HC Deb 14 June 1972 vol 838 cc1638-57

Again considered in Committee.

Question again proposed, That the Amendment be made.

Mr. Deakins

I conclude by saying that if the Government hope to impose federalism on this country by stealth, step by step, without full and adequate parliamentary and popular consideration, they will not get away with it. Neither this Parliament, nor the Labour Party, nor, in the last resort, the British people will allow such a thing.

Mr. Denzil Davies (Llanelly)

I shall not detain the Committee long because I know that a number of hon. Members wish to take part in the debate.

I should like to address only two questions to the Solicitor-General and I shall not go into a more general dissertation on the effect of subsection (1). The subsection tends to complete the equation. In Clause 2 we discussed the powers of the Commission and the Council of Ministers, and we are now capping it all by discussing the third element in this unholy trinity, the Court itself. Those are the three parts of the Common Market, and the Clause must follow from what has gone before.

We all appreciate that if we pass subsection (1) we shall establish for this country for the first time what I call a constitutional court. Clauses 1 and 2 establish a written constitution, and Clause 3 puts on top of that constitution the necessary constitutional court which I believe—I do not think this can be denied—will be superior to the House of Commons, certainly in those areas covered by the new written constitution.

I have no great hostility towards a written constitution. I do not share the views of some or agree with the nonsensical things that have been said about a written constitution. My only objection to this written constitution is that the British people cannot change it. In most countries where there is a written constitution it can be changed by the representatives of the people.

I shall not detain the Committee with general remarks of that kind. I shall merely address to the Solicitor-General two questions, one of which was brought to my mind by some remarks made by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) who dwelt upon the word "Treaties" in Clause 1(3). The word is "Treaties", not "Community Treaties".

When we were discussing Clause 1 and, indeed, Clause 2, we pointed out the distinction between a Community treaty and a treaty. In other words, any treaty entered into by the Government after 22nd January,1972, does not become a Community treaty without an Order in Council. Until that Order in Council is issued or before it can be issued there has to be an affirmative Resolution on this issue. When we were discussing Clause 1, that was put forward as a safeguard by the Solicitor-General. He said that in future any treaties entered into by the United Kingdom relating to the European Common Market will need to be affirmed or approved by the House of Commons by means of affirmative Resolution. They will then become Community treaties and the legal consequences follow.

I pointed out earlier that Clause 2(1), and the point is the same on Clause 3(1), refers only to "Treaties". So we could have the situation that the United Kingdom signs a treaty entered into after 22nd January, 1972, the Government do not bring in an Order in Council making it a Community treaty and yet, as I read it, under Clause 3(1) that will be a treaty which has the force of law because any questions arising under it can be determined as a question of law by the courts of this country and ultimately by the European Court of Justice or the European constitutional court, if one likes to call it that.

First, why did not the draftsman refer to "Community Treaty"? Why has he referred to the larger term "Treaty"? Does this mean that the Government will be absolved in future from going through the necessary procedure, which we thought they would have to follow, of getting an Order in Council to designate a treaty as a Community treaty to set the legal consequences in train?

The Solicitor-General

I refer the hon. Member to page 1, line 15 of the Bill. The two phrases "the Treaties" or "the Community Treaties" are alternative

Mr. Davies

The Solicitor-General says that they are alternative, but there is nothing that indicates to me that they are alternative. It is not said that they are alternative. A treaty is generally a treaty. It then becomes a Community treaty if there is an Order in Council.

The Solicitor-General

Will the hon. Member be kind enough to look at page 1, line 15? "The Treaties" in question, or "the Community Treaties", means that the whole of that which we debated for so many days follows, and the term "the Treaties" as it appears in Clause 3(1) has the same meaning as it would have if it were "Community Treaties".

Mr. Davies

I am glad that the Solicitor-General has reassured us that this safeguard applies and that no treaty entered into by this country within Clause 1(3) will have any legal effect until and unless there is an Order in Council and an affirmative Resolution. That is an important assurance.

The rules of statutory interpretation of the European Court may well be different from ours. Those arguing cases before the Court may well seek to rely on what is said in these debates to advance their arguments.

The second question I wish to put relates to yesterday's debate on subsection (4) of Clause 2. I shall not go over the same ground, but to some extent the two subsections overlap. Clause (3)(1) says that matters must be decided in accordance with the principles laid down in any relevant decision of the European Court. The word "principle" is important, but it is possible to look at the case law of the Community to see what some of the principles up to now have been.

The most important sphere which we debated yesterday concerned the principle relating to a clash between the law of a nation State or a municipal law, on the one hand, and a Community law on the other. There is little doubt that the principle of the European Court, established by its case law, is summed up clearly in the Italian ENEL case which has been mentioned previously. I should like to quote briefly from part of the judgment to illustrate the principle on which the court operates in a case of conflict between national and Community law. The quotation is contained in an article in the Modern Law Review of September, 1971.

The Court said: no provisions of municipal law, of whatever nature they may be, may prevail over Community law…lest it be deprived of its character as Community law and its very legal foundation be endangered. The validity of a Community act or its application in a member State remains, therefore, unimpaired, even if it is charged that the basic rights…or the national constitution were violated. The point is clearly made that this is the principle, which I am sure is accepted, on which these matters are decided. The principle derived from the case law of the European Court is that Community law takes precedence over national law.

In the light of that principle I wonder whether the Solicitor-General will again explain the point raised yesterday and some remarks which he made in the debate which appear in the Official Report of 13th June at column 1320. The Committee will recall that we were discussing the effect of a future Statute which might seek not necessarily to repeal the whole Bill but in some way to limit, say, the effect of the words in Clause 2(4) of the Bill.

The Solicitor-General said: 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' "— that was the kind of future Statute the hon. and learned Gentleman was postulating, a Statute which sought to limit the European Communities Bill but not necessarily to repeal it in its entirety— would mean that the courts of this country would give effect to that limited proposition, certainly as the matter now stands".—[Official Report, 13th June, 1972; Vol. 838. c. 1320.] The important words are that the courts of this country would give effect to that limited proposition"— that is, would give effect to the later Act— certainly as the matter now stands". On the face of it, that passage is in complete defiance of and contrary to the quotation which I made from the Italian case enunciating the principle that Community law shall indeed be superior to national law.

So I have to look at the Solicitor-General's remarks again. Looking at them more closely—being an excellent lawyer, he has hedged his bets—the hon. and learned Gentleman has said that the courts of this country would certainly, as the matter now stands, give effect to all this. However, the words become slightly meaningless. It is not the courts of this country which decide the matter. The matter would not be decided as it now stands, because as it now stands we are not a member of the Community. As it now stands, this whole concept of European jurisprudence has not been inserted into our law.

10.15 p.m.

If the Bill becomes law, given that subsection (1) says that our courts, in all matters involving Community law and interpretation of the treaties, must apply the law in accordance with the principles of the European Court, what will be the position if we get the same kind of statute as the Solicitor General postulated yesterday? If a later Act repeals or holds in abeyance certain parts of this Bill, will it take precedence? In the end the matter has to be decided by the European Court. There is no answer but that that court would ultimately prevail.

Suppose that we tried to repeal all this Bill. It may be argued that, as a matter of law, that too would have to be decided by the European Court, and there is nothing to suggest that it would come down in favour of the later Act.

We have not yet had an answer to this question, which goes to the heart of our sovereignty. We can pass any Statute we like, but the question is whether the European Court, which will be the final arbiter—the highest court in the realm, although outside the realm—will give precedence to any later Act over the Bill.

Mr. Powell

I want first to refer to a verbal matter but not on that account a necessarily unimportant one. It is in this subsection that the expression "European Court" first appears. That term has been chosen for the purposes of our own legislation. It does not occur in the Treaty of Rome and it is not one which we are obliged to adopt. We have adopted it voluntarily and can change it if we think fit.

It is true that this expression is defined in Schedule 1 and it might be that our discussion on that schedule would be the appropriate time to discuss this point. Under the guillotine, however, we shall have at the next allotted day only one and a half hours for consideration of all the substantial matters which will arise on the First Schedule.

At least, I think that that is so, although I noted with some interest the words which fell from the Chancellor of the Duchy of Lancaster today when, replying to my hon. Friend the Member for Belfast, East (Mr. McMaster), he assured him that there would be "further opportunity" to discuss on Schedule 2 an important matter which had arisen. I hope that my right hon. and learned Friend will not thereby find himself in breach of an assurance; for other very important matters arise on Schedule 2, to which only 3½ hours is allotted under the guillotine. So I put that matter on record, as I think that the assurance which my right hon. and learned Friend gave was important, certainly for the impact on Northern Ireland of this Bill and of what is to be done under it.

That is why I want to refer at this stage to the designation "European Court" and to say that it is a wholly inappropriate choice. It is a deliberate and avoidable misuse of the term "European", as if Europe were coincident with the present or indeed the future Economic Community.

I regard it as offensive that the Bill should deliberately choose to describe the court of justice of the Community as the European Court; and I hope that in this respect, and wherever we have to choose our words carefully, we shall refrain from this abusive—in the grammatical sense—use of the word "Europe". I trust that when we come to the First Schedule there will be time and opportunity for the Government to accept an Amendment in the name of myself and my hon. Friend the Member for Holland with Boston (Mr. Body) which would substitute the term "Community Court", which surely is both more appropriate and more accurate.

Mr. Michael Foot

I do not know whether the Minister responsible would give an immediate reply to that request. It seems a very simple suggestion and it would be very helpful if the Minister would suggest that we should have an immediate answer.

The Lord Advocate (Mr. Norman Wylie) indicated dissent.

Mr. Powell

If we are to have no response to that suggestion, may I ask my right hon. and learned Friend the Lord Advocate to invite my hon. and learned Friend the Solicitor-General, when he winds up the debate, specially to refer to that Amendment—it is surely in order in connection with this subsection which uses the expression—and to indicate the Government's point of view?

The Lord Advocate

I am quite sure that my hon. and learned Friend the Solicitor-General will read with care everything that my right hon. Friend has said.

Mr. Powell

I am much obliged. In view of what has been said earlier this evening, I would hope it would be the attitude of the Government that if it is the general wish of the House of Commons even on a matter of nomenclature, that "Community Court" should be substituted for "European Court", they would not be prevented from deferring to the wish by any scruples arising from matters of procedure.

I come now to the matter of substance in this subsection. It was partly jocularly, I admit, that in an intervention in the speech of my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) I referred to the danger of incurring the penalties of praemunire. I noticed some alarm on the Front Bench; but, fortunately for my right hon. and hon. Friends on the Treasury Bench, the Criminal Law Act, 1967, in Schedule 4 Part I, at last removed from our Statute Book the 16th of Richard II. They have, therefore, escaped from what might otherwise have been the very serious consequences of aiding and abetting the removal out of the realm of causes which would otherwise fall to be adjudicated in the courts of the Crown.

Sir D. Walker-Smith

Perhaps I could apologise to my right hon. Friend that the reference to the Schedule of the 1967 did not spring instantaneously to my mind when he made his helpful intervention.

Mr. Powell

That is a very surprising and unusual lapse on the part of my right hon. and learned Friend, but I suppose that it is one for which he may hope to obtain the forgiveness of the Committee.

Sir Elwyn Jones

It is the case, is it it is not, that the writ ne exeat regno could still have applied to the Minister if he had sought to avoid the consequences of what might otherwise have been a peril?

Mr. Powell

That is an interesting possibility, which perhaps we ought to pursue later.

I was engaged in saying that though the form in which I interposed was half jocular, the matter is very serious indeed, for what this subsection does or confirms is that for the first time for over four centuries there is a question of causes being decided, or decided finally, outside the realm and by a court other than a court of this country. That is one of the central constitutional consequences of what we are doing in this Bill. I added the words "in this Bill" to that sentence very deliberately; for I question whether it is necessarily implicit that this should be so in the acceptance of the Treaty of Accession or in the passage of legislation to give effect to it.

It is remarkable how we have found during this Committee stage that one major debate or series of major debates, when they appear to be terminated, as might have appeared with Clause 2 by the Division at 7.30 p.m., nevertheless are immediately resurrected by the next provision to which the Committee comes.

We meet the same challenge in Clause 3 as we have been meeting in Clauses 1 and 2, namely, that it was not necessary, if it had been desired to avoid it, to bring about by this Bill the consequence that in form as well as in substance the ultimate jurisdiction in a whole series, and a growing series, of cases affecting individuals, companies and other persons in this country will be decided outside the realm and otherwise than by the courts of this country, and the jurisprudence of the Community will be formally superimposed upon our courts.

I rest this proposition upon the fact that Clause 3(1) hangs together with Clause 2(1). If instead of Clause 2(1) we had adopted the alternative procedure of giving effect to Community law by enactment in this country—whether enactment in the form of secondary legislation, as by Clause 2(2), or enactment by Act of Parliament—I submit there would be no need for Clause 3(1), or for the formal superimposition of the jurisprudence of the Community upon the courts of this country.

Let me follow this through, before I comeback to the point that there always was, and still is, an alternative way of procedure. Let us suppose that effect were given to Community law by enactment. Let us suppose that effect is given to it by a regulation, as well it might be under Clause 2(2).Then, of course, that regulation would be part of the law of this country and Clause 3(1) would not bite upon it. It would not need to. The Court would have before it a Statutory Instrument which had been approved, if that were necessary, by this House.

It might however be alleged that the Statutory Instrument had failed to give full or due effect to the Community law. In that case the Community would challenge before the Court of Justice not the individual involved in proceedings in a court in this country, but the member State itself—Her Majesty's Government in the United Kingdom, and it would have to be decided whether Her Majesty's Government, by that enactment, had or had not given due effect to Community law, as they were obliged to do.

Thus by enactment in this country we would achieve two purposes. We would be giving effect, as we are required, to Community law; and we would also be ensuring that the subject in this country would only be bound by the law of this country, which, incidentally, would always be in his own language and would be drawn in the forms of the law of this country. He would be judged here in our courts in accordance with the law of this country and the interpretation of that law.

10.30 p.m.

That is the alternative. It is the alternative against which this Government deliberately decided when they drew the Bill in this way. So once again, now that we come to Clause 3 and the transfer of judicial sovereignty from this country, we discover that we are not confronted with something which is obligatory in the way in which we are doing it; we are instead confronted with something which the Government have chosen to do.

I noted with interest that my hon. and learned Friend the Solicitor-General was at some pains yesterday to go back over the expressions which fell from my right hon. Friend the Prime Minister at the close of the debate on Second Reading, and I have again studied those expressions. There is no doubt of what my right hon. Friend the Prime Minister told the House. He told us, and, I respectfully suggest, correctly, that the effect of Clause 2(1) could have been achieved by legislation. It is true that he argued that it would be inconvenient, but he admitted in so many words that there was an alternative way of giving effect in this country to the law of the Community—namely, by enactment, whether by primary legislation or by subordinate legislation.

My right hon. and learned Friend the Chancellor of the Duchy of Lancaster will recall that he himself on several occasions has been careful to avoid saying that Clause 2(1)—and we are really against considering the effect of Clause 2(1)—was the only way to do what the Government was required to do under the Treaty of Rome and the Treaty of Accession. Naturally, he told us it was in his opinion the best way to do it; and one can see—we have already seen—reasons for supposing that, from the point of view of the Executive, it might be the most convenient way. But he has been careful to say, and has been characteristically truthful in saying, that it was not the only way, that there was an alternative, but that this method was chosen as being, from the point of view of the Government, preferable.

So now we are confronted yet again with the consequences of the Government having chosen not to proceed by way of legislation, not to make the Community law expressly the law of this country in the way that the rest of the law of this country is made. That is why we have this transfer of jurisdiction and this imposition of Community jurisprudence, which is the effect of Clause 3 generally and in particular of this subsection.

When we address ourselves to the Amendment—to leave out subsection (1)—we are once more not asking that the Bill should be wrecked—the Amendment would not be in order if we were doing that. We are once more not seeking to violate or render inapplicable the Treaty of Accession. We have been saying that there was a different way in which the purpose could have been achieved, which would have preserved not only the form, but much more than the form, of parliamentary control; and now, when we look at Clause 3, we realise also that it would have preserved the form, and more than the form, of the inviolability and independence of the courts of this country.

Once again the question before the Committee is not one which needs to divide those for or against joining this or any other Community. It will divide only those who are for or against doing the thing in a way which preserves to the maximum or which sacrifices to the maximum the constitutional procedures and rights which exist.

Mr. Charles Fletcher-Cooke (Darwen)

I wish to take up what my right hon. Friend the Member for Wolver-hampton, South-West (Mr. Powell) has said and the comments of the hon. Member for Walthamstow, West (Mr. Deakins), which implied that the courts were in some way being lowered or depreciated by the Bill. The hon. Member for Walthamstow, West said that the courts, like Parliament, were being castrated. Whatever may be the case with Parliament, the reverse is the case with the courts. So far from being castrated, to use the hon. Member's elegant verb, the courts are to have an absolute bonanza. I would like to illustrate this with a few examples.

As hon. Members may know, hitherto the courts of this country have been under the strict rule of precedent. They are strictly ruled by the House of Lords and to a lesser extent by the Court of Appeal. Only recently my noble Friend the Lord Chancellor, sitting in a judicial capacity, read a great lecture to the Master of the Rolls, Lord Denning—much in our thoughts today—about the need for the Court of Appeal to observe the law as laid down by the House of Lords.

That illustrates the importance attached hitherto to the system of discipline in our judicial system. When we read Clause 3 (1) all is at large. The courts of first instance are to have a charter of liberty when considering matters of Community law. No longer will the fulminations of either my noble Friend the Lord Chancellor or of the Master of the Rolls be enough to keep the judges of first instance in their place. It will be observed in the concluding words of the subsection that when considering matters of Community law they are to be determined as such in accordance with the principles laid down by and any relevant decision of the European Court. Hon. Members may also know that this judicial discipline of ours is called by the lawyers the principle of stare decisis. I see that my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) is not here to correct my pronunciation.

This subsection means that the strict rule of precedent and particularly the rule of hierarchical precedent by which decisions of superior courts rule those of lower courts is not observed on the Continent or by the Court at Luxembourg. Therefore when a humble county court judge or a humble puisne judge has to consider a matter of Community law, and they will have to do it increasingly I am glad to say, they will be able to snap their fingers in the faces of the Master of the Rolls and the Lord Chancellor—if I am right. Not only is the court of first instance to observe the Community law, but it is obliged to use it according to the principles laid down by the European Court.

Those principles include the principle that precedent is not binding. That is the principle on which the European Court proceeds; it is not bound by its own precedents, as with the Supreme Court in Washington and recently, though in a small and negligible and intermediate sense, by our own House of Lords—although nobody knows the limits of that great dash for freedom which it made about three years ago.

It is clear that in the European system under which our judges in future will operate the rule of precedent in Community law, although not outside it, does not apply. That is how the European Court works. Every court of first instance will be free to pick and choose between the decisions of its co-equals—the decisions of the House of Commons, the decisions of the directives, the decisions of the regulations, the decisions properly so-called of the Commission, the Council, the European Court and such decisions of our own courts as it prefers.

Sir D. Walker-Smith

Is it any part of my hon. and learned Friend's case that this democratisation of the judicial system to which he refers is intended as, or should be regarded as, any form of compensation for the admitted sacrifice of political democracy which entry into the Community will involve?

Mr. Fletcher-Cooke

These matters are not as carefully judged and thought out as my right hon. and learned Friend might think. It is one of the by-products, to my mind one of the advantages, of the Bill that the court of first instance will have a much greater freedom than it has had previously to pick and choose between the different authorities which it will follow. It is obliged to interpret the European law, and is obliged to do so on European lines and on European principles. That being so, courts of first instance are not bound by precedent, as European courts and European law are not bound by precedent. I should like to know whether there is a fallacy in that argument; that is all I rise to inquire.

If there is a fallacy, I do not understand what it can be. If our judges of first instance do not refer the matter to the Court in Luxembourg—and I hope they will not do so too readily because the cost to the ordinary litigant of doing so will be very great—they themselves will be obliged to decide it, and they will be obliged to decide it in the way the European Court would decide it. That court would not observe precedent because the European courts do not observe precedent. I suggest that far from our courts being castrated, as the hon. Member for Walthamstow, West said, they will have more virility than they have ever had in their lives.

Mr. Deakins

I refer the hon. and learned Gentleman to Article 177 of the Treaty of Rome, which says that the permissive discretion of a court of first instance in this country to refer a matter to the European Court of Justice will depend on whether our court considers that a decision on the question is necessary to enable it to give judgment". If it does not consider it to be necessary, it is a comparatively unimportant point affecting the case before the court. If it has a bearing on the judgment, surely reference must be made under this part of Article 177.

Mr. Fletcher-Cooke

I do not think there is any obligation to make a reference. I have the paragraph before me and I see that the provision is governed by the word "may". The court has discretion in deciding whether to refer the matter to Luxembourgh. I should hope that in the majority of cases it would regard any such reference which had to go to Luxembourg and then back again to the court of first instance as a very expensive and time-consuming operation. In this new dash for freedom, I should hope that our courts would have the robustness to decide for themselves as frequently as possible.

10.45 p.m.

Sir Elwyn Jones

While not wishing to pursue the question whether it amounts to castration, I hope that the hon. and learned Gentleman will recognise that apparently it is the intention that courts of first instance shall recognise the primacy of Community law. I do not know whether that is really what the Government intend. The Chancellor of the Duchy of Lancaster speaks of the primacy of Community law. He also says that this Bill has not touched upon the sovereignty of Parliament. However, in that situation there is no free-for-all for the judges. There is no great open road to freedom at all. The door is locked to them in a very large part of their jurisdiction.

Mr. Fletcher-Cooke

I take the right hon. and learned Gentleman's point. But I rather doubt that. If one imagines a judge of first instance surrounded by all the documents—a Statute which may be said to be irreconcilable with some decision of the Council or Commission, a decision of our Court of Appeal, possibly a decision of a court of cassation in France—he would have far more freedom to pick and choose than he has at present in our municipal law.

As a result of this legislation, the judges will rule us far more than they have in the past. I am in favour of that, and I support the Bill for that reason.

Sir John Foster (Northwich)

I find some philosophical difficulty in my hon. and learned Friend's argument. It is rather like the Greek fallacy which says The proposition on the other side of this piece of paper is untrue and which says on the reverse side The proposition on the other side of this piece of paper is true". The subsection says that the English courts shall decide in accordance with the principle laid down by the relevant decision of the European Court. My hon. and learned Friend says that the principle laid down by the European Court is that there is no principle, because it is at large. My hon. and learned Friend's interpretation of that leads to one of these Greek fallacies.

Mr. Fletcher-Cooke

I agree, and that gives the unfortunate judge who has to decide one way or the other a great deal of liberty. In that sort of situation, he has to put himself in the position of the European Court. He has to ask himself what would be the decision of six or 10 learned gentlemen drawn from different systems of law with different principles guiding them and different factors operating. That is very much at large. If a judge puts himself in that situation and tries to imagine himself in the position of the Luxembourg Court, he has a much wider option than when he has a precedent guiding him either from the Master of the Rolls or from my noble Friend the Lord Chancellor.

My purpose in rising was to inquire from my hon. and learned Friend the Solicitor-General whether it was true that when one of our judges was considering a problem of Community law he was not bound by precedent because he had to put himself in the position of those whom we broadly and perhaps wrongly call "the Continental lawyers". Continental lawyers do not observe the binding effect of precedent.

I hope that my hon. and learned Friend will do what he promised to do last night, which is to look into the question of what the judges are to do about the writs of execution, particularly as regards relief from the writs which are self-enforcing, those which are issued from Luxembourg or Brussels, and whether our judges can give relief on our usual grounds. Since last night I have looked up the articles, and it seems to me that because of Article 192 they cannot give such relief. The last paragraph says that: Enforcement may be suspended only by a decision of the Court of Justice". That implies that our judges will be powerless to give such relief. If that is so, so be it. It is a pity. That seems to be one of the prices we must pay for observing our obligations under the treaty. It is not one of those features of the Bill where I think the Government are paying too much. If it is a price we must pay, so be it, but I should like to have the point cleared up when my hon. and learned Friend replies.

Mr. Clinton Davis

We have heard some very diverting propositions both from the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) and my hon. Friend the Member for Waltham-stow, West (Mr. Deakins) as to whether the courts are to be castrated or to have a bonanza. If either happens, it is the British subject who will have to pay, one way or the other.

What has also emerged is that it is abundantly clear that the concepts upon which continental law is based are totally different from our own, which are based upon precedent and the common law. Yet this is much in conflict with what we were told during that long debate before the Bill came before the House and during the debates on principle. We were told that the courts would not be fundamentally affected by adherence to the Rome Treaty. That is now shown to be palpably false.

It is of interest that the subsection relates to all legal proceedings. It will also involve criminal proceedings. I can envisage a substantial fraud case where issues affecting Community law may be involved, where expert evidence must be introduced, and the length of the case will be enormous. Many people now protest about the length of our criminal proceedings. There is the possibility that in such proceedings as I have described, which will be elongated, the matter will have to be referred by the criminal court of first instance to a foreign court for determination. That cannot be in the interests of natural justice.

I intervened in the speech of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) to raise a point about the maxim in English law that ignorance of the law is no excuse. That is of fundamental importance in our criminal proceedings. There are about 46 volumes of Common Market legislation, and no doubt there will be many more. They are not to be subject to real scrutiny; Parliament will know very little about them. What is much more important is that the ordinary citizen of this country will find the whole proceedings totally unintelligible. Yet presumably the maxim will still apply. Is there to be any new defence available, in criminal proceedings in particular, of ignorance of the law in certain circumstances? It is impossible to expect the ordinary citizen to be familiar with the whole panoply of Common Market legislation. It is true that it is virtually impossible for him to be familiar with much of the legislation that exists in our ordinary law today. The situation will be exacerbated if this Bill becomes law.

It is extremely offensive, in a democratic society, to submit the citizens of the country to the effects of a code of law not only unknown and unchecked, but unintelligible, but that they will be individually affected has been clearly said by Mr. Gerhard Bebr, one of the legal advisers to the Communities, in an article he submitted to the Modern Law Review in September, 1971.

He said that the objectives, the powers and the institutions of the Community suggest already that there is hardly any basis for comparing the EEC Treaty with a traditional international treaty. Community law is, in a sense, an autonomous legal order to which not only member states, but individuals as well are subject.

I also recall that during a number of our debates we were told that it was not individuals, but corporate bodies and States only who are to be subject to these provisions. We know from a lawyer of long experience, whose opinion one must respect, that individuals are to be subject to this as well.

The municipal courts of the individual member States are already in some difficulty. We know that they are already having to apply Community law with increasing frequency and that considerable conflicts are arising. This is likely to be infinitely worse as the mass of legislation increases. This relates, to conflicts not only with municipal law but with constitutional law. How are our own courts to resolve the conflicts?

We are given no guidance in this connection, and it is incumbent on the Solicitor-General to advise the Committee how the courts are to deal with these real difficulties which do not simply affect lawyers, because the law is not something which is totally insensitive or so I hope. It relates to individuals and to the whole democratic process, and if law is uncertain and indefinite, it is a serious blight on our democratic processes. It is easy for regulations from Brussels to conflict with our own municipal law. The Government offer absolutely no solution to this dilemma.

So far as the Government are concerned, the supremacy of Community law over municipal law is unlimited and absolute.

This is the question the right hon. Member for Wolverhampton, South-West (Mr. Powell) posed: need this be so? Need such emphasis be given in this legislation? I think it need not.

The same author raises the proposition that in Holland a Dutch court could deprive an international treaty of its supremacy, whereas, in this legislation our courts could not.

On page 485 of the article, he says: These provisions of the Dutch constitutional amendment may create the erroneous impression that the supremacy of an international treaty over Dutch law is unlimited and absolute. That is not so. According to Article 66, only such provisions of an international treaty prevail which are considered self-executing and it is a Dutch court which rules on this question. Interpreting the intention of a self-executing treaty provision restrictively, the Dutch court could deprive an international treaty of its supremacy, otherwise provided for by the constitution. But there is no such provision, so far as I can see, in respect of our own courts, and presumably the Government will resist any Amendment to alter the position.

There is, therefore, a serious risk that our civil liberties will be eroded by this dangerous position. This has been spelled out in a case involving a title which I find difficult to pronounce, the International Handelsgesellschaft case. The author says that the uniform validity of Community law would be impaired if a decision reviewing the validity of Acts of the Community institutions would apply norms or principles of municipal law. The validity of Community Acts may be reviewed in the light of Community law only. Consequently, reasoned the court, no provisions of municipal law, of whatever nature they may be, may prevail over Community law lest it be deprived of its character as Community law and its very legal foundation be in endangered. The validity of a Community Act or its application in a member State remains therefore—

It being Eleven o'clock, The Chairman left the Chair to report Progress and ask leave to sit again, pursuant to the Order of 2nd May.

Committee report Progress; to sit again tomorrow.