§ 4.25 p.m.
§ Mr. Speaker
Before calling the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) to move the Motion:That this House considers that the ruling given by the Chairman of Ways and Means on 29th February to the Committee of the whole House sitting on the European Communities Bill gravely infringes the rights of the House and its powers of decision on the issues raised by the Bill, and that, therefore, a full new selection of Amendments should be proposed.I inform the House that I have not selected the Amendment in the name of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), leave out from 'House' to 'a' and insert:',having regard to the difficulty imposed on the Chairman of Ways and Means by the form and content of the European Communities Bill, considers that'.
§ Sir Derek Walker-Smith (Hertfordshire, East)
As you know, Ms. Speaker, I would be the last, I hope, in this House in any way ever to query or still less to challenge, your discretion in the selection of Amendments. May I, however, very respectfully draw your attention to one factor in the Motion which gives rise to certain difficulty?
This Motion is unusual and possibly unique in the category of Motions concerned with the conduct of the Chair in that it combines two quite distinct elements, first, an element of criticism of the conduct of the Chair, and, secondly, a constructive suggestion as to the future. There may very well be—indeed to my knowledge there are—hon. and right hon. Members who, while rejecting the first element, would wish to adopt the second, and the Amendment in the names of my hon. and right hon. Friends and mine is designed to meet that point.
May I respectfully ask your consideration of the dilemma imposed upon those holding that not unnatural view who desire to reject the element of criticism of the Chair but to adopt the constructive suggestion to resolve the unique and unprecedented difficulties of this particular Bill?
Therefore, without in the least degree querying your discretion, Mr. Speaker, 433 may I respectfully invite you to reconsider your decision with a view to removing a dilemma and giving the House and its Members that free and untrammelled exercise of their view which is in the public interest.
§ Mr. Speaker
I am grateful to the right hon. and learned Gentleman for the way in which he has put his point. In fact, I have carefully considered that point of view and I am aware of the dilemmas. But dilemmas are not for me. I am afraid I must adhere to my decision not to select the Amendment.
§ Mr. W. Baxter
On a point of order, Mr. Speaker. I am greatly concerned about the position in which the House is placing itself in regard to the European Communities Bill. The reasons for my concern have been stated from time to time, but have never been answered. It must be remembered that on this great constitutional issue there is an even greater constitutional treaty in existence than that which is referred to in the Bill—namely, the Treaty of Union between Scotland and England. There are certain implied rules and regulations in the Treaty of Union and there are certain prohibitions—
§ Mr. Speaker
I am sorry to interrupt the hon. Gentleman, but I do not see how this can be a point of order. It may be a matter for debate or a matter for a Motion, but I am not prepared for hon. Members, under the guise of points of order, to have a lengthy discussion about the effect of the Act of Union. I must insist that such matters are put before me in the form of a Motion. I cannot allow points of order to be raised on the Act of Union.
§ Mr. Baxter
Further to that point of order. I am the last person to wish to argue with the Chair on a matter of procedure, since I know the difficulties which one experiences, but I regard this as a most important point. This affects the country of Scotland, and there is considerable concern there about this Bill coming before the House, bearing in mind the simple fact—
§ Mr. Speaker
Order. The hon. Member was kind enough to say that he did not wish to argue with me. He has said that he attaches great importance to these matters, and I have no doubt 434 that they are important, but I must point out that they are not matters of order for me to rule upon at this moment. They are matters to be raised in debate, or discussion, or by Motion, or in some other way.
§ 4.33 p.m.
§ Sir Elwyn Jones (West Ham, South)
I beg to move,That this House considers that the ruling given by the Chairman of Ways and Means on 29th February to the Committee of the whole House sitting on the European Communities Bill gravely infringes the rights of the House and its powers of decision on the issues raised by the Bill, and that, therefore, a full new selection of Amendments should be proposed.Even on St. David's Day I shall resist the temptation which has been placed before me by the remarks of my hon. Friend the Member for West Stirling-shire (Mr. W. Baxter) to pursue the implications of this legislation in regard to Wales exclusively.
I say at the outset that this Motion is not, and is not intended to be, a personal attack on the Chairman of Ways and Means. Least of all is it an imputation, as I said yesterday, against his good faith and integrity. He is, of course, greatly respected by the whole House and I am sure that I have the whole House with me in saying that. [HON. MEMBERS: "Hear, hear."] The fact is that the procedure we have adopted in tabling this Motion was the only way which it seemed to us that the interpretation placed by the Chair on the scope and content of the European Communities Bill could be discussed and debated. The alternative would have been a prolonged and potentially disorderly discussion.
What we are challenging today by the terms of our Motion is not a question of the Chair's selection but, as the Chairman himself put it yesterday, one of order. As the Chairman then said,most of the Amendments—indeed, all of the more important Amendments—have been omitted not in virtue of my power of selection but because they are out of order and could not be called in any circumstances.The Chairman's interpretation of the rules of order therefore is quite crucial to the whole rôle and function of Parliament and this House in its consideration of this historic and unprecedented Bill. The Chairman himself rightly described 435 it yesterday as one of the most fundamental and important Bills which have ever been before the House of Commons. If the Ruling stands unamended and unqualified by subsequent action, it will as a matter of order muzzle proper consideration and decision by this House on a Bill which, if it becomes law, will restrict the power of Parliament to debate and resolve: first, questions vital to the finances and economy of our country; secondly, important changes in our law; thirdly, the control by the House over public expenditure; fourthly, restrictions which will be placed on the rights and powers of our courts of law—matters which affect every subject in the land.
If as a matter of order Parliament can be so circumscribed that important Amendments which the Opposition have tabled cannot be made debatable, the consequence will be to reduce the rôle of this House in the consideration of the issues raised by this momentous Bill to discussion merely of the comparatively trivial and superficial. It will make this the most procrustean Bill in our Parliamentary history and its examination by Parliament the most futile.
Was this the deliberate intention and purpose of the Government? I hope the Government will answer that question frankly and fully in this debate. Did they intend that the Bill should be so contrived that it could only bear the interpretation which the Chairman of Ways and Means has so far placed upon it?
I submit that, happily, if that were their intention it has not succeeded. They have not been clever enough. In my submission, the form and content of the Bill make it in order for the House to debate and decide upon not simply the package of treaties and regulations as a whole but any particular parts of the package which the House may wish to discuss and decide upon.
As I understand it, the crux of the Chairman's Ruling is to be found at col. 269 of yesterday's OFFICIAL REPORT, and it is as follows:'… The Bill provides the legal nuts and bolts which are necessary if the United Kingdom is to be a member of the Communities. It is not a Bill to approve the Treaty of Accession or any of the other treaties which are basic to the membership of the Communities … if it were such a Bill, then, of course, every article of these treaties would be open to discussion and the majority of Amendments 436 to Clause 1 would be in order."—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 268–9.]The first question I wish to ask—and I hope that we shall have a reply from the Government—is when and how were the Treaty of Accession and the other treaties approved? When did it happen? What parliamentary procedure has been followed to give that approval? Are we to have a separate parliamentary approval procedure in another Bill or by some other means?
To say that parliamentary approval to treaties which alter our law is essential before they can become law is a platitude, though perhaps the use of that word is inappropriate, bearing in mind the importance that Parliament has always attached to its right to reject treaty provisions which alter our law and impose new obligations upon our fellow countrymen. It is a rule which goes back to the beginning of Parliament itself, as long ago as 1365, with the case of Molyns versus Fiennes. The defendant's name is interesting, in the circumstances. That case in the 14th century is authority for our modern rule of constitutional law that a treaty which changes or modifies our law needs the sanction of Parliament. As Lord McNair has put it—and there is no greater authority—In the United Kingdom, with a very limited class of exceptions, no treaty is self executing.To this Parliament, these treaties are not within the class of exceptions, and I do not suppose that it will be contended that they are.
If this Bill, if accepted, does not constitute approval of the Treaty of Accession, what parliamentary action is claimed to have done it? Surely not the debate that we had last October. Surely not the debate that we had on 20th January of this year. The conclusion of that debate was not a formal expression by this House of approval of the Treaty of Accession. The terms of the treaty were not before the House on that occasion. Indeed, the complaint which was the basis of the Motion on which the debate was founded was about the failure of the Government to lay the text of the treaty before the House before it was signed. It cannot possibly be said that approval in principle was given by the 437 House on either of those previous occasions to which I have referred.
Even if approval in principle had been given, as Lord Atkin said in the Canadian case which was cited yesterday by my hon. Friend the Member for Cardigan (Mr. Elystan Morgan), that would not preclude the assenting Parliament—that is, this Parliament—or any subsequent Parliament from refusing to give its sanction to any legislative proposals that might be brought before it subsequently. It will be fascinating to see, therefore, whether the Government accept the proposition that the Bill is not a Bill to approve the Treaty of Accession and, if they accept that proposition, what they propose to do about the gaping void.
Apart from that point, it is semantic nonsense to say that this Bill is not a Bill to approve the treaties. It is not merely a question of the words of the Long Title of the Bill, to which the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) drew the attention of the Committee yesterday, although those words are highly relevant in themselves and, as he pointed out, have statutory effect.
The Long Title of the Bill describes the Bill asA Bill to make provision in connection with the enlargement of the European Communities to include the United Kingdom," etc.If that does not involve this House in consenting to the enlargement of the European Communities, I do not know what does.
Even more crucial and more significant is Clause 2(1). That provision gives binding legal effect at once and without further enactment to the incorporation into our law of 41 volumes of foreign law. Is that only nuts and bolts? Is that mere machinery? Clearly, it is not. It makes substantive and substantial changes in our law by incorporating into our law and by accepting and approving for inclusion in our law a whole mass of Community treaties, and, of course, the Treaty of Accession itself.
Clause 1, where the treaties are defined, involves similar acceptance and approval of the treaties. Those are the facts of the situation in which the House finds itself. To contend otherwise is an artificial and semantic escape from the reality of the Bill and its Clauses. It is substituting form for substance, and the 438 substance of the matter is that if we pass Clause 2 we shall be approving the treaties and the law of the treaties. We are doing nothing less. Certainly we are doing that much.
If this is not a ratifying statute, I do not know what is. The nature and the terms of the Bill bring within the rules of order of this House and of this Parliament Amendments to enable the House to discuss and to decide whether to accept or reject not merely the whole package to which the Chair's interpretation would confine the House but any separate part of the package with which the House may desire to deal and to which the rejected Amendments are directed. It will be Parliament's last opportunity to do so. If the Bill is passed, not only does the House accept the whole package; it commits itself to the future acceptance of self-enacting laws which will emerge from the Community organ. However, that is not the position today. At this stage, Parliament is free to reject any part of the package of treaties that it chooses.
I have come across no authority from Lord McNair, Erskine May or any other learned treatise on this matter, which says that Parliament has not this power and cannot do this. If Parliament fails to exercise that power which it has and fails to do so during the consideration of the Committee stage of the Bill, the chance will not come again. Therefore my right hon. and hon. Friends ask that the Chairman's Ruling on order should be reconsidered and that a full new selection of Amendments should be prepared. We do so with respect to the Chairman himself and to those who advise him. But we submit with the same respect that, in this judgment on interpretation and construction, that which I have submitted to the House is in accord with precedent and with the rules of the House.
It is true that if Amendments to leave out certain provisions of the treaties were carried in Committee and at the conclusion of the consideration of the Bill difficult problems could arise. It might require renegotiation of that part of the package that the House, in its wisdom, might see fit to reject. But why should Parliament be denied the opportunity of requiring Ministers to do that if Parliament wishes? Are the Government afraid of defending the details of the package on their merits?
439 I must now ask the Solicitor-General, for whom I have nothing but respect, some questions to which I hope he will give the House some frank answers.
Was the Bill contrived, and deliberately contrived, to limit the ambit of parliamentary decision on the treaties and foreign law that it was to incorporate in our law? Why, for instance, were the relevant treaties not scheduled to the Bill? Why are six of them simply named and listed in Schedule 1, and why is there merely an omnibus provision in paragraph 7 of Schedule 1 for pre-accession treaties not even named and listed? Why has there been this departure from what is the usual, though I agree not the invariable, procedure, especially in a matter of such enormous importance? Was this a device intended to oust Parliament or is there an innocent explanation? Was it a device and method employed to reduce and limit the possibility of modification of any of those treaties if Parliament so resolved?
The Solicitor-General made an important statement to the House on this matter on 20th January this year, to which reference was made in last night's debate. It was no doubt intended by the Solicitor-General to reassure the House or perhaps to lull it into acceptance of the prospect that there would be plenty of scope for Amendment when the Bill ultimately came before the House. Referring to a speech by the hon. and learned Member for Northwich (Sir G. Foster), the hon. and learned Gentleman said:My hon. and learned Friend is wrong, however, when he argues as a matter of principle that the legislation to implement a treaty allows no scope for amendment, because the House will be familiar with much legislation implementing other treaties of more or less importance in the past, all of which has been capable of amendment"—then follow the words—dependent upon the way in which the Government of the day chooses to implement the treaty obligations.Was that not intended to give the impression of ample scope for amendment and modification of the obligations and restrictions resulting from the treaties which Parliament was going to be asked to approve? Or were the concluding words of the Solicitor-General 440dependent upon the way in which the Government of the day chooses to implement the treaty obligations."—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 794.]—intended as a somewhat cynical reservation? I think that we are entitled to be told.
One thing is clear. It is the Government, not the Table, who have chosen to present the Bill in the form in which it is now before the House. I have submitted that, whatever the Government's intentions may have been, they have not in fact succeeded, in the Bill that they have presented, in tying Parliament's hands, as the Chair's interpretation and construction of the Bill has so far suggested. However, if I am wrong in that and the Government have succeeded in stifling proper parliamentary discussion, then, either by incompetence or deliberate design, they have been guilty of grievously misleading the House on one of the most important issues that it has ever had to consider.
§ 4.55 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. William Whitelaw)
This debate, as it has developed, appears to put two rather strange contestants together in this House—first, the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), a most eminent legal personality, who has put forward his Motion in what I should describe as his normal, extremely persuasive manner, and, secondly, myself, with no legal knowledge at all, but simply a belief that it is my duty, as Leader of the House, to speak on a Motion directly criticising the Chair. That is why I am speaking to the Motion this afternoon.
The honeyed tones of the right hon. and learned Gentleman cannot, I feel, disguise from the House the words of the Motion, which you, Mr. Speaker, have read to us, because it simply states:that the ruling given by the Chairman of Ways and Means on 29th February to the Committee of the whole House sitting or the European Communities Bill gravely infringes the rights of the House".That is a direct criticism of the Chairman of Ways and Means. It is the substantive Motion against the Chairman of Ways and Means—[Interruption.] —of which the hon. Member for Ebbw Vale (Mr. Michael Foot) gave notice to the Committee yesterday. I am treating 441 it on that basis. But as the right hon and learned Gentleman—
§ Mr. Whitelaw
There will be no getout, as I shall show the hon. Gentleman.
As the right hon. and learned Member for West Ham, South has introduced matters concerning the European Communities Bill, I think it only right, from my own point of view, to place on record the thoroughly reasonable arrangements which have been made for the House to debate the issue of Britain's joining the European Communities.
§ Mr. Speaker
Order. The right hon. and learned Gentleman was listened to in scrupulous silence. I hope that the same courtesy will be extended to the Leader of the House.
§ Mr. Whitelaw
Last July we had four days of debate—a total of 25 hours. In October, the issue of principle was debated for six days—a total of 55 hours. When the Bill was published I responded to requests for extra time before Second Reading to give the fullest opportunity to study the Bill. Three days were provided for Second Reading, the first time that three days—
§ Mr. John Morris (Aberavon)
On a point of order, Mr. Speaker. Is it in order for the right hon. Gentleman to be wholly irelevant in his reply to my right hon. and learned Friend?
§ Mr. Speaker
If I consider that the right hon. Gentleman is being irrelevant and out of order, I will so rule.
§ Mr. Whitelaw
That was the first time that three days had been provided for a Second Reading since 1949—
§ Mr. Heffer
Will the right hon. Gentleman explain to the House precisely the relevance of what he is now saying to the matter before us?
§ Mr. Whitelaw
Certainly. I am seeking to point out that anyone who suggests, as some right hon. and hon. Gentlemen did yesterday, that the Government have treated Parliament unreasonably on this issue, or that some gag has been put on discussion of the subject—[Interruption.] Yesterday hon. Gentlemen frankly said that a gag had been put on discussion in this House. I am perfectly entitled to answer that charge, and that is what I am doing. Nor do I accept that the Bill as a means of giving legal effect to last October's decision in principle to join European Communities denies this House its proper rights, or that my right hon. and hon. Friends in any way misled the House.
My right hon. and learned Friend the Chancellor of the Duchy of Lancaster will deal further with the points raised by the right hon. and learned Gentleman when he winds up the debate, but throughout the considerable discussion to which I have referred it has always been known that the Bill would have the objective of making the legislative changes necessary to provide for accession to the Communities. It makes this provision, as has been fully argued throughout the Second Reading debate and in other debates, in the proper constitutional form in accordance with the traditions of the House. The House, moreover, has already passed the Second Reading of the Bill in this form.
The House has the absolute right, over and above any Amendments which are selected, to discuss and, if it so desires, to reject each individual Clause on the Question, "That the Clause stand part of the Bill." The selection of Amendments cannot, and certainly does not, in any way deny that right to the House.
The right hon. and learned Member for West Ham, South talked about the implications of Clause 2 and said that he regarded it as unacceptable. Very well, if he does so, it is open to him and to the House to reject the Clause if they think fit in Committee. The argument of those who are opposed to the Bill is that they wish to delete all the Clauses. That is their purpose. They do not wish this country to join the European Communities and they do not wish the Bill to pass in any form.
That is the necessary background to the Motion which the House is debating 443 and on which it must come to a decision at the end of the debate.
§ Mr. Michael Foot (Ebbw Vale)
Before the right hon. Gentleman comes to the immediate matter, it would assist the debate greatly if he would answer the specific question put by my right hon. and learned Friend. In the whole of the procedure of our discussions on the Bill which he has described, will he tell us when the House has had the opportunity of making a decision on the Treaty of Accession?
§ Mr. Whitelaw
I would have said in October—[Interruption.] The House in October with a majority of 112 voted in favour of the principle that Britain should join the E.E.C. That was the decision in principle in October. The Treaty of Accession does not require parliamentary authority. The parliamentary authority required is to give legal effect to the Treaty of Accession, when it is subsequently ratified. The Executive has to get the legal powers from the House. That is the purpose of the Bill and is exactly what the Bill is seeking to do.
§ Mr. Whitelaw
The right hon. and learned Gentleman was listened to in silence. I have given way a good deal. I will give way once more to the right hon. Gentleman.
§ Mr. John Morris
As I understand the last few words of the right hon. Gentleman, he is praying in aid that the debate in October in some ways approved the Treaty of Accession. Will he assist the House further and say to what degree were the details of the Treaty of Accession available in October?
I refer the right hon. Gentleman to what the Chairman of Ways and Means said yesterday:It is not a Bill to approve the Treaty of Accession or any of the other treaties … If it were such a Bill, then, of course, every article of these treaties would be open to discussion …".—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 269.]
§ Mr. Whitelaw
As I understand the position it is perfectly simple. The Executive can sign the Treaty of Acces- 444 sion without specific parliamentary authority. Once it is signed it has to come to Parliament before ratification, and that is what, with the Bill, it is seeking to do.
§ Mr. Douglas Jay (Battersea, North)
If that is the right hon. Gentleman's view, does he not realise that he has directly contradicted what the Chairman of Ways and Means said, and that he is, therefore, directly criticising the Chairman of Ways and Means?
§ Mr. Whitelaw
I do not accept that at all. I have made it perfectly clear, and the House perfectly well knows, what the Bill seeks to do.
I will now return, as I am entitled to, to the Motion before us. In our parliamentary history such Motions are, fortunately, rare, and it is rarer still for them to be pressed to a Division. The last such Motion was moved by my party in opposition in July, 1966. On that occasion some wise words were spoken with which I profoundly agree. The words were:I doubt very much whether it was in the proportion of nine-tenths on that occasion. Even if it were, Mr. Gaitskell was never my model, either. What I am discussing is whether it is proper for the instrument of a Motion of censure of the Chairman of Ways and Means to be used when what the Opposition intend is an attack on the Government. If that process is used and if it becomes the practice, whatever may have been the unfortunate precedent; and if every time the Opposition wish to pursue an attack, where they have been defeated or wished to say more, by following it up with a Motion of censure on the Chair, we shall bring the conduct of the House into very great difficulties."—[OFFICIAL REPORT, 6th July, 1966: Vol. 731, c. 458.]I profoundly agree with that remark, and it was the hon. Member for Ebbw Vale who in 1966 uttered those words.
§ Mr. Foot
We have before us a Motion criticising the decision of the Chair, and that is what we are debating. We may on a later occasion have to return to deal with the Government's conduct of this affair, and I trust we shall do so. We are keeping these matters absolutely distinct, and that is the relevance of the quotation read by the right hon. Gentleman.
445 What I said was wrong on that occasion, and what I still think is wrong would be to use an attack on the Chair as a cover for an attack on the Government. That is not what we are trying to do. We are criticising the Ruling given by the Chair, and if we wish to make an attack on the Government we shall return to it later.
§ Mr. Whitelaw
If that is what the hon. Gentleman really feels, it certainly was not the impression he gave on television last night.
Under our procedures, the Chairman of Ways and Means has the clear duty to apply the rules of order of the House in respect of Amendments for the Committee stage on the basis of the Bill which has been given a Second Reading. It is, moreover, an essential feature of our debates that the Chair has the absolute authority m the matter of Amendments, and that the Chair's Rulings must be acepted by the House.
If the Motion is to be understood as a means of making a protest or as a delaying tactic carefully planned as a means of obstructing the progress of the Bill, then I recognise it as a parliamentary stratagem. But if it is intended to press the Motion to a Division, then in those circumstances it can only be seen as an attack on the impartiality and integrity of the Chair.
I would find it rather ironic that those who are most jealous in their speeches about the rights of this House should appear in another way to be attacking the very traditions which they are so anxious to uphold. Frankly, I do not believe they are. I hope, therefore, that the Motion will not be pressed—
§ Mr. Thorpe
I interrupt at this stage because the right hon. Gentleman seems to be drawing his remarks to a close. If I have intervened at an inconvenient moment, I apologise.
§ Mr. Thorpe
Some pertinent questions were addressed to the Leader of the House by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), in particular as to why the Bill had been drafted in its present form. Whatever view one takes of this issue, that is a pertinent question. One wonders whether there were different ways in which the Bill could have been drafted which might have permitted of further amendment than is possible on the basis of the Chairman's Ruling. I urge the Leader of the House to deal with this specific point before concluding his remarks.
§ Mr. Whitelaw
I do not understand why hon. Gentlemen opposite should jeer when I give way to the Leader of the Liberal Party. [Interruption.] I find that rather a surprising attitude for hon. Gentlemen opposite to take. I would have thought that they would want me to give way to the leader of a party in this House.
My reply to the right hon. Gentleman is that I felt it was right for me to deal with the specific point of the challenge to the Chair. My right hon. and learned Friend the Chancellor of the Duchy is the proper person to deal with the legal points, and he will do that when he replies to the debate—[Interruption.] The right hon. and learned Gentleman made a number of legal points and it is only right and proper that my right hon. and learned Friend should give consideration to them, and then reply later.
§ Mr. Whitelaw
I have made it clear that I am drawing my remarks to a close. I have equally made it clear that the points raised by the right hon. and learned Member for West Ham, South will be considered and properly answered by my right hon. and learned Friend, as is the normal practice in this House.
447 I draw my remarks to a close by returning once again to the Motion. Frankly, I hope it will not be pressed to a Division. If it is, then that can only be regarded as a direct challenge to the Chair—[HON. MEMBERS: "Rubbish."]—and then, to borrow a phrase from my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), the very stones of this place will cry out against us [Interruption.] I go further and say that they will fall on us, bury us all beneath them—[Interruption.] —if we are not prepared to respect the authority of the Chair in this House.
§ Mr. Michael English (Nottingham, West)
On a point of order. It seems that you are the only person, Mr. Speaker, who can possibly resolve this problem. I understood that this House was the ultimate master of its rules of order and their interpretation. The Leader of the House, who is not an authority in this sense, has given us his interpretation—that the Chair on any occasion is the absolute authority. Indeed, he used the word "absolute."
I understand that just as the House of Lords is the master of its rules of order, so in this House we have delegated certain powers to our Chair. I have heard you and previous Speakers say on many occasions that the occupant of the Chair is the servant of the House. I take it, therefore, that from time to time we can appeal from a decision of the Chair, whoever is the occupant.
Nobody says that one is accusing a judge of partiality if one takes his decision to the court of appeal. I am not impugning, and never have impugned, the good faith or impartiality of the Chairman of Ways and Means. But it is wrong to say that one is doing that when one is only being human and saying to another human being, "I believe you to be mistaken on this particular matter of law or matter of order." Do you agree that that is a correct interpretation of the powers of this House through its Chair?
§ Mr. Speaker
I do not detect a point of order in what the hon. Gentleman has put to me. The House is now debating a question dealing with a Ruling of the Chair, and if any arguments are used in relation to that debate which are out of order, I shall rule them out of order. 448 However, the occupant of the Chair does not give, and never has given, guidance on, for example, constitutional law, and I do not intend to do so now. I shall be dealing with the Motion and ruling on the comments made on it as and when the situation arises.
§ Mr. David Steel (Roxburgh, Selkirk and Peebles)
On a different point of order, Mr. Speaker. The Leader of the House said that he wished to deal with only one aspect of the debate and that his right hon. and learned Friend would deal with the other aspects. Would it be in order for us to ask the Chancellor of the Duchy to seek to catch your eye now so that he might complete the Government's argument before we proceed with the debate?
§ 5.18 p.m.
§ Mr. Douglas Jay (Battersea, North)
The Leader of the House has just made a deplorable and, coming from the Leader of this House, disgraceful speech. He utterly failed to answer any of the questions asked by my right hon. and learned Friend the Member for West Ham, South (Sir Elywn Jones), let alone answer his arguments. After listening to the right hon. Gentleman, I am convinced that the Government's case must be even worse than any of us had imagined.
I therefore put two questions to the right hon. Gentleman which I trust he will answer immediately. First, does he say or does he not say that this is a Bill which will have the effect of approving the Treaty of Accession? Second, did the Government know when they drafted the Bill that it would have the effect on the selection of Amendments which, the Chairman told us yesterday, was its effect?
§ Mr. Whitelaw
To anwer the right hon. Gentleman's second question first, the Government of course have no possible knowledge of what the selection of Amendments might be by the Chair. It would be improper if that were ever to happen in this House. They certainly did not have and have not had such knowledge, and the right hon. Gentleman has been in this House, and was in Government, long enough to know that perfectly well.
449 On the first question the right hon. Gentleman asked, I thought I made the position absolutely clear. No parliamentary authority is required for the action of the Executive to sign the Treaty of Accession, and, therefore, no question arises of parliamentary approval for such an act. Thereafter, if the Government wish to ratify the treaty, when they have signed the Treaty of Accession, they must have legislative authority from this House so to do. I understand that this Bill is the means of getting the legislative authority which will enable them to ratify the treaty next year.
§ Mr. Jay
On this vital point the Leader of the House first contradicted the Chairman of Ways and Means, and now he has contradicted himself. The right hon. Gentleman said earlier that this Bill would have the effect of approving the Treaty of Accession. [HON. MEMBERS: "No."] Yes, he did. Not long after that he contradicted himself. I begin to wonder whether, in view of the performance of the Government, it would be right and proper for the House to continue with its consideration of the Bill at all.
However, I express my sympathy with the Chairman of Ways and Means for the impossible position in which the Government have placed him. As we can now see, the Government, by the dishonest ingenuity with which they have sought to gag parliamentary discussion of these vital matters, have placed the Chairman of Ways and Means in a position in which he cannot permit proper debate without a breach of what he regards as the rules of order. One thing, at any rate, is perfectly clear. If the Chairman was right in saying, as he did yesterday, that all the substantial Amendments were out of order, the Government are convicted of an outrageous attempt to limit proper debate in this House.
The right hon. Gentleman has entirely failed to answer the question I asked just now. Did the Government intend, when they drafted the Bill, to make Amendments of this kind impossible to discuss? The right hon. Gentleman's failure to answer that question shows that the Government's conduct of this whole affair has been even more dishonest than we realised.
§ Mr. Whitelaw
I thought I had made it perfectly clear that the Government had no such intention. No Government can know what Amendments would be moved. No Government can know what Amendments the Chair will judge in order. Therefore, I make that perfectly clear.
§ The Chancellor of the Duchy of Lancaster (Mr. Geoffrey Rippon)
May I perhaps, help the right hon. Gentleman by making it perfectly clear that the position is as I stated yesterday, quoting from what I said in the very lengthy debate on 20th January.
On the subject of Parliament's rights between signature and ratification, I made it perfectly clear that what we had to do was to bring our domestic law into harmony with our obligations under the Treaty. In effect, that is what the Chairman of Ways and Means said yesterday as reported at column 269 of HANSARD. It is perfectly clear, and all this is really rather bogus.
§ Mr. Rippon
With respect, the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) was wrong in talking about a statute of ratification. There is a certain convention when there is a treaty which involves cession of territory that the Bill or statute to approve ratification comes before Parliament, but there is not a process as such of a treaty's ratification. There is a process of parliamentary procedure of the appropriate kind between signature and ratification. That is what we explained we were going to do on 20th January, and that is what we have done. I explained this—[HON. MEMBERS: "When?"]—during the Second Reading debate in opening the debate on the Bill I explained precisely what the purposes of the Bill were and that we have included in it absolutely everything that is necessary in order that 451 we can comply with our obligations under the treaties.
As my right hon. Friend the Leader of the House has said, Parliament has the opportunity—this follows from Lord Atkin's judgment as well—to oppose or reject the Bill, and it can do it at various stages of the Bill. But that is a very different matter, and if hon. Members study Lord Atkin's judgment they will see that that is all that it says.
§ Mr. Jay
The right hon. and learned Gentleman now tries a third, different interpretation. He now says not that this is a Bill to approve the treaties, or that it is not a Bill to approve the treaties; he says that no such Bill is possible. But that directly contradicts what the Chairman of Ways and Means said yesterday. The Chairman of Ways and Means said:It is not a Bill to approve the Treaty of Accession or any of the other treaties which are basic to membership of the Communities … If it were such a Bill …"—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 269.]various consequences would follow.
It is perfectly clear that the right hon. Gentleman the Chairman of Ways and Means told the House that we could have had such a Bill, but this Bill was not a Bill of that kind. This afternoon, the Government are unable to say whether or not it is such a Bill, or when, if ever, the House would be asked to approve the Treaty of Accession. After the two speeches by right hon. Gentlemen on the Government Front Bench, this seems to be an incredible situation of incompetence for which the Government are to blame.
We now find ourselves and the unfortunate Chairman of Ways and Means placed in an impossible position, which must be deeply disturbing to those of us who care about parliamentary Government. We have been placed in this situation by the successive deceptions practised by Ministers.
First, we have a unique Bill before us— unique by everyone's agreement—which makes unprecedented changes in our constitution. Second, the treaties have been signed with no mandate whatever from the public, that being directly contrary to the Prime Minister's undertaking to "negotiate, no more and no less". The country was, indeed, constantly assured, for instance at party 452 conferences, that it was only negotiation and not decisions which we were being asked to approve. Third, in the debate to which the right hon. and learned Gentleman has referred, which culminated in the Division on 28th October, essential information was withheld from Parliament. Again it is incredible that the Leader of the House should be so ignorant of the bare facts of this matter that he should suggest we approved on 28th October a treaty which was only signed on 22nd January. That requires explanation.
It was not known until the publication of the Treaty of Accession in January that the Government had been guilty of a clear breach of their pledges on New Zealand, on fisheries and on the sugar-producing countries.
§ Mr. Jay
Therefore, the vote taken on 28th October was taken without proper information about some of the vital issues at stake.
Fourth, the treaty was signed on 22nd January before Parliament had debated it and, indeed—although the right hon. and learned Gentleman did not seem to know it—before it had even been published. Next, promises were given on Second Reading, quoted by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) yesterday, that there would be full opportunity to amend the Bill. Now, on top of all that we are told that substantial amendment is not possible because the treaties have been signed and because of the way in which the Bill has been drawn. Sharp practice has been piled on sharp practice throughout the whole record, and this last attempt by the Government, coming at the end of such a record of deception, seems to me so outrageous that, unless the Chairman's decision can be revised, the only acceptable procedure must evidently be for the Bill to be withdrawn and replaced by some more reputable form of legislation.
The question remains, however, whether, even so, the Chairman's Ruling is correct. We had not a ghost of an answer to the points raised from either of the right hon. Gentlemen opposite. No one suggests that the Chairman or the Clerks acted other than in good faith; 453 but it is possible for even them to be mistaken. The Chairman stated most emphatically yesterday that the question on most of the Amendments was not one of selection but one of order. But he did not tell us on what grounds they had been ruled out of order. As you will know, Mr. Deputy Speaker, the grounds on which Amendments can be held to be inadmissible are laid down under a number of headings on pages 508 to 511 of "Erskine May", but it does not appear to me that most of the Amendments ruled out of order can properly be disqualified on any of the criteria given. If I am wrong, I should like an answer, but not the sort of rubbish to which we have listened from the Leader of the House this afternoon.
First, "Erskine May" says:An amendment is out of order if it is irrelevant to the subject matter or beyond the scope of the bill, or if it is irrelevant to the subject matter or beyond the scope of the clause under consideration.But a number of the Amendments ruled out of order are to omit part of the Clause, and if there is any common sense left in these matters, and I suppose there is, surely an Amendment to omit something already in a Clause cannot be held to be outside the scope, or irrelevant to the subject matter, of the Bill. "Erskine May" goes on to say:An amendment cannot be admitted, if it is governed by or dependent upon amendments which have already been negatived.No Amendment has so far been negatived, and therefore they cannot be disqualified under that heading. "Erskine May" gives a third rule:An amendment must not be inconsistent with, or contrary to, the bill as so far agreed to by the committee …".As the Committee has so far not agreed to anything, it is quite clear they cannot be ruled out under that heading. Amendments are inadmissible if… they refer to, or are not intelligible without, subsequent amendments or schedules, of which notice has not been given …".I do not think there is any suggestion that this is a reason for ruling these Amendments out of order.
The fifth rule states:An amendment which is equivalent to a negative of the bill, or which would reverse the principle of the bill as agreed to on the second reading, is not admissible.454 Amendment No. 17 is an Amendment to substitute "1975" for "1972" in Clause 1. This has been ruled out of order, but surely it cannot be maintained that a postponement of the operation of the Bill amounts to the denial of the principle. I do not think the Leader of the House will tell us that.
Rule six says:An amendment to leave out a clause is not in order, as the proper course is to vote against the clause standing part of the bill.That clearly does not apply.
Under rule seven:If an amendment would make the clause which it is proposed to amend unintelligible or ungrammatical, or if it is incoherent or inconsistent with the context of the bill, it is out of order ".I do not think that some of the Amendments which move that the provisions of the treaty should not be carried out, for instance, without affirmative Resolution of the House, can possibly be said to make the Bill "ungrammatical or incoherent".
§ Mr. John E. B. Hill
Does the right hon. Gentleman not appreciate that the passing of the Second Reading of the Bill limited the scope of Amendments in that the House has therefore agreed the method by which the country should join the European Communities? Therefore, any Amendment which detracts from the totality of that joining and is out of harmony with the requirements of the treaties is necessarily out of order.
§ Mr. Jay
Evidently the hon. Gentleman has not listened to what I have said. I have pointed out that an Amendment to leave out a part of a Clause in a Bill cannot possibly be held to be contrary to the scope of the Bill. In "Erskine May" rule eight says:Amendments which are vague, trifling, (c), or tendered in a spirit of mockery …are out of order. I suppose one could say that any Amendment to this Bill might be tendered in a spirit of mockery, but I do not think that these important amendments, as the Chairman of Ways and Means himself described them, can possibly be ruled out on this ground.
Finally, rule 11 says:An amendment is irrelevant and cannot be admitted if it seeks to delay the coming into force of a bill relating to England only, until a similar bill should have been passed for Scotland (h).455 Clearly, the Bill does not refer to England only and that rule does not apply.
Even on the criterion of "Erskine May", therefore, there appears to be no good reason for ruling that these amendments are out of order. Therefore, I submit that on these tests most of these amendments ought to be held, even if we were not permitted some flexibility in view of the importance of the matter under consideration, as within the rules of the House.
§ Mr. Cranky Onslow (Woking)
Would it help the right hon. Gentleman if I were to draw his attention to a passage in "Erskine May" on page 494, which defines the functions of a Committee on a Bill, which says:A committee is bound by the decision of the House, given on second reading, in favour of the principle of the bill, and should not, therefore, amend the bill in a manner destructive of this principle.
§ Mr. Jay
If the hon. Member cares to look at "Erskine May" he will find that it gives, from page 507 on, the detailed explanation which I have been reading of how those principles apply. Are we not to be told why the Amendments are out of order? We have not been told yet. Yesterday the Chairman merely quoted a few words of the Explanatory and Financial Memorandum of the Bill, which, of course, has never been held to be binding in the matter of admissibility of Amendments. For these reasons I urge, in the interest of the Chairman of Ways and Means, that due time may now be taken to reconsider the admissibility of each of the Amendments.
If, however, it turns out that the Government have deliberately so drafted the Bill as to make serious debate and amendment impossible, that would be so gross a deception of the House and the country as to leave Ministers with no defensible course other than to withdraw the Bill and substitute a Bill which is compatible with our constitutional practice. Otherwise Ministers will have been condemned out of the mouth of the Chairman of Ways and Means of trying to make sweeping changes in our constitution by flagrantly unconstitutional methods.
§ Mr. John Mendelson (Penistone)
On a point of order. In Standing Committee 456 or in a Committee of the whole House the point is often reached in the proceedings when the presence of the Law Officers is urgently required and they are sent for through the Chair. We have the physical presence of the Solicitor-General, so I do not have to ask through you, Mr. Deputy Speaker, for him to be called to the Committee, but it is quite possible on past precedents of the Standing Committees. It is quite impossible for the Leader of the House and the Chancellor of the Duchy of Lancaster to answer legal points put to the Government by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) who opened the debate. May I therefore ask you that the Solicitor-General be brought into the debate to intervene and to reply to those points.
§ Mr. Deputy Speaker (Miss Harvie Anderson)
I think the hon. Member is well aware that that is not a matter for the Chair.
§ 5.38 p.m.
§ Mr. Selwyn Gummer (Lewisham, West)
Throughout the points of order yesterday and the debate today we have heard two separate arguments, which are mutually contradictory, which have been put forward by the proposers of the substantive Motion. One is that there is something in the nature of the Bill which means that reasonable and sensible Amendments are inadmissible and the other is that the Chairman of Ways and Means has refused to allow certain Amendments which are reasonable. In other words, they say either that the Bill is so drawn that it is impossible for reasonable Amendments to be put down or that the Chairman of Ways and Means has made a wrong decision about these Amendments. Hon. Members opposite can have it one way or the other, but they cannot have it both ways. They cannot suggest, on the one hand, that the Chairman of Ways and Means is wrong—
§ Mr. Gummer
These two propositions have been put by those who wish the Motion to be passed. I suggest that they cannot make both propositions and say that they add up to an argument. They cannot say that they object to the Bill because they cannot amend it and 457 then object to the Chairman of Ways and Means because he stopped them making Amendments which they say are not possible. Both suggestions are bogus. They come from one source only—the people who wish to use every possible argument to delay the Bill.
Before we resort to all the legal arguments, the flourishing of "Erskine May" and so on, it is sensible for us to consider the reasons behind the Motion. Let us take first the proposition that the Bill is defective—that it is so wrongly drawn, as the right hon. Member for Battersea, North (Mr. Jay) suggested, that it inhibits reasonable and proper discussion—[Interruption.] I shall explain, if I am allowed to do so. The proposition is that the Bill has been drawn in such a way as to be very difficult to amend. But we have made a decision in principle, and if the Government had introduced a Bill that was much wider than the specific decision in principle they would certainly have been misusing that decision.
If it could have been said that the Bill was not the result of that decision in principle—that other matters are being brought in on the back of the majority of 112—the hon. Member for Ebbw Vale (Mr. Michael Foot) and his right hon. and hon. Friends would immediately have said that the Government were misleading the House. The Government have done precisely what it is right for a Government to do, which is so to frame a Bill that it contains only that which is necessarily consequent upon wishing the ends, and following the decision in principle. If they had added to the Bill a whole range of matters that the Opposition would like, which could be amended in the way many people would like, they would have been guilty of trying to push through the House a Bill wider in scope than that which was needed to carry out the decision in principle.
The decision in principle, made by a very large majority, has a great deal of importance, an importance the Opposition would do well to remember. Not just hon. Members but members of the general public are particularly perturbed by the sight of people who can will the ends but refuse to will the means, and the means are contained in this Bill.
§ Mr. George Cunningham (Islington, South-West)
The hon. Gentleman has 458 drifted a long way from his original point, Which is what I want to answer. He claims that there is an inconsistency between arguing that the Government have done something wrong in framing the Bill in such a way that some Amendments are out of order and arguing that the Chairman of Ways and Means is wrong in ruling some Amendments out of order. Does he not understand that many Amendments are in question, and that it is perfectly credible that some may properly be out of order because of the way in which the Bill has been drawn and that many others are properly in order but that the Chairman of Ways and Means has improperly ruled them out of order? That makes the criticisms perfectly consistent.
§ Mr. Gummer
That would certainly make the criticisms perfectly consistent—if that had been the argument of the right hon. Member for Battersea, North, but it was not. His argument was, first that all the Amendments are admissible and, secondly, that the Government have framed a Bill that is unacceptable because the Amendments were not accepted.
§ Mr. Jay
That was not my argument. My argument was that the Chairman of Ways and Means told us yesterday that the Government had so drafted the Bill as to make the Amendments out of order. The hon. Gentleman cannot possibly deny that. Secondly—and perfectly consistent with that argument—I said that in my view, in the light of "Erskine May", many of the Amendments are in order in spite of the drafting of the Bill.
§ Mr. Gummer
The right hon. Gentleman has precisely made the point. At the end of his speech, in his third peroration, however, he made it very clear that in his view the Government had produced a defective Bill, because it could not be amended in the way in which he and his right hon. and hon. Friends wanted to amend it. But earlier in his speech he said that it could be amended in a number of ways, which he went through. It is odd that when he was trying to inform the House the right hon. Gentleman should have ignored the first section of "Erskine May", which governs all the subsections he read out. Under the headingFunctions of a Committee on a Bill459 on page 494, "Erskine May" says quite clearly:… the general powers of a committee and the limitations by which it is bound should be clearly borne in mind.I am sure that the right hon. Gentleman would want to bear them in mind clearly.(1) A committee is bound by the decision of the House, given on second reading, in favour of the principle of the bill, and should not, therefore, amend the bill in a manner destructive of this principle.
§ Mr. Gummer
The hon. Gentleman has intervened in my speech at length, and I wish to continue on this point.
The House made a decision of principle. To carry out that decision, it was right for the Government to produce a very narrowly-defined Bill, because to propose anything further would have been dishonest, in that it would wish means other than those necessary to achieve the ends decided upon in that decision of principle. That having been done, and the Bill having been given its Second Reading, the Committee is bound by the principle that the Bill can be amended only in a way that is not generally destructive of the principle of the Bill as decided.
Therefore, we must look very carefully at the motives behind the Motion. We heard a great deal about the subject under points of order, made by the hon. Member for Ebbw Vale in a charming manner, about the importance of Parliament and the danger to Parliament if we continue with the Bill. The hon. Member for Ebbw Vale put that argument very clearly. But I wonder whether the dangers to Parliament are where he sees them. Are they in the presentation of the Bill and its discussion within the ambit suggested by both the Government and a number of Opposition Members or are they to be found in those people who are prepared to use Parliament for purposes outside the real end of Parliament
§ Mr. Gummer
No. I have nearly finished. The hon. Gentleman may have an opportunity to speak later.
We are faced with a major decision of this century. We are considering a vitally 460 important matter, as the hon. Member for Ebbw Vale has made clear. In the short time that I have been a Member we have discussed it many times, and it was discussed in the House many times before that. We then made a decision of principle and gave a Second Reading to a Bill directly and narrowly confined to the necessary results of that decision. What happened? Parliament was abused. The decision was treated by one side of the House not as the great matter of our history that it is, not as the great decision for our future, but as a means to vote against the Government not on the Bill but on a whole series of other matters.
So strong is the determination of those who want to destroy the Bill that they are even prepared to use methods most of us would feel extremely unhappy about. I cannot believe that any Member is happy that a major issue—perhaps the major issue since the war—should have ceased to be a non-party political matter, a matter of great belief and concern, and should have become the basis for party political manoeuvrings, and now the basis for manoeuvrings against the Chair.
§ 5.50 p.m.
§ Mr. Brynmor John (Pontypridd)
The speech of the hon. Member for Lewisham, West (Mr. J. Selwyn Gummer) had every virtue except that of directing his mind to the subject matter of the motion. He talked about drawing the Bill narrowly or widely and of going outside the mandate. It is precisely because in the Bill the Treaty of Accession is mentioned and because the E.E.C. and European Coal and Steel Community are defined in the way they are that these Amendments have been framed. Therefore, any criticisms he has to make of the Bill and the Amendments on that ground are completely wide of the mark.
But, of course, what the hon. Gentleman really wanted to do was to indulge in an orgy of criticism on a purely nonpolitical point, as he chose to call it. Does he not remember the Committee stage of the Iron and Steel Act, 1967, and the part which his right hon. and hon. Friends played then? One after the other they put themselves forward as great patriots. They tried by Amendment after Amendment day in and day out to kill the Bill or cripple it gravely, 461 and they did it without criticism from their colleagues, many of whom are now making loud noises about constitutionalism.
It is the Solicitor-General who must answer for this Bill. In a very real sense his personal honour is involved. He and the Parliamentary draftsmen bid fair to becoming the holders of the most hated names in parliamentary history. [Laughter.] I hear the fairy sounds of the hon. Member for Chelmsford (Mr. St. John-Stevas) laughing, but the fact is that no one will have debased parliamentary institutions so much as the man who has deliberately drawn the Bill in such a way without consideration of the main treaties which are the subject of our accession so that we cannot even discuss them or consider them in detail. Whatever the hon. and learned Gentleman now pretends, this is what he said on 20th January, talking of the Treaty of Accession:The next stage of consideration that will be appropriate is the study of the legislative provisions needed to give effect to the treaties alongside those treaties themselves. The treaties in isolation are as suitable for scrutiny by the House as the treaties in conjunction with the legislation; they are to be taken and studied alongside each other."—[OFFICIAL REPORT. 20th January. 1972; Vol. 829, c. 796.]Now we have a Bill in which the treaties and the legislation are together, but we are told by the Government, contrary to what the Solicitor-General said, that now is not the time to discuss the treaties.
There are two possible explanations of this. Either the hon. and learned Gentleman was in ignorance, which is difficult to accept as he is credited with being one of the few minor successes of the Government, or he gave this vague assurance to the House well knowing that there were caveats which he did not reveal and well knowing that if we relied on his assurance we would be falling into a trap. In other words, he misled the House. That might be fine business if one is selling horses at a market but it is not the way we expect the Solicitor-General of the United Kingdom to behave in the Mother of Parliaments.
If the ruling of the Chairman of Ways and Means is correct, it gravely weakens the possibility of parliamentary scrutiny of this legislation. Yesterday the hon. and learned Member for Northwich (Sir J. Foster) referred to the Amendments 462 as "wrecking Amendments", but many of them are nothing of the kind. Amendment No. 24 and Amendment No. 26 deal with the questions of capital movement and fisheries, proposing a special procedure which this House should follow. That is properly within the "nuts and bolts" construction of the Chairman of Ways and Means, and, therefore, in ruling out of order all these Amendments he is quite wrong.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Has the hon. Gentleman ever asked any international lawyer—for example, my hon. and learned Friend the Member for Northwich (Sir J. Foster), who is a very distinguished constitutional lawyer—or a judge about this? He would be told categorically what was said by my hon. and learned Friend yesterday—that we cannot amend any one of the six treaties in the Schedule. If the hon. Gentleman is a member of any club—a working men's club or any other—what would he think if people outside, in another club, tried to change the rules of his club? That is a direct analogy.
§ Mr. John
I am obliged to the hon. Gentleman. He has connected me with working men's clubs. But I do not need any patronising from him. I studied law. I am by profession a lawyer. Perhaps he will do me the honour of reading Professor Schwarzenberger on international law. He might look up page 442 of the volume, which he can get from the Library. Professor Schwarzenberger points out that States are able to have reservations about treaties. I cite the hon. Gentleman one example.
The Safety of Life at Sea Convention, 1960, was an international treaty signed by this country. It was brought into our law by the Merchant Shipping Act, 1964, which was a Private Member's Measure, with Government backing. It brought the convention into British law except for Part VIII, which dealt with the safety of nuclear vessels. In other words, Britain did not fully adopt the convention but adopted an amended form by leaving out one of its chapters. The then Parliamentary Secretary to the Ministry of Transport, Vice-Admiral Hughes-Hallett, told the House that the Government had advised the hon. Member who had brought in the Bill, as it was then, not to include that chapter for reasons 463 thought good at the time. The hon. Member for the Isle of Thanet (Mr. Rees Davies) is therefore completely wrong when he says that we must swallow the whole camel, humps and all, of a Bill to enact the substance of treaties.
§ Mr. Ernie Money (Ipswich)
Would the hon. Gentleman not agree that there is a fundamental difference between the kind of treaty he has been talking about and the reservations which can exist in the sense that a contracting party can contract to only that part he chooses and a treaty brought before this House for municipal approval so that it may be ratified? Surely as a lawyer he sees that those are two entirely different things?
§ Mr. John
If that is right, then Professor Schwarzenberger, who is one of the greatest authorities on international law in this country, does not agree with the hon. Gentleman. What the professor says of such a situation is that where a party has reservations about a treaty, then the validity of those reservations depends upon the attitude of the other party. Relating it to the circumstances of this treaty, if we were to move an Amendment to it the Government would have to go back and negotiate with the other signatories to see whether that Amendment was acceptable to them. But the Government cannot, as they now seek to do, pre-empt the attitude of the other signatories. It is perfectly possible for the British Parliament in its enacting legislation to make any Amendments to the treaty which it desires. I would say that it is beyond peradventure that it is the duty and right of Parliament.
After all, the Committee stage on any Bill is a time for scrutinising in detail, for the good of the legislative programme, the legislation which is brought before the Committee. If that is so generally how much more is it the case with a Bill of such fundamental importance as this? We have the duty to seek beneath the blanket words "any other treaty". We have the right to examine treaties which have never been examined in this House. It is because I believe that the Chairman of Ways and Means was wrong in ruling out of order Amendments which may have been inconvenient but which were certainly not directed at wrecking the Bill that I contend this Motion ought 464 to be supported. If the Chairman was right when he said that these Amendments were out of order, then the point comes back to the Government. They have brought Parliament into far greater disrepute than any supposed incidents of violence. On so fundamental an issue they will have shut out intelligent consideration and discussion of matters which are not only of importance to the present Parliament but important to future Parliaments.
§ Mr. David Waddington (Nelson and Colne)
Would the hon. Gentleman agree that if the will of Parliament can be given effect to by a Bill of 12 Clauses it would be ridiculous for the Government to introduce a Bill of 130 Clauses?
§ Mr. John
All that that intervention has done is to enable me to sit down for a couple of seconds. The Government must enact legislation in this House in a form which enables Parliament to give it frank and open scrutiny. If it is able to be brought into a small compass, then the proper place to scrutinise that in detail is in Committee. What we are trying to do through these Amendments and what we have been precluded from doing is carrying out this detailed consideration.
We have a duty to ourselves and to the Parliament to which we are elected. We have a wider duty than that—a duty to the British people. The hon. Member for Lewisham, West talked about assenting to the principle of the Bill. It is one thing to assent to the principle of a Bill and another thing to maintain that assent in view of the hideous nature of the Bill before us. Our task is to scrutinise and approve where possible.
I hope that the Chairman of Ways and Means will reverse or reconsider his decision. If he does not, then I repeat that the personal honour of the Solicitor-General is involved here and it is he who must answer instead of us having to put up with what I can only describe as the supercilious arrogance of the Chancellor of the Duchy of Lancaster.
§ 6.5 p.m.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
I mean no disrespect to hon. Members who have taken part in the exchanges just now when I say that this is not really a lawyers' occasion 465 but a House of Commons occasion. I say at the outset that no hon. Member who was present at our Sitting yesterday could possibly be under the misapprehension that the intention of the Motion on the Order Paper or of anyone who supports it is to place a personal censure upon the occupant of the Chair or, indeed, to censure the Chair as the Chair.
What we are concerned with in this debate is to find a solution to what not only the Opposition but a great many of my hon. and right hon. Friends have felt to be an intolerable position in which the House has been placed by the quite unprecedented character of the nature of accession to the European Community and of this legislation interacting with the normal rules and procedures of the House. It is a truism that the Chair—the Chair of the House and the Chair of the House in Committee—is the servant of the House, and if the House is unduly constricted by even the most correct interpretation of the rules of order the House has it in its own hands to point out the way in which it may be assisted.
I will therefore be brief in indicating the grounds on which it appears to me that the Chair could have come to a different conclusion in the selection of Amendments yesterday. The Chair relied expressly not upon the Bill or its Long Title but upon the Explanatory and Financial Memorandum. It was the words of the Memorandum which the Chairman quoted as the basis for his Ruling. It is perfectly true that the Memorandum is explicit in its description of the purposes of the Bill as beingto comply with the obligations entailed by membership ofthe three Communities there set outand to exercise the rights of membership ".It appears however that the Bill itself—in particular, the Long Title, which is normally taken as indicating the scope of a Bill—is deliberately drawn much more widely and in a way calculated to give greater freedom to the Committee in considering Amendments than might have otherwise been the case. The Long Title says that the purpose of the Bill is:To make provision in connection with the enlargement of the European Communities to include the United Kingdom.There are many ways in which that enlargement could have taken place so as to include the United Kingdom. That is 466 what the negotiations have been about in the last 18 months and at various times in the last 10 or 11 years. The scope of the Bill quite deliberately does not preclude the Committee from offering the view that the adherence of this country to the European Communities could have been secured, and ought to be secured, upon different terms and other conditions.
I am fortified in my contention that the Bill itself is not as restricted as was the view taken of it by the Chairman by the assertion of the Chair itself thatall these matters can be discussed in the debate on the Question, 'That the Clause stand part of the Bill'."—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 294.]The contention, as I understand it, which underlies this interpretation, is that the treaties, and in particular the Treaty of Accession, must be taken as a whole; to use a colloquial expression which has featured in these debates, that we cannot unpack the parcel and look at each item separately, with a view perhaps to rejecting or accepting or, more likely, to attaching conditions. But if it is allowable during the Committee stage to propose the Question, That the Clause stand part of the Bill, then it must be conceivable that the decision of the Committee should be in the negative—that the Clause could not stand part of the Bill. The immediate consequence, of course, of any Clause—even, I imagine, the least important Clause of this Bill—being disallowed by the Committee would be that there would be an immediate conflict set up with the terms of the Treaty of Accession.
I hope, therefore, that upon reconsideration it will be found that the Bill in itself does not compel the very narrow and—no doubt, in the light of precedents—accurate interpretation which the Chair and the Chair's advisers until today thought it right to offer.
§ Mr. Rees-Davies
I take it that in applying his able mind to this my right hon. Friend is not contending that the House is entitled to amend these treaties entered into by the other parties. He must recognise that we cannot barge in and proceed to amend an existing treaty in this House; such amendments can be made only by the members of that club, later.
§ Mr. Powell
I understand, of course, that this House cannot amend a treaty. Treaties are not the material which is 467 put before this House. The material which is put before this House is a Bill to do certain things affecting the law of this country. What I say is that this House can and ought to be free to attach to such legislation such conditions as it thinks fit; that it is entitled to say, "Here is a Bill which is intended to produce certain effects, but upon consideration we do not think that the Bill should be passed, or that those effects should be allowed, except with certain modifications and conditions and procedures."
§ Mr. Money
Surely my right hon. Friend—who said at the beginning that this was not a lawyer's debate but has nevertheless been arguing on a legal basis—sees that there is a point of considerable substance here. Where a treaty has been put before the House, the House has the alternative only of accepting or rejecting that treaty—and to amend the treaty is in fact to do the latter.
§ Mr. Powell
I repeat that there is no question of this House amending or being able to amend a treaty, and once again I assert that this House is entitled to attach certain conditions to the consent which is sought from it for certain changes in the law, though certain consequences for the Government in their relations with their treaty partners may follow from this House doing that.
§ Mr. R. T. Paget (Northampton)
On the question of this House's right to amend a treaty—it can do so if the proposed legislation seeks to make that treaty part of the law of England. I have examples of a number of occasions on which it has done so.
§ Mr. Powell
Perhaps the major point to which I was coming next will in part be a reply to my hon. Friend the Member for Ipswich (Mr. Money) and to the hon. and learned Member for Northampton (Mr. Paget). It is quite clear, if one looks back over the earlier proceedings on this matter in the House, that many hon. Members, including the Government themselves, genuinely believed that in the legislative procedures following the signature of the treaty the major matters involved in that treaty would be able to be considered, and considered specifically, by the House, and I cannot believe that anyone would sug- 468 gest that the intention was that these should be merely considered, without the House having the possibility or the right to come to some conclusion or make some qualification of them.
For example, on the matter of fisheries—the agreement on which was reached, as will be recalled, after the rest of the agreement, only in December—my right hon. and learned Friend the Chancellor of the Duchy of Lancaster, replying to the request of the right hon. Gentleman the Leader of the Opposition that there should be a specific opportunity for debate and not just, as he said, on the Consolidated Fund Bill, said:the agreements we have reached in Brussels over the past week-end,"— that was the agreement on fisheries in particular—like all the others we have reached, are all subject to legislation which will be required after the signing of the Treaty."—[OFFICIAL REPORT, 13th December, 1971; Vol 827, c. 63.]I just do not believe that my right hon. and learned Friend said that, in response to the interrogation of the Leader of the Opposition, knowing or believing that there would be no opportunity in the course of the legislation for that subject to be considered, and that Amendments which sought not to overturn that agreement but to attach some qualification or condition to its implementation, would not be in order.
§ Mr. Rippon
Might I assure my right hon. Friend that I never gave any indication that I thought it would be possible to amend the treaties themselves, but of course referred to the discussion on the Second Reading of the Bill.
§ Mr. Powell
I am most anxious not even to allow the misinterpretation of anything which I say in the sense that my hon. or right hon. Friends on the Treasury Bench allowed impressions to take root which they themselves did not share; but I have to say to my right hon. and learned Friend that if, when a debate on a subject is called for, he gives the reply that these agreements, like the rest,are all subject to legislation which will be required after the signing of the TreatyIt is difficult to imagine that all he was referring to was the Second Reading debate upon a Bill. However, much more specific and much more important is the 469 witness of my hon. and learned Friend the Solicitor-General; for if there is one of my hon. or right hon. Friends on the Treasury bench of whom I would and it impossible to believe that he would mislead the House, it is my hon. and learned Friend the Solicitor-General. There was a very important passage, only part of which was quoted by the right hon. and learned Gentleman who moved the Motion, in the Solicitor-General's speech on 20th January, which went to the heart of the matter before the House, because it raised the question of the amendment of important matters. In the passage after that which has been quoted earlier in the debate, my hon. and learned Friend said:The passage of that legislation"—that is, the Bill now before the House—is necessary before the Crown may proceed to ratificationThen he went on with these significant words:and because the passage of that legislation is necessary, that will be the time to debate the important questions … including those on sovereignty … in order to see how far the Government are then carrying out the intentions foreshadowed in the 1967 White Paper."—that is the whole scope of the agreements now embodied in the Treaty of Brussels and the associated documents—That is the appropriate method and the proper time to enable Parliament to consider and if it pleases approve and implement the consequences of the Treaty."—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 794.]I simply do not believe that my hon. and learned Friend, in referring tothe important questions, including that of sovereignty",was restricting himself to what have been called the "nuts and bolts" of the legislation.
My hon. and learned Friend's reference to the 1967 White Paper makes that clear. What he was saying to the House, and what the House understood him to be saying, was that the important matters which arose in the Treaty, which were the subject of negotiation, would be able to be discussed and, if the House agreed to them, approved in connection with the legislation. The way in which the House considers important questions, and decides whether or not to approve them, in the course of legislation, is by taking 470 those matters separately in Committee, debating them, and accepting or rejecting Amendments which bear upon them.
§ Mr. Rees-Davies
My right hon. Friend then suddenly interpolated the word "Amendments". He knows very well, does he not, that there is every opportunity—not a word of my right hon. and learned Friend is untrue there—to have a debate on every Clause for as many hours as the House likes, to say "Aye" or "No" whether it is a rotten treaty? It was totally unfair of my right hon. Friend to interpolate the word "Amendments". There are many occasions when Bills pass through unamended in Committee with long debates on the Question "That the Clause stand part of the Bill". That was a thoroughly dishonest intervention.
§ Mr. Powell
I do not intend to seek your protection, Mr. Deputy Speaker, because I am sure that my hon. Friend spoke a little at random—especially as the passage from which I quoted specifically related to the capability of amendment. If he will examine the column from which I was quoting he will find that amendment was the context of the remark of my hon. and learned Friend. Incidentally, I am not sure whether my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) was speaking for the Leader of the House in his assurances about the future business of the House and the time available for debates on the Question, That the Clause stand part of the Bill.
Once again, I simply do not see how, except as an insult to the House, the Question, That the Clause stand part of the Bill, can be put and debated if it is held that the House cannot what is miscalled "amend the Treaty" by the manner in which it handles this Bill.
I believe that the House has—inadvertently and unintentionally—been placed in a humiliating position. We have before us legislation which, if it passes, is intended to remove permanently from this House its exclusive power in future to make the law of this country and to tax the people of this country, and to limit its ability to call the Executive to account. That is implicit as has been recognised in these debates, in the action which we are invited to take.
It is monstrous that, when we are being asked to do that, we should be told at 471 the same time, "And you are also prevented from debating, discussing, examining in detail, let alone amending, the terms and conditions upon which your sovereignty is thus to be given up. You are presented with a Bill which will permanently limit the sovereignty of this House, but the terms of which, and the contents of the Treaty by which it has been done, are substantially withdrawn from your examination." I cannot believe that that is a humiliation to which this House will submit.
Whatever is the outcome of this debate, whether or not we proceed to a Division, and whatever the result of it will be, I address this appeal, to my right hon. Friend the Leader of the House in particular. I hope that both the Government and, with respect, the Chair will take time after the end of this debate to consider it, to consider what has been said, to consider the feeling which has been expressed in different parts of the House and to reflect maturely upon what, in consequence of it, they ought to do—
§ Mr. Powell
Perhaps what my hon. Friend has interjected illustrates the importance of reflection at this stage. Hon. Members know that even on a Motion of this sort it is not the custom of the House to decide the matter one way or the other by a Division. We all know that we take account afterwards of what has happened and of what has been said in the debate; but for that, we have to have time. I venture respectfully to express the hope that time will be found.
Finally, I appeal to my right hon. and hon. Friends who differ from the point of view of myself and others on the advisability of British membership of the Community. In this Motion that principle is not involved. We are not here debating or in any way prejudicing that fundamental question. This is a question for the House of Commons, a question of the rights of the House of Commons and the liberties of the House of Commons, which should concern as much those who are in favour of British entry as those who are opposed to it.
I say that not as a generality, but because, if this thing ever appears to have been done without the fullest possible debate—not only of the nuts and 472 bolts but of the important matters—in this House, which is the people's House, then the validity of what is done—something which must be of great concern to all—will be gravely impugned.
My right hon. Friend the Leader of the House said that the Government had and could have no idea of the interpretation which would be put upon the rules of order in the light of the Bill. I believe that. I am sure that that is so. I believe that the Government were not much less surprised and dismayed by that Ruling than many other right hon. and hon. Gentlemen. Therefore, there can be no discredit to the Government, any more than to the Chair, in reconsidering this matter and taking into account the deep feelings of this House about its rights.
§ 6.29 p.m.
§ Mr. David Steel (Roxburgh, Selkirk and Peebles)
I echo the last words of the right hon. Member for Wolverhampton, South-West (Mr. Powell). I and my colleagues very much agree that this is primarily a House of Commons matter and not a matter of debate or acrimony between the political parties, nor even between those who take opposing views on the principle of whether or not we should enter the European Economic Community.
I agree with many of the remarks directed against individual members of the Government. In the last few weeks this Government, to put it mildly, have seemed accident prone. It is not so much their policy or their integrity which has been called into question as their competence.
What we ought to be debating today, it we have to take a day off to discuss the procedure on this legislation, is the Government's competence in the handling of the legislation. Hon. Members who have quoted various statements made by the Solicitor-General, the Financial Secretary to the Treasury and the Chancellor of the Duchy of Lancaster are right to make a complaint that the House was misled as to the nature and scope of the debate which could take place on this legislation. I believe that wrongful assurances were given by Ministers to the House. But this Motion is not about the honour of the Solicitor-General. It is not about the conduct of the Leader of the House, 473 It is not about the Chancellor of the Duchy of Lancaster. It is about the conduct and Ruling given by the Chairman of Ways and Means.
Many hon. Members who have made critical speeches and indicated that they intend to support the Motion have used the phrase "if the Chairman was right". If any hon. Member can use that phrase in his speech in this debate he would appear to enter some doubt as to whether the Chairman was right or wrong. In that situation I cannot see how any hon. Member can go into the Lobby and vote for a Motion critical of the Chairman of Ways and Means.
§ Mr. Alexander W. Lyon
The hon. Member goes right to the root of my personal dilemma in this matter because I understand that both Front Benches are agreed that this is a Bill to approve the Treaty of Accession to the Communities. [HON. MEMBERS: "No."] On that basis this is in direct conflict with what the Chairman of Ways and Means said last night. If that is the case, although I find it an intolerable situation, I have nevertheless come to the conclusion that we must censure the Chairman of Ways and Means if only to see that the House changes that decision so that Amendments can be put down. I cannot see any other way out of the dilemma. I should be grateful to the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) for his assistance.
§ Mr. Steel
I think the hon. Member for York (Mr. Alexander W. Lyon) has taken the opportunity to make his intervention in the middle of mine. I do not complain about that, but I share some of his difficulties. That is why we suggested that we should have had the full Government case on the handling of the legislation at the beginning of the debate and that it was wrong to open the debate on the narrow point about the propriety of the Chair. The full Government case should have been put at the beginning. I sympathise with the hon. Member for York on this, and it is a point upon which we can legitimately criticise the Government. If the hon. Member is in that dilemma, as I think we all are, it would be entirely wrong to say that the only method open to us of criticising the Government is to put forward a Motion criticising the Ruling of the Chair and 474 to use that as a substantive Motion when attempting to criticise the Government. I agree with the hon. Member for Ebbw Vale (Mr. Michael Foot) in what he said on that.
§ Mr. Whitelaw
I quite accept that the House might think that I was the wrong person to open the debate. The hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) is making a perfectly good point, which I think I made, that frankly, the Motion, whether one agrees with it or not, in fact criticises the Chairman of Ways and Means. To that simple point as Leader of the House I directed my views. If I said anything wrong on the other points, which I do not think I did, the Chancellor of the Duchy will set out that side of the case. As I think was perfectly proper, I directed myself to the narrow point which I thought the proper thing for the Leader of the House to do.
§ Mr. Steel
I disagree with the right hon. Gentleman. I do not think it was the proper thing to do. It would have been better to have the full case of the Government at the beginning of the debate and not to be used in the winding up speech at the end by the Government.
The other objection I have is that this Motion saysa full new selection of Amendments should be proposed.I do not think that we can do this. I do not think we can give instructions to the Chair to rule in order that which is not in order. We may well dispute whether the Chairman is right or wrong and whether these Amendments are in order or not, but we cannot say that, while we accept that this is a narrow Bill, nevertheless we instruct the Chair to allow Amendments which the Chair has ruled out of order. I believe there is a legitimate complaint which can be made against the Government's handling of this legislation, but I do not believe that it is a complaint which can be made against the Chair.
We on this bench, at any rate, recognise that our lack of ability to amend previous agreements made by members of the Community from the time of the founding of the different Communities onwards is part of the price which we have to pay for being a late entrant to the Common Market. I listened to the right 475 hon. and learned Member for West Ham, South (Sir Elwyn Jones) with great interest, but, however much one may argue that it is possible in law to amend certain treaties and however right he may be in his argument on law, he is certainly wrong in actual political practice. We could not conduct our entry on that basis. The House was invited in October specifically to make up its mind on whether or not we wished to enter the European Economic Community on the terms obtained at that point.
What every hon. Member had to decide then was whether we were prepared to accept the package and wanted to go into the Community on the basis of the terms then negotiated, not on the basis, after having given approval, that we could amend those terms. Many hon. Members took the view that we should go in. My hon. and learned Friend the Member for Montgomery (Mr. Hooson) took a different view, that we should not accept the package. We knew what we were voting for, and he knew what he was voting against. It is too late in the day to say that we ought to have an opportunity to amend particular provisions which were made before that debate.
I made the point in October that the Government at all stages ought to have been a great deal more frank with the House and the country about the full implications of entry. We made this criticism at the time of the great public debate, that the public were not being given full information and that some hon. Members appeared to be misled about the full scope of the legislation and opportunities for amendment which, clearly, would not be possible later.
While we shall not join in the censure on the Chairman, we wish to express our reservation about the way in which the matter has been handled by the Government.
§ 6.37 p.m.
§ Mr. Norman St. John-Stevas (Chelmsford)
I hope that the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) will forgive me for not taking up his argument. I do that partly for reasons of prudence as I do not wish to say anything which would cause him to change the resolution he has formed tonight not to support this Motion of censure.
§ Mr. St. John-Stevas
I should point out that this is a case where silence does not mean consent. It would be very unwise, however, for any hon. Member on the Government side of the House to say anything critical of any hon. Member of the Liberal Party.
When one comes to Members of one's own party one is, of course, freer. If I direct my remarks primarily to the very important contribution which was made by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) I do so knowing that I incur no risk of alienating him from support of this Bill.
The first point that was made by my right hon. Friend was that this was a House of Commons occasion, not a legal occasion. I cannot agree with that. It is both a House of Commons occasion and a legal one—and it must be, because one cannot separate the function of legislation from the functions of the House of Commons. We cannot separate the detailed rules governing the functioning of legislation in this House from general questions of liberty and parliamentary principles. We have no written constitution, but we have procedure. Procedure does for us in this country what a written constitution does for the liberties of citizens in other countries. Therefore, it is extremely important that the procedures of the House should be followed on every occasion, even on occasion such as this, because the procedures of the House are the ultimate safeguards of our liberty.
My right hon. Friend went on to say that this was not a personal censure of the Chairman of Ways and Means and added that, indeed, it was not a censure at all. Here again I would agree with the part but dissent from the whole. If this Motion is a personal censure of the Chairman of Ways and Means, it is the oddest form of personal censure anybody in this House can ever have heard. The air has been replete with tributes to the moral character of the Chairman of Ways and Means, tributes which he certainly has not solicited but which have been showered on his head from all sides. With those references, should he ever decide to leave this House any occupation would be open to him.
477 If a personal attack was being made on the Chairman of Ways and Means, it would be strange indeed to ask the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) to move the Motion of censure because if there is one Member of this House who has a reputation for being both courtly and courteous it is the right hon. Gentleman.
It is when we come to the question of the substantive censure that I part company with my right hon. Friend. Personal it may not be, but censure it must be if words are to mean anything.
§ Mr. St. John-Stevas
When I finish this part of my remarks I shall give way to the right hon. and learned Gentleman and his library, but now I continue: censure it must be.
What this Motion does is to challenge the judgment of the occupant of the Chair on what by universal agreement is one of the most important Bills which have come before the House. What the Motion is saying is that in this most important matter a radically erroneous judgment has been made by the occupant of the Chair. That must be a censure. Furthermore, we must be taken to intend the natural consequences of our acts.
This is a substantive Motion. What will be the position of the Chairman of Ways and Means if this Motion is passed tonight? He will have to resign. The resignations may go further since others than the Chairman are involved. Therefore, one cannot say that this is not a Motion of censure. It is a substantive Motion of censure against the occupant of the Chair.
§ Mr. Paget
Does a barrister when he signs a notice of appeal from a judge propose a vote of censure on the judge, and does that judge have to resign because that appeal is allowed? Surely the words of the Motion do not impugn the discretion of the Chair but relate to the question whether the correct legal advice was given to him.
§ Mr. St. John-Stevas
I was anticipating that the hon. Member's career was not yet over. [An HON. MEMBER: "It is."] No—he may get a peerage over Rhodesia. [Laughter.] The question of what a barrister would think he was doing in a court matter is not a question to be addressed to me. It must be addressed to one of my hon. and learned Friends since they practise at the Bar and I am an academic lawyer.
I pass on to the third point which was made by my right hon. Friend. He said that if the House can reject a Clause of a Bill which would fundamentally alter the effects of the treaty in this country, it must be able to consider any Amendment which rejects only part of that Clause. That is his thesis. As with so many of my right hon. Friend's theses, if one accepts the principle alone one is lost because one is driven through to ineluctable conclusions. But there is always an isolation that takes place in my right hon. Friend's thinking and argument. He takes one principle out of a situation in which three or four principles operate, ignores the other three, and grounds his conclusions on that one principle. The principle he has ignored governs the matter of procedure, which is ultimately a principle of fundamental constitutional importance. He has ignored the fact that there are rules in this House governing the admissibility of Amendments.
The passage of "Erskine May" which has already been quoted by my other hon. Friends—from my copy, I may say, but I am always ready to oblige—is fundamental to this discussion. It says:A committee is bound by the decision of the House given on second reading in favour of the principle of the bill and should not therefore amend the bill in a manner destructive of this principle.That is the principle which operates to neutralise the principle put forward by my right hon. Friend, and I call it in aid, because without that principle his argument could not be answered.
§ Mr. George Cunningham
The hon. Gentleman is quoting from page 494 of "Erskine May". Does he not agree that above that passage it says:The rules as to the admissibility of amendments are explained in detail on pages 507–10 below, but the general powers of a committee are …479 and so on. He then quoted from the general powers. Does he not think that the provisions in detail over some five pages of "Erskine May" should be relied upon rather than the general implications which he has quoted in contrast to my right hon. Friend the Member for Battersea, North (Mr. Jay) who quoted the detailed provisions?
§ Mr. St. John-Stevas
I was quoting the universal, whereas the hon. Gentleman is referring me to the particulars. But all the particulars are governed by the universal principle. Therefore, the hon. Gentleman's point has no validity and the point of the right hon. Member for Battersea, North (Mr. Jay) is overruled by the general principle involved.
§ Mr. Michael Foot
Would the hon. Gentleman indicate whether he has any evidence to show that that is the basis on which the Chairman of Ways and Means reached his decision, because indications which have been given to many of us, and indeed the implications of what has been said in many speeches, are to the opposite effect. The hon. Gentleman may think that is a sufficient ground for ruling out the Amendments, but that is not what the Chairman of Ways and Means has contended.
§ Mr. St. John-Stevas
The Chairman of Ways and Means has made his position clear in the Ruling which he has given—
§ Mr. St. John-Stevas
Yes, he has. He has given some reasons. I cannot say whether the considerations which I have brought forward were those which dominated the mind of the Chairman of Ways and Means. I have no means of answering that question. I was producing my point in answer to a point which had been made by my right hon. Friend the Member for Wolverhampton, South-West.
§ Mr. Powell
I do not dispute that the rules governing Amendments may well be different from the rules governing the putting of the Question, "That the Clause stand part of the Bill". Therefore, there can be no argument on a point of order from one to the other. The point to which I was addressing myself was that, 480 if the Question "That the Clause stand part of the Bill" can be put and be negatived, there is nothing in the nature of the treaties or their acceptance by this country or the validation of that by this legislation which prevents the amendment or the rejection of parts of those treaties by way of amendment. That was my point.
§ Mr. St. John-Stevas
My point was a parallel one, which is that we cannot amend these matters under the rules of this House.
§ Mr. St. John-Stevas
I am passing on. I am not passing over. In this exchange between myself and my right hon. Friend, we have made our respective positions clear. Posterity must judge between us.
I pass on to the fourth point which was made by my right hon. Friend. This was an extremely important one. As I understood it, he was accusing both my hon. and learned Friend the Solicitor-General and my right hon. and learned Friend the Chancellor of the Duchy of Lancaster of misleading the House. That was the gravamen of his charge. My right hon. Friend quoted from the debate of 20th January and from a previous debate in an effort to substantiate his charge. I do not think that any fair-minded person could possibly draw the conclusion that my right hon. Friend did from the evidence that he quoted because, while my hon. and learned Friend the Solicitor-General certainly was speaking in the context of amendment of the Bill, he never suggested that any and every kind of Amendment would be admissible. Nothing was said about that in his speech. He said that this Bill is open to amendment, as it is, but, of course, only to amendment according to the procedures of this House. There is nothing in the speech of my hon. and learned Friend the Solicitor-General to deny that principle.
The final point made by my right hon. Friend was that it was a humiliation for this House to be unable to amend legislation implementing a treaty. He said that that was an intolerable humiliation for Parliament. If that is so, it is a humiliation which has been with us for a very long time. The treaty-making power has always been a power of the Crown and therefore, of the Executive 481 and not a power of this House. That is our constitutional law, and it is supported by every constitutional authority. Where this House comes in is that, if a treaty involves a conflict with our municipal law, Parliament must change the law or we are left in a situation of conflict of laws. That is where the power of this House comes in. Therefore, the rôle of this Bill is a consequential one. It has to implement those changes—
§ Mr. St. John-Stevas
I am using the expression colloquially. Its function is to make those changes in municipal law which have to be made to avoid conflict—
§ Mr. St. John-Stevas
Of course, if the House wishes. Supposing that the House does not do this. What is the position of the treaty? The treaty is not invalidated, but we are in a position of conflict where the rule of international law governing treaties says one thing and the rules of domestic law in this country say another.
It may be, as a matter of practice, that in such a situation we could not ratify, but the legal position is not affected because ratification is not a function of this House. It is incorrect to say that this is a ratifying Measure. It is not. It may be an enabling Statute. It may have practical consequences. But ratification is for the Crown. It is not for Parliament.
§ Mr. Elystan Morgan (Cardigan)
Although the hon. Gentleman is right in saying that the treaty remains a treaty, he should qualify that and say that it remains a treaty between State and State. It does not have any legal and valid effect as between the State and the citizens of this country.
§ Mr. St. John-Stevas
I am grateful to the hon. Gentleman for saying so much more clearly than I could what I was attempting to convey. There would be a conflict of laws. There would be a conflict between the municipal law of this country and the international obligations accepted by treaty. That would be the reality—
§ Mr. St. John-Stevas
I am sorry. I cannot give way to anyone any more. Other hon. Members wish to speak—
§ Mr. St. John-Stevas
I will always give way, of course, to a Liberal.
I have been dealing with the points raised by my right hon. Friend the Member for Wolverhampton, South-West. They are points of substance, but, despite my right hon. Friend's disclaimer, they are also points of great legal importance.
I come back to the underlying realities of the situation. I do not deny that there are extremely important issues of legality involved. I am the last person to say that we in this House should not be concerned about law and procedure. But if we look at the realities of the situation we know that behind this legal struggle a political struggle is going on. I do not think that anyone would deny that the majority of right hon. and hon. Members opposite are seeking not only to see that the right procedures of this House are upheld but also to defeat this Bill. This is where there is room for sharp criticism of the hon. Member for Ebbw Vale (Mr. Michael Foot). In order to defeat the Bill, it cannot be denied that the hon. Gentleman has been prepared to place the Chair in jeopardy. The maintenance of parliamentary liberties in this country depend on the maintenance of an impartial Chair. What we are voting on tonight is not for the Common Market or against it, not for the Government or against them, but for the maintenance of parliamentary liberties which are dependent now and always on the maintenance of an impartial, fair and strong Chair.
§ Mr. Orme
On a point of order, Mr. Speaker. On the point that the hon. Member for Chelmsford (Mr. St. John-Stevas) has just made, since the debate centres round the decision taken by the Chairman of Ways and Means, from whom we had the benefit of a statement yesterday, and since the Leader of the House has made a statement which completely contradicts what the Chairman of Ways and Means said yesterday at column 269, not only in the interests of justice to the House but to the Chairman of Ways and Means—who is not under personal attack—would it not be proper 483 for him to address the House and give us the benefit of the further advice which he has had from his advisers?
§ 7.1 p.m.
§ Mr. Reg Prentice (East Ham, North)
The hon. Member for Chelmsford (Mr. St. John-Stevas) said that he had dealt with all the points raised by his right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). If the hon. Gentleman thinks that he has dealt with those points he flatters himself, although he certainly made passing refer- ences to them.
I am very much tempted to follow the hon. Gentleman in turn, but I will resist the temptation, except to comment on one of his first points, which seemed fundamentally wrong. The hon. Gentleman said that the British constitution, as he saw it, was not under threat. He disagreed with his right hon. Friend, who said that we were in a humiliating position, and brought forward the argument that in place of a written constitution we had the procedures of this House, and that our constitution was defended by adherence to those procedures.
With respect, far more important than the details of our procedures are the conventions of our constitution. The conventions of our constitution are deeply offended by the Bill before us. I think, too—though I say this with regret—that they are offended by the Ruling of the Chairman of Ways and Means. A fundamental convention of our constitution surely is that if there are to be large and fundamental changes in our law they should be made only as a result of thorough debate in Parliament, with the proper procedures of Parliament, including the procedure for Amendments to be moved and discussed on all the real issues before the House and the country, and not merely on marginal issues.
It is that convention which is offended. That is why this is a House of Commons matter, and why, in support of our Motion, we ought to be hearing from hon. Members on both sides of the House who are in favour of entry into the Community, because the issue before us today goes wider than entry into the Community.
484 I hate being in a position of criticising the Chairman of Ways and Means. If I may put in a personal note, I cannot recall having made any criticism of the Chair during my 15 years in this House. I think that even the points of order which I have raised in that time could be counted on the fingers of one hand.
I agree with those who say that the Chairman of Ways and Means has been put into a very difficult position by the Government—but it is not quite an impossible position. I believe that he could have ruled differently yesterday. The right hon. Member for Wolverhampton, South-West and my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) indicated ways in which he might have ruled differently. Therefore, I think that we are right to have the Motion in this form.
The fundamental point is that the Chairman of Ways and Means was put into this intolerably difficult position by the fact that the Government deliberately drafted a Bill to provide for the least possible debate and scope for amendment. I suggest that the Government deliberately drafted the Bill in that way. I do not agree with those who have spoken in terms of the Government's not knowing what they were doing.
We should not single out the Solicitor-General for blame in this respect. The Cabinet takes responsibility for this decision. It was a major political decision to present the Bill in this form. Therefore, the Leader of the House was the right Minister to open the debate for the Government. He made a rotten speech, but it was right that the speech should be made by a senior Member of the Cabinet on the political issues facing the House and the country at this moment.
We have been told by many right hon. and hon. Members that it is not possible for us to amend treaties. I put it to the House that if we are engaged in an exercise which involves making large and fundamental reforms to our law and large and fundamental changes in Britain's policy in the world we must devise methods by which we can discuss these matters in detail and, if necessary, amend them in detail. If previous rules which have applied to previous treaties have not enabled those treaties to be amended we must have new rules to deal with a 485 new situation. Indeed, we must have unique rules to deal with a unique situation.
Let us consider what we are being asked to do. We are being asked to approve a number of changes, any one of which, if it had been taken on its own, would have been the subject of either a major piece of legislation or, if it was not a legislative matter, at least a major debate in this House.
Let us take, for example, the financial provisions and the new types of taxation to which we will be subject. They are to be decided in an entirely new way. This matter is more important and far-reaching than the Finance Bills which have been put before this House over many years. Each of those Finance Bills has been the subject of weeks of parliamentary debate and detailed amendment either in Standing Committee or on the Floor of the House. The process of being asked to accept this new type of taxation in this form should equally be subject, by those of us elected for this task, to detailed consideration and amendment.
Let us now consider a matter wbich is not legislative—the decision to phase out the Commonwealth Sugar Agreement. This is a matter of enormous importance to a number of weak and vulnerable countries which, until recently, were British colonies and for which we have great responsibility. Those countries can be ruined entirely if the terms of the treaty are applied and nothing more is done from 1975 onwards to protect them. If any Government were to come to the House in isolation and say, "We propose to end the Commonwealth Sugar Agreement", would not this House demand a debate, and would there not be a very important vote on that subject?
That consideration also applies to the proposal to phase out the arrangements with New Zealand for the purchase of her products, which have been vital to her economy over the years. Again, this should have been—and still ought to be—the subject of separate consideration and separate voting in this House. The point is that these matters have never been separately debated.
The Leader of the House has told us today how many hours of debate there have been on the Common Market. Each 486 of these debates over the last 10 years has been a general debate, in which hon. Members have referred to the items that I have indicated and to other matters, without any particular order of reference to them and without any separate decisions being taken. I ventured to suggest in one debate last year, while the negotiations were going on, that we ought to be having separate debates on some of these subjects. However, we have not had them. We ought to have had time for those debates in order to reach conclusions on those subjects.
When we had the debate and the vote on 28th October we did not have the treaty before us. Indeed, on the important matter of the fishing arrangements, agreement had not even been concluded at that point. Yet it is now suggested that the general vote on that occasion covered all these things.
This will not do. Surely hon. Members have a right to choose. Hon. Members who are broadly in support of the principle of entry into the Community have the right to make reservations on certain matters. Surely Conservative Members of Parliament representing fishing constituencies, for example, have a right to say, "We approve entry in general, but we do not go along with the fisheries part of the arrangements. Therefore, we withhold our support from that. We will support entry in general only if arrangements are now made on fisheries".
The whole concept of having separate debates and Amendments was described by the Chancellor of the Duchy of Lancaster, in his intervention yesterday, as coming under the heading of wrecking Amendments. Surely we ought to be able to devise procedures whereby, if particular parts of these arrangements are not satisfactory to the House, we can say to him, or to the responsible Minister, "You must go back to Brussels and try again. You must tell them in Brussels that these points are not acceptable to the House of Commons". Why not? Are we being told that the Government are such rabbits that they dare not go back to Brussels and argue these points again, or are we being told that the Community is so rigid in its attitude and so contemptuous of our democracy that it would not be prepared to entertain any changes?
§ Mr. Prentice
We are being told that? Some hon. Members who have previously supported our entry into the Community should ask themselves again whether that is the sort of Community to which we want to belong.
§ Mr. Patrick Cormack (Cannock)
On 28th October we debated the terms and the House decided by a majority to accept the terms. It has the chance on every debate on the Question. "That the Clause stand part of the Bill," to say "No". But it has said "Yes", and until it says "No", the decision on principle remains unaltered.
§ Mr. Prentice
There are several things wrong with that argument. On 28th October we did not have the text of the treaty, even on those items which had been concluded—and on fisheries the negotiations had not been concluded.
I am trying to defend the position of hon. Members who are genuinely in favour of going in to the Community on most of the terms but have reservations on particular items. To be consistent with parliamentary democracy hon. Members should be able to move and support Amendments on particular aspects of the vast and complex package. The argument which the hon. Member for Cannock (Mr. Cormack) puts forward denies hon. Members the right to do that.
My view leads to the conclusion that the Bill will not do, and the concept of an unamendable treaty will not do. Hon. Members opposite who genuinely support entry, but who see this as a threat to Parliament, however loyal they may be to the Government in other matters, ought not just to be docile Lobby-fodder on this occasion. They should speak for the people who send them to this House and for the dignity and integrity of this House.
§ Mr. Martin Maddan (Hove)
I repudiate entirely what the hon. Gentleman has said. Will he tell us what his remarks have to do with the Motion of censure on the Chair?
§ Mr. Prentice
I shall make reference to the Chair. I am saying that it is the conduct of the Government in putting before us legislation in this form, and the conduct of hon. Members like the hon. Member for Hove (Mr. Maddan), who support the Government, that has 488 put the Chair into such a difficult position. The real answer to our problem is for the Government to withdraw the Bill and treat Parliament in a more civilised way.
Failing that, what is the position of the Chair? The Chairman of Ways and Means in his Rulings yesterday—and I paraphrase them—seemed to be saying that even if the Bill is unique—which he granted as a premise—the precedents governing the choice of Amendments and the decision as to which Amendments were in order were precedents handed down from the past which must apply even to a unique Bill.
The Chairman of Ways and Means should reconsider two points—first, the arguments put to him by my right hon. and learned Friend the Member for West Ham, South and the right hon. Member for Wolverhampton, South-West that the Long Title of the Bill enables him to take a more liberal view of Amendments than he had supposed to be the case. Secondly, he should reconsider the broad political point that he is the guardian—as you, Mr. Speaker, are the guardian—of the liberties and fundamental conventions of this House, as well as of the detailed rules of procedure, and that the House is placed in a humiliating position by the Government.
The occupant of the Chair has to do what he can to protect the House and the processes of debate. If the Bill is unique, the occasion arises for unique rulings. It is an occasion for setting precedents and not following the previous precedents to rigidly. Otherwise, the occupant of the Chair, however innocently and blamelessly, puts himself into the position of being the "fall guy" of the Establishment, and of being used by the Treasury Bench to do its dirty work and help to suppress the debate to which we are entitled.
There are three possible ways forward from this appalling situation. The first is to proceed with the Bill as it is, with narrow scope for amendment and with no chance for Amendments of substance to be moved. For the reasons which I and other hon. Members have given, that is an intolerable position for hon. Members to accept, and quite incompatible with the integrity of the House of Commons.
489 The alternative is to have a new Bill which sets out in proper form the changes in our law and policy which entry into the Common Market involves. This is the best alternative, and it could be proceeded with if Ministers would do it or if Goverment back benchers forced them to do it in the way I have suggested.
Failing that, the Chairman of Ways and Means should reconsider the position to see whether he can allow full scope for amendment so as to enable the House to discuss separately the great issues involved and to vote separately upon them.
If we adopt the first of my three suggestions and proceed with the Bill without the opportunity fully to debate Amendments, and to debate the big changes separately with a chance to vote on them separately, the majority of the House will have consented to dealing a blow to democracy in this country from which it will not recover for a long time.
§ 7.17 p.m.
§ Sir John Foster (Northwich)
I ask the House to consider the terms of the Motion. It is not a Motion of censure on the Government, although many of the speeches have suggested that it is. When the hon. Member for Ebbw Vale (Mr. Michael Foot) was challenged by the Leader of the House on what he said in 1966 about not using censure Motions on the Chair for an attack on the Government, he entirely agreed, but the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) and some of his hon. Friends have not followed that agreement.
The right hon. and learned Gentleman ended his speech by saying that the conduct of the Government was a disgrace, and other hon. Members have said that the Government were being dishonest and were deceiving the House. But that is not what the Motion of censure is about; the Motion of censure is about the conduct of the Chair. The conduct of the Chairman of Ways and Means is criticised because, as is said in the Motion, that Ruling—…gravely infringes the rights of the House and its powers of decision …".Hon. Members should remember that the rules of procedure have been worked out to give a balance to enable the Government of the country to continue. In certain instances the House as a whole 490 feels frustrated because its rules of procedure prevent it from deciding to do what a large majority of hon. Members want to do. A good instance of this occurred a few days ago when the House did not give a Second Reading to the Anti-Discrimination Bill because the rules of procedure prevented its being fully discussed. The House has imposed these limitations on itself because the Opposition must have a fair go and the Government of the country must be continued.
The attack on the Government is a separate matter. The Chair has been criticised for giving a certain Ruling, but I submit that the only legitimate form of criticism in this debate is the criticism that the Ruling was wrong, and I shall come to this shortly. The Chair decided to select only certain Amendments. Presumably that selection was done on the grounds, first, that those Amendments were in order and, second, that in his discretion the Chairman wished to choose them.
It is clear that unless this point is taken a Motion of censure in this case would be a Motion in a circle, as it were. After all, how can one argue that because the Chairman abided by the rules of order he somehow infringed the rules of the House? This is rather what some hon. Gentlemen said yesterday about this being a unique Bill which deserved unique rules of procedure.
I urge the right hon. Member for East Ham, North (Mr. Prentice), who argued in this vein, to appreciate that such unique rules do not exist. The right hon. Gentleman wanted to change the rules of order, but that cannot be done by means of a Motion of censure on the Chair. It is not the fault of the Chair that our rules of order are what they are.
If the Chairman were censured—in other words, if the Motion of censure were carried—on this aspect of the case, then he would have been censured for ruling in accordance with our rules of order. Then there would be a new selection of Amendments—[HON. MEMBERS: "Hear, hear."]—but that would be contrary to the rules of order, and the whole thing would not make sense.
It must, therefore, be agreed that the only legitimate criticism is not whether the Government were deceitful or whether 491 this is a unique Bill or even whether the rights of hon. Members are being strangled. The criticism is that the Chairman was wrong in his Ruling.
§ Sir J. Foster
I leave the Government to look after that. I do not think they will lose the Bill. Indeed, I do not see how the Government have insisted on anything. They drafted a Bill which will bring into operation a treaty, and in my submission the Ruling of the Chairman was right. In other words, a case has not been made against his Ruling.
§ Mr. Nigel Spearing (Acton)
Was the hon. and learned Member not in his place yesterday when his right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) spoke of the distinction between the Long Title and the Explanatory and Financial Memorandum? The same point was made by the right hon. Member for Wolverhampton, South-West (Mr. Powell). Would the hon. and learned Gentleman care to give us the benefit of his experience on this aspect?
§ Sir J. Foster
It seems clear that the Explanatory Memorandum spells out the Long Title. There is no conflict between them. The principle of the Bill—it is important to bear in mind what "Erskine May" says on this—is to bring into operation in English law the treaties to which the Measure refers. The Long Title describes this as a BillTo make provision in connection with the enlargement of the European Communities to include the United Kingdomand the principle of the Bill is to enlarge the Community; it cannot be enlarged unless United Kingdom law contains certain provisions relating to the Community. Meanwhile, the Explanatory Memorandum says thatThe Bill makes the legislative changes which will enable the United Kingdom to comply withcertain obligations. Complying with those obligations will enlarge the Community by including the United Kingdom. There is, therefore, no conflict between the Explanatory Memorandum and the Long Title. In other words, this is a 492 convenient way of alluding to the Explanatory Memorandum, which spells out in more detail what the Long Title means.
If I am right about this and if the principle of the Bill is to bring into operation in English law the treaties to which the Measure refers, then it is worth remembering that "Erskine May" says, in its general references, that the principle of a Bill must not be upset in Committee by introducing Amendments contrary to the principle. Such Amendments have always been known as wrecking ones.
§ Sir J. Foster
Before the hon. Gentleman intervenes he might care to observe what "Erskine May" says, about 10 lines down on one page on the left in the general provisions, about disregarding an Amendment.
§ Mr. George Cunningham
I assure the hon. and learned Gentleman that I will look into the point in "Erskine May" to which he refers and comment on it when, as I hope I shall have the opportunity, I make my own speech later.
As the hon. and learned Gentleman has relied, at least in part, on the existence of the Explanatory Memorandum for his argument, may I ask him to say what would be the position if there were no Explanatory Memorandum but only the Long Title? Does he think that the Amendments which were ruled out of order would then become in order?
§ Sir J. Foster
The Explanatory Memorandum can be used only to explain the Long Title, but not legally. The Memorandum has no legal significance.
§ Sir J. Foster
I am sure that the right hon. Member for Battersea, North (Mr. Jay) has a copy of "Erskine May" with him. I fear that I do not have mine with me. I trust that he will examine it because I am sure that it supports the case I am making.
§ Mr. Jay
If the hon. and learned Gentleman is right in saying that it is the Long Title and not the Explanatory Memorandum which is binding, may I ask him to explain why the Chairman of 493 Ways and Means quoted from the Explanatory Memorandum and not the Long Title?
I know well the part in "Erskine May" which implements the general principle to which the hon. and learned Gentleman referred. It says, in effect, that anything which amounts to a repealing of the principle of any Bill is out of order. However, I instanced certain Amendments—for example, No. 17, which has not been selected—which would merely alter the date and would, clearly, not negative the principle of the Bill. Under what provision was that ruled out of order?
§ Sir J. Foster
That Amendment would have altered the date from 1973 to 1975. In my view, to have done that would have been contrary to the principle of the Bill—
§ Sir J. Foster
I do not want to give way too often. I shall only be led down a lot of side alleys and thereby take far too long over my speech.
The right hon. Member for Battersea, North wants to know why the Chairman of Ways and Means selected one Amendment in preference to another. None of us has the slightest idea why, but it seems a reasonable course of action for the Long Title to refer to something and for that something to be spelled out in the Explanatory Memorandum.
So the Chairman takes that. He does not have to say, "The Long Title says this." This is embodied in the Explanatory Memorandum, which sets it out at greater length. But one cannot say why the Chairman did not. I advance a very good reason for it: the Chairman wanting to shorten his explanation by 10 or 12 words, and saying that the Explanatory Memorandum meant so-and-so.
§ Sir J. Foster
I have not answered the intervention of the other right hon. Gentleman, the right hon. Member for Battersea, North, that the general principle of a wrecking Amendment is that it goes contrary to the principle of the Bill. If 494 one has the Amendment, the Bill is at an end; and wrecking Amendments have always been disregarded.
If we return to why I say that the arguments put forward for showing that the Chairman of Ways and Means was wrong are rather weak, I have answered to the best of my ability the point made by the right hon. Member for Battersea, North.
Then there was an interesting point, which was also rather down a side alley, made by the hon. Member for Penistone (Mr. John Mendelson). But that depends on a fallacy of hon. Members opposite that a treaty can be amended. The hon. Member made rather an attractive argument. He said that in the Treaty on Safety at Sea of 1964, or whenever it was, it was possible for reservations to be put in because the House of Commons, when passing a Private Member's Bill supported by the Government, did not pass Part VIII because a reservation was put in.
§ Sir J. Foster
I apologise to the hon. Member for Penistone, but it was an interesting point—if he had put it. It is rather attractive. Here is a treaty. The House of Commons puts in a reservation at the request of the Government. But one of my hon. Friends intervened and pointed out the difference: that there were model treaties laid down and everyone in the world, members of the World Court and the United Nations, could join in and put in reservations. But the Community treaty is another kind of treaty where it is a contract between A and B. Where one has such a contract which, owing to one's internal legislation, has to be brought into effect in the internal legislation, one cannot put in a reservation. All that one can do is to ask them to renegotiate. But if one does that, that is an end of the principle of the treaty and one starts again.
§ Sir J. Foster
Maybe not "Why not?". I am saying only that in the rules of order it is a wrecking Amendment.
§ Mr. Spearing
I raised this point a little while ago. Can the hon. and learned Gentleman tell us about wrecking Amendments? We have two Amendments, Nos. 32 and 33, which cite certain protocols, Nos. 18 and 22, and they say that these protocolsshall only be included in the pre-accession treaties after it has been approved by affirmative resolution of each House of Parliament.That does not say that we will turn it away. It says that we shall have it in only after a specific and affirmative Resolution. First, how can they be wrecking Amendments on the criteria that the hon. and learned Gentleman has mentioned? Second, how does he know that, even after Parliament decided not to pass a certain protocol, we would not still go back to the Community, which would still have us in despite the fact that certain protocols had not been passed by this House? How can they be wrecking Amendments on those criteria?
§ Sir J. Foster
They would be unlikely to be outside the scope of the Bill, but it could be that they have not been selected.
§ Sir Robin Turton (Thirsk and Malton)
The Chairman of Ways and Means said "very important Amendments "—clearly referring to the protocol—had not been selected because they were out of order and not from the degree of importance. He must be referring to that point.
§ Sir J. Foster
I do not agree with that, because the reasons were given in general terms and they covered discretion and out of order.
§ Sir J. Foster
If an Amendment alters the Bill, it then goes contrary to the principle of the Bill, that these protocols shall come into operation if they are approved by the House. The Chairman also, I suspect, may have thought that they would be safeguarded by affirmative Resolution and that they would not be all that important. One cannot have anything better than an affirmative Resolu- 496 tion. Otherwise, one would have to have Amendments approved by separate Statute.
One cannot go into the Chairman's mind. I say here, in parenthesis, that it is an unfortunate aspect of one of our procedures that when the House ought to act in a judicial capacity we have decided on a Motion of censure, when people vote in parties. The hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) was of that opinion. But we cannot rely on everybody acting in a judicial capacity in this case, especially when the Opposition have put forward a Motion of censure on the Government, indirectly.
§ Mr. Paget
On the point which the hon. and learned Gentleman has been making about why we cannot amend the treaty, if the Bill proposes to make that treaty part of our law we can amend it. I do not know whether the hon. and learned Gentleman has considered the Irish Treaty, which was the basis of the setting up of the Irish Free State. When that treaty came before the House, a whole series of Amendments to it were accepted in spite of the fact that the Attorney-General then pointed out that they would wreck the agreement. The then Mr. Speaker ruled that while they might wreck the agreement, that was nothing to do with him. If this treaty is to be made part of the law of England, we amend it here.
§ Sir J. Foster
But I think that the Government went back to the Irish Government and renegotiated a new treaty. They renegotiated a new treaty because the Government had had their treaty wrecked. But it was a wrecking Amendment.
Here the principle of the Bill is to enter the Communities, and there seems no doubt that it is a wrecking Amendment to undermine the whole principle of the Bill.
With regard to treaties which are general treaties where one comes into them with any reservations one likes and where one breaks an agreement between A and B, it is contrary to the principle of the Bill to alter one's agreement with B, and one cannot do that.
As regards the Motion of censure on the Government, the House should not, in its judicial capacity of deciding whether 497 the Chair should be censured, pay any attention to those arguments. Those who say that the Chair has been put in an impossible position mean that the Chairman is right but that the effect on Parliament has been such that they do not approve of it.
§ Mr. Alexander W. Lyon
Would the hon. and learned Member meet this point? The Chairman of Ways and Means said last night that this was not a Bill to approve the Treaty of Accession. If it were such a Bill, then Amendments could be taken. As I understood it, both the speakers from the Front Benches today said that this was a Bill to approve the Treaty of Accession. Does the hon. and learned Member agree with that interpretation of the Bill, and if he does, then is not the Chairman of Ways and Means wrong in his interpretation?
§ Sir J. Foster
I see the dilemma which the hon. Member is trying to lead me into. We could have a Bill to approve a treaty, but it would be very unusual, and this is not that kind of Bill.
§ Sir J. Foster
I have been asked a dilemma question and I must answer it in a dilemma fashion. We can imagine a Bill coming before Parliament seeking to approve a certain treaty, and then the Chairman of Ways and Means would be right because all kinds of Amendments would be put in which would not wreck the principle of the Bill, because, of course, the principle would be to approve the treaty. But this is a Bill to bring the Community treaties within the operation of the laws of the United Kingdom. That is something quite different, and it is not an approval in that sense, but if one deduces that to bring the law of the Community into the law of England is approval in another sense, I would not disagree and both parties are right. The term "approval" can be used in different senses.
§ Sir J. Foster
Yes, it is, but it is also a matter of semantics to say that the Chairman of Ways and Means was directing the House, or the other way round. It has to be dealt with in a semantic fashion because we return to the point that the Bill is only an approval in that it is, in a sense, to bring the law of the 498 United Kingdom in conformation with that of the Community. It comes back to the point that any Amendment which is a wrecking Amendment must be disallowed. Therefore, the question is: Was the Chairman of Ways and Means, in the exercise of his judgment, wrong in deciding that the important Amendments referred to by my right hon. Friend the Member for Thirsk and Malton (Sir R. Turton) were wrecking Amendments? If he is right he cannot be censured because he has been put in an impossible position. It is the Government who are alleged to be in an impossible position, but the Government are not under censure, and, therefore, I should have thought the inevitable result of this censure is that the House of Commons should consider whether there was any ground for saying that the Chairman of Ways and Means was wrong.
§ Mr. Denzil Davies (Llanelly)
May I return to the argument about whether the Bill approves the treaty or not'? If on the hon. and learned Gentleman's view this Bill does not approve the treaties in the constitutional sense, what sort of Bill does he think the Government should introduce to comply with the constitutional convention of approving treaties?
§ Sir J. Foster
In my respectful submission, the House of Commons approves of a Bill when by a large majority it agrees with its principle. The Executive is then agreed with the other parties to this kind of contract. If it wants to reject the treaty it refuses to let the law of the treaty into the law of the United Kingdom.
§ Mr. Lyon
This is absolutely crucial to the whole question of the Motion of censure. The hon. and learned Gentleman is now saying that the Government asked the House to approve of a treaty by voting on the principle of the Bill. If that is true, then the Second Reading of the Bill ended with a vote to approve the Treaty of Accession. The Chairman of Ways and Means last night said that that meant that the matter could be amended. If that is so he is wrong in his interpretation of what the Bill actually does; and if he is wrong we are right to censure him.
§ Sir J. Foster
I can only repeat what was described as my semantic argument.
499 The House expresses its disapproval of a treaty and wants to knock it out by either voting against it on Second Reading or Third Reading or deleting one of the essential Clauses. In that sense it has shown its disapproval. But the House of Commons does not have to approve it in the sense that the hon. Member has said. There is no need for that. Approval in a different sense is to bring the law of the United Kingdom into conformity. It ratifies afterwards. That seems to me to satisfy the argument of the hon. Member. I apologise for having spoken so long.
§ 7.47 p.m.
§ Mr. Hugh Jenkins (Putney)
The hon. and learned Member for Northwich (Sir J. Foster) began by being extremely persuasive. But I felt that by the end of the argument, during the course of which he accepted many interjections with very good humour, he succeeded in unpersuading himself because he spoke with less conviction the further he went. The point at which he succeeded in coming over to our side, whether he wanted to or not, was where he repeated the point he made yesterday in which he described the Amendments which have been ruled out of order as wrecking Amendments.
My only qualification for intervening in the debate is not that I have the knowledge and background of the hon. and learned Member. It is that since coming to the House in 1964 I have spent more time in Standing Committee and in Committee of the House than in the House itself. I have therefore a great deal of working experience of what goes on in Committee, of what is acceptable, and of what is a wrecking Amendment and what is not.
Broadly speaking, any Amendment which seeks to challenge the fundamental ideas of a Bill is regarded by the Government as a wrecking Amendment, but in my experience I have never known such Amendments to be ruled out of order. They are discussed. How many times have we seen the formality in which the mover of an Amendment says that it will improve the Bill but the Government say that it will wreck the Bill, sometimes only slightly but sometimes totally? The Government will not accept the Amendment because the Bill is in the condition in which they want it. Sometimes the 500 Government say they have made a slight error of judgment, and they agree to a minor alteration, or there may be some semantic change which the Government would accept. There may be occasions on which the Opposition wish to probe the Government's intentions, and an Amendment is put down for this purpose. In the Standing Committee on which I am now serving, which is dealing with the Sound Broadcasting Bill, three changes have been made of a fundamental character. The Government have said that they believe the changes will spoil the Bill and that they are wrecking Amendments. The Government have said, "We shall think about this, but it is very likely that on Report we shall try to restore the position, because we believe that the Amendment would spoil our Bill."
That is precisely the situation we should now be in if we succeeded in Committee. That is why, with enormous respect to the Chairman of Ways and Means, I think the criticism of him must lie. He took it upon himself to decide that the Amendments were out of order and should not be discussed, but the Government should have been placed in the position of defending themselves, and those who wished to attack the Bill should have been able to do so. The debate should have been allowed to take place. If the Government, as I believe, placed the Chairman of Ways and Means in an impossible postion by their drafting, they must share the blame. But the criticism of the Chairman of Ways and Means, for whom I have the utmost respect, is that on this occasion he erred on the side of the Government when he should have erred on the side of the House.
§ Mr. Michael Grylls (Chertsey)
Amendment No. 17 seeks to replace "1972" by "1975". Is that a wrecking Amendment? The House decided on 28th October that the United Kingdom should join the Communities on 1st January, 1973 so to insert "1975" makes nonsense of the Bill. I believe that that is a wrecking Amendment, and that, therefore, the Chairman of Ways and Means is absolutely right.
§ Mr. Jenkins
We can agree with what the hon. Gentleman said, with the exception of his last sentences. We might 501 accept that the Amendment would make the Bill impossible of operation. If the debate on it had taken place it would have been proper for the Government to say, "We resist the Amendment, because if it is carried it will spoil the Bill". Our complaint is that the debate was prevented from taking place. With the utmost sympathy for the position in which the Chairman of Ways and Means was placed, I believe he made an error on this occasion. It was understandable, because it was almost forced upon him by the Government, but it was none the less an error.
§ Sir J. Foster
Although the hon. Gentleman has been on many more Committees than I have, he is mistaken on the procedure in Committee. The Amendments are selected before the debate starts or from day to day, and wrecking Amendments are not selected. It is not open to the Government to say in the middle of debate, "This is a wrecking Amendment", and so get the Chair to withdraw it. When the Government described an Amendment as a wrecking Amendment they are using that description in a different sense. They mean that it wrecks the purpose of their Bill because they want it one way and not another. A wrecking Amendment is a technical matter. It destroys the whole basis, the principle, of the Bill.
§ Mr. Jenkins
The hon. and learned Gentleman will agree that one man's improvement is another man's wrecking. To do the Chairman of Ways and Means justice, he has not declared that any of the Amendments are wrecking Amendments. It is the hon. and learned Gentleman who has attributed to him such a reason for ruling the Amendments out of order. We do not know whether the Chairman of Ways and Means shares the hon. and learned Gentleman's view of the Amendments.
I have never moved a fundamental Amendment that has not been described by the Government of the day as a wrecking Amendment. Most hon. Members will have had similar experience. Every Amendment which seeks to make a fundamental change must be regarded by those who introduce the Bill as spoiling it, wrecking it. If we reach a situation in which it is said that we cannot move Amendments that the Government re- 502 gard as being of a wrecking character, the whole purpose of Committee debates will be lost, because we cannot discuss them at all. We on this side seek to make fundamental changes. Are we to be told that if any change we seek to make has the effect of forcing the Government to return to Brussels we must not do that? If so, we are forced into baying that the debate loses its purpose entirely.
§ Mr. Spearing
I do not quite understand my hon. Friend's point. If the Amendment is a wrecking Amendment and it is put to the vote, why cannot the Government defeat it? That is what they have said all the time they will do.
§ Mr. Jenkins
That is the practice. If the Government's argument that an Amendment is wrecking convinces the Committee, the Amendment will not be carried. Our complaint, made reluctantly, is that the Chairman of Ways and Means has prevented the Government from having to make the argument and possibly persuade us that an Amendment is wrong, with the result that we withdraw it. That is why we must pursue the matter, with the greatest good will and respect—almost with affection—to its logical conclusion.
§ Mr. Wilfred Proudfoot (Brighouse and Spenborough)
I think I heard the hon. Gentleman say that every Amendment he had ever moved had been described by Ministers as a wrecking Amendment. The hon. Gentleman and I have reached about the 30th sitting of a Committee considering a Bill upstairs, and I have never heard any Amendments moved by the hon. Gentleman described as wrecking Amendments by the Minister in charge.
§ Mr. Jenkins
I did not say precisely what the hon. Gentleman thinks. I said that any Amendment seeking to make fundamental changes was regarded by the Government as wrecking. The hon. Gentleman will recall that his right hon. Friend the Minister of Posts and Telecommunications regards his Bill as being slightly wrecked by an Amendment for which the hon. Gentleman was responsible in that Committee, and has said that he intends to repair the wreckage on report. We do not know whether he will succeed, but at least we had the debate. Our complaint now is that the 503 House is being deprived of its proper function of going into matters in detail.
The question of parliamentary approval has been raised, and the meaning of approval "has been questioned. The best chap to deal with this is the Solicitor-General, who said on 20th January:If a treaty includes an alteration of our domestic law, including the granting of new powers to the Crown or the undertaking of new financial commitments, then Parliamentary approval in the form of appropriate legislation is necessary before the objectives of the treaty can be met."—[OFFICIAL REPORT, 20th January, 1972 Vol. 829, c. 794.]On the basis of that and the other arguments that I have made, I hope that the consequence of the debate will be that the House will decide, on this extremely abstruse and complex problem, that an error has been made which we can easily rectify with the necessary good will.
§ 7.58 p.m.
§ Mr. Ernie Money (Ipswich)
I find the character of tonight's debate somewhat puzzling, in that my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), said with great force and vigour that this was not a legal occasion, but every sign and almost every argument seems to show that he is wrong. The hon. Member for Pontypridd (Mr. John) quoted Professor Schwarzenberger with great force. We had an admission yesterday from the hon. Member for Ebbw Vale (Mr. Michael Foot), albeit somewhat shamefacedly, that he had been hob-nobbing with lawyers. Today a truly overwhelming pile of learning was brought in by the hon. and learned Member for Northampton (Mr. Paget). If the hon. and learned Gentleman needs to bring a pile of learning with him in addition to the learning he carries with him in the ordinary way, this must indeed be a very legal occasion.
But it was perhaps the two previous speeches that highlighted the difficulty the House has been in tonight in trying to decide whether to deal with the matter on its merits or as just one more political debate on the Common Market.
It was the speech of my hon. and learned Friend the Member for Northwich (Sir J. Foster) that put this matter totally and clearly in perspective. The House always listens with interest to the hon. Member for Putney (Mr. Hugh Jenkins) but on this occasion I believe 504 that he has gone off into a sort of cloudcuckoo-land as a result of his failure to understand what he was dealing with in the words "wrecking Amendments". He and many of his hon. Friends have not faced the point that the House is concerned with a Bill to introduce the Treaty as it stands.
§ Mr. Money
The hon. Member for Acton (Mr. Spearing) says "Ha, ha". I hope that at this stage it is simply "Ha, ha" and not an intervention, as I want to continue my argument with the hon. Member for Putney. As I was saying, the lacuna in the hon. Gentleman's argument is his failure to realise that any Amendment aimed to change the character of the treaty is a wrecking Amendment. I take as an example the dozen Amendments down in the name of the hon. Member for Nottingham, West (Mr. English)—Amendments Nos. 84 to 95. Each of these would have the effect of ratifying the treaty only with reservations. Of course those Amendments are wrecking in the legal sense of the word. It is not that they would wreck the Bill as such but that they would change the nature of the treaty. Changing the character of the treaty in this way would mean that under our law it could not go forward.
§ Mr. Hugh Jenkins
The hon. Gentleman has perhaps misunderstood me. I am agreeable with his definition of what this is about. There are two kinds of Amendments—those which can be accepted without fundamental changes and without the necessity, therefore, of taking the treaty back for renegotiation, and those which will have that effect. We say that both types of Amendment should be capable of debate and decision in Committee.
§ Mr. Money
This is one of the aspects of the Opposition's arguments which have puzzled me most. Of course the opportunity for debate exists. Another of the matters which has puzzled me is the statement made by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) yesterday when he said that to require the House to embark on consideration without opportunity of Amendment and discussion was contrary to the rules of the House. As I understand 505 the position, there is no limitation of any sort on discussion. That is inherent in the Bill. All that is being cut out is the wasting of the time of the House for political reasons by the putting forward of a series of Amendments whose whole purpose is to change the character of the Bill, and which are not designed to create the opportunity for discussion of what the treaty is about.
When the hon. Member for Putney and the right hon. and learned Member for West Ham, North complain about the way in which the matter comes before the House, they are saying that they do not like our normal system of treaty-making and implementation under our law and in the House of Commons.
§ Mr. Money
I will come to that in a moment. The hon. Member for Putney is, I know, a fair man. It seems to me unfair to complain against the system by advising the House to bring a Motion of censure against the Chair merely for bringing the system into effect.
I turn now to the hon. Member for Islington, South-West (Mr. George Cunningham). The argument that he has put forward, both from a seated position and in a standing intervention, is that this is a unique occasion. It may be unique in the sense that this matter is of great concern to the House and the country, but I turn to an obvious precedent which affected even more seriously the position of this House—the Act of Union of 1707. I quote the words of probably the greatest English constitutional historian. Dicey, in his "Thoughts on the Scottish Union", having dealt with the factors involved, said:it was clear that to touch any provision of the Bill would in fact be a rejection of a contract arrived at on each side with the greatest trouble. It would have in common fairness involved the sending back of the Act of Union to Scotland for reconsideration. No Unionist could foresee with confidence the 506 result of a reopening of an elaborately arranged international contract.What is normal here is that what is inherent in any treaty considered by this House, whether the treaty be of the utmost significance or of a more formal and simplistic kind, is the whole question whether the Bill, as such, can be amended without destroying the treaty.
§ Mr. Paget
What the hon. Gentleman says about the Scottish treaty applies with equal force to the Irish treaty and the Act to implement the treaty negotiated with Ireland for the setting up of the Irish Free State. That Measure came before the House in a form to make the treaty part of our laws. Amendments were accepted. The Attorney-General pointed out that they would wreck the agreement. The Chair held that although they might wreck the agreement that did not concern the Chair, and that the treaty was to make part of the laws of England in that sense, and it could be amended. That seems to be the case obtaining here, which shows that the Chairman of Ways and Means was wrong in law yesterday.
§ Mr. Money
With respect to the hon. and learned Gentleman's considerable seniority in law, I will try to answer his point. The treaty made with the Irish Free State—or what became the Free State—was made with that which had been a dependent part of our municipal law. It concerned a break-away within the law of the United Kingdom, and it did not necessitate the full form of ratification and implementation that would be necessary under international law. I hope that I have answered the hon. and learned Gentleman.
§ Mr. Ronald King Murray (Edinburgh, Leith)
The hon. Gentleman no doubt inadvertently referred to the Act of Union with Scotland. I have no doubt that with his legal knowledge he realises that there were two Acts—the Scottish Act ratifying the treaty and the English Act doing likewise. Will he accept that in each case the express terms of the treaty 507 were ratified by solemn act of the Legislature of each country, in marked contrast to the proposals that we are now debating?
§ Mr. Money
I go further and say that there was a marked difference there, because the Scots Act was amended but our Act—I use the word "our" not in any impertinent sense, but to mean the Act passed by the English Parliament sitting in London—set what has become the precedent which has been binding—and all the authorities that I have been able to consult confirm this—on the British system for the ratification of international treaties.
I am aware that I have taken the time of the House. Perhaps the chief value of my speech has lain in the fact that it has provoked some stimulating interventions from hon. Gentlemen opposite. I have no doubt that the Bill will have to stand its trial by decibel over the coming months both from those who have always been determined opponents of entry to the Common Market and from those who have become political opponents in recent months. I have no doubt, also, that it will have to run the gauntlet of endless points of order, some more relevant than others. What I do hope is that, in order to prolong a political battle, the Chair and the sheer good sense of the law as it was spelt out by my hon. and learned Friend the Member for Northwich (Sir J. Foster), will not be deluged by a lot of political double-think of the kind to which the House has been subjected in the last two days.
§ 8.12 p.m.
§ Mr. John Morris (Aberayon)
I hope I shall be forgiven if I do not follow in detail the observations of the hon. Member for Ipswich (Mr. Money). He suggested that the whole purpose of the Amendments was to change the character of the Bill. The suggestion has been made time and again that these are wrecking Amendments. The House was reminded yesterday, when in Committee, by myself and others that at no time did the Chairman of Ways and Means rule any Amendment out of order because it was a wrecking Amendment. That point was first made by the hon. and learned Member for Northwich (Sir J. Foster), and it was followed up by the 508 Chancellor of the Duchy. At no time was that point taken by the Chair, and the sooner we ditch it the better. It has not been prayed in aid by the Chair.
We have had a somewhat odd and irrelevant speech from the Leader of the House. The first thing I do is to acquit the Leader of the House of having written the speech himself. It must have been the work of others. I sensed this afternon that I was at a Mad Hatter's tea party listening to his wholly irrelevant observations on the matter at issue. The most charitable thing I can say about him and the Government is that they did not know what they were doing when they introduced this Bill. The least charitable thing I can say is that they did know and it was a deliberate attempt to curtail discussion, to gag this House on what we have been told is the most important matter to come before us for decision this century.
Those of us who have had the privilege of serving in Government know that all legislation, important and trivial, must go before a Legislation Committee. This is the usual practice with all Governments. The sponsor of the Bill—and with an important Bill like this I would expect him to be supported by a Law Officer—explains the Bill to Cabinet and non-Cabinet members of the Government. It would have been explained in detail, and the Leader of the House and the Patronage Secretary would have been deeply interested in the likely timing, matters likely to be raised, the divisions in the ranks so that advantage might be taken of them and such matters dealing with tactics and strategy. All would have been canvassed in the Legislation Committee. With such a Bill as this I suspect there would have been more than one meeting. One cannot exonerate those members of the Government whose names appear on the back of this Bill from doing exactly what they set out to do. With the best will in the world I suspect the worst, that the whole concept of the Bill when it was concocted and presented to the House was as it has turned out to be. It hardly lies in the mouth of the Leader of the House to say that the Government have no possible knowledge of how Amendments would be selected. Perhaps they did not know the details, but they knew the general strategy and limitations that would be imposed on the Amendments.
509 We had a defence from the Leader of the House about the amount of time allowed for the Bill. Secondly, as a sop to the House he said that it can reject any Clause if it is so minded. This means that we can discuss on the Question "That the Clause stand part of the Bill" matters which it has been held would be out of order earlier. My understanding in the time that I have been here is that we cannot do this. I cannot comprehend what kind of sop the Leader of the House is offering to us. It is said we can reject a whole Clause; yet that would obviously change the nature and character of the agreement entered into by the Government. How does one differentiate between a Clause which will alter the nature of the agreement and an Amendment which would seek to amend a lesser part of the Bill? It just does not stand up.
If it is said that we cannot do anything than take it or leave it, then that runs contrary to the repeated assurances given earlier about the Bill. If Ministers knew what they were doing, all that has happened since yesterday is fundamentally different from the understanding of the House. Suggestions have been made, which I consider to be a complete red herring, that we are seeking to amend the treaty. We are doing nothing of the kind. We are considering a Bill presented to this House to implement a treaty, and we are looking at ways and means of changing the manner of the implementation. If we do not like the manner of the implementation. If the Clauses are changed or amended, or deleted entirely, which we are still allowed to do, the Government will have to go back and renegotiate the treaty. That is made quite clear.
I do not propose to worry the House by reading from the discussions—I would have done so, but other hon. Members want to speak—which took place in this House on the Ottawa Agreements Bill as far back as 1932. In a similar instance Sir Herbert Samuel said:… the Agreements which are scheduled to the Bill were Acts formally signed at Ottawa on a past date in the month of August and are clearly not now alterable by Parliament. Is Parliament, then, free to make Amendments in the Clauses which would render those Clauses inconsistent with the terms of the Schedules? That is the point of substance I wish to put to you.510 That point is to a certain degree parallel to what we are discussing today. Among tile statements made by the Chairman of Ways and Means on that day were words to this effect, that it would certainly be open to the House to change and challenge and, indeed, introduce Amendments, and carry them, which would reduce the amount of tariffs which had been agreed in the course of the negotiation of the Ottawa Agreements. That, in my submission, would change completely and fundamentally the character of a Bill which was presented and of a treaty which had been negotiated. This is what the Chairman of Ways and Means said at the end of his decision when he was asked by an hon. Gentleman:Is Parliament then free to make Amendments to the Clauses which would render those Clauses inconsistent with the terms of the Schedules; in other words, with the terms of the Agreements?His reply was:Parliament is free to do so, but what the effect of it would be is not necessary for me to rule at this present moment. If Parliament refuses to pass legislation which would enable the Executive Government to give effect to the Agreements which would have been entered into, that would raise a situation which it is not for me to deal with at this juncture."—[OFFICIAL REPORT, 28th October, 1932; Vol. 269, c. 1331–4.]That is an exact parallel of this case. We are free to delete the whole Clause or change it by way of Amendment, and I submit that on these precedents we have freedom to present Amendments which would either change or reduce the calls upon public money in this country. Then, at the end of the day, the Government have to go back and renegotiate. At no time have we sought to amend the treaty itself. What we have sought to do is amend the enabling Bill.
§ Mr. Ivor Stanbrook (Orpington)
I wonder whether the right hon. Gentleman would assist me in understanding the nature of his Quarrel. Is he quarrelling with the Chairman of Ways and Means because he considers he is wrong in ruling certain Amendments out of order, or is he merely quarrelling with the Government over the way they have drafted the Bill?
§ Mr. Morris
If the hon. Gentleman would do me the courtesy of listening to what I am saying he would not need 511 to ask that question. Obviously there is concern on this side of the House with both those matters, but we are dealing now with the decision of the Chairman of Ways and Means. I have quoted what I consider to be a respectable precedent which substantiates what I have sought to tell the House. I shall come in a moment to the Government as well, but I was seeking to deal with the exact precedents.
We have been told time after time in the course of this debate what we cannot do. We had a very strange observation from the Leader of the House this afternoon—indeed, I am being too modest; we had a number of strange observations. I am grateful to one of my hon. Friends for pointing that out. The Leader of the House said—these are the words I took down and I hope we shall find them in HANSARD in due course because we shall examine with some care the words recorded therein; I give the House notice of this:The purpose of this Bill is to ratify the Treaty of Accession.I put it to the Leader of the House—but was given no reasonable explanation—that I was sure he was not using the word "ratify" in its legal sense. He washed his hands of any idea of being a lawyer. He said he was here as Leader of the House and was doing his best according to his lights to assist the House, and the purpose of this Measure was to approve the Treaty of Accession. But how can the statement at the Box today be married with what the Chairman of Ways and Means said yesterday:It is not a Bill to approve the Treaty of Accession or any other treaties which are basic to the membership of the Communities. If it were such a Bill, then, of course, every article in these treaties would be open to discussion and the majority of Amendments to Clause 1 would be in order."—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 269.]Perhaps the Chairman of Ways and Means has completely misunderstood the position; he acted on the best advice open to him. That obviously differed somewhat from the categorical statement made in reply to my Question this afternoon by the Leader of the House. But if the Government have it—and I take it for the purposes of the argument that the Government are right in this matter—that their purpose is to ratify and 512 approve this Bill, then the Chairman of Ways and Means has quite innocently misunderstood the position, and the Government have misunderstood the position. Therefore, the only course open to them is to reconsider the whole mechanism of the Bill and go back to their original concept and present a Bill to the House which would ratify and approve the Treaty of Accession. That, in turn, would mean that the Chairman of Ways and Means would be able to provide liberally for discussion of Amendments in the terms he set out in what he said yesterday.
§ Mr. Morris
I am always willing to give way but on this occasion, when I know many other hon. Gentlemen want to speak, I really must get on.
I have read with interest some of the comments made today on the anger in some sectors on the other side of the House at our daring to criticise the Chair. We seem to be doing something wholly wrong and attacking the referee. This was the gist of some of the remarks of the Leader of the House today. That is absolute and utter nonsense. The rules provide that when a Chairman rules we desist from quarrelling with him and put down a substantive Motion.
That is what has been done, and there can be nothing improper, unfair or unworthy in that. I know that the Chairman of Ways and Means will accept that there is nothing personal in what I say about his conduct. He is doing what he can with what has been provided for him. I have seen him conducting the Committee on the Transport Bill, of which I had the honour to be one of the presenters—it was a most difficult and contentious Committee—month after month. We agreed with some of his decisions and disagreed with others, but he always acted with the utmost fairness. So there is nothing unfair in this, and I cannot understand these comments.
The whole fabric of democratic discussion is at stake here. Unless we seize the opportunity and put down a Motion of this kind, what other course is open to us in a democracy? This forum safeguards the constitution, since we do not have a supreme court. We are the sole 513 arbiters. Whether the Chairman is right or wrong, if the decision tonight is in his favour a precedent is created. This course could be infectious, and hon. Members opposite may one day quarrel with a Bill presented by a Labour Government.
The Chairman of Ways and Means said that the "majority" of the Amendments were out of order—the most important ones. I suppose that that means that we would be at liberty to discuss the trivia but not the fundamental Amendments. Some were not selected, but the majority were out of order. I invited the Chairman yesterday to differentiate between those which were merely not selected and those which were out of order. I will not go through them one by one, but if one examines them it is difficult to discover on what grounds some of them could have been rejected at all.
We were told yesterday that the Chairman was acting on advice. This is a Bill without parallel. How on earth can advice about the ordinary course of events apply to the Chairman's discretion with regard to a novel Bill? The comparison between what the Chairman said in col. 269 and what the Leader of the House said today needs a great deal of explanation.
As the right hon. Member for Wolverhampton, South-West (Mr. Powell) said, the Chairman sought to read to the House the Explanatory Memorandum, which he said showed the scope of the Bill. It does nothing of the kind. If the Bill ever becomes an Act, the Explanatory Memorandum will not be near the book of Statutes. It will be forgotten and lost, no part of the record of the law. All that will be there is the Long Title.
Whatever explanation the Explanatory Memorandum contains cannot crib, cabin or confine the Long Title, which is sufficiently detailed and lengthy to allow a whole host of Amendments. I cannot understand how the Chairman prayed this in aid of his decision to limit the Amendments. Nothing in the Explanatory Memorandum can limit the Bill; it can only explain it.
The Government have placed the House in an impossible position. I reecho the words of the right hon. Member for Wolverhampton, South-West when he said that in the interests of the whole House—I am sure he said this with the 514 utmost sincerity—those who are opponents of the Bill and those who support it should consider and give time for thought before a final and irrevocable decision is taken. I hope that at this late hour, in the interests of democracy, it will not go out from this House as the Chairman said yesterday:These rules are not made to be difficult. They are made for the benefit of the House and for the benefit of the free society which the House has set up in this country and which has been a pattern to the world."—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 293.]Echoing and adopting those words, I ask the House to pause and consider their importance.
§ 8.35 p.m.
§ Sir Harry Legge-Bourke (Isle of Ely)
I owe the House an apology for not having been here between 4.30 p.m. and 6 p.m. because I was attending a meeting of a Select Committee. I believe that I have heard practically everything that has happened since then. I cannot believe that what I heard from the hon. Member for Aberavon (Mr. John Morris) was consistent with the argument propounded by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) who went out of his way to make quite clear that it was the intention of hon. Members opposite to criticise not the Chair but the Government for having introduced the Bill in this way.
§ Sir Elwyn Jones
The hon. Member must either have misheard me or I could not have made myself clear. The whole essence of my speech was to question the rightness of the decision of the Chairman in interpreting the Bill as he has done, and to point out that certain consequences followed in regard to the Government's behaviour if it were held that my view was wrong.
§ Sir H. Legge-Bourke
That is a very helpful clarification, because I was getting the impression from hon. Members opposite that the terms of the Motion might be ignored because the real criticism was the fact that this Bill is in the form that it is in.
I rise for one purpose only. Having been a member of the Chairman's Panel for many years; having the privilege of serving on it with the present Chairman of Ways and Means, and having had to make the same decisions in which he has 515 been involved in selecting Amendments to the Bill, I hope that I have some knowledge of the procedure followed by a Chairman of a Committee of the whole House or of a Standing Committee before the final selection is made of Amendments for debate.
In my experience one bends over backward to avoid ruling out an Amendment on the ground that it is out of order. One does everything to make sure that when a matter is of concern to the Committee of the whole House or of a Standing Committee, one is not unduly pedantic about rules of order and so forth if they can be stretched to enable the Committee to discuss something that it obviously wants to discuss. One tries to help in any way that one can.
Now and again there are marginal cases, and now and again there is a clear-cut case when one cannot allow a debate or select a particularAmendment. I have no doubt whatever that what the Chairman of Ways and Means said yesterday about the vast majority of Amendments being out of order cannot be anything but immediately acceptable to the House if we wish to uphold its position. It seems that we are straight up against this question: either we believe that those whom we have selected to be Speaker, or Chairman of Ways and Means, or Deputy Chairmen, are aiming to uphold the rules of this House or we do not. If we do not we should ask them to leave those positions. I have no compunction about saying that I know the Chairman of Ways and Means well enough to know that we can trust him on that.
There will always be certain decisions by the Chair that will raise questions in people's minds, and it will be asked why a certain Ruling had to be given. But the moment a Chairman of Ways and Means in a Standing Committee says that Amendments are out of order then, unless the Standing Orders are changed, that must be a binding decision.
§ Mr. Denzil Davies
Is the hon. Gentleman suggestion that Chairman of Committees are infallible, and can never make mistakes?
§ Sir H. Legge-Bourke
No, I am not saying that they are infallible. I am sure that nobody would claim that he is 516 infallible. I am trying to impress on the House that immense trouble is taken to ensure that a ruling that an Amendment is out of order is made only when it is absolutely necessary. I have in the past sometimes been a little irked by rulings which have been given to my disfavour. That was before I necame a member of the Chairmen's Panel. When one has to undertake the task oneself one gets a slightly different slant on the matter. One realises how expert is the advice that one gets. One also realises how important it is never to pass the buck to advisers, but to take responsibility oneself.
Let me be clear that yesterday the Chairman of Ways and Means took the full blame for any criticism. Naturally, he told the House that he had had the best advice he could get, and took his decision in the light of that advice. Whatever the House may think about this matter and about the Bill which is before us, we have not had the benefit of that expert advice.
Like my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), I do not intend to argue the case for or against joining the Common Market, nor do I intend to deal with the Bill. I believe that we must look at the Motion before us, which clearly statesThat this House considers that the ruling given by the Chairman of Ways and Means on 29th February … gravely infringes the rights of the House and its powers of decision on the issues raised by the Bill.That is a very grave charge to level against an occupant of the Chair. It is no good hon. Members thinking that they can ride off by saying "But, of course, this constitutes no personal attack on the Chairman of Ways and Means." The Motion contains as strong a criticism as one could possibly make of the occupant of the Chair. If Opposition Members believe that that should be done, let them do it, but let them not be under any illusion as to the position in which this will put the Chair.
Whatever they may have said they believe, those are the words on the Order Paper. If they vote on this Motion tonight, those are the words on which they will be voting. If that is what they want to do, then they are saying that the Chairman of Ways and Means, having taken the best advice available to him, came to a wrong decision—and, indeed, 517 did something far worse, namely, gravely infringed the rights of the House. That is a terrible accusation to make against the Chair.
§ Mr. Powell
I submit to my hon. Friend that he is confusing intention with result. If the Chairman of Ways and Means did this with the object of infringing the rights of the House, that would be a severe and personal censure, but what the House is taking note of is a consequence.
§ Sir H. Legge-Bourke
I have lived long enough inside and outside this House to know all about the appalling danger of ever imputing a motive. This is a matter on which one nearly always makes mistakes. This is not a question of the imputation of motive, but I believe that to have such words as these on the Order Paper is to say bluntly, "We do not trust the judgment of the occupant of the Chair".
§ Dr. John Gilbert (Dudley)
The hon. Gentleman has conceded that even the Chairman is not infallible. If he can make a mistake, what remedy is open to us?
§ Sir H. Legge-Bourke
I agree that this is the proper remedy. A Motion has been put down and is being debated.
I am saying that all that I have heard from right hon. and hon. Members opposite, and from some of my hon. Friends, leads me to suppose that the real burden of criticism is not on the conduct of the Chair in endeavouring to maintain the Standing Orders of this House; it is a criticism of the Government for having introduced this Bill. That is the burden of many of the arguments that have been put before us today.
If that be the real gravamen of the charge, this Motion is so ill-conceived that it becomes abominable. If the criticism is of the Government for having introduced this sort of Bill—which is a perfectly legitimate basis for criticism at any time—this Motion should have been tabled as a Motion of censure on the Government and not on the Chair, which is what this Motion is.
If right hon. and hon. Members opposite really mean to attack the Government rather than the Chair, I pray that they ask leave to withdraw the Motion 518 and, for heaven's sake, not take it to a Division.
§ 8.46 p.m.
§ Mr. Ronald King Murray (Edinburgh, Leigh)
I am sure that the hon. Member for the Isle of Ely (Sir H. Legge-Bourke) will forgive me if I do not take up any of his points. I believe that the sense of the House is not as he has said but, rather, that the widespread feeling which has been made remarkably clear from this side of the House is that the Motion is a technical one, and that no personal assault is intended upon the Chairman of Ways and Means. I am sure that he understands that himself.
I wish to make two basic points, the first of which is in line with what the hon. and learned Member for Northwich (Sir J. Foster) said. I accept that the basic point in this debate is whether the ground upon which the Chairman of Ways and Means proceeded is correct. It is the clear position of my right hon. and hon. Friends that he proceeded on a false premise and, therefore, that this complaint necessarily follows.
Before turning to that in some detail I wish to discuss the need for approval. The Solicitor-General has been quoted by my hon. Friend the Member for Putney (Mr. Hugh Jenkins) as having said quite clearly and unambiguously in the debate of 20th January that it was necessary for the House to approve the legislation which would affect our entry into the Community. That was said two days before the Treaty of Accession was signed, and it was said in a situation in which right hon. and hon. Members opposite were deriding the Opposition because of the nature of the Motion that we had chosen to debate, which was to draw attention to the fact that no authoritative treaty had been placed before the House.
We were demanding then exactly what we are demanding now—the right to consider in detail the treaties upon which we were proceeding to enter the Community. In the light of that we must look at the facts.
It is right to make one other point. Perhaps I can refer to something that the Chancellor of the Duchy of Lancaster mentioned in the same debate. On that occasion I was very much concerned about what might ultimately be involved 519 in terms of fishery agreements. In the course of his remarks, the right hon. and learned Gentlemen used the word "derogate", and I suggested that possibly he had taken the word from the treaty. The right hon. and learned Gentleman shook his head. He did that not to mislead the House but because he took the highly technical view that there was no treaty in existence and that all that he had seen in writing was a draft treaty.
It was no real surprise to me, when I got the published Treaty of Accession and all the ancillary documents, to discover that the word "derogation" appears in the fisheries agreements. I do not say that in any criticism of the right hon. and learned Gentleman, although I think that some criticism is inherent in it; I use that illustration to show the vital importance of this House seeing the detailed texts of what we are to be bound to in law before we take a decision.
I have a feeling that some hon. Members opposite are of the view that we have already approved the texts of these treaties. One thing which has been cleary established is that that is untrue. There has been no approval of the texts of the treaties. The right hon. and learned Gentleman must accept that, because the technical point on which he was basing his argument on 20th January was that only a draft treaty was in existence, and that nobody outside the Government had seen it at that stage. Therefore, it is accepted on both sides of the House that at some point approval must be given to the texts of these treaties.
The plea which I make to the House and to the Government is that it surely is not beyond the wit of the collective wisdom of Parliament to devise means whereby we can do what the Solicitor-General suggested—discuss the Clauses of the Bill in Committee along with the texts of the treaties. That was one of the many assurances given to us by the Government.
I now turn to the Ruling itself and the ground upon which it was made, and I particularly want to draw attention to certain points which have not yet been made about the nature, form and concept of the Bill.
520 It is now accepted on both sides of the House that, whatever was the position before, a legal process is involved in changing our domestic law to apply the provisions of the various treaties through the Treaty of Accession, which is the essential link. To do that, at least three steps have to be taken in law.
The first is to cut a hole—if I may use that analogy—in our legal boundary to admit the importation of Community law. The hole must be big enough to admit what the treaty has agreed. Obviously, to that extent the hole is determined by the terms of the agreement and cannot be varied. However, I will not enter into that matter at the moment. The hole has to be cut in our jurisdiction to let in the new foreign law.
The second essential step is that some content must be allowed to flow through the hole to be embodied into our law—to be transplanted, naturalised, domesticated, or whatever term one cares to use.
Thirdly, there must be consequential changes in the domestic law and institutions of this country to articulate properly with the new law—the bridgehead of European law—which has been imported. This includes the legal "nuts and bolts" about which we have heard so much. However, they come only at the third stage—the stage of articulating. Before that we must have the first two stages.
Perhaps I may change the metaphor slightly and compare the Treaty of Accession with a pipeline coming from Brussels. Under the Treaty it comes right up to our three-mile limit, but there it must stop, because the jurisdiction of Parliament is sovereign to that limit. It must stop there until, first, the domestic law permits entry; secondly, it connects Brussels to our legal mainland so that content can flow, and, thirdly, it provides machinery for the content to flow through into the jurisdiction of this country to be articulated and married to our own institutions. Those three distinct stages must be gone through.
Having regard to that, let us consider what is involved in the Bill. The Bill may or may not be going through each of these three stages—entry, connection and "nuts and bolts". The hon. and learned Member for Northwich said that there were different kinds of approval. 521 The law knows two kinds of approval —express and implied. The crucial thing is whether, in taking one or more of the steps I have mentioned, the Bill expressly or by implication approves the texts of the treaties. To decide whether or not it does that we have to look at the Clauses as a whole, and at their contents.
Clauses 1, 2 and 3 alone contain the operative mechanism to carry out one or all of the three stages that I have mentioned. Nothing in those Clauses seems to be of such a nature as to reflect clearly the detailed texts of the Treaty of Accession or the treaties to which we are connected by the Treaty of Accession. It therefore seems plain that there is no express approval in the Bill of the terms of the treaties. But it does not follow from that—and this is the fallacy that hon. Gentlemen opposite have fallen for—that there is no implied approval of the terms of the treaties.
If I am correct in my thesis—if it follows that the first three Clauses clearly imply approval of the Treaty of Accession and the texts connected with it —there can be no escape from the conclusion that the Chairman of Ways and Means proceeded upon a false premise and that the basis of his selection is entirely outmoded. We are, therefore, in the position of starting again.
In pressing the argument that the Bill impliedly approves the texts of the treaties, I point out that not only is the Long Title quite decisive on the matter, but I can see no possible way in which there could be an enlargement of the European Community to include the United Kingdom without a hole being broken in the jurisdiction and a bridgehead made between Europe and this country.
One finds that that is so from the Explanatory and Financial Memorandum. The Chairman of Ways and Means, in justifying his decision, quoted the first five lines of that memorandum, but paragraph (a), which states one of the main purposes of Part I, says:to give the force of law in the United Kingdom to present and future Community law …No more, and no less. The paragraph goes on:… which under the Community Treaties is directly applicable to Member States;522 That is not only cutting a hole in the jurisdiction; it is pouring contents through it. It is doing so not expressly but by the plainest possible implication. There is no escape from the charge which, if it cannot be levelled at the Government today, must be levelled at them on another occasion, that by choosing to introduce legislation in this form not only have they been dishonest and untrue to the undertakings clearly given in the House; they have put the Chairman of Ways and Means and other Chairmen of the Committee in an entirely impossible position. The only honest thing for the Government to do is to withdraw the Bill and start again.
§ 9.0 p.m.
§ Mr. Michael Foot (Ebbw Vale)
I begin by referring to some of the remarks of the Leader of the House at the outset of the debate on the question of the propriety of the debate itself or the advisability of having such a debate criticising the Chairman of Ways and Means.
I acknowledge to the right hon. Gentleman and the House at once that a Motion criticising the Chair in any way is an extremely important matter about which it is proper that the Leader of the House should give his views and at which we should look with extreme care.
Those of us who tabled the Motion looked at it very carefully. We also looked at the precedents. I cannot say that I looked as far back as the speech I made in 1966, from which the Leader of the House quoted. I was searching not for what I might have said but for other precedents. [Interruption.] If the Leader of the House proved me inconsistent, I do not suppose the House would take that as a particularly grave matter, especially as I think it was Emerson who described consistency as the hobgoblin of feeble minds. [HON. MEMBERS: "Little."] It was either "feeble" or "little" minds. Some say Emerson said it, while others attribute it to Carlyle. Let us say it was a mixture of the two.
Possibly it was to my surprise that the words of mine which the Leader of the House quoted seemed rather well phrased and intelligent, and, after all, I was suggesting that it would be an unfair process if any hon. Member used the stick of a Motion against the Chair for the purpose of beating the Government. I 523 said that if that was the purpose of such a Motion, it would be an improper use of our procedure. I said that in 1966 and I am prepared to repeat it in 1972.
It would be wrong if any hon. Member or group of hon. Members seeking to attack the Government were to adopt such a practice. There are, after all, plenty of opportunities to attack the Government. It would be utterly wrong if in an attempt to obtain a debate one attacked the Chair to secure debating time. That would be reprehensible, and we have not done it in this case.
It is bound to occur in this debate, as in virtually all previous debates of this nature, that when criticisms are made of the Chair they are likely to involve criticisms of the Government at the same time. That, however, does not mean that the immediate purpose of the Motion is to attack the Government. Thus, the Leader of the House was not on a strong point when he dealt with this aspect.
Another aspect of the matter I wish to clear up right away is the question whether we are making a personal attack on the Chairman of Ways and Means. All my hon. Friends who have spoken have, without exception, said that that is not what we are doing or seeking to do. Indeed, it is not open to me to cite what I may have said to the Chairman of Ways and Means when I made representations to him before this debate began. Certainly I made it clear to him in private, as I have done in public, that we were not making a personal criticism.
I wish to put my view on this matter in the words of someone who spoke in a similar debate some years ago. I want the Leader of the House to note these words because I gather that some members of the Government were making statements to the newspapers last night suggesting that we were engaged in an activity that was not proper and that we were engaged in directly challenging the Chairman of Ways and Means in a manner that would be reprehensible.
I therefore adopt some words that were used by the late Sir Winston Churchill when he was engaged in one of these reprehensible debates criticising the Chair. He was so engaged, as Leader of the Conservative Party, in June, 1951, when a Motion was moved criticising the Chair. The suggestion had been made 524 that because a Motion of such a character had been tabled it was in some way reflecting on the personal character of the Chairman. Sir Winston, then Mr. Churchill, said:But the right hon. and learned Gentleman"—he was referring to the then Leader of the House—was attributing to us a challenge to the bona fides of the Chairman.That is exactly what some hon. Members have been suggesting in this debate; that in some way, if we press this Motion, we shall be criticising the Chair. It was in that sense that Sir Winston said thatthe right hon. and learned Gentleman was attributing to us a challenge to the bona fides of the Chairman.He went on:He was saying that in his own mind be would take a different course from that. It is the fact that we have not challenged the bona fides of the Chairman. What does bona fides mean? I know it is Latin but there are enough public school men opposite who ought to be able to translate it.The calibre has sunk, perhaps, since those days. Sir Winston Churchill continued:In my belief, it means good faith, common honesty, decent Parliamentary behaviour. Nobody has attempted to challenge that in any way. What we have challenged is his judgment in this matter and the manner in which he interpreted the rules of the House."—[OFFICIAL REPORT, 21st June, 1951; Vol. 489, c. 729.]So I hope that we shall not have any more said by Ministers, either in this debate or to the Press—especially to The Times, later—by any senior Ministers, so-called. I am not sure who are the senior Ministers in the Government and who are the junior ones. But according to The Times, senior Ministers were saying last night that in some way or other we were challenging the very basis of our democratic assembly by having put down a Motion of this character, when the Leader of the House and all senior members of the Government ought to know perfectly well that there is precedent after precedent for the House taking this kind of action to deal with this kind of problem. Indeed, it is precisely because it would be so improper to deal with matters of this kind on extensive points of order, challenging the Chair, that this kind of method of discussion is laid down.
§ Mr. Whitelaw
First, I am interested that, from what the hon. Gentleman says, apparently my speech must have followed very closely that of one of my distinguished predecessors of the party opposite as Leader of the House. On the second point, I note what the hon. Gentleman says. There is a very important distinction, in that on the vast majority of those occasions to which the hon. Gentleman refers the Motion concerned was not pressed to a Division.
§ Mr. Foot
I understand the difference, but there were many occasions which I could quote to the Leader of the House on which these Motions were pressed to a Division. I cite the case that I have just mentioned, when Sir Winston Churchill was asked by Labour Members whether he would withdraw the Motion. He said that he would not. He said that he would rather have it negatived than withdraw it. I am giving the Leader of the House the exact circumstances that occurred. All I am saying is that last night senior Ministers of the Government who were talking to The Times did not know whether we would press this to a Division. They still issued the statement to The Times. The Times said:Some senior ministers bitterly resent the attack Mr. Foot had led from the Opposition front bench on the Chair. They said that if such behaviour was persisted in it would be impossible for parliament to work as a democratic assembly.Here were we, following exactly the precedents on these matters that had been set from all sides of the House—from Sir Winston Churchill upwards, downwards or whatever way one likes. Ministers really should be more careful about what they say late at night to The Times, especially when at the same time—I may as well dispose of this aspect of the matter also, because I want to come to the more serious aspect— the same senior Ministers who were talking to The Times, after talking for quite a while, saw the rosy side of the picture, and that it might assist the Government. The Times reports:In the long run the Government will almost certainly benefit.It was thought that that would mean that there would be a continued severity of the operation of choice of Amendments and that therefore the Government migh benefit. In my opinion, the Government were really very pleased with 526 what I did yesterday. If that is their attitude, it strikes me as the sourest grape since Aesop invented the fable.
I come to the essential question. We have put our Motion on the Order Paper because we disagree with the view that was taken and the decision that was made by the Chairman of Ways and Means. We do not retreat from that proposition even though much of the argument was bound to range over the question of the nature of the Bill. That was inevitable because we are discussing our rights to debate, the area of debate and the area of amendment. We do not depart from this and everything I have heard in the debate seems to confirm our view. We do not accept the Chairman's view of the Bill. We do not accept the "nuts and bolts" theory, and we do not accept his statement:It is not a Bill to approve the Treaty of Accession or any of the other treaties which are basic to membership of the Communities."—[OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 269.]Perhaps I could quote from another document which I understand is a letter written by the Chairman of Ways and Means to some of my hon. Friends who consulted him on the reasons for his choice. In the letter he re-stated why he has not chosen some of the Amendments and why he has ruled them out of order. This explanation is the same as the one that I have quoted but it states the position rather more clearly. He says:The Amendments marked 'A'.a whole series of amendments we had put downon the enclosed amendment paper were ruled out of order because they subject to Parliamentary approval provisions of the Treaties already accepted and therefore fall outside the scope of the Bill, which as I explained in my ruling yesterday, is concerned with the modification of United Kingdom law needed to implement the Treaties.If that is a justification of the view that the Chairman of Ways and Means takes about the Bill, inevitably, as my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) said today at the beginning of the debate, we are bound to ask the Government questions. We are bound to ask, in order to be able to test whether that view is valid, what the Chairman of Ways and Means means when he talks of "the treaties already accepted". Accepted by whom and when? My right hon. 527 and learned Friend asked this question of the Leader of the House, and I do not think I would be regarded as disrespectful to the Leader of the House if I said that all of us were not exactly illumined by his reply.
If Amendments are to be ruled out because, in the words of the chairman's first statement:It is not a Bill to approve the Treaty of Accession or any of the other treaties.or, as he said in his letter, it is beyond the scope of the Bill because the treaties have already been accepted, we ask when were they accepted? The Leader of the House said it was on 28th October, but we all know that was wrong. Bang goes 28th October; we are all agreed about that. We then come to 20th January, three days before the debate on the Treaty of Accession, which the Government said was a bogus debate. In view of that they can hardly claim it to have been a debate where the House of Commons carried through the process of ratification or acceptance of the treaties. The Motion before the House two or three days before the treaties were actually signed was concerned with the provision of the treaties to the House, and no one can claim that the treaties were accepted then. So 20th January also falls. I suppose that could be argued but if the Leader of the House did not argue it we can be sure it was not a likely runner. [Interruption.] I was trying to put it in the most complimentary manner for the right hon. Gentleman.
It cannot be said that the treaties were accepted on Second Reading, because all of us in the House, whatever position we may occupy, know that Bills are single structures, not things that can be torn apart, separating Second Reading from the rest of the processes. The whole of the provisions in "Erskine May" are designed to illustrate how a Bill hangs together. It has been part of the Government's argument in some cases to claim this. So it cannot be said that the treaties were accepted then.
But we did have an answer from the Leader of the House eventually, when he was pressed. He said, "It would be in the passage of this Bill that the Government would secure the legislative authority to ratify the treaties" If that is correct, the Government should be voting 528 in our Lobby tonight. It is a confirmation of our criticism of the Chair. We are bound to take account of what the Government have said. They show that in effect they agree with our criticism by underlining that, in fact, the treaties are involved in the Bill. That is what the Leader of the House said.
But if they abandon that position, as the right hon. Gentleman apparently did in another part of his speech, as apparently the Chancellor of the Duchy of Lancaster did when he intervened, and as he may do again later, the position of saying that the treaties are involved in the Bill, we must ask them, "When will the House have the chance to examine the treaties in detail?" We were certainly given the impression that we should have that chance.
If the Motion is not carried, if we cannot deal with the matter in the way we propose, we shall have to deal later with the question of the Government's good faith on a different Motion.
It has been made clear during the debate that the Government's interpretation of the Bill and the Chairman's did not accord. They had a different view of its nature. Of course, we must not exclude the possibility that both the Chairman and the Government are wrong. That is perfectly possible, and may well be the position. In pressing our case in this debate, we are certainly not withdrawing in any sense from the claim that the Chairman's Ruling could have been made differently in the light of the nature of the Bill as it had been described to us, as we thought it to be, and as the Government themselves possibly thought it might be. But the Government should then have faced the question that we face as an Opposition of what was to be done about the situation. We considered it.
We did not propose a substantive Motion criticising the Chair at once. What we proposed when we raised the matter yesterday was in full accordance with the normal practice of the House, to deal with the problem in an orderly way. We did not even say immediately that we thought the Chairman's decision was wrong and, therefore, that we would attack it immediately. When we raised the point of order at the beginning of the proceedings on the Bill, we asked 529 the Chairman to look at the matter afresh and make a fresh statement to the House. The Government would have been well advised to support that appeal and say, "We think it is a reasonable suggestion, and perhaps there can be consultations". I am only new to this game, but there are such things as the "usual channels" in this House. My experience of them is that they are not so good on procedure as some other people are, but even so they can learn and be taught. We could have had a discussion following my proposition.
Indeed, yesterday I was in my most generous mood because I suggested to the Chairman of Ways and Means that he might wish to reconsider and make a fresh statement about how he should deal with this matter. I even conceded—if one can call it a concession—that we should proceed with the discussion of the first Amendments so that he might have time to reconsider. We might have done that if the Government had accepted my proposition. But the Government were most ill-advised, particularly in view of the whole history of the matter. They must have been aware of all the statements which had been made by some of their number, to which I called attention yesterday, and more of which have been unearthed today—statements, for example, by the Solicitor-General, by the Financial Secretary to the Treasury and by the Chancellor of the Duchy of Lancaster. A wealth of assurances had been given to the House that it would have the fullest opportunity to discuss all these matters.
I am not arguing the merits of that case now, because we shall deal with it later. But I argue that the Government were aware of the situation. Yet they come to the House today and, through the Leader of the House, tell us that they were as surprised as we were by the choice of Amendments and that they did not know what kind of response the Chair was going to make. The right hon. Gentleman said that it would be impossible, even by telepathic means, for the Government to discover what might be in the mind of the Table Office, although I must say that when a Leader of the House tells me that, the one reply I can make is that the resources of the Table Office are as much open to the 530 Government as they are to members of the Opposition.
§ Mr. Rees-Davies
Did the hon. Gentleman take the trouble to find out whether he was out of order with his Amendments? Any person of normal experience would have done so, in which case he would have found out that they were out of order.
§ Mr. Foot
I can tell the hon. Gentleman what we did, and it fortifies the argument I am making. It would be wrong of any hon. Member to give a detailed report of what officials of the Table Office have said on particular occasions. Obviously, they give their advice on a tentative basis and are bound to say that the final decision must rest with the Chairman of Ways and Means. But, of course, we took the precaution of asking for advice and guidance by the Table Office. We were treated, as I said yesterday, with the utmost courtesy. I am not blaming the Table Office at all for what has happened, because the nature of the Bill is complicated. There may be a few hon. Members who, after listening to the debate, think that it is simple, but it is certainly very complicated.
On the whole question of treaty-making powers, my hon. and learned Friend the Member for Northampton (Mr. Paget) and others have shown that, of course, the House has on numerous occasions insisted on amending provisions in a Bill which are supposed to ratify a treaty. It has been done time and again. The Solicitor-General knows that well enough. Perhaps that is why the Government are keeping him out of this debate.
§ Mr. Rees-Davies
What is the answer? The Amendments were out of order, and the hon. Gentleman knew it.
§ Mr. Foot
I have given the hon. Gentleman his answer perfectly clearly. As I am sure will be borne out by anyone who cares to examine the facts, it was only yesterday, when we got the final choice, that we knew for sure that certain matters were out of order. It was only when the Chairman of Ways and Means made his statement to the House that we knew the reason on which he was founding the argument, and it is only 531 now when we have received this letter that we have had further elaboration.
The Government would have been well advised to accept the perfectly reasonable proposition we put yesterday. If that had happened there could have been discussions with the Chair, through the usual channels, a statement could have been made, maybe we would have liked it, maybe not, maybe we would still have had this debate or further discussions, but at any rate we would have had the chance of looking at the matter in that way.
The Chairman of Ways and Means was mistaken in saying that he would not consider it in that sense. That is why we proposed this Motion. I can remember many Bills on which this has occurred. I still think that that would have been the best way to deal with this. What will be the result if this Motion is carried? The result will be that there will have to be discussions. We would make it perfectly clear that we were not challenging the personal integrity of the Chairman, as we have made that clear throughout. We would have discussions on the problem facing the House of how we are to secure what we were promised; namely, detailed debate on all these treaties and matters, which is now to be denied us.
§ Mr. John Gorst (Hendon, North)
How does the hon. Gentleman reconcile what he has just said about the Chair with his statement on commercial television yesterday evening "We have out-manoeuvred the Chair"?
§ Mr. Foot
I was asked on television a hypothetical question—what I would do in a match between Everton and Liverpool. Would I think it a good idea to attack the referee? I said that if the referee had decided that goals could be shot only through Liverpool's goal we would have to do something about it. Believe me, with Liverpool I know the matter would have to be raised with more than a substantive Motion.
There are two ways of dealing with this proposition. If the Government accept our Motion it will be accepted that we regard the rules and the consequences for the House as infringements of its liberties and we shall have to 532 devise a new way of dealing with these Measures; we shall have discussions about it. If the Government, having partly supported our case, having claimed at one time that the nature of the Bill was as we had claimed, now turn a somersault because they think they see an advantage in pressing the matter forward in this way and refuse these discussions, they will be convicting themselves of having sought to deceive the House. That is a matter with which we cannot deal tonight, but if the Government vote against this Motion we shall certainly want to deal with it next week because we will not be deprived of our right to debate these matters. No Government will deny us the right, no Minister, no Chairman—
§ Mr. Foot
Indeed, the rules of order were devised to protect Members of this House, not to foil us. We are refusing to accept the proposals for dealing with this matter which the Government have accepted. I urge them to accept our Motion. If they do not, we propose to continue the fight to ensure that none of the rights of this House shall be taken away from us.
§ 9.30 p.m.
§ The Chancellor of the Duchy of Lancaster (Mr. Geoffrey Rippon)
We have had a characteristic and formidable speech from the hon. Member for Ebbw Vale (Mr. Michael Foot) indulging in his usual sport of attacking the referee. Unfortunately he is apt to go on after the whistle has blown. He was fair enough to say in 1966, and to repeat it in 1972, that it was unfair to use the stick of a Motion against the Chair for the purpose of beating the Government. He emphasised—as of course must be the case—that the immediate purpose of the Motion is not to attack the Government but to censure the Chair. At the same time he made it clear that the attack on the Chair is not directed at the bona fides of the Chairman of Ways and Means, but that the Opposition are, in effect, challenging his judgment, his ruling, his authority. [HON. MEMBERS: "No."] Yes, I think it must be so. [Interruption.]
§ Mr. Speaker
The speech of the hon. Member for Ebbw Vale (Mr. Michael 533 Foot) was listened to—except for a moment or two—in almost complete silence. Is it impossible for the right hon. and learned Gentleman to be listened to with the same courtesy?
§ Mr. Rippon
We must accept. Mr. Speaker, that the Chairman of Ways and Means exercises his judgment and authority in a quasi-judicial manner, as clearly set out at page 207 of "Erskine May", which describes the Rulings of the Chair as being parallel to the decisions of judges in the courts. I quite understand why we had the points of order yesterday and in today's debate, because it is the declared object of many opponents of our entry into the Communities to use every means to oppose the Bill. That is a perfectly legitimate thing for them to seek to do, but I am astonished—and I think that the House will be astonished —that the opportunity to debate the Bill and to object to it has turned into an attack upon the Chair.
I will come back to the comments which have been made upon the conduct of the Government, which, as the hon. Gentleman says, are perhaps inevitable in a Motion of this kind, but I think that we must first address ourselves to the Motion and recognise that it is a valued and important part of our traditions in the House to leave it to our elected officers and Chairmen impartially to conduct all our proceedings.
Certainly, for the Government, I can say that we shall have no part in the criticism of the exercise of the responsibility and the judgment of the Chairman of Ways and Means, which he has applied in accordance with the rules of the House. I am sure that the great majority of hon. Members—on both sides of the House, perhaps—will deplore the attack on the Chair which is embodied in this Motion, which is holding up the substantive debate on the details of this important Bill.
It will not escape notice either here or outside that what a minority of Members is seeking to do all the time is to block the procedure needed to give effect to the principle of entry into the Communities, which was approved by a majority of 112 on 28th October last. They are not willing to give effect in any way to the principle of the Bill as approved by this House in the Second 534 Reading debate. I think that that follows whatever interpretation is put on the principles in "Erskine May" which were referred to by the right hon. Member for Battersea, North (Mr. Jay) and which, of course, are a matter for the Chair.
§ Mr. Hugh Jenkins
Will the right hon. and learned Gentleman make no attempt to reconcile the fact that the Government have said that this Bill is a Bill which the House has to approve, whereas the Chairman of Ways and Means says it is not?
§ Mr. Rippon
I will come to that, but I thought it essential to make it clear at the outset that we are dealing with a Motion which the hon. Member for Ebbw Vale said is intended to attack the Chair and not the Government because there are other ways—he said—of censuring the Government. Nevertheless, it is clearly the wish of the House that I should take this opportunity to clarify the nature and the purpose of the Bill, and in particular to answer the charges that the Government have in some way misled or deliberately set out, as the right hon. and learned Gentleman the Member for West Ham, South (Sir Elwyn Jones) seemed to suggest, to restrict or inhibit debate on proper Amendments.
I utterly repudiate those charges. The Bill's purpose is to enable the United Kingdom to accede to the treaties. It was drafted to do what was necessary to make those changes in our domestic law which will be called for when we are members of the Communities.
It seems to me that the Chairman of Ways and Means was right when he said:The Bill, as the Explanatory Memorandum says, is one which makes the legislative changes which will enable the United Kingdom to comply with the obligations entailed by membership of the…Communities."—(OFFICIAL REPORT, 29th February, 1972; Vol. 832, c. 269.]He then set them out. In so far as Amendments would prevent the United Kingdom from doing so, then they may be properly held by the Chair to negative the principle accepted by the House. That is for the Chair to decide. It is not really for me or the Government to pass any comment on that.
535 But this does not mean that there are not many other Amendments which are in order and which we should proceed to discuss as soon as possible. There is a number of important Amendments on the Order Paper. I know that yesterday—
§ Mr. Rippon
Perhaps it would be easier if I answer the point about what exactly is involved and what we have told the House about the treaty-making process.
As I explained on 20th January:When a treaty can be brought into effect only by an alteration in the domestic law of the United Kingdom, or when it involves the grant of new powers to the Crown, or the undertaking of financial commitments of the kind described by the right hon. Member for Stepney, parliamentary consent has to be sought by the executive to the necessary legislation."—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 697.]That is precisely what the Bill seeks. As I explained when I opened the debate on Second Reading, it does so in a constitutional form. There has never been any doubt about this.
On 20th January we had a long and detailed debate in which we went into the whole question of how the Crown is omnicompetent in the making of a treaty, that is was not normal practice for the treaty to be laid before the House before signature, that there was, however, a period between signature and ratification, when either one acted under the Ponsonby Rules procedure or, alternatively, introduced the legislation necessary to incorporate into domestic law the changes necessary to enable one to fulfil one's obligations under the treaty and so to proceed to ratification.
That was a long debate. When I opened the debate on Second Reading I was accused of being rather legalistic, but I went to some trouble to explain exactly why the Bill had been prepared in the form in which it was before the House. That was, of course, open to discussion.
As I said on 15th February:Some treaties call for no changes in our domestic law. In other treaties, as in this case, each provision has to be scrutinised to see what change in the law is needed, if any.The object of the legislation is, therefore, to make changes which need to be made in 536 our domestic law in order to comply with obligations deriving from membership of the Communities, and also to exercise the rights of membership."—[OFFICIAL REPORT, 15th February, 1972; Vol. 831, c. 271.]I went on to explain how, ever since 1967, not only from the White Paper on the constitutional and legal implications but from the then Prime Minister's speech on 8th May it had been obvious what we would have to do.
To some right hon. and hon. Members on both sides of the House this has always been an objectionable principle. They have always fought against this principle. But if one wants to accede to the treaties, one has to accept it. That is what I believe the House accepted by a majority on 28th October.
§ Mr. Elystan Morgan
Would the right hon. and learned Gentleman not agree that there is no shred of judicial authority for the proposition that a treaty cannot be amended by this House, that there is nothing in the writing of learned authors to that effect and that in a matter so momentous in its effects as this it is truly monstrous that a precedent should have been created in an absolutely unprecedented situation?
§ Mr. Rippon
We do not need to refer to learned authors. We know what the position is. The hon. Member yesterday quoted the judgment of Lord Atkin, to which I replied. He explained that a Government, if they were wise, found whether Parliament approved the principle of a treaty. That is necessary because signature normally takes place before Parliament has seen the treaty. So one tells Parliament about the substance of the treaty and it is published after signature. There are various ways in which Parliament can express views before ratification, and it is pointed out that Parliament can oppose or reject but it cannot take bits and pieces of a treaty. This is all perfectly clear. I went into some detail on Second Reading to explain Clause 2, not to hide in any way the implications of Clause 2 and what it meant in constitutional terms to be prepared to accept in this country the direct application of Community law. Everyone knew perfectly well the form of the Bill we were to approve at the end of the Second Reading debate.
I think the right hon. and learned Member for West Ham, South was wrong 537 to suggest, as he did, that the House was not told about how or when treaties are approved, because that was the whole purpose of our debate on the 20th January, and we referred back to it on Second Reading. He was also wrong to talk about the need for a ratifying Statute as such which might afford opportunities to amend the treaty. My hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) dealt with that. [HON. MEMBERS: "Oh!"] It is not a general or even a frequent practice to submit treaties for the approval of the House in the form of legislation. There are many examples of that. There are the United Nations Act, 1946, and the E.F.T.A. Treaty Measures of 1960. Both those simply gave effect to the changes which were necessary in our law to comply with our obligations. It is unthinkable that we should have to consider in detail the United Nations Charter with a view to approving this little bit or amending that little bit. Parliament can always either oppose or reject—in other words, refuse approval—but it does not have to approve the text of a treaty before it is signed under the competence of the Crown.
There is, of course, an exception to that which might be thought to prove the rule. That is the convention—and it is no more than a convention, although some of the authorities consider it binding—that treaties involving the cession of territory are normally laid before the House. All this is set out in Lord McNair's "Law of Treaties", but I believe some hon. Members have misinterpreted the substance of Lord Atkin's judgment. It is nowhere suggested there, and no one on this side of the House has suggested, that the treaties themselves can be amended.
Now, perhaps, I ought to deal with charges made against others of my hon. Friends. I submit that there is no difference between what I said on 20th January and 15th February and statements made by the Financial Secretary to the Treasury and by the Solicitor-General. The Financial Secretary on 22nd February was dealing with a specific and limited point which I dealt with in the quotation I have made from my speech on Second Reading. The point which he made was that any Amendment to a Bill must be within the 538 Financial Resolution. Hence, no Amendments could be moved in Committee which could increase the charge covered in the Financial Resolution.
We were dealing with the scope of the Financial Resolution. That was quite apparent from the extract from the Financial Secretary's speech quoted by the hon. Member for Ebbw Vale yesterday. He quoted the Financial Secretary as saying, in so many words, that nothing in the resolutions would prevent hon. Members from making objections or moving Amendments to remove, curtail or impose conditions or restrictions on those provisions at the appropriate stage of the progress of the Bill through Parliament.
The Financial Secretary was making no comment on what class of Amendment could or would be selected. There was nothing to be found in his general comments which could be a matter of criticism of the Government or of the Chair. As it happens the financial Clauses, as I indicated yesterday, are one of the matters where the modalities of our adaptation to Community obligations can be considered. The method by which we pay our subscription is a matter which has already been raised in debate.
The Solicitor-General pointed out on 20th January that, as a matter of principle, it is wrong that legislation to implement a treaty should allow no scope for amendment, but the reference was to the scope for amendment to legislation, not to the scope for amendment of the treaty itself. The treaty has already been concluded. Parliament can oppose or reject it; we cannot amend it. The Government have followed precisely, at every stage, the programme which the Prime Minister announced to the House on 17th June. He then promised that Parliament would be invited to consider and pass the consequential legislation. The Bill is not concerned with aspects of the treaty which do not have consequences for United Kingdom law. The Solicitor-General has rightly pointed out that the Bill has to be understood in the light of the treaties. Equally, the effect of the treaties on United Kingdom law is precisely reflected in the scope of the Bill.
I went into very great detail in my speech in the Second Reading debate. I did not rehearse all the arguments that 539 we had in July and October. I addressed myself almost exclusively to the form and content of the Bill and to the reasons why nobody should be surprised in any way by its form and content, because we have known this all along. We have given no undertaking which could be taken to imply that the scope of the Bill, and so the debate could, or would, go wider than the views that I expressed in January and again in February and which we have expressed throughout.
I submit that the Bill follows normal constitutional practice throughout. Perhaps it is worth remembering what we were deciding when we approved the principles of the Bill on Second Reading. [Interruption.] Some hon. Members appeared today to have some doubts about what they were doing, but those who voted against the Second Reading were out-and-out objectors to the Bill. They knew that if we were to accede to the treaties we had to have a Bill in this form—[HON. MEMBERS: "No."] In the course of that debate nobody seriously challenged the form in which we presented the Bill. In particular, my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith), who has never been exactly a devotee of the principle behind this Bill, said in the debate on 15th February:If the Bill is harsh it is because the requirements of the treaty are harsh. If the Bill erodes the power and purpose of Parliament and makes deep and unprecedented inroads into our democratic institutions, it is because these things are a condition of entry.He does not like the conditions, though others have accepted them. He said:On that account it may perhaps be an odious Bill, but at any rate it is an honest Bill. Clause 2 is drafted, and impeccably drafted, to give precise effect to Article 189 of the treaty.He then saidThe Clause has the virtue of honesty. The obligation is clear, and effect is clearly given to it. I am against Clause 2 but not because of its drafting. I am against it for the same reason as I am against Article 189. I am against it for the same reason as I was in 1961 and 1967.Not everyone has been so consistent, if I may say so. My right hon. and learned Friend went on:We cannot logically accept entry and reject its requirements.540 That is what this House has to accept if it wishes to give effect to its decision of 28th October. My right hon. and learned Friend went on:To dress up the obligation in a cloud of words and schedules would have been possible as an exercise in draftsmanship, but to set up word for word and syllable for syllable what is in the Community regulations…could not lessen one jot or one tittle the surrender of sovereignty and the subordination of our law. It could, at most, conceal it."—[OFFICIAL REPORT, 15th February, 1972; Vol. 831, c. 314–5.]What we have done in this Bill is to make perfectly clear to Parliament and the public what is involved by our accession to the Community. At no stage have we misled the House. Indeed, my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) did not make a complaint about the form of the Bill. What he said was:Never till now"—that is, until the moment of Second Reading—has the House of Commons had placed before it proposed legislation on which it must take a definitive view and on which it must envisage as a practical issue what it will mean for this country if we accede to the Community. The Bill, whatever its defects, does manifest some of the major consequences." —[OFFICIAL REPORT, 17th February, 1972; Vol. 831, c. 699.]My right hon. Friend has never taken the view that the Government have disguised the implications for this House and the country. We have set out clearly the obligations, just as we have set out clearly the manifest advantages that passing this Bill and acceding to these treaties will bring in terms of work, higher standards, peace and security, not only for us but for Europe. We have done all that. We have set up the obligations and we have set out the advantages. We are not open to a charge of bad faith.
§ Mr. William Molloy (Ealing, North)
The right hon. and learned Gentleman appears to be introducing a new dictum. He declares that because, in his view, the Bill is honest, it cannot be amended —[Interruption.] That is what he said. Does not he accept that the only way to resolve the dilemma that now exists between hon. Members in all parts of the House and the Chair is to let the people decide by a General Election?
§ Mr. Rippon
I do not think that the hon. Gentleman has understood what has 541 been going on all this time. We have been accused of acting dishonestly, misleading the House, and not telling the House what the form of the Bill would be. I said that not only have we had tributes to our honesty; we have had tributes to our clarity. We have not deceived the House.
Could the Bill have been drafted in a different way? Could we have had an enormous Bill? It would have served no useful purpose to have drafted a bad Bill. It would have served no useful purpose to have drafted an obscure Bill. What everyone in this House has to recognise is that a point has been reached when a determination on principle has to be made: either we are for entry into the Communities or we are not. If we are for entry into the Communities, we have to accept Clause 2. The House can reject Clause 2. If it does, it prevents our fulfilling our obligations under the treaty and, in effect, prevents our ratification—
§ Mr. Speaker
Order. The right hon. and learned Gentleman has not made it clear to whom he is giving way.
§ Mr. Rippon
I gather that the hon. Member for York (Mr. Alexander W. Lyon), to whom I thought I was giving way, wishes me to take notice of my right hon. Friend the Member for Wolverhampton, South-West. I am happy to give way to my right hon. Friend.
§ Mr. Powell
Is my right hon. and learned Friend implying, from what he has just said about Clause 2, that in his view Clause 2 is not amendable?
§ Mr. Rippon
I did not imply that at all. I simply said that if we took that course that would be the result. It is not for me to say what Amendments are or are not in order. However, what is already clear from the Order Paper is that there are a large number of Amendments which are in order, at any rate, on Clause 1, and we shall come to Clause 2 in due course. We should now be getting down, as I am sure my right hon. Friend will accept, to the real business of considering the substantive Amendments which have been put down and which are 542 in order. They are, if I may say so, Amendments to the right Bill.
As my right hon. Friend the Prime Minister said, when he wound up the Second Reading debate on 17th February, we would have served no useful purpose by producing a Bill in a different form. I remind the House that my right hon. Friend said:There has been a great deal of discussion of the nature and construction of this Bill, and rightly so, because it is concerned, as the hon. Gentleman said, with the rights of this House and how these can be safeguarded in the context of our being a member of the Community. We naturally attach great importance to that, but, as to the Bill, there seems to be genuine misunderstanding of the constitutional position. The hon. Gentleman was not prepared to acknowledge the White Paper of 1967. In fact the constitutional position has not changed in any single respect since the negotiations of 1961 when it was very fully discussed in this House time and again.So it has gone on. It has always been known what would be required.
My right hon. Friend went on to say:There have been various suggestions on how this should be handled. One suggestion is that the whole of the legislation which might be affected by any of the instruments should be re-enacted by Parliament. This would have the effect trim the whole of the legislation on each of these subjects could then he amended and dealt with again: but the one part which could not be dealt with would be the new part which comes in the Community law. Therefore, what the House of Commons would be asked to do, what Parliament would be asked to do, would be to re-enact all those matters which presumably we would not wish to change, but rather to keep, because they are our existing law; but we would not be able to change that part which arose from Community law. I do not think that to ask Parliament to take on that sort of burden is a sensible solution to the problem with which we are faced."—[OFFICIAL REPORT, 17th February, 1972; Vol. 831, c. 747–8.]We discussed all these matters, and nothing has been said by the Government which is in any way inconsistent with what we have said from the beginning. In July, in October, in January and in the Second Reading debate, we always made clear what the parliamentary processes would be, and the Prime Minister's statement on 17th June, 1971, which was welcomed on both sides, described the Bill as the fifth stage of these processes and the last before ratification of the treaty. The purpose of the Bill is to permit that ratification, and in the Second Reading debate the House gave its approval to that purpose.
543 However that may be, we have to come back at the end of the day to the form of the Motion which, as my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke) said, is a grave Motion of censure on the Chair. We on this side of the House, and, I am sure, many right hon. and hon. Members opposite, believe that the Chairman should be upheld in the way in which he has done his duty. After all, the hon. Member for Ebbw Vale has said that he is not in any way challenging the bona fides of the Chair. We should repose our confidence in the
§ Chair. I hope that the Motion will be withdrawn. Otherwise, it should be rejected.
That this House considers that the ruling given by the Chairman of Ways and Means on 29th February to the Committee of the whole House sitting on the European Communities Bill gravely infringes the rights of the House and its powers of decision on the issues raised by the Bill, and that, therefore, a full new selection of Amendments should be proposed:—
§ The House divided: Ayes 274, Noes 309.547
§ Question accordingly negatived.