Clause 3(1) deals with matters of law. Therefore our courts must have regard to the whole of the Treaty of Rome.

The Government say that the practice of the Communities is different where there is a clash of important national interests. Where one country is the odd man out—in the past it has been France and it might be Britain in the future—the practice of the Communities is to agree to disagree. That is set out clearly in paragraphs 30 and 70 of the White Paper on entry, Command 4715.

The status of the Luxembourg disagreement, which is the sole foundation for the Government's claim that there is a right of veto, is an important question for our courts, in addition to being a very important question eventually for the European Court of Justice. It has not yet had an opportunity of pronouncing upon it. It will be interesting to hear its views when eventually it is forced to pronounce on the validity of that agreement to disagree, in contrast with the clear and unambiguous wording of Article 148 of the Treaty of Rome.

We know that the Luxembourg disagreement is not a treaty. The Government have solidly resisted Amendments designed to write it into our law. It is not a treaty under Clause 1(4) and, therefore, it could not possibly be enforceable in our courts. I wonder how our courts will interpret an agreement to disagree which is not a treaty under Clause 3(1). Will they take note of the Prime Minister's statement to the House on 24th May, 1971, about his talks with President Pompidou?

On that occasion the right hon. Gentleman said: We agreed…that the processes of harmonisation should not override essential national interests. We were in agreement…that decisions should in practice be taken by unanimous agreement when vital national interests of any one or more members are at stake."—[Official Report, 24th May, 1971; Vol. 818, c. 32.] The courts of this country will not take note of that statement, no matter how eminent the gentleman who made it. They can only take note of what is the law. The law is contained in Article 148 of the Treaty of Rome.

There are a number of dangers here. The first is the general danger, which has already been alluded to, that any future Government of this country would not necessarily be bound by the agreement between Messrs. Heath and Pompidou reported in the House of Commons on 24th May, 1971. This means a very big increase of power to the Executive which has so far not been alluded to in our debates in deciding on any particular occasion whether to use the veto or in deciding—in exchange for perhaps some other major concession by our partners in the Community—to abandon the veto safeguard altogether for the future.

That is evidently to be a matter for the Executive in future but not a matter for our people, for Parliament or for the courts.

Second, there could be a major constitutional conflict over the use of the veto involving dragging the courts of this country into the mire. I pose this problem. What will be the position if the Council of Ministers could not take a decision because on country—it does not matter which one—decided to exercise its so-called power of veto? Another member State could, under the provisions of the Treaty of Rome, appeal to the Euroean Court on the ground that the Council of Ministers was not acting in accordance with he Treaty of Rome. The European Court undoubtedly would have to interpret the treaty. It could not possibly interpret bilateral agreements which are not part of the treaty. Therefore, there is a serious possibility in future that the European Court of Justice could overrule the veto.

Mr. Stanbrook

Has the hon. Gentleman considered that there is a flaw in his argument, in that the problem to which he has referred would not exist unless a decision had been made? If a decision cannot be made because of the existene of the veto, and the veto has been used, there is no question of that non-decision ever being subject to control by a court.

Mr. Deakins

I defer to the hon. Gentleman.

Mr. English

I am puzzled by the previous intervention. The European Court can deal with actions that are based on the inaction of a Community body. I fail to understand the relevance of the previous intervention. If a decision is not reached, that may be something the European Court can deal with at the behest of some persons.

Mr. Deakins

However the issue might arise—I pose one hypothetical illustration of a number of possibilities—our courts would have to accept the ruling of the European Court of Justice under subsection 3(1). Therefore our courts would be required to enforce that law in this country.

If it was a case of our Government exercising the right of veto, they are surely sowing the seeds of a potentially serious constitutional conflict between the courts of this country—acting on behalf of the European Court of Justice, in asserting the supremacy of the Treaty of Rome—and the Government of this country claiming that it had a right of national veto.

My third point on the danger of the Luxembourg Agreement is that the United Kingdom, for the first time that I can ever recall—I have some knowledge of the treaties this country has signed over the course of centuries—has signed a major international treaty intending to break a major provision within that treaty even before its signature.

If there were ever any legal dispute the courts of this country must seek to give effect to the whole treaty and not merely to part of it. Basically, under Clause 3(1) the effect and meaning of the treaties is to be a matter of law, not a matter of practice. That is the drafting of the subsection. Therefore, the fact that our alleged right of national veto is not in legal form, a failure for which the Government are responsible, means that we have no long-term safeguard of our national interest, particularly—and I am sure that this will happen inevitably in the next few years—when the European Court of Justice decides that there is no national right of veto whatever.

I suspect that the Government may be resisting writing the veto into legal form not only to avoid a Report stage for the Bill but basically because the very existence of a legal veto would give back to Parliament some of the powers taken from it and give it that little extra power in fighting what is likely to be an increasing and surreptitious move towards federalism and federal institutions. Indeed, not only is Parliament being castrated by Clauses 1 and 2 but even the courts are having their wings clipped—if I may mix my metaphors—under Clause 3.

My final point concerns the danger for the future in Clause 3, which of course arises out of Clause 1(3) and Clause 2(1), (3) and (4). The danger in the first three Clauses, particularly in Clause 3, is not in what we know about the European Communities and the implications of membership at the present stage, but the much more serious danger that we do not know the implications for the future and, in particular, future developments towards federalism. The Government have resisted all Amendments and all attempts in the first two Clauses to ensure that, if they or a future Government should decide to move towards federalism by some enormous leap forward by virtue of another international treaty, there can be adequate opportunity not only for Parliament to consider, debate, and amend it but, indeed, for Parliament to send the Government packing, because unfortunately there is no such power left to Parliament under Clauses 1 and 2 and we cannot now rely on the courts to safeguard us from such a move.

If the Government have determined, as I suspect they have, although they will not admit it, to accept federalism as an objective as part of the opportunities of going into Europe and gaining alleged economic advantages, the wording of subsections (1) and (4) of Clause 2 and subsection (1) of Clause 3 will allow them to proceed step by step towards federalism and federal measures which might come out of the Comunities without recourse at all to Parliament. Here lies the biggest danger of all in what is proposed in both this subsection and the preceding provisions to which it is linked.

For example, an agreement on the second and third stages of a monetary union would involve, among many other things which would not be dear to the hearts of most hon. Members, whatever their views on membership of the Community, co-ordination and agreement on budgetary policy, indirect taxation and, indeed, ultimately of both corporate and individual direct taxation. If that is not draining the lifeblood of the House of Commons and the people, I do not know what is. But that is the sort of step which could be carried into effect under the provisions of the Bill as they exist without the Government being under any legal or constitutional obligation to come back to us and submit a new Bill for our consideration.

All these things and measures will be able to be set out without the House and the country having a full opportunity of debating them at length, amending them or rejecting them in whole or in part. What we have passed in the Bill allows us to proceed stealthily step by step towards federalism. What we must hope to do by the remaining Clauses and by the Amendment in particular is to ensure that there are some safeguards against such an eventuality.

It is clear that even without any new international treaties we shall see more and more federal implications in the subordinate legislation coming from the European Communities. We see some already, and some of us have pointed out the dangers but these have been pooh-poohed by those who say that there is no loss of national sovereignty. What we want to ensure is that any move towards federalism is taken in the light of day and is not taken without full public debate and discussion. I have no doubt what the public verdict would be on any such step.

The Government are claiming that federalism is a long way off, but what they are really hoping for is gradually to get us into a federal Europe without any adequate parliamentary—

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

Committee report Progress.

Back to