§ Amendment No. 49 proposed [1st March], in page 1, line 16, leave out from beginning 'the'.—(Mr. Ronald King Murray.)
§ Question again proposed, That the Amendment be made.
§ 4.5 p.m.
§ Mr. Arthur Lewis
On a point of order, Sir Robert. I do not quite know how one can raise this because I understood that my point of order was a matter to be raised with Mr. Speaker, but since I have not had such an opportunity I wish to raise this matter with you. There are some nine Standing Committees now meeting with 150 members——
Order. I am afraid that I am not competent in this Chair to answer the hon. Gentleman's point of order. I must get on with the Amendment.
§ Mr. Lewis
Sir Robert, may I raise a point of order which you are competent to deal with? In a few moments you will 1252 call certain Amendments. A number of hon. Members have told me they wish to be present in this Committee in order to take part in the debate on those Amendments. However, they have been precluded from so doing and have been told they are unable to leave other parts of the building in which the Standing Committees are being held.
Order. I am afraid that that is nothing to do with me today sitting, as I am, as Chairman of Ways and Means. The Amendment has been proposed.
§ Mr. Alfred Morris (Manchester, Wythenshawe)
On a point of order. I feel sure, Sir Robert, you will agree that the matter I wish to raise with you is a matter of real importance to the Committee as a whole. There are agricultural provisions in two Bills——
§ Mr. Michael Foot (Ebbw Vale)
I fully understand the situation of the Committee, Sir Robert, in that an Amendment has been moved which is now before the House. There are some important points to be raised about the selection, and I presume that the proper time at which to raise those matters will be before the next Amendment is called, after we have dealt with this Amendment.
As soon as we come to the appropriate place in the Bill I will listen to the hon. Gentleman.
§ Mr. Alfred Morris
Further to that point of order, Sir Robert. It may be that you will decide that my point of order relates to the first Amendment and to others. I hope that my point will not be prejudged. I was saying that there are agricultural provisions in two Bills which are now before the House; namely, the European Communities Bill and the Agriculture (Miscellaneous Provisions) Bill. We are still deeply concerned about possible contradictions between the two Bills which are now being debated in different parts of the building.
I do not want to be difficult with the hon. Gentleman. I want to see that the rules are properly carried out, as I am sure does the hon. 1253 Gentleman. He must relate what he has to say to this Amendment and then I shall be glad to answer him.
§ Mr. Morris
Further to that point of order, Sir Robert. I have no intention of causing any difficulty. I am very concerned that we should determine a very important matter of procedure before we enter into any further discussion of Amendments. This morning the Chairman of the Standing Committee on the Agriculture (Miscellaneous Provisions) Bill gave a very important ruling which refers both to the European Communities Bill and to the Agriculture (Miscellaneous Provisions) Bill, which is now upstairs. The hon. Lady the Member for Petersfield (Miss Quennell) was warmly praised by my hon. Friends——
It cannot be any concern of mine whether the hon. Member for Petersfield (Miss Quennell), the Chairman of that Committee, was praised or damned or anything else. It is nothing to do with me here. The hon. Gentleman must come to the point which relates to this Amendment.
§ Mr. Morris
What was declared in that Chairman's ruling this morning was the following:At the last Sitting hon. Members asked me for further clarification of certain matters arising out of the ruling by my predecessor in the Chair on 3rd February. On that occasion he ruled that Amendments relating the provisions of this Bill to the European Communities legislation were out of order as anticipating the terms of legislation which is still before the House.The Chairman went on:At the last Sitting the matter was raised, quite properly, in a somewhat different form and I ruled that it would be possible in a debate on the Clause stand part to probe the Minister's attitude to possible conflicts under the original ruling, on the grounds that tion and existing Community law. I confirmed that I would be prepared to allow this. Hon. Members also raised the question of possible Amendments. I can only consider Amendments which are actually before me and I would not, therefore, wish to give a judgment on hypothetical cases. Amendments which made specific reference to Regulations under existing treaties would be out of order under the original ruling, on the grounds that the Minister's attitude to possible conflicts the state of the law as it stands now, otherwise any decision on the admissibility of Amendments, whether or not they happen to have the effect of bringing the provisions of this Bill"——
Order. I am afraid I cannot listen to the hon. Gentleman on this. This is not connected with the Amendment, as I see it. I have waited quite a long time for him to come to the point, and he does not seem to be coming to a point which concerns me. We must continue the debate. Sir Derek Walker-Smith.
§ Sir Derek Walker-Smith (Hertfordshire, East)
We had some discussion on this Amendment in the small hours of last Friday morning——
§ Sir D. Walker-Smith
I am addressing myself to the Amendment, I hope in order. I am not on a point of order. I am on the Amendment which I understood was the business of the Committee.
Order. If the hon. Gentleman has a fresh point of order for me to rule upon, I am prepared to listen to him. I have given him several opportunities to get to the point in the point of order which he raised on this Amendment. He has not done so. I had no option but to call the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith).
§ Mr. Morris
Sir Robert, I apologise to the right hon. and learned Gentleman, but I am asking for a definite ruling that nothing decided upstairs shall in any way affect or diminish our rights to table Amendments to the Bill.
If the hon. Gentleman had said that in the first place I should have been able to answer him. Of course it will not. We are not bound by what is done upstairs.
§ Sir D. Walker-Smith
Sir Robert, I preface my brief contribution to the discussion of this Amendment with an apology to you and to the Committee, in that at 5 o'clock I have to go upstairs to the Committee of Privileges where, rather improbably as right hon. and hon. Members may think, I find myself temporarily in the Chair. These are the sort of things that seem to happen to us in 1255 this House. I see that there are no fewer than nine public Committees sitting this afternoon. So one is lucky, perhaps, to have any hon. Members in the Committee at all to listen to what one has to say.
§ Sir D. Walker-Smith
Will the hon. Gentleman forgive me? I have to go upstairs at 5 o'clock, and I know the hon. Gentleman——
§ Mr. Lewis
I promise the right hon. and learned Gentleman that my point will not take three-quarters of an hour. Will he go a little further? The Leader of the House has accepted that this is a very unfair and unsatisfactory state of affairs, because he said that on Wednesdays he would see that Committees did not sit. Could the right hon. and learned Gentleman have a word with the Leader of the House and see what the difference is between Tuesday, Wednesday and Thursday? If it is right that Committees should not sit on Wednesday, why should they sit on a Tuesday or a Thursday?
§ 4.15 p.m.
§ Sir D. Walker-Smith
I am always willing to do my best. I think that, cast in the rôle of universal benefactor, I should be almost more improbably cast than in my temporary rôle as Chairman of the Committee of Privileges; but it is a very unfair and difficult world, as the hon. Gentleman knows, and these things do happen.
When this Amendment was moved in the early hours of Thursday morning it was classified by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) as, in effect, a probing Amendment. The language which he used was that this Amendment was trying to unravel the complexities of the Clause and reveal its purpose. I took that to be the elegant description of the Edinburgh Bar for what we more succinctly and less elegantly normally call a probing Amendment. As one who had the good fortune to be born in Edinburgh, I am pleased to see the hon. and learned Gentleman gracing the Opposition Front Bench. If it is a probing Amendment, I shall certainly approach it as such.
1256 Clause 1(3), the omission of which is the definitive part of this Amendment, is in two parts. The first, which I will call for convenience Part A, was described by my hon. and learned Friend the Solicitor-General as "evidential" or "machinery" in its content. I would like to ask him what would be the effect, in his view, of the omission of this Clause, assuming that this Amendment were persevered with and carried.
The Committee must be concerned with the definition of the treaties in this Clause and with their limitation, because of their effect on Clause 2(1), which has been described as the heart of the matter, where the obligations under all the treaties, whatever they may be, are self-executing, contrary to British practice and precedent. I should like to ask what treaties are considered to be evidenced under Part A of subsection (3). We can see by looking at the Bill that they will include the Treaty of Accession and all the treaties particularised in Schedule 1. All that is clear. What is less clear is the reference in Clause 1(2) to "any other treaties".
What is important about Part A of the subsection is whether any existing treaties not particularised either in the Clause or in Schedule 1 come under the non-protective part of the subsection. If one looks at the drafting of the Bill, one sees that the words used in subsection (3) are:… a treaty entered into by the United Kingdomand that, on the face of it, would not restrict it to future treaties, which will have the protection of the second part of subsection (3).
Are there any other existing treaties lurking in the background? Are there any treaties not particularised in Clause 1 or Schedule 1 which could be evidenced merely by an Order in Council under Part A of subsection (3), without the necessity of the express approval of Parliament or a draft Resolution under what I call Part B? If so, what are those treaties of which we may not yet know?
If "treaties" bore only the normal connotation of a treaty, it might seem to the Committee improbable that there could be anything lurking of which we as yet have no knowledge. But, of course, the anxiety arises in the context of the 1257 very wide meaning given to "treaties" by Clause 1(4), which provides that a treaty does not only mean a treaty in the popular, normal sense of that term, but includes any international agreement and any protocol or annex to a treaty or international agreement. I hope that the Committee will be assured that there are no existing treaties in the wide sense of this definition, no international agreements or the like which are not particularised in the Bill but are to be or may be evidenced under the non-protective part of Clause 1(3).
I hope that we shall also be told what, in the opinion of my right hon. and learned Friend, would be the effect of the omission of subsection (3) on the power given by Clause 2(1) for regulations under specified treaties to be self-executing. If the treaties exist but cannot be evidenced by Order in Council, what effect does that have on the provisions of Clause 2(1) for the treatment of regulations as self-executing thereunder?
I pass to the second part of subsection (3). This part was described by my hon. and learned Friend the Solicitor-General as providing express protection for treaties entered into after 22nd January, 1972—again, treaties having the wide significance given to them by Clause 1(4). Hon. Members will welcome any degree of protection afforded by the requirement that there must be an affirmative Resolution approving the draft. But I think we should be told what sort of treaties are envisaged as probable which will come under the second part of Clause 1(3). We have not been told yet. I make no complaint about that, because my hon. and learned Friend was addressing the Committee at about seven o'clock in the morning on the previous occasion.
The words in subsection (3) area treaty entered into by the United Kingdom after the 22nd January 1972with certain exceptions. But if we compare that wording with the wording in subsection (2) we see that that saysany other treaty … as a treaty ancillary to any of the Treaties".Why is there that difference in the phraseology of the two subsections? Is it intended in this second part of subsection (3) to cover treaties other than treaties ancillary to any of the treaties entered into by the Community? If it is, what are those extra treaties which it is pro- 1258 posed to cover under that difference of language?
On the other hand, if it is not, I hope that my right hon. and learned Friend will explain why it has been thought necessary to use this difference of language. He and my hon. and learned Friend will recall the canon of construction that one must give some meaning to every difference of language expressed in a Statute in different parts. Applying that canon of construction, may we be told what is the difference and what is the effect of this presumably deliberate differentiation of language in these two succeeding subsections?
Then, the Committee will wish to know what sort of ancillary treaties the United Kingdom is expected to enter into under the subsection. In the early hours of Thursday morning, though circumscribed by the limitations of time, nevertheless my hon. and learned Friend was able to make some reference to this matter. He referred to Articles 113 and 228 of the Treaty of Rome. As the Committee is aware, the references in those two Articles are references to Community treaties concluded by the Council of the Community on behalf of the Community as a whole. There is no suggestion in either of those Articles of ancillary treaties to be made by member States. No doubt that does not preclude the possibility of such ancillary treaties, but it means that as they are not expressly referred to we get no guidance from those Articles on what will be the scope and nature of these ancillary treaties about which we are now asked to legislate. I should be grateful for some information about them.
This consideration arises, in any event: if the ancillary treaties are to be bound and limited by every syllable of the Community treaties concluded by the Council to which they are to be ancillary, if they are merely to echo and reflect the Community treaties, they are not the subject of independent legislation by this Parliament. The question then arises as to what is the point of a safeguarding Resolution by Parliament in such circumstances, in any event.
The material question would appear to be what would be the position under Clause 1 (3), assuming that it remained on the Statute Book, if Parliament in its wisdom and discretion withheld the 1259 express approval which is requisite for evidencing an ancillary treaty. That ancillary treaty will have been made by prerogative action, and it may be considered by the Community as a whole as indispensable for the discharge of our Community obligations. In that case, what is the juridical position if Parliament rejects the Resolution, withholds its consent to the evidencing of an Order in Council for the ancillary treaty, and the Council or Commission of the Community says that, if it is not given, we are in breach of our treaty obligations? I think we should have some further information about that.
§ Mr. Michael English (Nottingham, West)
The right hon. and learned Gentleman clearly is on a very substantial point. Will he also take account of the fact that in this peculiar system of law into which we are entering, although individuals can be proceeded against, and although this State can be proceeded against whether it acts through Parliament or fails to act in the way that the right hon. and learned Gentleman has mentioned, even if the Court of the Community takes a decision that we are in breach of the law there is no procedure for enforcing it against the State?
§ 4.30 p.m.
§ Sir D. Walker-Smith
That is so. The hon. Gentleman raised this interesting point in one of our earlier debates or perhaps on a point of order the other day—I forget which—but I remember listening with interest when he made this proposition. Of course, the treaty contains provisions in its articles for the resolution by the Court of Justice of deviations of the member States from the treaty. The hon. Member is also right that it does not specify any machinery whereby those can be enforced. That is perhaps one of the gaps of the treaty.
On the point which I am presently considering—presumably my right hon. and learned Friend will comment on this—under those articles of the treaty, first, the action of Parliament in withholding its consent to the evidencing by Order in Council of an ancillary treaty would be considered by the Commission and thereafter the reference to the Court is promulgated in the treaty. I agree that after that stage a doubt arises.
1260 But the point remains pertinent whether this Committee, under the second half of subsection (3), will be engaged in a fruitful and useful exercise, or whether it is to be engaged in a parliamentary charade on the basis that if it refuses consent some action will be taken—be it what it may and be its enforcement what it may—to override the will of Parliament here. That is the point to which we want my right hon. and learned Friend to address himself.
§ Mr. Michael Foot
If the right hon. and learned Gentleman's argument is correct—we are certainly following it with the greatest possible interest—it would not merely be a question of a parliamentary charade and having the debate on the affirmative Resolution which, if carried, would upset the arrangements made, but that, at least under part B, as he has described it, this part is outside the scone of the Bill under the definition of its scope which we were previously given.
§ Sir D. Walker-Smith
It is not out of the scope of the Bill, if one looks at the wide terms of the Long Title which I ventured to suggest on an earlier occasion was the right criterion. But here I think I must, like Agag, tread delicately, or we may arouse memories of far off unhappy events and battles long ago.
I conclude by saying that I hope my right hon. and learned Friend, with all his experience both of the law and of Parliament, will address himself to these matters of vital importance and give us the answers to what I think are relevant questions.
I certainly do not want, any more than any other hon. Member, to see the excision of any protective provisions. I do not want to see the excision of any provisions which will protect the rights of Parliment, because that is our main concern on the Bill. However, I, and I think the rest of the Committee, will want to know the reality of the protection afforded and the degree to which this country will be at risk to unknown and hitherto unspecified obligations by way of treaties defined in Clause 1(4).
I repeat my apology, Sir Robert, that, unfortunately, I shall not be able to hear the whole of this debate. But I give the assurance that tomorrow I shall read 1261 every word and syllable contributed to the debate in the columns of the OFFICIAL REPORT with all that conscientious assiduity which I have sought to bring to the study of the provisions of the Treaty of Rome, but I hope with a great deal more pleasure.
§ Mr. Ronald King Murray (Edinburgh, Leith)
I think I could hardly do anything at the outset other than respectfully to adopt the points so cogently made by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith). I am sorry that the Committee will not have his presence throughout the debate but I am sure hon. Members will understand why.
I should also like to adopt the very pertinent questions which the right hon. and learned Gentleman put to his own Front Bench. I accept that these are absolutely vital questions to the understanding of subsections (2) and (3), with which we are particularly concerned in discussing the Amendment. I hope to add one or two other questions to those which have already been posed by the right hon. and learned Gentleman.
The discussion on this Amendment is bound to be wide ranging, although not exactly free ranging in view of what has happened in past debates. This is necessary because the first three Clauses of Part 1 of the Bill are closely interconnected parts of a single operation intended to connect the United Kingdom with the existing European Community.
To see the full impact of the Amendments and to understand the subsections which are affected by them it is necessary to set the scene at this stage in a rather wider way than one might have to do perhaps later in the Committee's deliberations. Clause 1, for example, which appears to be the interpretation Clause, must be set as the first step in a three-step process for getting us into Europe. Indeed, even if I had not been very enthusiastic and had doubts about spreading the discussion in this way so that we could see the significance of the Amendments in the subsections themselves and the part they play in this intricate process, those doubts were resolved by the Solicitor-General in the early hours of 2nd March. The Committee will see the passage at columns 699–700 where he dealt with the question of what was 1262 covered by subsections (2) and (3). He indicated that at least seven separate items were covered. Indeed, if one looks at it with perhaps the sort of care we can exercise at 20 minutes to five in the afternoon, as distinct from seven o'clock in the morning, one will see that there are 11 items to be discussed here.
It might be for the convenience of the Committee if I outline what those items are. First, the pre-Accession Treaties are named—if I might use that terminology—in the first six paragraphs of Part I of Schedule 1. Then, there is what one might call the omnibus paragraph of Part 1 of Schedule 1 dealing with other treaties not named. There are six named treaties and then a bundle of innominate treaties of some kind. We shall have something to say about that in due course, but that is another bundle. One most not balk at the fact that this portmanteau may carry at least 11 items, but we do not know how many will go into the portmanteau.
Then there is the United Kingdom's Treaty of Accession, mentioned in Clause 2(a). There are the associated decisions of 22nd January mentioned in Clause 2(b). That is the decision relating to the accession of the United Kingdom to the Coal and Steel Community. Then there are the two other portmanteau provisions,any other treaty entered into by any of the Communities ",which is one group. The second group isany treaty entered into by the United Kingdom as a treaty ancillary to any of the Community Treaties.If my arithmetic is correct, there are at least 11 items, and not only would the portmanteau item, paragraph 7 of Part I of Schedule 1, contain a lot of subunits or items, but so also do the wider classes which I have just mentioned: namely, any other treaty entered into by any of the Communities and any treaty entered into by the United Kingdom. I do not want to overstate the problem. However, those last two categories obviously look to the future rather than to the past.
As the right hon. and learned Gentleman pointed out, the drafting is very wide. On the face of it, there is nothing to limit the application of these classes so that it applies merely to the future; it could apply to the present as well as 1263 to the past. Therefore, it raises interesting points which can be discussed later. There is no obvious limit of time regarding these two categories. They are in a portmanteau which can be filled not only on future journeys, but now, and there might be past items tucked away in its recesses.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
On the last point, does the hon. and learned Gentleman agree that unless there is an overlap between paragraph 7 of Part I of Schedule 1 and his last item but one, it is clear that his last item but one must in practice refer to the future, since the other such treaties which refer to the past are already covered by paragraph 7 of Part I of Schedule 1?
§ Mr. Murray
I accept that that is probably correct. There is something to be said on those lines by way of understanding the intention of the draftsman. The right hon. Gentleman has made a relevant and important point. All I say in reply is that the drafting of the Clause is so general that this does not appear from it. I think that that is sufficient for my present purpose.
§ Mr. Eric Deakins (Walthamstow, West)
Is there not one sub-division of the penultimate item in my hon. and learned Friend's portmanteau, namely,any other treaty entered into by any of the Communities with … any of the member Statesand another sub-division,any other treaty entered into by any of the Communities … without any of the member States"?This is an important constitutional point because it involves the element of supranationalities.
§ Mr. Murray
I am obliged to my hon. Friend. I shall have to explore that matter later.
Even if we delve into each of this large number of items and consider what is contained in them and what is meant in each of the packages, to use the terminology which has been adopted, we still have to unravel their interconnections. It is a complicated and cumbersome task simply to understand what it is all about. However, when we have unravelled all the intricacies of the interconnections of 1264 subsections (2) and (3), taking them with the Amendments and with others connected with these two subsections, there is still a considerable process to be undergone to understand the significance of the Clause as a whole.
For example, we have not had any Amendments on subsection (1). Yet the whole question whether this is a closed or an outward-looking society—for example, taking into account the genuine needs of the under-developed world—will rightly arise in the debate on the Question "That the Clause stand part of the Bill". Indeed, the right hon. and learned Member for Hertfordshire, East has raised the question of the meaning of subsection (4). When we have exhausted the Amendments dealing with that, we shall not have fully assessed the significance of this important subsection, not merely to Clause 1, but to the position of Clause 1 as a whole and its operation in the process of getting us into Europe.
There is a certain paradox in the fact that in these Amendments we are dealing with matters of great importance bearing not merely on the constitutional law of the United Kingdom but on difficult matters of international law and of the British constitution. We are and must deal with all these matters because of the way that the Bill has been framed. We must deal with them under a Clause the side note to which is "Short title and interpretation".
[Miss HARVIE ANDERSON in the Chair.]
I confess that I was surprised when, in the early hours of 2nd March, the Solicitor-General said he had nothing to declare. If that was so, why is he giving this interpretation in the declaratory Clause? In considering these Amendments and in probing and trying to discover the significance of the Clause, we shall have to find out whether a very strenuous parliamentary search needs to be undertaken.
The Solicitor-General, in the early hours of 2nd March, claimed that in the second part of subsection (3), to which the right hon. and learned Member for Hertfordshire, East referred, he was providing some kind of safeguard. He said:The second part of subsection (3) is a special provision ensuring that any treaty 1265 entered into by the United Kingdom after 22nd January, 1972, ancillary to the Community treaties shall not be so specified and therefore, shall not be regarded as a treaty having that effect until it has been the subject of an affirmative Resolution by both Houses of Parliament. There is that express protection built into the Clause in relation to treaties entered into by the United Kingdom ancillary to Community treaties after the date of the signature on 22nd January, 1972.I wish again to be clear about that. That protection"—the hon. and learned Gentleman was invited to "Get on with it" and he stated:The protection of an affirmative Order in Council applies."—[OFFICIAL REPORT, 1st March, 1972; Vol. 832, c. 701.]It is important to point out that if we are dealing purely with a declaratory Clause, far from there being nothing to declare there is a vital constitutional protection to declare. I find it surprising that the Long Title, which states,To make provision in connection with the enlargement of the European Communities to include the United Kingdom",makes no mention of such an important protection, if protection it be.
I have not long been a Member of the House of Commons, but those of us who have been involved with private Members' Bills know the tremendous difficulty one gets into if one misses out of the Long Title an item of significance. Surely it will not be said that the supposed protection which the Solicitor-General said that he was giving us is not so insignificant that it does not merit some mention in the Long Title. However, that appears to be so. Indeed, the Opposition will have to press very strongly the question of what is and what is not contained in the Long Title. I shall have more to say about that later.
Before turning to some of the detail which I wish to present to the Committee in supplement of what the right hon. and learned Member for Hertfordshire, East said in his opening remarks, it might be of assistance if I went back to the beginning and took seriously the proposition that this is intended to be an interpretation Clause to clarify matters.
I start with the definitions on page 1. We have there the definition of "the Communities", which is tolerably clear. We then go to "the Treaties", or "the Community Treaties". This is where 1266 our difficulties begin. The definition of "the Community Treaties" is unusual. Although it starts in a comparatively clear way, it becomes obvious in the second line, where we see the phrasesubject to subsection (3) below",which is what we seek to delete, that the definition, apparently clear and transparent, immediately becomes elastic and opaque. I do not think that anybody, not even the most enthusiastic proMarketeer, could claim that subsection (3) was crystal clear. That is ignoring the other complications in subsection (2) which also fall to be dealt with, particularly lines 5 to 8 on page 2 of the Bill.
The first part of the definition of "the Community Treaties" gives us a core of certainty, because there are six existing Community treaties which are scheduled in Part I of Schedule 1. Therefore, we know what we are starting with. Then there is the portmanteau provision which I have mentioned: paragraph 7 of Part I of Schedule 1. Although that is general and it is a portmanteau which can expand, one is still dealing with a paragraph which is comparatively clear.
Perhaps I may take up the point mentioned by my hon. Friend a few moments ago about how to fill the portmanteau. I think this was taken up also by the right hon. Member for Wolverhampton, South-West (Mr. Powell) in his intervention. The question of how to fill this portmanteau is very important. For instance one would have thought, in looking at Part I of the First Schedule, that this particular portmanteau was probably intended to be filled by treaties entered into before 22nd January by any of the Communities, with the qualifications there stated but which for one reason or another were not thought to be important enough to be mentioned.
Alternatively and this is perhaps a more likely way of filling the portmanteau—it may be that the provisions in paragraph 7 of Part I of Schedule 1 are intended to cover, for example, informal agreements of various kinds which were entered into before 22nd January, 1972, but which are subsequently deemed, by the Court of Justice for instance, to have been part of the original treaty although they were not taken to be part of it at the time. That is a somewhat sophisticated legal concept but the court might 1267 well deem that a treaty entered into before 22nd January, 1972, and not at that time deemed to be a treaty was a treaty after all.
§ Mr. Powell
I apologise for interrupting the hon. and learned Member again but he was in a sense following on from the earlier point which he permitted me to make. I wonder whether he has looked at the appendix to Command Paper 4862, Part I, which is the Blue Book containing the treaty. If he has, he will have found set out there, as I understand it, the maximum potential contents of this portmanteau in paragraph 7 of Part I of the first Schedule. His attention will have been attracted, no doubt, to the fact that English texts of those contents of the portmanteau are available for only part of one part of the total list.
§ Mr. Murray
I am obliged to the right hon. Gentleman for his helpful intervention. I think the point has been noted on this side of the Committee.
I was indicating that when one is dealing with these items and trying to discover what they are meant to be, the first factor obscuring the initial apparent clarity of the definition is the mention of "subsection (3) below". The second factor is the one we have just been discussing—the complication introduced by referring to Part I of Schedule 1. We look back there and we get the portmanteau in paragraph 7 which we have been dealing with. Not only is it tolerably clear that that particular portmanteau could be filled, additional items put in, by the European Court, because the drafting is so wide in that paragraph, as in this subsection, but equally it is conceivable that there could be agreement ex post facto that, for example, an informal exchange of letters before 22nd January, 1972, might by general agreement be raised to the status of a treaty without anything further being done. These are some of the complications that we have to deal with.
The third factor which obscures the initial clarity of the definition with which we are concerned arises from the points on page 2, lines 5 to 8. These add to the definition of Community treatiesany other treaty entered into by any of the Communities1268 and any other treaty entered into by the United Kingdom as a treaty ancillary to any of those treaties. This addition to the definition of "Community Treaties" is, as I have pointed out, completely open-ended and would appear to extend the scope of the definition to any future treaty entered into by the Communities or any future treaty entered into by the United Kingdom as an ancillary to the treaties.
It is crucial to note that in dealing with treaties entered into by the Communities we have to take account, as one of my hon. Friends has pointed out, of the wordswith or without any of the member States".That suggests one of the categories that is to be put into this particular portmanteau.
Reference has been made by the Solicitor-General to Articles 113 and 238 of the Treaty of Rome. It is instructive to look at these two articles to see what can be put into this package. Article 238 provides that:The Community may conclude with a third country, with a union of States or with an international organisation, agreements creating an association",andThese agreements shall be concluded by the Council by unanimous decision".This raises at least two very interesting points. First, whereas on the fact of it these are treaties which are international agreements—that is certainly what subsection (4) draws to the attention—there are certain conditions. But when one looks at Article 238 it becomes clear for the first time, perhaps—and perhaps hon. Members will need to have looked at the Treaty of Rome to discover this, because it is not in the Explanatory Memorandum or in the Bill, but in the Treaty of Rome, of which fortunately we have a translation, whether official or not——
§ Mr. Deakins
Could my hon. and learned Friend say what is the difference between "official" and "authentic"?
§ Mr. Murray
I think that question would have to be directed to the benches opposite. Whether my hon. Friend would get an answer is another matter.
When one looks at Article 238 one discovers that apart from ordinary international treaties—of course these are contemplated because any agreement the Community might conclude with a third country would have an international element since it would be an agreement between the Community and a nation, so that that might be described as an international agreement—a union of States is the next category, and that is more interesting. It could be some body analogous to the Community. For example, the Warsaw Pact is a union of States and groups of South American or African countries are unions of States for the purpose of this section.
The third item is "or with an international organisation". Of course, there one is to some extent parting company with the ordinary concept of an international treaty because the Community is a curious entity. We will come back to that in a moment. It is not a nation, not exactly a union of nations, but a sui generis legal entity; and it can enter into agreements with international organisations. Straight away, then, we have a sort of agreement that previously has hardly been regarded as a treaty, or has not been regarded as a treaty at all—an agreement between a strange new supranational type of organisation and other international organisations, neither of which in the old terminology would have been regarded as States at all. So this is an important item that is going to come into the package.
It is also noticeable that the agreements are concluded by the Council by unanimous decision and after the Assembly has been consulted. It is the Council here, not even the Community as a collective body but some organ which operates for the Community, which seems to be taking the initiative and concluding the agreement. So we are in a field of international relations which is very different from the ordinary field of international treaties as people would ordinarily understand them. Once again, there is no guidance; nothing at alt in the Long Title or the Explanatory Memorandum to show that we are undergoing a great new legal exploration in this Bill, 1270 going quite beyond the legal concepts normally operating in the law of this country.
The Solicitor-General referred to Article 113 of the Treaty of Rome, but the significant point is in Article 114. Article 113, like Article 111, provides for the Commission to negotiate to make various agreements connected with commercial policy. So we have another unusual situation in international affairs, and certainly something quite unique as far as Britain is concerned. We have a state of affairs in which the Commission, an independent administrative body, is to negotiate. This point has been made often in our debates. The Commission is in some sense a body barely understandable to anyone. It negotiates international agreements of the kind that will be brought into the portmanteau under lines 5 to 8 of page 2.
Article 114 shows how these are to be concluded. The agreements referred to in Articles 111 and 113 are to be concluded by the Council on behalf of the Community. Once again, an organ, the Commission, is negotiating, and the Council of Ministers in concluding, agreements on behalf of the Community. Perhaps the Committee will forgive me for having mentioned the Treaty of Rome. I am glad, Miss Harvie Anderson, that you did not rule me out of order, although that was a possibility that I envisaged.
One begins to get from lines 5 to 8 a glimmering of understanding of what we are dealing with. It is essential to understand this when one has to follow the purpose of subsection (3). Clearly, that is presented by the Government as some sort of safeguard in relation to what has been done in subsection (2). One has to see the point of subsection (2) before one can deal with the point of the Amendment and assess its strength.
These lines contain the words:any other Treaty entered into by any of the Communities".We can see that these words include treaties or commercial agreements negotiated by the Commission and concluded by the Council, and that they will be legal not only internationally but internally, under Clause 2(1).
These arrangements, which are to be raised to the status of treaties, may be entered into, of course, as with other 1271 States, but, curiously, there is no reference to "third States". One would have imagined that if we were dealing with international treaties there would be such a reference, as there is in Article 238 of the Treaty of Rome. One might also have expected that if this Community was outward-looking and sought to enlarge itself and to get new members throughout the world there would be some reference to other States which at some time might wish to accede to the Community. So there is a failure to refer to any outside States.
Also, lines 5 to 8 fairly obviously cover agreements reached between the Community and other States in Europe. There is a big field to be explored here, and this Amendment is probably not the appropriate one on which to explore it. But perhaps I should point out now that many of the countries of Eastern Europe—the Soviet Union and other countries of the Eastern bloc—do not recognise the legal existence of the Communities at all.
Accordingly, where an agreement is entered into by the Council with one of the Eastern bloc countries, there will be a need, if the Treaty is to be an ordinary international treaty, for it to be somehow raised to the necessary legal status to give it recognition by the Eastern countries concerned. This may be one of the purposes of the otherwise strange wordswith or without any of the member States".If, for example, a commercial agreement concluded between the Council and the Soviet Union is to be binding, associated with the Council would have to be the individual members of the Community. If they were not associated with the Council, the agreement would not be internationally binding.
Another meaning which this passage is presumably intended to have is that if there is an agreement between the Council, one of the organs of the Community, and some third party which recognises its legal reality—a South American State, for example—such an agreement might well not be strictly an international treaty within the meaning of international law. In that case, of course, something would have to be done to raise it to the necessary status. Perhaps subsection (4) is intended to carry out this operation, among others.
§ Mr. Ian Lloyd (Portsmouth, Langstone)
This is a very interesting point, but it ignores the practical argument that the Community has been in existence for some time, and that none of its existing members appears to have these profound difficulties in supporting or implementing any treaties which the Community has concluded with such other States, organisations or communities.
§ Mr. Murray
All that I would claim to be doing at the moment is trying to understand the intention of these provisions. With respect, it is not pertinent to ask whether or not there have been any difficulties in other countries which are now in the Community. The difficulty which we in this country have is to understand these so-called legal nuts and bolts which we are being required to operate. There is no suggestion that any other country has to operate such a passage as appears in lines 5 to 8. I think that that meets the hon. Member's point.
I have said that obscurities in this passage make it difficult to understand the apparently clear definition of the Community treaties with which we start. I should therefore like to consider the quality and nature of the passage in subsection (2). I will then come to subsection (3), which is the operative part. Unamended, subsection (2) appears to be the first of two steps incorporating into our domestic law—by reference: no more—the whole directly enforceable law of the Community. That is the extent to which we are sacrificing our sovereignty.
From that point of view, it is important to note that if effect were given to the Amendment that I moved in the early hours of 2nd March, and if subsection (3) does not contain a constitutional protection but is just declaratory, the removal or the presence of that provision would not make one whit of difference. If we pass subsection (2) and Clause 2(1) unamended, we shall have sold the pass and imported directly—lock, stock and barrel, not nuts and bolts—the supremacy over our domestic law of the whole of the directly enforceable part of Community law—permanently, so far as one can tell, because there is no provision under the Treaty of Rome for bringing these arrangements to a conclusion.
1273 If I am right about that—and it is quite clear that members of the Committee on the whole do not quarrel with the fact that that is right, whether they are in favour of going in or against going in—one has to try to understand and unravel the significance and meaning of subsection (3). If it is true that this Clause is a short title and interpretation Clause, then one would expect that all we were given in subsection (3) was something in the nature of interpretation.
The Solicitor-General said quite clearly when the Committee last met that the purpose of the first part—what I think the right hon. and learned Member for Hertfordshire, East called Part A of subsection (3); that is, the procedure by Order in Council—was to evidence what treaties were to be regarded as belonging to the core of aggregate of Community Treaties. If it is intended to publish—evidencing is simply publishing in a way that is satisfactory to the courts of law of this country—or if it is merely evidential, one can understand its position here in an interpretation and declaratory clause. It would be justified.
It is important to note—and I am not sure that this has been pointed out yet in the Committee—that there is not a single element of parliamentary safeguard in that branch of subsection (3). What is provided is:If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded.That is pretty final. That is a declaration of publication of something which one cannot get behind or beyond.
It is true that under the Statutory Instruments Act, 1946, Section 1—assuming that that Act continues unamended, and the Committee has to consider whether all these ordinary Acts on which parliamentary safeguards rely will continue unamended after we enter the Community—Orders in Council under Part A of subsection (3) will be published as Statutory Instruments. That is a relief. That is all that will happen. Parliament will have no control. There will be no control whatever as to what is to be included in the package.
If one may take an absurd example, the wording of Part A of subsection (3) is so 1274 wide. I have quoted it and so I will not quote it again, but it simply says that any treaty can be regarded as one of the Community treaties. As far as one can tell, there is nothing to stop the Treaty of Vienna from being included in that, even though it would normally be included in a history book. Why not put it in? If Her Majesty, by Order of Council, says that that is one of the Community treaties, let us include it. Our courts will give effect to it as best they can. I think they will have a task, but they will presumably give effect to that sort of thing.
May I take a little more time with the second leg, Part B, of subsection (3), because I do not suppose that anybody would consider that in Part A we shall have these historically interesting but ancient treaties.
Before my hon. and learned Friend leaves Part A of subsection (3), he has mentioned that it is widely drawn, and he has referred to the Treaty of Vienna. I do not think the Government are likely to resurrect old treaties. Surely here the danger is that any treaty in future—not in the past—could be specified as a Community treaty under an Order in Council, whether or not it falls within the definition of a Community treaty in the rest of Clause 1, and this House would have no option but to accept the Order in Council. There is no safeguard in Part A of subsection (3) as to what is intended to be done by a future Government of this country when it comes to specifying any particular treaty as a Community treaty. For example, there might be a very unpopular treaty entered into by a future Government of this country which would normally have to go through the whole panoply of parliamentary approval but if it were specified—wrongly, in many people's opinion—as a Community treaty it could go through under an Order in Council and Parliament would be able to say nothing about it at all.
§ 5.15 p.m.
§ Mr. Murray
My hon. Friend is entirely right, and I am grateful to him for that intervention. Indeed, he has tempted me to give yet another example of how Part A is so wide and so general that the whole of our parliamentary institutions are in peril if it goes through unamended.
1275 I give an illustration. Let me make it clear to the Committee that I am going to give a politically absurd example. I want to draw attention to the width of the interpretation. If in future one had a situation where an enthusiastic proMarketeer was the Prime Minister of this country and was determined to advance the Community's interests so much so that he forgot all about the interests of the United Kingdom, he might find himself by an accident of politics with a Parliament which started favourably disposed to him but became increasingly antagonised and finally ended up thoroughly opposed to him.
This is a fictitious story that I am putting forward. If this state of affairs existed, and if the Prime Minister concerned became more and more involved in Brussels and Brussels became the centre around which his interests revolved and he forgot about Westminster, we might even get to the state of affairs which we had at the time of Cromwell when Cromwell found that his efforts to administer the United Kingdom were increasingly obstructed by Parliament. Cromwell came to the view that he could not carry on with Parliament. It had to be Cromwell or Parliament, and we know it was Parliament which suffered. He did not recall Parliament. He abolished Parliament for all practical purposes and governed, without it.
What could happen in Brussels? The European Cromwell of the future, walking the corridors of power along with other members of the Community, forgetting about Westminster and the domestic quarrels and troubles of this country because his eyes were set on a wider horizon far beyond the Thames, could then find the United Kingdom Parliament at Westminster a nuisance, interfering and obstructing the Greater Europe which he is seeking to build. He then has a meeting with other members of the Community and the suggestion arises that they should have a little treaty, an international agreement, under subsection (4) which is raised into a treaty, because that is what subsection (4) is there to do. They have a little agreement that the interests of the Community would be better served if there were not a British Parliament interfering. They have an 1276 international agreement that the United Kingdom Parliament would cease to exist.
That is an extreme case, and I want the Government to consider what the consequences are. If there is an answer, I shall be glad to hear it; if there are safeguards, let us have them. It might be that this Bill is not so bad after all. Let us have them in due course. I would say.
§ The Solicitor-General (Sir Geoffrey Howe)
As soon as the hon. and learned Member has finished his fanciful recitation, perhaps I can answer the question.
§ Mr. Murray
I have no intention of giving way at this point. I shall give way in a moment.
I suggest that we have a situation in which the interests of greater Europe have taken command of the Prime Minister of this country, and a treaty has been agreed that the Parliament of the United Kingdom shall be abolished. I say it is an extreme case. In that case, all that has to be done in terms of subsection (3) to bring this about is for there to be an Order in Council declaring that this informal agreement which has been reached in Brussels is to be raised to the status of a treaty. If it is a treaty under subsection (3), then it is directly enforceable in terms of Clause 1 and it becomes the law of this country. It is not a situation which I would happily contemplate. If the Solicitor-General is to give us the safeguards now within the four corners of the Bill, I look forward to that with anticipation. But if it is not within the four corners of the Bill I shall be worried.
§ The Solicitor-General
I am grateful to the hon. and learned Member, who normally addresses the Committee on points of this kind with care and restraint. It is attractive to see him in his Scots web-spinning, story-telling mood. But I must point out to him at once that his story is without foundation within the four corners of the Bill. The story that he was postulating was one in which his hypothetical disillusioned Prime Minister went off and entered into a treaty with the other States of the Community. That would be a treaty to which the United Kingdom would be a party as a separate State. It would not be a treaty entered into by the Communities within the four corners of the 1277 existing Rome Treaty and those linked with it.
As soon as the treaty is one to which the United Kingdom would in itself be a party, as it would plainly have to be if it were to be embarking on anything outside the scope of the existing Community treaties, it is immediately covered by the second part of subsection (3), because the first part says:If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties"—and so on. The second part says:a treaty entered into by the United Kingdom after the 22nd January 1972 … shall not be so regarded unless it is so specified, nor be so specified unless a draft of the Order in Council has been approved.So the kind of treaty which the hon. and learned Member has in mind—namely, any future treaty to which the United Kingdom would be a party—may not be specified under the first part of subsection (3) unless it has been the subject of an affirmative Resolution under the second part. That is the significance of the words "nor be so specified".
I do not want to destroy the entire fabric of the hon. and learned Member's fanciful structure. A treaty entered into by the Communities, within the scope of the Communities' treaty-making power in the articles to which I referred last Thursday morning, is of a different kind. The protection I have outlined exists unassailably in respect of any future treaty to which the United Kingdom is or would have to be a party. The hon. and learned Member's example falls to the ground within the four corners of subsection (3), reading them together.
§ Mr. Murray
I hope that members of the Committee will avidly read HANSARD to see what protection has been spelled out by the Solicitor-General. But it is clear that he has made so many assumptions here that one cannot be satisfied to let this matter rest. However, I must let it rest and pass to other matters.
Before I do so, I point out, however, that one of the difficulties with which we are faced in Committee is to give content to lines 5 to 8. Despite what the Solicitor-General has said, the organs of the Community can enter into treaties with or without any of the member States: so 1278 why should the United Kingdom be brought in when treaties can be entered into with or without the member States? It seemed that the suggestion which he has prayed in aid does not do. Perhaps we can look at HANSARD and examine the matter at leisure, because it is difficult to dismiss observations such as that without careful examination. I do not pretend to the Committee that I am taking other than an extravagant, extreme case, but one has to go to the extreme to test the Bill. Therefore, it is a matter to which we shall have to return.
I want to consider the so-called safeguard which the Solicitor-General founded upon with some glee in the early hours of 2nd March; that is, the second leg of subsection (3):a treaty entered into by the United Kingdom after the 22nd January.We have a little interpolation here:other than a pre-accession treaty to which the United Kingdom accedes on terms settled on or before that date.I think it is tolerably clear—but I am not certain—that the interpolation would have the effect that pre-accession agreements which have not yet been made as treaties, agreed but not yet signed as treaties, such arrangements having been agreed before 22nd January, 1972, would be dealt with by Part A procedure; that is, merely by publication as Orders in Council, without parliamentary control. I think that that would make sense and is what is intended, probably, in this particular part of Part B of subsection (3). If that is right, the important words for us to examine are the other words, taking out the parenthesis:a treaty"—which must mean any treaty—entered into by the United Kingdom after the 22nd January, 1972 … shall not be so regarded"—that is, shall not be regarded as one of the Community treaties—unless it is so specified, nor be so specified unless a draft of the Order in Council has been approved by resolution of each House of Parliament.Again taking seriously the suggestion that this is merely an interpretation Clause, merely declaratory, the obvious meaning to give to those words which constitute Part B of subsection (3) would be that this is a more formal method of publication, but no more, of what is to 1279 go into the portmanteau in lines 5 to 8, in so far as we are dealing with treaties ancillary to the Community treaties entered into by the United Kingdom.
If that is right, there is no safeguard there whatever. A certain meaning can be given to this on that basis, because it is fairly obvious that after 22nd January, 1972, the fact that the United Kingdom has entered into the Community will not preclude it from negotiating, transacting, executing and ratifying international treaties with all kinds of other nations outside Europe and outside the Community. For example, there is no particular reason why the United Kingdom, at some future date, should not transact a treaty of assistance on, perhaps, defence with Bangladesh. If that were to happen, it would certainly be of assistance to people of this country to know whether such a treaty was intended to have any connection with the Community. Concerning defence, there would not even be a presumption that such a treaty with Bangladesh had anything to do with the Community. But as for general assistance, that is another matter, and it may concern the Community. The sort of overseas assistance that we give to countries which are former members of the Commonwealth is a matter which may affect the commercial or economic policies of the Community. It would be of great assistance to us to have a formal procedure whereby Parliament could, with a minimal, short debate, decide whether Parliament wished that a treaty which the Executive were proposing to transact with a former Commonwealth country or a Commonwealth country should be regarded by the people of this country as part of the Community agreement, apart from what the Community thinks about it.
That would give complete sense to the subsection. It would be a formula of the way in which Britain could decide which kind of way it wished the Executive to operate a treaty to which it had agreed. I have my suspicions that that is what it is meant to do.
On the other hand, we have been assured by the Solicitor-General that it is some kind of safeguard. I ask myself what kind of safeguard it is. I must put this point very strongly to the Government. Is it the kind of safeguard which is really taking away the parliamentary 1280 power that we at present have? Is that the sort of safeguard it is? Is it the case that if one omits the passage from line 5 to line 20—perhaps I should point out that a combination of Amendment No. 49, which we are discussing, with Amendment No. 99, together with the Amendment of the right hon. Member for Wolverhampton, South-West, Amendment No. 81, in page 2, line 5, leave out from 'into' to 'as' in line 7, would achieve this purpose—if those Amendments were effected by the Committee, the effect would be to remove the sting of these lines of the Bill?
The effect would appear to be—I press the Government on this point—that we would accede to the Community but would reserve entirely the rights of this House to approve, by parliamentary legislation, a treaty which the Executive entered into and which had internal effects, or possible internal effects, in Britain. In other words, it would retain in this House the right to ratify an international treaty, and that is a right which, as I see it, is being taken away by implication by this so-called interpretation Clause. If that is so, far from being given safeguards we are losing sovereignty and we are losing it under the guise of mere interpretation and declaration. Therefore, the true motivation for the provisions of the subsection is publication.
In introducing the subsection the Government are not seeking essentially a safeguard of any kind. They are seeking to take the minimal decision of whether a treaty should be published in the non-parliamentary way, set out in the first leg of subsection (3) or whether it should be done in the more formal way of the second leg of the subsection. The latter will still allow Parliament to exercise minimal sovereignty by deciding whether a treaty is to be described as being associated with the Community or whether it is to be regarded as having been transacted by the United Kingdom in exercise of some of its vestigial authority and vestigial right to transact treaties with third countries which are not connected with the Community in any way. These are points we have to probe very strongly.
That is simply preamble, because we have to turn now to the more substantial significance of the Amendment. I hope 1281 my introduction has not been too short to set the scene correctly. It is absolutely crucial that we should seek to assess the significance of subsections (2) and (3) in regard to what I believe to be the primary fraud of the Bill—the fact that it is introducing a foreign law which will have supremacy over the domestic law of this country. It is also doing it without mention of the fact in the Long Title and without any significant mention of the fact in the Explanatory Memorandum. In order to make this point I wish to quote, I hope very briefly, from two recent works which I think can help to elucidate for the Committee the significance of the step that is being considered in the Bill. The nature of the Community, the kind of Community institution into which we are entering, and the Community's corpus of legal principles is crucial because, to quote the Long Title again, the Bill is supposed to be makingprovision in connection with the enlargement of the European Communities to include the United Kingdom ".We therefore have to consider what is the legal context into which the domestic law of this country will be fitted and what legal import will be placed over our legal system.
Let me quote first from a useful article in The Modern Law Review of September, 1971, by Gerhard Bebr, legal adviser to the Commission of the European Community. We can probably accept what he says about the nature of Community law as worthy of considerable respect. In dealing with the long-term objectives of the Community in shaping Community law as it now is, he says:The long term … objective of the EEC Treaty is a gradual development and establishment of a common market envisaged as an economic union which would ultimately integrate the national markets of the member States. This gigantic task is to be attained … by a gradual establishment of a free movement of goods, persons, services and capital across the national boundaries of the member States. To assure a free movement of goods, customs duties and quantitative restrictions and measures having this equivalent effect are to be abolished and a common customs tariff and a common commercial policy towards third States established. A mere elimination of these trade barriers could not ensure this freedom of movement unless it was accompanied by free competition in inter-State trade and by harmonising relevant legislation of the member States which may hamper it. A common agriculture and transport policy complete these basic principles.1282 He goes on to say:The realisation of these aims alone, conceived as factors of integration, could hardly release effects powerful enough as to bring about an economic union.He continues:The Treaty requires, therefore, among its fundamental principles, a co-ordination of economic policy of the member States.He then turns to Community powers and he says:A mere traditional co-operation among the member States could have hardly achieved this wide range of aims which are instrumental in establishing and developing a customs union and leading ultimately to an economic union. Independent Community powers, however limited, have, therefore, become indispensable. Within the limits set by the Treaty, the Community has its own, specific powers which reach out into the traditional competence of the State.I pause to point out that powers can only be given by the law and that if the independent institutions of the Community are to have specific powers reaching out into the traditional competence of the State it can be done only by changing the law of the member States in a mode which can lead to that result.
The learned author from whom I have quoted reaches the conclusion several pages later in his article thatThe objectives, the powers and the institutions of the Community suggest already that there is hardly any basis for comparing the E.E.C. Treaty with a traditional international treaty. Community law is, in a sense, an autonomous legal order to which not only member States but individuals as well are subject.That touches on some of the points made by my hon. Friends in their interventions.
Mr. Bebr continues:A long term process of integration, as outlined by the Treaty, would be impossible if not guided and fostered by a continually developing Community law, by a progressive Community legal integration. Thus even in legal fields the Treaty displays its own, inherent dynamism. This brief introduction may make it clear that to classify the E.E.C. Treaty as any other international treaty would do violence to its true legal nature and rob the Community of its very foundation.He goes on to say:The gradual development of the European Communities prompts municipal courts of the member States to apply Community law more and more frequently.The domestic courts of the member countries find themselves more and more 1283 applying the law of the Community rather than their own law.
The article, which I think is of very great assistance, goes on to deal with some of the solutions.
§ Mr. A. E. Cooper (Ilford, South)
The avid discourse of the hon. and learned Member is such that there is not a quorum present.
§ Mr. Murray
If the hon. Member for Ilford, South (Mr. Cooper) listens more carefully he will find it is far from avid.
Mr. Bebr goes on to say:Apart from article 189, the EEC Treaty contains no explicit and formal clause which would assure the supremacy of Community law over the municipal law of the member States.This of course means domestic law of the member States.The Court has, however, been fully aware of the vital need for such a supremacy, lest the effective operation of the Community otherwise be endangered.The author goes on to give details of how the Court of Justice of the Community is ruling more and more, with greater and greater courage and confidence, that Community law dominates over the domestic law of the various States. It has done so tactfully but, I should have thought, quite firmly.
§ Mr. Michael Grylls (Chertsey)
The hon. and learned Gentleman has read some interesting quotations from that article, as if they state something novel, as if it has only just come to his attention that there is such a thing as Community law. But paragraph 4 of Cmnd. 3301, issued by the previous Government, clearly recognised the legal implications of joining the Community. They were part of the things we should have to accept. The hon. and learned Gentleman's Government knew it then, and the country knew it. Why does he make it appear that it is something he has newly discovered?
§ Mr. Murray
It is crucial for us to understand what Community law means for the member States. Perhaps one or two people have realised the implications for this country's legal system, and no doubt many hon. Members have, but the general public does not. The Opposition 1284 should use every legitimate mechanism of the House to ensure that the British people know what is going on. If anyone tries to suggest that that is filibustering or using technical devices, he will stand condemned in the future. I am not filibustering, and I know the hon. Gentleman did not suggest that I was. I wish to respond courteously to his intervention.
Looking at the context in which the law of this country is supposedly to be changed by a few legal nuts and bolts, we can do nothing but condemn the Bill in all its inequity and its detail if we find the picture to be totally different. I cannot ask the Committee to condemn the Bill outright on this Amendment, but I can ask hon. Members to exclude the reference to subsection (3), and if we succeed we shall be doing quite well. If we set that precedent, perhaps we can exclude Clause 2(1).
§ Mr. Deakins
Now that we are in the initial stages of the consideration of the Bill in Committee, may we dispose of a canard once and for all? The hon. Member for Chertsey (Mr. Grylls) put forward the novel constitutional doctrine that this Parliament can be bound by what the previous Government and Parliament decided. If that is typical of the approach of Government pro-Marketeers, they are departing from constitutional practice and precedent in more ways than one. I remind them that roughly 150 new Members have entered the House since June, 1970. I cannot speak for them all, but I know that I speak for some with whom I have discussed this point. We are not bound by the actions, decisions, interpretations or anything else of any previous Governments. People who want to justify to us this Bill and entry into Europe must do so on the merits and not on what the last Government did.
§ Mr. Murray
The Committee might apply its mind to Community law, which is what I propose to do by completing my quotations from the very useful article I have been quoting. The learned author says:In the view of the Court"—the Court of Justice of the Community—the EEC treaty ' … has created its own legal order … having real powers resulting from a limitation of competence or of transfer 1285 of powers from the States to the Community … [It] would be impossible,' argued the Court "—in the case of Flaminio Costa v. ENEL, the famous Italian case—'to assert any internal text' "—the Court is referring to constitutional texts—whatsoever against the law created by the Treaty … without robbing it of its Community nature and without jeopardising the legal foundation of the Community itself.'The Court deduced this supremacy of Community law"—no less—from the legal character of the Community legal order; from the transfer of limited State powers to the Community, and from the wording and spirit of the Treaty. 'This incorporation into the legal order of each member State of the provisions of the Community law,' observed the Court, 'and the letter and spirit of the Treaty in general, have as a corollary the impossibility of States to assert against the legal order accepted by them, on a reciprocal basis, a subsequent unilateral measure which could not be challenged by it'.There the Committee will see that the limitations upon sovereignty spelt out explicitly by existing and current Community law are absolutely clear.
§ 5.45 p.m.
§ Mr. Neil Marten (Banbury)
Is it not also said that the Community law that we have to inherit is so imprecise that the British courts will find it impossible to give decisions on it? It will be a lawyers' bonanza, if it ever comes about.
§ Mr. Murray
I am obliged to the hon. Gentleman. I agree that it will be very difficult for British courts, guided by the Bill, to reach satisfactory conclusions on what to do. If we had a different Bill, it would be another matter.
Perhaps before I conclude I may make a reference to the attitude that the previous Labour Government appeared to take to such legislation, I do not want to dwell on it, not because I cannot, but because I do not want to take up the time of the Committee.
I wish next to refer to a more recent article, which is even more stringent and even more important for us to consider now. It is by Professor H. W. R. Wade, a learned author of great reputation, and it appeared in the Law Quarterly Review for January. He deals with the matter I have touched upon in the previous article, and goes on, in his introductory 1286 remarks on sovereignty and the European Communities, to say:A primary principle of this new system is that community law becomes part of domestic law in each country, conferring rights on individuals which ordinary courts have an obligation to enforce, and to which domestic law must give way in case of conflict. This applies both to the regulations issued by the Council and the Commission in Brussels and to the many provisions of the treaties themselves which are held by the Court of Justice to be 'directly applicable' in domestic courts, i.e., which can be enforced without the need for some intermediate procedure or the fulfilment of some condition precedent.Professor Wade then deals with the case of Costa, in which Community law was supreme over Italian law, even Italian constitutional law. He said:This was all the more striking in that the Italian Constitutional Court, the highest legal authority in Italy, had already ruled in connected proceedings that the judge's duty was to apply the Italian statute without regard to the Treaty of Rome, since treaties in Italy (as in Britain) are not directly enforceable,—according to domestic law, unless the law is changed to make it so.
Dealing with the basis of this new community law, he said:The member states had accepted 'a clear limitation of their sovereign right, against which a subsequent unilateral law, incompatible with the aims of the Community, cannot prevail.' … This doctrine has been applied by the courts of several other member states, particularly where traders have disputed the validity of import duties and similar charges imposed by post-Treaty legislation in breach of Community law: examples are Van Gend en Loos v. Nederlandse Belastingadministratie; Molkerei-Zentrale Westfalen/Lippe GmbH v. Hauptzollant Paderborn; and Etat Belge v. Frormagerie Franco-Suisse Le Ski."If hon. Members flinch at the fact that I have to resort to foreign languages to describe those cases, they must face up to the fact that there is a bit more flinching ahead.
These are recent cases. For example, the most recent case cited by the learned author is Etat Belge v. Fromagerie-Franco Suisse Le Ski decided in May, 1971. I cannot claim that my pronunciation is either authoritative or authentic. The author points out that the obligation that this country will be faced with undertaking on entering the Community is an obligation to ensure—this is an obligation the Bill purports to be fulfilling—that Community law is paramount in the United Kingdom from the moment of British entry.
§ Mr. Murray
We will see about that. The author goes on to saySo as we rehearse our part"—and I echo these words—for the concert of Europe we comfort ourselves by saying 'it will be all right on the night'.We just hope that the concert will be all right and that we will be able to play part of some harmonious music when we are in. I confess that I have grave doubts about that when I look at the provisions of the Bill.
The author goes on to raise a doubt which echoes the doubts already expressed by hon. Members. He says that unfortunately things may not be quite all right on the night. He points out that a recent decision of the French Conseil d'Etat in the case concerning the French semolina factories in 1968 suggests that there will be difficulties. The judges of the French courts dealt with the problem on much the same basis as would a British court, taking into account the relevant legislation. What the court did was to resolve to stand firm in opposing Community law. It upheld the ordonnance of French law allowing duty-free entry to Algerian semolina despite the fact that the independence declaration by Algeria took it outside the impact of Community law and despite the fact that under French constitutional law treaties are given superior authority to statutes of the French Parliament. That raises a doubt which we have to set against the apparent lack of doubt of Mr. Bebr.
It has been said that the intention of the institutions of the Community is to impose supremacy of Community law over member States but already there is conflict of decisions among the superior courts and members of the Communities which makes it far from certain that the Community laws will apply once we have entered. This vast, expensive and complicated operation could all be set at nought if the members of the Community were to follow the kind of decision which the French court appears to have taken in the semolina case. This is not a case of the Community having said that Community law is to be supreme because it 1288 can be seen to be a rational, reasonable and democratic law. We cannot tell what it will be. Something is being given to us while we are blindfolded.
§ The Lord Advocate (Mr. Norman Wylie)
The hon. and learned Gentleman will be aware that the whole position of Community law is evolving as it has been evolving over the last decade or so. He is right in saying that the supremacy accorded to Community law has not been equally accepted throughout the Community. It is more readily accepted in Germany than in France, for example, but it is an evolving process. I dealt with all that the hon. and learned Gentleman has said in an address I gave to the Scottish Law Society last December.
§ Mr. Murray
I had the good fortune to read the printed address of the right hon. and learned Gentleman and I enjoyed doing so but I am not sure that it answered any of the points that I raised. It was certainly an interesting article.
I should like to carry on with Professor Wade's article by telling the Committee of the problems which he thought to be important. Having dealt with the points raised by the learned author of the article in The Modern Law Review and his own contributions with regard to the difficulties of the French case, he goes on to suggest that there is a serious problem faced by the United Kingdom in acceding to the Community. He seems to find it more difficult to draft a Bill that would successfully bring us into the. Community than the Government appear to have found it. He faces problems which the Government have not faced. The problem he poses particularly is that of how the adjustment of the existing legal system of the United Kingdom can best be brought about so as to secure full respect for the new legal order of the Community which in principle this country will be bound to accept.
Professor Wade comes up with a solution entirely different from that of the Government. Quite apart from the problems of drafting a Bill and whether it should be large or small, the author—and his views are to be regarded with great respect because he is a man of great learning in this area and the article shows considerable research—says that 1289 one expedient would be a European Communities (Annual) Act by which Parliament would once a year assert the supremacy of Community law and so resolve intervening conflicts at regular intervals. I put that suggestion to the Government in all seriousness.
Not only have the Government produced a Bill which they describe as nuts and bolts and which may be something quite different but it appears that in the eyes of at least one learned legal student a solution is not a once-for-all Bill of this kind selling our sovereignty to the Community but something in the nature of an annual Bill. If the Government were to come forward with a proposal something like this they might find a more sympathetic response from this side of the Committee.
That is setting the scene against which I would invite the Committee to look at the subsections. The subsections are in the Bill and the Bill describes itself as a BillTo make provision in connection with the enlargement of the European Communities to include the United Kingdom.…It is important to face the question of whether we are dealing with nuts and bolts or whether we are dealing with something bigger. It is important, for this if for no other reason, if I may pursue the metaphor I used earlier, that part of the task of uniting this country to the Community—possibly the whole of the task—can be viewed on the analogy of a pipeline joining Brussels to London. The pipeline involves a degree of international negotiation. Once we signed the Treaty of Accession on 22nd January, 1972, it could be said that the pipeline had been built from Brussels to the three-mile limit round the shores of this country. Until the Bill is passed the pipeline cannot come one inch over the three-mile limit because that requires domestic legislation by this country. I do not think that would be disputed by anyone. The task with which the Committee and the House are concerned is to see whether the pipeline is being completed by the Bill. That is what the Long Title purports to do, to enlarge the Communities, and that presumably means enlarging them effectively.
We therefore have to ask: where is the completion of the pipeline being carried out? If the Bill is truly a nuts and bolts 1290 Bill there is a grave risk that it is inept and what we may be left with at the end of this procedure in Committee and later stages is a pile of nuts and bolts and no pipeline to join up to the Brussels pipeline which stops at the three-mile limit.
[Mr. BREWIS in the Chair]
We must have more than nuts and bolts if we are to join this country to the Community. Are we dealing in subsections (2) and (3) with the nuts and bolts? If these subsections contain more than nuts and bolts, I put this serious charge to the Government. Why have they not mentioned in the Long Title anything about placing Community law in supremacy over the law of this country? There is no mention of that in the Long Title or in Clauses 1 and 2, although Clause 2(1) contains words which no doubt bear upon it. There is no mention of it in Clause 3, although there is a reference in the Explanatory Memorandum to the effect that Clause 3 introduces European jurisprudence. Therefore, I charge the Government in general terms on the first three Clauses. If there is nothing more than nuts and bolts there, how do we join the Community effectively? If there is something more than nuts and bolts there, why is there nothing about it in the Long Title?
I suggest that, under the guise of nuts and bolts, a whole panoply of engineering construction is going on, and that subsections (2) and (3) are indeed vital parts of that constructive process. If they are not beams, they are substantial pipes, perhaps to connect with the pipeline that arrived at the three-mile limit with the signing of the Treaty of Accession. If that is so, subsections (2) and (3) are a connecting up with the Community, and the connecting up is being done in a way which the Opposition and many other hon. Members must condemn.
Under the guise of interpretation in subsection (2) and publication in subsection (3), there is no escape from the conclusion that directly enforceable Community law in the treaties that are defined by this elastic and expansible definition and in all the ancillary agreements which may be made in the indefinite future will apply, and apply in increasing force and quantity, to build a bridgehead of 1291 directly-enforceable law in the United Kingdom. This will be done by the operation of these two subsections, and of these the most damaging to British sovereignty is subsection (2). The interplay of Clauses 1(2) and 2(1) will produce the supremacy of Community law over domestic law and will build the bridgehead of Community law, which will in future occupy a dominant position. It will connect the pipeline which takes London to Brussels and completes the enlargement of the European Community. There can be no escape from that.
I cannot understand how the Government can continue to maintain that the Bill is an honest one, or that it accords with the Long Title under which it is presented. The only conclusion that can be drawn is that the Government are trying to take the country blindfold into the European Community. They did not tell us what it meant beforehand; they did not publish the draft Treaty of Accession before it was signed; they are not disclosing honestly the true meaning of the Bill; neither are they disclosing the true content of subsections (2) and (3). For these reasons I ask the Committee to support the Amendment.
At the moment we are discussing only the first reference to "subsection (3) below", but that is a beginning, and I hope it is a precedent which we shall follow throughout the Committee stage until the whole Bill is destroyed.
§ Mr. Powell
I address the Committee under the same difficulties as my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith); namely, that we are both, as indeed are other members of the Committee, subject to a division of duty. My right hon. and learned Friend was able to resolve that conflict by deserting this Committee, but I have resolved it by deserting my duties as a member of the Committee of Privileges. It will be immediately obvious that there is here a severe conflict, in view of the importance of that Committee; but that, Mr. Brewis, is only a faint image, a very small fraction, of the total difficulty caused by this Committee sitting here when between 150 and 200 hon. Members are on compulsory service in another part of the building.
1292 I am following, briefly, the remarks which fell at an earlier stage from my right hon. and learned Friend the Member for Hertfordshire, East. As he reminded the Committee, my right hon. Friend the Leader of the House has indicated that Tuesdays and Wednesdays will normally be reserved to consideration of this Bill, and that on Wednesdays most hon. Members will not be involved on Committee work Upstairs.
That leaves Tuesday, or 50 per cent. of the time, when many hon. Members will not be able to be present. I can see only one solution which will enable hon. Members to take an intelligent part in, or even to have an intelligent understanding of, what is being decided fatefully for the future of this country in this Committee. That is, that upon Tuesdays nothing should be transacted which is not repeated on Wednesdays, so that it is within the hearing and comprehension of that 200 of our colleagues who have an equal right with ourselves to know what is being done to the future law and constitution of this country.
§ Mr. Anthony Fell (Yarmouth)
Would it perhaps help if no vote were taken until such time as hon. Members who have been compulsorily serving on Committees on Tuesday are able to read in HANSARD on Wednesday what has taken place on the preceding day?
§ Mr. Powell
We must not be too pedantic about Divisions. We all understand that we are obliged to take part in many Divisions without having been able to follow closely the preceding debate—whatever is said out of doors, hon. Members understand the necessity and inevitability of that—but it is different when the decisions which we are taking are of the character of the decisions on this Bill. That is what justifies the remark of my right hon. and learned Friend the Member for Hertfordshire, East and gives it its importance.
Right from the first speech of my hon. and learned Friend the Solicitor-General at about breakfast time last Thursday, it has been recognised that the Amendment moved at that time by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) is the opportunity—and both sides of the Committee have taken it as such—to explore the 1293 mechanism of Clause 1. It was most helpful of my hon. and learned Friend to respond to that intention by the brief but useful analysis which he gave on 1st March. We are therefore not merely considering the specific Amendment moved by the Opposition, but we are looking at the whole working of Clause 1 and its consequences.
This is a very remarkable definition Clause. It has the harmless and common title "Short title and interpretation". Nearly all Clauses which bear that title are found towards the end of the Bills in which they occur. They are not Clauses which commonly result in a great deal of debate. Important points, of course, can be made on them; but they come at a stage when the Committee considering the Bill feels that the major matters already lie behind it, and it is with some relief that Committees generally hail the appearance of a Clause entitled "Short title and interpretation." Not so here. It is not for nothing that this Clause appears in the forefront of this Bill; for it is not a necessary trimming added on at the end; it is the operative Clause of the Bill. Certainly it is a Clause without which the whole operation of the rest of the Bill would be unintelligible and impossible.
That is because in this Bill the trigger word is "treaty" or "treaties". It is the word "treaty" which triggers off the far-reaching legal consequences of Clause 2 and subsequent Clauses. Therefore, the definition of what is meant by "treaty" is all-important. When we decide what is or is not meant in this Bill by "treaty" we determine the scope of the far-reaching provisions, provisions unexampled in the law of this country, which are to be found in Clause 2 and subsequent Clauses. The definition of "treaty" is, therefore, of the essence of the Bill. The Committee is certainly not devoting time and attention to a minor aspect when it devotes time to the content, and indeed to the form, of Clause 1.
The hon. and learned Member for Edinburgh, Leith, in his analysis of the Clause, identified 11 classes of treaty which this Clause brings within the definition for the purposes of the Bill. I should like instead to use a much simpler classification, a much rougher one. It is the distinction between existing treaties and 1294 prospective treaties, between the past and the future.
On existing treaties I thought the hon. and learned Member was right to draw attention to the obscurity and indefiniteness of the Clause. Even where we are only concerned with bringing existing treaties within the definition, we do not have in the Bill any clear statement of what those treaties are. In an intervention in his speech, I drew the attention of the Committee to the fact that in order to ascertain what are the existing treaties, the pre-accession treaties, set out in Part 1 of the First Schedule, it is necessary to resort to an Appendix—the footnote to the appendix says that it is not part of the accession documents—to Command Paper 4862, Part I (The Treaty and the Decision of the Council). So already we have to bring into the interpretation, indeed into the structure, of the law of this country, as it will be if this Clause is added to the Bill, a whole series of treaties and other documents of which our only knowledge as a Committee is the list set out in the appendix to that Command Paper.
It is worth noticing that they are not in fact all there textually. Only the titles are there. We are told that we can obtain the English text of some of them, but not of all of them. The English text of some is found in a series of Command Papers, Nos. 4863–7; but for the English texts of the rest we have to wait for other documents which are unspecified. Even therefore in respect to existing treaties, the Bill itself does not indicate the titles, let alone the content. It does not specify what treaties are being given all the consequences which the rest of the Bill invokes. So there is considerable ground for criticism and complaint on the ground of uncertainty in regard to the past.
But the major matter which this Clause raises is the future. It could be argued that here Parliament is being asked to accept by a legislative act the consequences of that which it knows, to accept the consequences of treaties and other documents and agreements which, with the necessary study and research, it can procure and the contents of which it can ascertain. But this Clause includes, or enables to be included, under the definition of "treaty" treaties to be made in the 1295 future. It is to this that I want to direct the rest of my remarks.
There has been repeated reference to line 5 of page 2 of the Bill, which includes with treaties,and any other treaty entered into—this must clearly for the most part, if not exclusively, be in the future—by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United KingdomSubject, therefore, to what have been miscalled the safeguards in subsection (3), any future treaty, whatever its content, which can be brought within that definition is by the operation of this Clause given whatever may be its effects for the domestic law of this country. Clause 2 is automatically invoked in application to future treaties of which we can know nothing except that perhaps they fall within the scope of the words in lines 5 to 8 on page 2 of the Bill. Whatever those future treaties shall say is without further enactment to be part of the law of this country and becomes such in anticipation by virtue of the definition Clause, Clause 1. We are legislating in anticipation and in complete ignorance of what we are enabling to be written into the law of this country. I want to put to my right hon. and learned Friend the Chancellor of the Duchy of Lancaster—in his absence for a moment, to my hon. and learned Friend the Solicitor General—the major implications of this fact.
As I have said, my right hon. Friends have not, in my view, sought to conceal from the House their intentions, their hopes and their aspirations for the future development of the Community which they wish this country to join. True, we have been reminded that in the initial stages the operation of this Bill would be, if not confined to, at any rate for the most part concerned with a limited range of matters; important indeed, but for the most part limited. But the Government have not rested on that. They have not said, "This is what we are presenting to you now, and if we go further in future, if we enter on further stages of the development of the Community, if we agree that the Community's operations shall be extended beyond their present scope, we shall come back—or a subsequent Government will come back—to 1296 this House for new legislation." They have not said that. They have been perfectly candid. They have said "We aspire to the E.E.C. becoming an economic and political unit." Indeed, they have justified on grounds of political, even more than economic, unification their desire that this country should become a part of the Community.
The proposition I want to put to my right hon. Friends on the Treasury Bench is the following. Am I right in thinking that the future development of the Community for which they hope would take place by means of a series of successive agreements, which would take the form of what might be treaties, protocols, agreements, understandings, but which are all documents or instruments such as by virtue of subsection (4) of this Clause would be "treaties", would fall under the definition in lines 5 to 8 on page 2? It is important that this point should be made absolutely clear to the Committee.
As each subsequent stage of the development of the Community takes place, will that, or will it not, be achieved by treaties which fall within the definition and scope of this Clause? If the Solicitor-General replies to that question in the negative, if he says "No, there can be no extension of the sphere in which Community law is being imported into the law of the United Kingdom by means of treaties on which Clause 1 will bite", we shall know where we are. We may still be reluctant to accept the machinery and the principle of this Clause; but at least we shall have some notion of what law it is, and on what subjects that law is, which we are by this Bill invited to make part of the law of this country.
However, if my hon. and learned Friend says "Yes, the extension of the operations of the Community into one sphere or another will, as in the past—as in the protocols and agreements of the past, as in the Treaty of Rome itself—be carried forward by treaty-making in the broad sense of 'treaties' which Clause 1(4) permits"; if he say "Yes, those will, so far as I can see, be 'treaties entered into by any of the Communities, with or without any of the member States, or entered into, as ancillary to any of the treaties by the U.K.' "; then, on that hypothesis, what we are doing by this Clause is to leave it completely open as to what in future will become the law 1297 of the United Kingdom: there will be no future legislative act, no future Act of Parliament required, whatever is involved for our domestic law in the economic, monetary or political unification of the community. On that hypothesis this is not only to be the first Act of Parliament. It will also be the last Act of Parliament; and no further Act of Parliament will ever be required for that purpose.
I anticipate that, with whatever qualifications, it will be the affirmative and not the negative answer which the Solicitor-General will give. Indeed, if I correctly understood his brief intervention in the speech of the hon. and learned Member for Edinburgh, Leith, he would regard such extension as falling under lines 7 to 8 on page 2. He would regard that process as falling within the definition of "treaty" for the purpose of this Clause. Therefore, realising, as we must, that we shall never be allowed to legislate again at any stage in the process, we turn to look at the protection, as my hon. and learned Friend called it last Thursday, which is offered by subsection (3).
Among the many useful services which the hon. and learned Member for Edinburgh, Leith has performed for the Committee, one of the more eminent was to draw the Committee's attention to the fact that the first half of subsection (3), so far from being a safeguard, is a threat. For it automatically ousts any test whatever by any process of law as to whether a treaty is rightly identified as falling within the scope of subsection (2).
I am not resorting to a hypothesis so remote as that the Government might want to include the Treaty of Vienna amongst the "treaties" for the purposes of this Act—and I did not follow the hon. and learned Member for Edinburgh, Leith, in his flights of fancy—but if it were not for the first half of subsection (3) there could be a reasonable doubt as to whether a given treaty, which the Government of the day wished to regard as a treaty for the purpose of this Clause, was or was not ancillary to any of the treaties. But for the first part of subsection (3) there would be a remedy in our courts for those who took the opposite view. It could be decided in the proper way whether the Government were 1298 or were not complying with the basic Statute.
That possibility, however, is removed by the wording of the first half of subsection (3). A court faced with that would simply have regard to the order; for it would find in the Act of Parliament that the order is to be conclusive. Without imputing to this or to any other Government the desire to abuse the treaty-making prerogative in a way which this House is not now contemplating, the fact remains that it is a safeguard which is removed, and not one which is provided, by the first part of subsection (3). The hon. and learned Member was right to draw attention to the dangers of subsection (3) in that respect.
The second part of subsection (3) has other implications, to which my right hon. and learned Friend the Member for Hertfordshire, East drew attention. At first sight there appears to be some sort of safeguard there. If it is a treaty entered into by the United Kingdom—I must admit that I am not clear whether further Community treaties which extend the scope of the Community's operations would all fall within that description, but let us make the maximum concession and suppose that they would—what is the safeguard? The safeguard is that they only attract the consequences of the Bill if a draft Order in Council has been approved by this House and by another place.
Let us imagine the scene. It does not require a severe effort of imagination. It is a scene which has already been rehearsed, and the formulae have already been pronounced, many times in these debates. I can see the Minister of the Day standing at the Box presenting the draft Order in Council. He would inform the Committee that the purpose of the draft Order in Council is to recognise as a treaty for the purposes of section 1 of the European Communities Act, 1972—a purely imaginary Act, but never mind that—a treaty which Her Majesty's Ministers have just concluded, and which, after concluding it, they have been able to print and render available to Members of this House. The Minister would say, "In accordance with Section 1(3) of the principal Act, this is now being laid before the House".
§ Mr. English
I think the right hon. Gentleman may be wrong. I do not think any such text would be published in English, any more than some of those we are dealing with now. Furthermore, I have no doubt that we should be told that we were not approving the treaty but only recognising it in English law.
§ 6.30 p.m.
§ Mr. Powell
I shall come to that point, but no doubt the hon. Member for Nottingham, West (Mr. English) is technically correct. Still, I will try to make a probable picture; and in all probability the Minister presenting the draft Order in Council for the approval of the House would be able to refer to a copy of the relevant treaty, which had been made available to the House. I do not want to pile on the agony, as the hon. Member for Nottingham, West invites me to do.
The Minister would draw the attention of the House to the fact that under the treaty which had just been made we were obliged to pass the Resolution approving the Order in Council, and no doubt the Chairman or Speaker of the day would rule, rightly, that all the House was entitled to direct its mind to was whether it should be a treaty for the purposes of Section 1 of the Act or not. The Chair would immediately pounce upon any hon. Member who dared to discuss the bearings and contents of the new treaty. He would say it was out of order, and he would be right. The only thing that would be in order would be the simple question whether the treaty should be recognised as a treaty for the purposes of Section 1 of the principal Act. If any part of the House should be disposed to be recalcitrant, we would hear the diatribe, with which we are becoming familiar, about the relationship between the exercise of the treaty-making prerogative of the Crown and the rights of this House. Technically, we should be told, we would be able to go into the Lobby and vote against the Resolution. But it could still be enforced against us. I do not know whether a ratification of that particular treaty would be required; but at least the government would, as this Government have already done over and over again even in the last few weeks, stand at the Box to demonstrate to the House that it could not in practice throw the resolution out. They would no doubt say "You already 1300 knew about it." They would say, "What have we been talking about these last few weeks? You knew the treaty had been signed. You knew all about it. Why are you cavilling now when you are asked to give it operation under Section 1 of the principal Act?" It is no difficult feat of imagination to construct the scene on these future occasions when a Resolution would come before the House.
There is, of course, no safeguard here, short of tearing up and throwing over all that the Government are trying to construct, an action which would become progressively more and more unthinkable, up to the point of impossibility. What this Clause does, by its definition, is ensure that without further operation of Parliament, without any further legislation whatsoever, the changes in any sphere in the domestic law of the United Kingdom, in the life of the people of this country, so far as it is regulated by law, which are implicit in any future development of the Community will be automatic. This House will not only have washed its hands of the past but also given away any control for the future. Remember, we have already seen a growth in the scope of directly-operative Community law. Indeed, the growth in the scope of directly-operative Community law is in the very nature of that developing and evolving Community which is the objective of my right hon. Friends in the Government. Far from being near the conclusion of a process, we are only in the early stages, and we are being invited by this Bill to renounce for ever, blindly, for the whole of the future, all control by Parliament—except that of a simple Resolution, in the circumstances which I have outlined.
We have heard a lot in past weeks about the treaty-making power and prerogative of the Crown. As a Tory I am very tender regarding the prerogative. I do not wish to see diminished the prerogative power which an Executive exercises, subject to the ultimate right of this House to criticise it and, if it can, to pull it down. What we see in this Clause is not treaty-making by prerogative: it is legislation by prerogative. By the simple prerogative act of making a treaty, a future Government could make the domestic law of this country. This Clause means prerogative legislation, and prerogative legislation is a contradiction in 1301 terms. It is a contradiction of the very nature of this House. Under the innocence of a Short Title and definition Clause we are presented with an invitation to legalise prerogative legislation once and for all and to end, in an ever-expanding sphere, the central function of this House.
We would be mistaken if we thought that we were dealing here with a little matter. We are dealing with the greatest of all matters. As has been said before, and I have no doubt will be said again in the coming debates on these Clauses, "it is good for us to be here".
§ Mr. Denzil Davies (Llanelly)
I agree practically entirely with the observations of the right hon. Member for Wolverhampton, South-West (Mr. Powell). He has put them in a far clearer way than I could possibly do, especially when he said we were seeing legislation by the exercise of prerogative. We are also seeing a limitation of the sovereignty of Parliament by the exercise of the prerogative without Parliament's being given the chance to decide the extent of that limitation.
I should like to refer to the remarks made by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) in his opening statement and to the article by the legal adviser of the Commission from which he quoted. No doubt, in the interest of brevity, my hon. and learned Friend did not deal fully with some of the arguments put forward by Mr. Bebr. The point about that article and his views which should be made at the outset is that there is a clear movement among the Community countries, more so perhaps in Germany, whereby the municipal courts of the constituent countries will be prepared more and more to recognise Community law, even if and despite the fact that there may be an Act of the Parliament of the constituent country contrary to that Community law. There are cases in the books of German administration tribunals where this has been done. In one case, a municipal judge in Gremany has said virtually that if in future a litigant appearing before his court could show that the domestic law of the country was contrary to Community law, the court would declare that Community law should have precedence, despite the fact that domestic law was contrary to it. It 1302 will not even be a matter of asking the Parliament of a member country to harmonise its legislation with Community legislation. The courts will simply override the domestic legislation in favour of Community law.
It may be that in the first few years following our entry the English courts, with their long tradition of enforcing the Statutes of this Parliament and nothing else, will shrink from that ultimate step. But I have little doubt that before long, once the idea of what Community law means has been instilled into them, this will be the final step. Whatever Parliament says, should it say something contrary to Community law, the courts of this country will overturn all that they have done for centuries in order to enforce the law of an outside body which may be contrary to the law of this Parliament.
I return to the Amendment, which seeks to delete subsection (3). Perhaps I might go hack to the opening remarks of the Solicitor-General in the early hours of Thursday morning. The hon. and learned Gentleman attempted to give the impression that subsection (3) was a great bulwark, a great guarantee of the freedom of the House of Commons to discuss these matters.
Perhaps we should look at subsection (3) in order to see exactly what this safeguard is. The subsection is drawn very narrowly. It is not a wide subsection taking in all the treaties. First, we should realise that it applies only to United Kingdom treaties made after 22nd January, 1972. There may be nothing exceptional in that. However, there are many treaties entered into by the Communities which are not also entered into by the member States. Many association agreements and treaties with Greece and various other countries are entered into by the Communities themselves.
As my hon. and learned Friend the Member for Leith said, this is a very curious concept of treaties. The Communities are not nations. One's normal understanding in international law is that nations make treaties and that supranational bodies of this kind do not enter into what are called treaty arrangements.
For obvious reasons, subsection (4) extends the definition of "treaties" to include any international agreement. The normal meaning of an international agreement is an agreement between nation 1303 States. Here we are asked to say that there are certain treaties which can be entered into by those bodies which are not nations. One could question whether these were international agreements at all. However, I suppose that the Government would say that the Communities had been delegated this power by the member States.
Be that as it may, there are many treaties which pre-date 22nd January, 1972, and examples are set out clearly in the Blue Book. There are many treaties which are entered into by the Communities and which will not be subject to the so-called protection of the safeguard contained in subsection (3), narrow as it is.
Let us consider what subsection (3) is supposed to cover. I am a little surprised to see that it imposes an obligation upon the Crown to obtain Resolutions of this House should it wish to describe a treaty as "a Community treaty". The subsection says:If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community treaties … the Order shall be conclusive that it is to be so regarded …However, it goes on to say that a treaty entered into by the United Kingdom after 22nd January, 1972, shall not be regarded as a Community treaty unless it has the approval by Resolution of each House of Parliament.
I have looked through the Bill to try to discover where else the words "Community treaty" are to be found. I can find nowhere in the important first few Clauses. We find the words in the definition but nowhere else. Clause 2(1), which is the operative provision incorporating into our law all the rights, powers, liabilities and obligations arising from these treaties, instead of saying that these obligations arise by or under the Community treaties, refers to obligations arising by or under "the treaties".
I ask the question more in ignorance than anything else. If a treaty is entered into by the United Kingdom within the terms set out in subsection (2)—… any other treaty entered into by any of the Communities, with or without any of the member States"—what if the treaty is entered into by the United Kingdom with one of the Com- 1304 munities? Why is it necessary for the Crown to ask for an affirmative Resolution of the House of Commons to declare such a treaty to be a Community treaty? Once it is a treaty, all the rights, powers, obligations and liabilities arising under the treaty immediately, in a self-executing manner, become part of the law of the United Kingdom.
I shall be happy if the Solicitor-General tells me that my interpretation is wrong. In my ignorance it seems to me that it is not necessary for the Crown to ask the House of Commons for an affirmative Resolution, flimsy though that may be, as the right hon. Member for Wolverhamption, South-West said.
The Crown does not have to come to the House of Commons. It does not have to say anything. It has concluded a treaty with one of the Communities, and that becomes a treaty, according to the definition ofany other treaty entered into".That may seem a little startling at first hand, but it is completely in accord with the self-executing nature of this matter.
We know that regulations can be issued from Brussels and that they become part of our law immediately. If a treaty is entered into between the United Kingdom and the other countries and the Community institutions, why should not that immediately become part of our law? As we have seen, there is very little we can do to amend and there is very little that we can do to reject.
Perhaps I may take this a little further until the Solicitor-General tells me I am wrong. I will follow the analogy of my hon. and learned Friend the Member for Leith about the European-happy Prime Minister and the European-happy Government which decide that possibly the House of Commons is becoming too much of a nuisance. Suppose that a treaty is entered into with the Communities, in the exercise of the Royal Prerogative, abolishing the House of Commons. The Bill says:any other treaty entered into by any of the Communities, with or without any of the member States …That is a treaty between the United Kingdom and other Communities or with other countries. If my interpretation is right, the Government do not have to come to the House of Commons at all 1305 because all the rights arising under that treaty, which will take precedence in the courts of this country as a result of Clause 2(1), will take precedence over any Statute or any enactment provided by the House of Commons.
That is not at all surprising when one considers that in the nature of joining the Communities these self-executing regulations are not meant to be subject to any parliamentary scrutiny. Why therefore, should a treaty changing the law of the United Kingdom be subject to such scrutiny when regulations changing the law of the United Kingdom are not subject to such scrutiny? I could be wrong in my interpretation. If so, the answer has been given by the right hon. Gentleman: that the treaty is then brought before the House of Commons and we are asked to approve it by an affirmative Resolution. We are not asked to approve it by Act of Parliament. As I understand the rules of the House, affirmative Resolutions cannot be amended; they are either accepted or rejected. The Government are saying in relation to this particular legislation that it cannot be amended: it must be either accepted or rejected.
We know very well the difficulties of rejection which are to be put before us. We heard one of them last night from the Solicitor-General. He adduced the political realities of the situation, and this phrase and variations on it will, no doubt, be used time and time again ad nauseam by the Executive to justify their legislation, as the hon. and learned Gentleman said, by means of the prerogative.
Finally, subsection (3) does not apply to the pre-Accession Treaties. That may be a truism, but it would have been open to the Government to have made the pre-Accession Treaties subject to subsection (3). They could have said that the treaties listed in paragraphs 1 to 6 of Schedule 1 and those described in paragraph 7 should have been subject to an affirmative Resolution of the House of Commons. As we know, however, they chose not to do so; they said that we should accept the whole package and indeed, that we could not even amend it.
As a new Member of Parliament I was rather disturbed at some of the arguments coming from the Government benches to justify the way in which this nuts and bolts legislation has been intro- 1306 duced and to justify the limited scope of Amendments.
I was sorry to hear what was said by the hon. and learned Member for Northwich (Sir J. Foster), for whose intellect and ability one has considerable respect. I did not think I would live to see the day when he adduced in favour of the argument the complexity of the matter, the numerous volumes and the fact that it would take so long to get through the matter and discuss it. I am sure he appreciates that his was a very dangerous statement and a very dangerous precedent.
I am not making a party point, but the Executive always likes to get its legislation through. Governments always try to brush aside opposition. Future Executives will no doubt look at what the hon. and learned Gentleman and others have said and they will adduce the same reasoning in favour of trying to steamroller legislation through the House of Commons.
The political realities mentioned by the Solicitor-General were setting very dangerous precedents in the same way as the Government have been setting very dangerous precedents by drafting a Bill the effect of which is to limit the sovereignty of the House of Commons without giving it the proper channels through which to scrutinise and amend.
It has been said very convincingly from both sides that Clause 1 is not merely a definition Clause. As one who humbly tried to draft a few Amendments when the Bill was first published, I would say that this was a tentative view which some of us formed. We were rather surprised to see a definition Clause appearing at the beginning of the Bill. It is not unusual but my experience from years of interpreting Statutes as a lawyer is that one normally sees definition Clauses at the end of Bills. The reason is that this is not a mere definition Clause; it is far more. It incorporates the treaties into our law. Indeed, I would argue that it seeks the consent of Parliament to do so. That is why the Bill should have been amendable, but this view was rejected. In any case, Clause 1 is far more of a definition Clause.
Having worked on some of the Amendments, I am rather disturbed at the view put about, perhaps by the man himself, 1307 that according to the parliamentary draftsman this was a definition Clause. Once that authority had spoken, this was a definition Clause for all purposes and that was the end of the argument.
Clause 1, far from merely importing definitions, limits the sovereignty of the House of Commons. That is what this legislation is about. The Government, through their prerogative power, seek to limit the sovereignty of Parliament without giving Parliament the full opportunity of amending any of the provisions. I believe that to be a claim which has not been made by an Executive in this country for a very long time. It is very dangerous and, as the right hon. Member for Wolverhampton, South-West pointed out, for the future this will clearly be the case, whatever the arguments in the past or the future might be. The Executive are taking away and will take away our sovereignty by their treaty-making power. They will then be using that treaty-making power to legislate in the House of Commons. Anybody who doubts or disputes that the Bill involves the limitation of the sovereignty of Parliament should look a little more closely at what has been written and said about it. There is absolutely no doubt of this. That is what we are discussing on this Amendment and, indeed, on the whole of the Bill.
§ Sir J. Foster
Mr. Brewis, the way the debate has shaped means, I think, that it could go on theoretically for ever.
§ Sir J. Foster
Hon. Gentlemen have given themselves away by their interjection. The debate is centred on the fact that Parliament does not know enough about the Community. Therefore one must explain every bit of the law so that it is not assumed, as in most Bills, that the basic principles which have been accepted need no further explanation or need explanation on broad lines but not in detail. Obviously, any Bill which had the word "person" and meant a man or a woman could involve a dispute about hermaphrodites; it is difficult to know whether they are men or women.
It is, in my respectful submission, an extension of the rules of procedure which makes this an open-ended debate. Hon. 1308 Members could always say, rather like the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), that we must get down to basic principles and understand what the law is about and go into the details of how the community law overrides the domestic law. The hon. and learned Gentleman could have said that in one sentence. However, he did not; he went on to allude to cases which have been cited.
[Sir ROBERT GRANT-FERRIS in the Chair]
The comment on these Amendments is very simple. The definition Clause is a definition Clause. It is at the beginning of the Bill. I can imagine the objections which would have been made had it been at the end of the Bill. Right hon. and hon. Gentlemen would have said "How can we discuss the details of the influence of Community and English law without knowing the treaties and without being able to discuss them first?" In this instance, so that right hon. and hon. Members should know what a treaty is and should understand how the Bill applies to treaties, the definition Clause is at the beginning. The pre-January treaties are to be Community treaties. Those entered into after January, 1972, have a safeguard.
My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) drew a picture of the House being forced to accept a post-January, 1972, treaty. There is no question of the House being forced; there is the affirmative Resolution procedure. The House can overthrow the Resolution by voting against it. That is the safeguard. It is a safeguard which is implicit in every affirmative Resolution. There is no need to draw this picture of the Minister at the Dispatch Box forcing a treaty through; the House is entirely free to reject it.
One question which was posed was: why bother to have a post-1972 treaty alluded to in the Bill at all? It is there to give it the safeguard. Not all treaties entered into with a member State are Community treaties. For example, if there were a treaty to set up a statue of Sir Winston Churchill in the Trocadero in Paris, that would be a treaty with a Community country, but it would not be a Community treaty.
1309 Many subjects are not affected by Community treaties. We have to distinguish between those which the Government invite us to treat as Community treaties and those which they do not invite us to treat as Community treaties because they have nothing to do with the Community, for the moment anyway, until we have one Government for the whole of Europe or for the whole world. There are many subjects which have nothing to do with the Community, although treaties may be entered into regarding them with Community countries.
§ Mr. Michael Foot
If the hon. and learned Gentleman is suggesting that that is his answer to his right hon. Friend, may I ask him to explain, so that we have the illustration absolutely correct, what would happen in other instances? As an absolutely practical example, let us take a treaty signed to govern the arrangements which the Community may make to form a monetary and economic union. If that were done by treaty, it would be brought before the House under the procedures outlined by his right hon. Friend. What does he think would be the status of the argument which would then take place in the House? Would it be an argument about the merits of the matter, or a discussion whether it was a treaty instrument which had to be accepted? Secondly, would it be amendable in any form? Thirdly, would such a matter as that be properly dealt with under this provision in an hour and a half under the affirmative Resolution procedure?
Those are three points, although there are several more possibilities, which the hon. and learned Gentleman has to describe if he is to outline exactly his alternative view of the situation from that of his right hon. Friend.
§ Sir J. Foster
I wrote to The Times about this matter. I think that some of the procedures for Parliament to inquire into Community legislation will have to be altered. [HON. MEMBERS: "Oh."] Why not? It has nothing to do with the Amendment. As we are entering into this new organisation, I think that perhaps we should have a Standing Committee to consider the implications. I do not know why hon. Gentlemen should say "Oh." It does not have to be in the Bill. It is a 1310 perfectly simple view. As a matter of common sense, if we go into the Community some of the machinery of Parliament and of Government will have to be altered.
Under the present procedure these matters have to be dealt with in an hour and a half. However, it is common sense that that is easy to alter. We are not bound by that procedure for ever. Such matters, although not amendable, would be discussable in every aspect. In other words, Members of Parliament would be able to say that they did not agree with the setting up of an international monetary unit for Europe and would rather have certificates of deposits, and so on. I think that that would work perfectly well.
§ Mr. Powell
Is my hon. and learned Friend really saying that he believes that on a Resolution to approve a draft Order in Council recognising such a treaty as a treaty for the purpose of the Act it would be permissible to discuss a matter such as the monetary union and the different forms that it could take?
§ Sir J. Foster
If a double taxation treaty is brought in under the Income Tax Act which alters the law with regard to citizens of, say, Ruritania in many particulars, as I understand it, it would be open to a Member of Parliament to say, "I do not agree with the Clauses about joint residence; they are inconsistent with the articles of the double taxation treaty with Uruguay. I do not approve of that because it should be" so and so.
§ Sir J. Foster
No. It would be in the schedule to the treaty attached to the Order in Council. If the Order in Council specifies a treaty, I submit that we would be entitled to look at and discuss that treaty—[Interruption.]—not amend it, and reject it.
§ Mr. English:
The hon. and learned Gentleman must be wrong, and I will say why. In the Bill we specify the Treaty of Accession. In the Treaty of Accession on the first page, which for this purpose is page 9 of the volume concerned, we accede to all decisions of the Council of Ministers. However, not only have we not been provided with 1311 an English text of those decisions, but some have never been published in any official text. I will name one if the hon. and learned Gentleman wishes me to do so. We are not entitled—the Leader of the House has specifically refused me on the Floor of the House—to look at all the documents mentioned. I know that that is a normal principle of English law, but it is not the case here. If it is not the case here, why should it be the case with some future instrument?
§ Sir J. Foster
I come back to the fact that it was possible when a treaty was brought in by an Order in Council—for example, an extradition treaty, a double taxation treaty or, in the old days, a slave trade treaty—to examine the treaty—[Interruption.]—but it was amendable.
§ Mr. Nigel Spearing (Acton)
I am obliged to the hon. and learned Gentleman for giving way, because I always listen to what he has to say with great interest and respect. The Bill talks about the order being regarded as one of the Community treaties. That, to put it in parliamentary terms, is the question. I understand that the question can be resolved in one of two ways: either it is an Order in Council where it is conclusive, or it comes before the House for affirmative Resolution that it shall be so regarded. The regard is in respect of its being a Community treaty or not, not on the merits of what is in the treaty. So surely the question which is put from the Chair on the appropriate debate is that the Order in Council be passed, and all it says is that it is to be regarded as a Community treaty. Therefore, the merits of the matter cannot be discussed, and, in fact, such discussion would be out of order.
§ Sir J. Foster
With all respect for the hon. Gentleman's argument, I thought it did not follow from the fact whether it is to be regarded or not that the merits cannot be discussed, because in arguing about a treaty and whether or not it is to be regarded as a treaty what criteria are to be applied? One cannot apply any criteria except that one does not like or approve it.
Perhaps the hon. Gentleman would apply his mind to this. A treaty comes 1312 along about the European monetary union and the Government want to say it is a Community treaty. The right hon. Gentleman the member for Wolverhampton, South-West draws the picture of the Minister saying it must be a treaty. What argument is there? Why should it not be? Only because it is not acceptable.
§ Dr. John Gilbert (Dudley)
Surely the criteria are laid down between lines 5 and 9 on page 2 of the Bill. Those are the criteria.
§ Sir J. Foster
That is not a criterion; it is a description, which is very different. Is one to accept somebody as a man or woman? One can only decide by saying "He is an hermaphrodite; I do not want to accept him." It seems to me an absolute negation of common sense and legal common sense that in deciding whether it is a Community treaty one says that one does not like it. Otherwise, how can one object? That is why I quarrel with the premise of my right hon. Friend the Member for Wolverhampton, South-West, who says that one can only decide whether it is a Community treaty or not and cannot look at its merits. Therefore, presumably everything the Government want is a Community treaty and everything they do not want is not.
§ Mr. Denzil Davies
Reverting to the point raised by my hon. Friend the Member for Dudley (Dr. Gilbert) regarding the description of a Community treaty, I would suggest that he is absolutely right. If one looks at the definition of Community treaties, if it is not in (a) or (b), then it must be in lines 5 to 8, and all we decide in Clause 1(3) is whether or not it is a Community treaty. To find that out one goes back to Clause 1(2) and in this respect to lines 5 to 8. It is not a matter of definition; it is a matter of description.
§ Sir J. Foster
I thought I said "description". The answer is that in subsection (3) it is a United Kingdom treaty; therefore, it is in subsection (3) that one gets this procedure of affirmative Resolution.
Returning to the questions put by the hon. Member for Ebbw Vale (Mr. Michael Foot), we come back to the same grievance of the hon. and right hon. Members opposite. They say they ought 1313 to be able to amend it, and I revert to my argument that one can discuss a thing just as well without amendment as with amendment. There is no difficulty at all. If one's mind is on some narrow point, it can be made and then it will be answered. There is no difficulty at all in that. There seems to be the fallacy, the non sequitur, in The Times article and among hon. and right hon. Gentlemen opposite that Parliament is being stifled and that the rights of democracy are being abolished because they cannot amend something which, if amended, would cause the whole thing to fall to the ground.
§ 7.15 p.m.
§ Mr. Michael Foot
Does the hon. and learned Gentleman thereby accept what his right hon. Friend said in describing this form of action that the House of Commons would have to take as prerogative legislation? Does he think that is a fitting term for the new process which would be adopted under the recommendation that we have? For surely, even if we accept the hon. and learned Gentleman's explanation of what could be debated in such circumstances—and I do not accept what he says; I think his right hon. Friend is more correct—is it not the case that if a treaty were concluded about an economic and monetary union, as may happen quite soon, and brought back to this House to be dealt with in a treaty and in an affirmative Resolutiton, then the whole status of the Community would also be involved in the debate, and the rejection of the affirmative Resolution would involve the ending of the whole Community; and therefore it would be prerogative legislation in the sense that this House of Commons would have surrendered its capacity to discuss an economic and monetary union in the way that we would have been able to discuss it if we had not interfered with the present powers of the House of Commons? So is it not the case that his right hon. Friend is correct?
I think everyone in the House will agree that these are extremely important questions that we are discussing. Is it not the case that if this Clause and this Bill were to pass we should have altered a great part of the legislative process that is accepted in this House, including the way in which we would deal with matters of such supreme importance as how we 1314 were to run the monetary and economic union of Europe?
§ Sir J. Foster
Being a good European, I agree entirely that by joining the Community we are going to make enormous changes. That was decided by the House of Commons, and I think hon. Members should have accepted it instead of keeping on batting against it.
§ Mr. Foot
I thank the hon. and learned Gentleman for his answer; I consider it very candid, and I think it is "Yes". Could I put this further point? If that is the case and we are to make these enormous changes, introducing this form of prerogative legislation—as his right hon. Friend has described it, and even if that description of the process is not correct—how is it that we were told in the White Paper of last June, which was supposed to explain the whole of the Government's proposition on this, that there was to be no erosion of essential sovereignty? What the hon. and learned Gentleman is describing is an erosion of essential sovereignty, and he says he thinks it is a wise course to take. This is a matter of great relevance because the Government have been arguing that we have known all the time what the proposition is. What we are discussing here today is something very different from what the Government have ever put before the nation.
§ Sir J. Foster
I do not agree with that, because we are part of the Community; it is not as if the Community were a static organisation of which we were outside. On the assumptions we are making now, we are part of the Community. I could go into the philosophy of the matter, but, in my view, what is more important than the philosophical attitude as to whether or not we have less sovereignty is that because of these great changes and because things will be done in Brussels which will affect us—and this is a purely personal view; I have written so many letters to the newspapers lately that I cannot remember what I penned and what I said, but I think I wrote this and am assuming I did—I am in favour of some form of Committee of this House to examine proposals for legislation at the centre and also to give, through Parliament, instructions to our representatives there. That is one safeguard. There is another safeguard, as I see it—and here 1315 I must join issue with the hon. Gentleman because it seems to me that this is quite a normal process for a treaty.
Because of the importance of a change in the relationship between this member of the Community and the Community itself, we want some early procedure which takes care of that. We also want to change the timetable or the affirmative Resolutions under the Bill. This can be arranged. In my view, the Government would be wise to have a full discussion on this, but it seems to me to follow that because the Question put by the Chair would be purely that an order pass or not pass, if the question in the Bill is that it be regarded as a Community Treaty, the objections to doing so must depend on its contents—[An HON. MEMBER: "No."] We are at issue there, so neither side will persuade the other.
It is important to realise in the context of this Bill that the definitions of "Community treaty" are to get all the pre-joining treaties in, which we will agree to accept, and to ensure that the others are submitted to Parliament to see if it wishes to have them.
The hon. Gentleman lastly asked whether we would be at such odds with the Community that we would have to leave if we objected. The way that the Community has worked in practice is that it has to work by unanimity. If one country is found to be out of step with legislation, it is not kicked out for one fault——
§ Sir J. Foster
But the hon. Member for Ebbw Vale envisaged that that country would be at such odds with the Community that the Community would bust up, and it would be kicked out in that sense.
§ Sir J. Foster
I do not understand the objection, since they would then presumably be giving way to the Opposition. I thought that the hon. Member wanted us to sell out.
1316 The Community works by agreement, and if economic and monetary union with Europe is not agreed to by Britain, another round of negotiations stops.
§ Mr. Deakins
It is delightful to follow the hon. and learned Member for Northwich (Sir J. Foster), because we are all extremely grateful that he should have given up so much of what must be his extremely valuable time to attend these important deliberations. I do not agree with his basic remarks, particularly when he implied that we should forget detailed discussion of the Bill and almost let the thing go through. I hope that on reflection he will feel able to withdraw that suggestion the next time he intervenes. If that is his conviction, it displays a totalitarian cast of mind which, as a relatively new Member, I find incredible in an older and longer-serving Member.
I will not enter into the debate on federalism, but it seemed that the hon. and learned Gentleman and one or two of his hon. Friends behind him who were nodding away so vigorously in the background were looking forward to the day when there would be a federation and when they could take part in these deliberations themselves, no doubt in Brussels or Strasbourg, and this place would revert to what I imagine they really want it to become if we enter Europe—a place with the status of a county council in relation to the European Parliament.
§ Mr. Deakins
I believe that the hon. and learned Gentleman's time is valuable because I understand that he is an eminent and distinguished lawyer. My time is not valuable: that is why I am always here.
§ Mr. Deakins
I beg the hon. and learned Gentleman's pardon. I thought he was still an eminent practising international lawyer. In that case, some of his remarks become more understandable. For example, he said that the loss of sovereignty was not very important. I hope that, when he reads HANSARD tomorrow, he will retract that statement. This is not what the Government have been telling us.
1317 The hon. and learned Gentleman appeared to appoint himself an unofficial spokesman for the Government in answering points made in this debate. Perhaps he has made a reply by the Solicitor-General unnecessary, but I doubt it. What I could not understand, knowing that the hon. and learned Gentleman was a lawyer, was whether he was interpreting the Bill as a lawyer or was speaking authoriatively, ex cathedra, for the Government.
It is a delightful experience for the first time to speak in this Chamber in a Committee of the whole House and to be under only two constraints instead of three—the constraints of relevance and order but not that of time—and to be able to develop one's speech in a logical way instead of having to cram it in, as most back benchers do, in five, 10 or, grudgingly, 15 minute's in a major debate. It is a delightful experience——
§ Mr. Deakins
The hon. Member has a remedy. There are plenty of places in the House to which he can go if he does not want to listen to my views, as he has so far listened to those of other hon. Members.
Under subsection (3) of the Clause, why should future treaties be subject to parliamentary approval when we are told that the existing treaties are not? There appears to be a completely illogical distinction between the two. Surely, a Community treaty of the past and a Community treaty of the future are both equally important to this country, however one defines them. It seems absurd to deny this Parliament the right to amend and to discuss fully the existing treaties and yet to give it the right to discuss and approve, if not to amend, future treaties.
§ Mr. Rees-Davies
Perhaps the hon. Gentleman will recognise that if one is joining a club with existing rules, one joins with all the existing rules, but that if one is a member of the club and it decides to change its rules in future, one then has the opportunity to consider, before they are changed, how they shall be changed.
§ Mr. Deakins
Yes, except that many hon. Members want an opportunity to discuss the existing rules, which we have not been able to discuss, in spite of what the Government have said, in any of our previous debates, for the very good reason that they were not available in English until early this year. Therefore, the hon. Gentleman would surely not argue that we should join a club the rules of which were not all known to us when we were being asked to join. We should have made certain first that we knew all the rules.
§ [Sir ALFRED BROUGHTON in the Chair.]
§ Mr. Arthur Lewis
Does it not go further than that? They were not available until after the Government had signed the Treaty of Accession and had become a member of the club, so I am one Member who did not have a chance to see the rules, let alone discuss them. Having joined, we are told that we cannot discuss the rules which were not available.
§ Mr. Deakins
I agree with the point made by my hon. Friend, which reinforces my point of view, which is shared by a number of my right hon. and hon. Friends.
I turn now to the position which might in future arise. We must have a definitive answer from the Solicitor-General in due course as to what the powers of the House of Commons would be over a future Community treaty presented to us under the affirmative Resolution procedure. Suppose, for example, which is quite likely to be the case, that at some stage in future one of the basic treaties—the Treaty of Rome—were to be amended. A series of Amendments would obviously have to be embodied in 1319 another international treaty, a treaty of a Community of which the United Kingdom was part. One can imagine the scene. The Minister would come to the House and say "Here is this affirmative order approving these vital Amendments to one of the basic Community treaties." What happens then? We discuss it for a short time. Suppose that the House rejects it. If we have that power to reject Amendments to one of the basic treaties, why should we not have the power to amend the existing Community treaties if either we have not known about them before or they have never been subjected to any affirmative procedure in the House?
§ Mr. Laurance Reed
The answer is simple. When one is a member of the Community one is an integral part of the decision-making process, and on an issue of that kind one would have the right of veto. We have the right of veto at the moment, but we do not want to exercise it because we want to become a member.
§ Mr. Deakins
I take the point. I fully agree with the hon. Gentleman, but why should we not have the right of veto as to part instead of simply having the right of veto as to the whole? Hon. Members might like 90 per cent. of what is involved in the Common Market, but why should they not have the right to amend the remaining 10 per cent. that they do not like in the Community treaties? Why should they be faced with the awkward and difficult choice of having to accept or to reject in toto?
My second point concerns the wide drafting of what the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) called Part A of subsection (3) and the fact that this can mean more than a Community treaty. This procedure can cover any treaty whatsoever. Look at the wording:If Her Majesty by Order In Council declares that the treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded".We have no safeguard whatever in Part A of subsection (3). We do not even have the safeguard of a capital letter for the word "treaty" which would at least 1320 imply that the treaty therein contained, which was to be regarded as part of Part A of subsection (3), would be a Community treaty about which we know something. This could apply to any future treaty into which the United Kingdom entered.
We know that there is a wide definition of "treaty" in subsection (4). This gives the Executive much wider powers than even they appear to have asked for in any of the debates we have had up to now on the subject of the Common Market. In fact, it will rob Parliament of any right whatsoever if the Government so decide to debate any treaty arrangement, international agreement, protocol or the like which they decide shall come within the scope of Part A of subsection (3).
On Part A of subsection (3), I should like to know why the Order in Council procedure specifying a treaty as a Community treaty should be necessary if all the Community treaties are available to us and are defined in subsection (2) of Clause 1. Why is Part A of subsection (3) necessary at all? Are the Government in any doubt as to what a Community treaty is? If they are in doubt, they should say so. If they are not in doubt, surely Part A of subsection (3) is unnecessary. It may be that Part A of subsection (3) applies only to treaties entered into after 22nd January, 1972, That is not at all clear from the wording of subsection (3). I hope that the Solicitor-General will tell us something about this in his reply. What is meant by "treaty"? Under Part A of subsection (3), what is the position of the Community treaty dated between 10th November, 1971, and 22nd January, 1972? Are they covered? Are they to be brought in, by this Order in Council procedure, under Part A of subsection (3)? What is their position? That is a point which the Solicitor-General should clarify in his reply.
There is a point which has been mentioned by one or two of my hon. Friends. What about Community treaties generally which are not specified in the Bill? Are the Government arguing that they are not specified in the Bill and, therefore, will not be caught by the provisions of subsection (3) because they are unimportant? If that is the case, I wish to draw the Committee's attention to the 1321 fact that whilst some of them, such as settling freight rates on the Rhine, would seem to have little importance and/or relevance for this country, there are a number of subsidiary treaties which are extremely important for the future of this country and its relationship with the rest of the world.
There is a set of so-called treaties. Many of them are simply agreements concerning the relationships between this country and the under developed countries. I can give a few examples. There are the two decisions of 21st June, 1971, about tariff quotas and tariff preferences for certain iron and steel products in what is supposed to be the implementation of the scheme of generalised preferences dating back to the second United Nations Conference on Trade and Development in March and April, 1968. I shall not go into details. We shall obviously have an opportunity later of looking at these things more closely, but I do not think the Government could possibly claim that those were unimportant treaties and should not be specified.
Still on the subject of our relationships with under-developed countries, there are the agreements between the Common Market and India and Pakistan on trade in jute products. There is a similar agreement concerning cotton with a number of under-developed countries—India, the United Arab Republic, the Republic of China, Pakistan and Korea. All these are important and ought to have been specified in the Bill. Is it that the Government have not specified them because they regard them as unimportant?
Then there is a second category of so-called treaties, and one must refer to them as treaties since subsections (2) and (3) of the Clause define them as treaties. There are a number of decisions, agreements, and conventions concerning trade agreements between the Community and third countries, all of which—if subsections (2) and (3) go through—will become part of the law of this country. I will mention only a few because I do not think that this is the Amendment on which to discuss them in detail.
There is the agreement of 9th July, 1961, setting up an association between the Community and Greece. There is the agreement of 28th March, 1969, setting up an agreement between the Common 1322 Market and Tunisia. There is also an agreement between the Common Market and Morocco dated 31st March, 1969. Ali of these we shall in some way have to accept. There is the Convention of Association between the Common Market and the African and Malagasy States associated with that Community, the so-called Yaoundé convention. Is that not important? If so, why has it not been specified so that it will be brought within the provisions of subsection (3)? There are a number of others on the subject of trade agreements with third countries but I will not bore the Committee with listing any more. We shall be discussing them in due course.
There is also a third category of so-called treaties which are affected by the Amendment. This is a rather mixed bag and I shall not bore the Committee except to mention that two of them are the important legal conventions on jurisdiction and the enforcement of civil and commercial judgments of 27th October, 1968, and the convention on the mutual recognition of companies and bodies corporate. Under this provision both of them will become part of the law of this country, but it is not yet clear whether they will be specified individually by Order of Council under Part A of subsection (3).
I conclude this part of my remarks by mentioning two very vital treaties. Indeed, it may amuse some hon. Members to realise that they are treaties. Under the definition in subsection (4) they are treaties. First, there is the final communiqué of the conference of Heads of State and Governments of 1st and 2nd December, 1969, the so-called Hague Agreement, which goes very wide indeed and contains far more meat and far more danger to the future of this country and Parliament than some of the so-called Community treaties which are listed by name.
As hon. Members will be aware at The Hague Conference the Heads of Government first envisaged the final financial system for the common agricultural policy. They started the process of giving the Commission its own resources, which is surely a major first step on the road to internationalism and supra-nationalism. There is also a reference to direct elections to a European Parliament in that agreement. The aim of an 1323 economic union is stressed. Finally, and not least, political unification is mentioned, as is harmonisation of economic policies.
Would any hon. Member on the Government side of the Committee, or any pro-Marketeer on either side of the House of Commons, say that that particular so-called treaty is not of vital importance to this country's future or that it is not of at least equal importance to the Treaty of Rome? Yet it is not separately specified. Will that merely be presented to the House of Commons not in the Bill but by the Order in Council procedure under Part A of subsection (3), under which we do not even have a chance to discuss it, let alone amend or reject it, but we simply have to take it?
Finally, there is the resolution of the Council of Ministers and of representatives of the Governments of the member States concerning the attainment by States of economic and monetary union within the Community. That was on 22nd March, 1971. That is, perhaps, the most important of all of these Community treaties. That is the treaty which, more than anything else, points the way to supranationalism and federalism in the Common Market. Are the Government seriously saying to us that, first this treaty is not important enough to specify in Schedule 1 in relation to Clause 1(2)? If it is to be so specified in any case, are the Government saying that we shall have no opportunity of discussing it because it will be presented to the House and to the country under Part A of subsection (3), under which, as I said, we do not have an opportunity of discussing it?
It is absolutely disgraceful that the 10 volumes of treaties with which we have been presented cannot be amended in any way and indeed, under the provisions of the Bill, cannot be rejected by the House of Commons—although obviously we shall do our best to see that at least some of the more important ones are discussed.
Thirdly, still on Part A of subsection (3) how can Parliament adopt, even by the procedure under Part A of subsection (3), existing treaties which are not laid before the House, which are not known to the House, which, as my hon. Friend the Member for Nottingham, West (Mr. 1324 English) keeps reminding us, are not even available in English and some of which are not available in any language?
§ Mr. Deakins
How can we accept this as falling within the ambit of Part A of subsection (3)? Will the Solicitor-General say whether these particular treaties and decisions of the Council of Ministers will be laid before Parliament'? Will they be laid before Parliament before the Bill is passed? What is the Government's intention? It would be absolutely monstrous if we were to pass Clause 1(3) not knowing all the treaties, all the international agreements and all the decisions taken by the Common Market in its various bodies which will affect the future of Britain.
My fourth point is connected with the second part of subsection (3). Many right hon. and hon. Members have asked—I do not intend to labour the point—what is to happen under Part B of subsection (3) if we are presented with a treaty under the affirmative Resolution procedure which we then want to reject. Will not there be a tremendous constraint on hon. Members on both sides of the House of Commons, whatever their views on the Common Market, in rejecting a particular treaty in toto for fear that we shall cause the break-up of the Common Market or, at least, such estranged relationships between ourselves and the Common Market that we would impair the achievement of many other things that the pro-Marketeers in the House of Commons would want to achieve?
Is there not a danger that a Minister would come to the House in the future, under Part B of subsection (3), waving a treaty and saying, "It is all right. You have a perfect right to reject this treaty in toto. That is your right under Part B of Section 1(3) of the European Communities Act". But he may well say—it is difficult to imagine this now, but I want to give one or two examples shortly of what will happen even if we do not enter the Community—"I ought to warn the House of Commons that if hon. Members do not approve this treaty, country A, country B or country C, the other member States of the Common 1325 Market, will decide that they will not approve some particular item in the Council of Ministers that we want. They may, for example, decide not to renew the agreement with New Zealand, or to do something dreadful about fisheries, or something which would betray our moral and, indeed, contractual obligations on sugar". Therefore, the Minister would come to the House of Commons and there would be—I have to use these words—a form of blackmail on the House to pass a new Community treaty even under the affirmative Resolution procedure in order that the Government can have their way or protect their interests in some other aspect of Community interests or legislation.
§ Mr. Arthur Lewis
My hon. Friend has said that he is not too anxious about taking up time, so may I quote to him a letter I received from the Chancellor of the Duchy of Lancaster as far back as July of last year, when I raised this point? The right hon. and learned Gentleman said that if we go into the Common Market, if we accept the Rome Treaty, if the Treaty of Accession is agreed and if this legislation is agreed,Under Article 189, regulations and decisions are binding in their entirety; and consequently the House of Commons, in taking any action in respect of a regulation or a decision, would have to refrain from anything inconsistent with it. For the implementation of most directives, domestic legislation is necessary, and this would be made in accordance with our usual constitutional procedures; it would be open to the House of Commons to amend or alter the legislation which the Government of the day presented, so long as the changes which the House of Commons made were not such as to frustrate the required result of the directive.In other words, we can say and do whatever we like provided that ultimately the Government can do just what they want to do.
§ Mr. Deakins
My hon. Friend makes a very important point. I fully agree with all he has said. With great respect, I think he will find that the Government are trying to make a distinction between a new Community treaty and regulations, decisions and directives which stem from previous Community treaties. If that is so, at least we have salvaged something from the wreck of parliamentary sovereignty.
My point on Part B of subsection 3 is that we shall be so blackmailed by 1326 international bargaining, in which the House of Commons will take little or no part, that we shall be told—if a Goverment's future depends on it, they will certainly whip their supporters into the Lobby—that we shall have to approve a Community treaty as the price of other objects that the Government wish to achieve within the context of the objects of the E.E.C.
My next point on Part A of subsection 3 is for me a minor one because I am no great lover of the Royal Prerogative, but I must put my personal prejudice aside because the Royal Prerogative is still part of the constitution of this country. Is it not the fact that under this provision there is a very severe restriction on the Royal Prerogative? The subsection says thata treaty entered into by the United Kingdom after the 22nd January, 1972other than certain classes of treatiesshall not be so regarded unless it is so specified … and approved by resolution".The Executive are making a minor concession here but it does not alter the fact that at the end of the day they will have their own way under the affirmative Resolution procedure.
There is a further point that the subsection applies to all Community treaties, but the question is whether it can possibly apply to any other treaties. If we are being given the privilege for the first time of breaching and weakening the Royal Prerogative in its treaty-making powers, by being able to discuss and reject future Community treaties, should we not be able to do the same on future treaties entered into by this country whether or not they are to be regarded as Community treaties?
My penultimate point on subsection (3) concerns the matter raised in intervention as to whether the provisions of the subsection are in any way akin to those in the legislation of the other existing member States of the E.E.C. Did France, Germany, Italy and the Benelux countries, when they were approving the Treaty of Rome, pass a similar provision as that contained in subsection (3), perhaps with variation to accord to their own parliamentary procedure and practice? Did they reserve to themselves the right to discuss and, if necessary, reject without the right of amendment, future Community treaties? The point raised by the 1327 hon. Member in that interjection made me dubious whether there was not a distinction between the existing member States of the Community in the way in which they interpret and apply Community law in their countries. If that is the case, and I hope that the Solicitor-General will be able to tell us, surely the United Kingdom should not be asked to accept limitations any more than any other member State of the Community in its powers of rejection and discussion of future Community legislation and Community treaties. Why should we accept more than the others? If one of the Six has safeguards in whatever legislation it passed at the time of accepting the Treaty of Rome, surely, the House of Commons should have no less safeguards in subsection (3).
I hope the Solicitor-General will be able to tell us that subsection (3) gives us as many, if not more, safeguards as the other Community countries have. If he cannot, we should be wise to accept the Amendment and hope to put back something much better at a later stage of the Bill which would do much more to safeguard the rights of Parliament.
My last point concerns future treaties and their scope. It was alluded to by the right hon. Member for Wolverhampton, South-West (Mr. Powell) when he made the point about extending the future scope of Community legislation embodied in Community treaties. In addition to Community legislation there are Community treaties, and it is only with these that we are concerned in the subsection. In a Written Answer to a Question about whether membership of the E.E.C., apart from the requirements of harmonisation on the value-added tax, would affect the Government's freedom to alter indirect taxation, the Minister of State, Treasury said:Member States of the European Economic Community are at present free to determine and alter their individual excise duties and other forms of indirect taxation …Notice the significance of those two words "at present". The hon. Gentleman continued:Harmonisation in these fields is an ultimate aim but no decisions have been reached on the timing or the details of this."—[OFFICIAL REPORT, 7th April, 1971; Vol. 815, c. 191.]1328 Subsection (3) therefore means that the Government are fully prepared to accept future Community treaties. Of course, it would take place after a certain amount of discussion and consultation and, no doubt, a Select Committee of the House would have looked at the draft, and so on. We should feel we were doing a good job and earning our £4,500 a year—it might be more by then—and that we were doing a good job for Parliament and for the people we represent. But at the end of the day, if there is to be harmonisation and horse trading within the Community, the beginnings of which can already be seen, we are treading on very dangerous ground. By horse trading I am referring to the fact that the Dutch have made it clear that when the Yaoundé Convention comes up for renewal in about 1974 or 1975, they will refuse to accede to the renewal unless very greatly increased powers are given to the European Parliament.
Some hon. Members may well like that, and I do not dispute that it is a point of view they are entitled to hold. They are federalists and we shall see in the course of the Committee stage that they emerge more and more in their true colours. I am not quite sure where the hon. and learned Member for Northwich stands on this but I have the impression that he favoured a federal solution. We are not here disputing federalism, but the Government have not told us what their attitude is. They are implying all the time, in subsection (3) in particular, in their attitude to future Community treaties and in their attitude to harmonisation—the answer I have just read is an illustration—that they will go more and more towards federal-type solutions in Western Europe in spite of what our revered Prime Minister will have told President Pompidou before the conclusion of the negotiations.
I believe that the battle is not yet and is probably not on this Bill. If the Bill is passed, future battles in this Chamber on Community affairs will rank Members not so much in terms of pro-and anti-Marketeers, although that will play a large part in our future deliberations, but in terms of federalists and anti-federalists. It will be interesting to see where the Government stand on this important issue because the signs are already there. They are trying to get through important treaties like The 1329 Hague Conference decision and the Treaty of Monetary and Economic Union, and this suggests they already have in mind a federal solution. Will the Solicitor-General have the courage of the Government's convictions, if they are indeed the Government's convictions, to tell us what the true position is?
§ 8.0 p.m.
§ The Solicitor-General
A number of questions have already been posed, and it may assist the Committee if I intervene at this stage.
No one if I may say it yet again, can have under-rated, or can now under-rate, the importance of this part of the Bill. A number of hon. Members who have contributed to the debate have commented on certain aspects of our accession to the treaties and certain aspects which follow from the combination of this Clause and, for example, Clause 2(1), not merely to argue that they are important—I do not challenge that—but also to argue that they are astonishing revelations.
The hon. Member for West Ham, North (Mr. Arthur Lewis) read the letter he received from my right hon. and learned Friend the Chancellor of the Duchy of Lancaster last summer. With the greatest respect to my right hon. and learned Friend, that letter was enunciating no more than what is inherent in the words of Article 189 and in the 1967 White Paper published by the previous Government. The hon. Gentleman, I know, is affronted, and always has been affronted, by the principle there. One thing can be said about it, that it is not new.
§ Mr. Arthur Lewis
I agree. What I did was to try to explain to the Solicitor-General's hon. and learned Friend the Member for Northwich (Sir J. Foster), who was trying to tell the House that we can do this, that and the other and that we could amend and so on, that in fact we could not do so and that all our powers would be taken away from us. The fact that the Chancellor of the Duchy of Lancaster told me that last year does not ease the pain this year.
§ The, Solicitor-General
I appreciate the continuous and anguishing nature of the hon. Gentleman's pain. All I am pointing out is that the cause has been well-known and apparent. I do not underrate its importance, and I do not mean 1330 to be frivolous about it, but most of these important points have been clear for 10 years. Most of them were explicitly spelt out at the time of the 1967 application, and most of them have been re-elaborated and re-presented in the book of speeches of my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). I do not under-rate the importance of these matters, but are we to assume that hon. Members have voted as they have on the three stages we have so far taken on this application in ignorance of these important points?
I do not underestimate the importance of the scope of the step embodied in the Bill, but when we consider the relationship of these treaties to future treaties I ask the Committee not to over-estimate the scope of what is here being done, not to under-estimate the fresh steps that would have to be taken if the nature and shape of the Communities were to change. whether in a federal direction or in a quite different direction. These are matters for the future, dependent on how the Community grows, if it does. I am not under-rating the optimism with which the application has been followed through from the outset, but we cannot see beyond this step at this stage.
§ Mr. Douglas Jay (Battersea, North)
If, as the Solicitor-General says, these constitutional proposals are extremely important, and if, as he says, they have been very well known to Ministers for a very long time, why was mention of them almost totally omitted from the Government's White Paper of last July, and totally omitted from the popular version of it which was distributed, at public expense, to very large numbers of the public?
§ The Solicitor-General
That is an unfair representation of the way in which the case has been presented throughout.
§ The Solicitor-General
I come to the point raised by the hon. Member for Llanelly (Mr. Denzil Davies)——
§ The Solicitor-General
I have answered the right hon. Gentleman's question. I say again that his representation of the case was unfair. In the White Paper, apart from the speeches made in the House throughout, we find references to the impact on this country's sovereignty. I shall deal with the matter in more detail in taking up one or two points raised by the hon. Member for Llanelly.
I was about to deal with one of the hon. Gentleman's points on the placing of the definition Clause. I am not quite clear whether this is being treated as a matter for praise or blame of the Government. I agree that the House is entitled to regard the definition Clause appearing in this part of the Bill as an important part of it. It is not unusual, though it is not general, for definition Clauses to appear at the beginning rather than at the end. Wherever they appear, they are important, because they define the terms used in the Bill. [Interruption.] I hear the sotto voce comment of the hon. Member for Liverpool, Walton (Mr. Heffer) with interest, because it reminds me of a point I wanted to make, that the Industrial Relations Bill produced by the previous Government in May, 1970, was one of those Bills which had their definition Clause at the beginning. That is a rather unusual example, but it shows the options that are open.
I come to the general point raised by the hon. Member for Llanelly and the extent to which supremacy of Community law is dealt with in the Bill. There will be further occasions to go into that, when we discuss Clause 2 in particular. It relates to the point raised by the right hon. Member for Battersea, North (Mr. Jay) as well.
The Bill seeks to make clear that, as has always been plainly necessary, the courts in this country could give effect to the jurisprudence of the European Court, and to the treaty obligations as they were discussed to some extent by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), when I was away from the Committee for a time, and therefore requires the courts to give effect to the supremacy of Community law. It is true that that problem has arisen in a number of the member States, and where it has arisen they have, on the cases cited, been able so to do.
1332 To those who ask about the effect of that provision in the Bill on the ultimate sovereignty of the House for the future of this nation, an answer was given by Lord Diplock in a speech last autumn. I do not have the text here, but he said—and this must be regarded as the reality in this country, as in any other member State—that the ultimate sovereignty of Parliament, if it chose explicitly and plainly to determine that the effectiveness of this Bill was to be brought to an end, would remain. That is the way in which the often-cited phrase "The very continuance of the Communities would be called in question" would no doubt arise. That is not a situation the Government or anyone else who has been supporting this application regards as a reality, still less as a reality to which anyone would look forward. It is, as Lord Denning, I think, said in the decision in the case when Mr. Blackburn applied in the courts last year, a matter of theory which bears no relation to reality, and if it arose the courts would have to face it at that time.
I hope I have explained the central position on that matter. We can return to it on Clause 2.
§ The Solicitor-General
What I am saying is what has been said time and again in the context of these discussions; namely, that, as the Leader of the Opposition said on 28th October, when we accede to the treaties everyone recognised what is involved in the signature of such treaties. We do so bound in international law and intending to remain bound. Equally it has been plainly understood that if certain situations arose—which the practice of the Community makes plain would not arise—so that the existence of the Community was called into question. at that point the realities of national sovereignty, the fact that we remain a sovereign state, would and could be reasserted. That is something which is not in prospect by any of us supporting the present application.
§ Mr. Denzil Davies
Of course Parliament can pass a Bill which puts an end to the present Measure if it becomes law. My point was that we cannot be certain that the courts of this country by that time would accept the latest Statute in precedence or over and above Community law, and if our courts were to do so and someone were to appeal to the European Court, that Court certainly would not accept domestic legislation as against Community legislation.
§ The Solicitor-General
It is not an awkward question. It is a fascinating question about which a lot has been written in this and other contexts. I do not wish to go into it at this stage because it arises more plainly on Clause 2. The intention of the Bill is to secure the supremacy of Community law. In the kind of situation I have been talking about a different situation would be supplanting the present.
If I can now turn to some of the points raised by my right hon. and learned Friend the Member for Hertfordshire. East (Sir D. Walker-Smith) and picked up to some extent by my right hon. Friend the Member for Wolverhampton, South-West, I was asked what other treaties are lurking in the background to Clause 1 and Schedule 1. I do not know whether it was my right hon. Friend the Member for Wolverhampton, Southwest who used the word "lurking"——
§ The Solicitor-General
I thought that "lurking" was not one of the most characteristic words in my right hon. Friend's vocabulary.
Clause 1 and Schedule 1 defined the principle of the treaties for the purposes of the Bill. The item in paragraph 7 in Part I of Schedule 1 is the most extensive. The treaties covered by that are listed in the appendix in Part 1 of the Accession Treaty. They are listed in the same form in volume 1 of the 10 volumes of ancillary treaties published on 4th February. In those volumes one finds the 1334 English translations of those listed in the appendix to Part 1 of the Accession Treaty. Those are the treaties covered by the definition.
My right hon. and learned Friend asked what would be the effect on Clause 2(1) of omitting Clause 1(3), which is the effect of the Amendment. The effect of that would be to diminish the safeguard in subsection 3(b) and would be to remove the convenient—and I mean that literally—provision contained in the first part of Clause 1(3). It might have no legal effect on existing treaties but it would certainly make it less convenient, in the context of the questions put by my right hon. and learned Friend, for citizens, courts and legal practitioners not to have available to them the first part of subsection (3) so as to set beyond doubt the question of whether or not a treaty was a Community treaty. The main treaties are specified by name in Part I of the First Schedule.
Several members have suggested that the first part of subsection (3), far from being a shield, is a threat. This point was particularly made by my right hon. Friend the Member for Wolverhampton, South-West. I put it forward, as I did last Thursday, as a useful clarifying evidential instrument. I would certainly challenge the proposition that the first part of subsection (3) can be used as a threat. Although the Order in Council can declare that a treaty specified in the order is to be regarded as a Community treaty it would be useable only in relation to some part of the European Community treaty complex.
I am dealing here with fanciful suppositions. Suppose any Government of this country were to seek to approve in an Order in Council a treaty which was miles away from a Community treaty there is no doubt that such a treaty would be open to challenge in the courts of this country. One remembers the scope of the decision of the House of Lords in the Ansiminic case which showed that our courts are prepared, if it is manifest that vires are being used for improper purposes, for a purpose in bad faith or wholly outside its scope, to act against such a move.
§ Mr Jay
Can the Solicitor-General explain something to those of us who are 1335 not lawyers? What the first part of subsection (3) appears to say is that if Her Majesty by Order in Council "declares" and so on, the order shall be conclusive that it is to be so regarded. If that is so, how can it be argued it was ultra vires or had nothing to do with the Community? The Clause says this "shall be conclusive" without qualification.
§ The Solicitor-General
I forget the exact words of the Ansiminic case but there are a number of cases, not just freak cases, where judge-proof clauses, as they are called by the administrative lawyers, have regularly been called in question and struck down by the courts. If the use of the power so conferred goes outside the scope of the treaty and is manifestly in bad faith, that kind of challenge could be directed against it.
§ Mr. Peter Shore (Stepney)
I do not think that my hon. Friends who question the hon. and learned Gentleman on this are suggesting that there would be an improper labelling of treaties as Community treaties when they clearly were not Community treaties. What they were suggesting was that, given the ambit and purpose of the Community, very large matters could be properly regarded as Community treaties and be treated in the way outlined in that part of the Clause.
§ The Solicitor-General
I take their point, and I am dealing with the extreme case. Looking at it in that way, one comes up against the other protections. First, there is the second part of subsection (3), and also the extent to which any rights or obligations could be seen to flow from any marginal treaty of that kind. I do not think that the first part of subsection (3) can be regarded as a threat in that sense.
§ Mr. William Baxter (West Stirlingshire)
If there is any dubiety about this, it is better that it should be made quite clear now when the Bill is before Parliament. We have not learned our lesson from what happened recently about Northern Ireland. There is surely a responsibility upon the Government to be explicit as to what their intentions are so that there shall be no dubiety.
§ The Solicitor-General
I take the hon. Member's point. It is not sufficient for me to make clear what are the intentions 1336 of the Government. It is right that the hon. Gentleman should say that the legislation should make it clear. The first part of subsection (3) contains no more than a reasonable, sensible and necessary evidential provision for removing doubt about a treaty that is plainly in the complex of those related to or ancillary to Community ones and is for the convenience of those who would have to apply them thereafter. It does not need to be changed.
The Temporary Chairman
Order. The right hon. Gentleman must not remain standing if the Solicitor-General will not give way. The Solicitor-General.
§ The Solicitor-General
My right hon. and learned Friend asked why the wordsas a treaty ancillary towere included in Clause 1(2) and omitted from Clause 1(3). The provision under subsection (3) for specifying a treaty as one to be regarded as a Community treaty applies to either kind of treaty referred to in subsection (2). The categories listed in lines 5 to 8 include first:any other treaty entered into by any of the Communities, with or without any of the member States".There is no "ancillary" phrase there. It refers to a treaty entered into by the Community with or without the member State as co-signatory. The second category is a treaty:entered into, as a treaty ancillary to any of the Treaties, by the United KingdomEither of those categories of treaty can be the subject of an Order in Council under subsection (3). The phrase "ancillary to" does not carry through into the second part.
§ Mr. Powell
I presume that my hon. and learned Friend means in the former of the two cases where the United Kingdom is a co-signatory?
§ The Solicitor-General
I will come to that next. I was about to explain that point.
The Order in Council procedure in either half of subsection (3) can apply 1337 back to both categories as I have explained them under subsection (2) but—and this is the point made by the hon. Member for Llanelly and picked up by my right hon. Friend—any treaty to which the United Kingdom was a party, whether it was of the first kind as set out in lines 5 and 6 on page 2, or of the second kind as set out in lines 7 and 8 on page 2, would have to be covered by an Order in Council under the second part of subsection (3).
The second part of subsection (3) requires an affirmative Resolution to an Order in Council in respect of any post-22nd January, 1972, treaty to which the United Kingdom accedes after that date. That category—the treaty to which the United Kingdom is a party—includes the first group on lines 5 and 6, a treaty entered into by the Community with the United Kingdom as a member State, and it includes a treaty ancillary to the Community treaties entered into by the United Kingdom. What it does not include—and later Amendments will allow us to discuss this in more detail—is a treaty entered into by the Communities or any of them to which the United Kingdom is not a party. To that extent the Community's power to make treaties in the areas where it can do so without the United Kingdom being a co-signatory is outside the scope of subsection (3). I hope I have made that clear.
§ Dr. Gilbert
Will the Solicitor-General explain a little further the exact meaning of line 6 on page 2:with or without any of the member States"?He used the phrase "where any of the member States was or was not a cosignatory". As one with no training in the law, I should be most appreciative if the hon. and learned Gentleman would make it clear whether or not that phrase embraces situations in which the Community is making a treaty with one of the member States as an equal contracting party as at arm's length and also situations where the Community and the member State on the one hand together are making a treaty with some other party at arm's length?
§ The Solicitor-General
The point is that if the Community enters into a treaty is will be doing so only within the scope of its treaty-making power as defined in the existing treaties. It would have to 1338 enter into such a treaty with another State. That other State could be an outside State, the United States, let us say, or it could be a member State. If the Community was making a treaty with the United States, the member States might join with it as co-signatories on one side of the table, or a treaty might be between the Community and the member States on opposite sides of the table. Both are covered. What comes out of subsection (3) is that any one of those treaties to which the United Kingdom is a party, and any treaty to which the United Kingdom is a party after 22nd January, 1972, is subject to the affirmative Resolution procedure set out in the second part of subsection (3).
§ Mr. Powell
I apologise for interrupting my hon. and learned Friend, but this is difficult and detailed. He has used the phrase "entered into by the Community within the scope of its treaty-making power". I take that to be not only its present treaty-making power under the Treaty of Rome, but any treaty-making power as conferred or enlarged by subsequent instruments?
§ The Solicitor-General
My right hon. Friend moves apace to a point already raised and which I shall come to.
§ The Solicitor-General
I will deal with these arguments by stages. I hope that I have made it clear that any future treaty to which the United Kingdom is a party in the Community complex is subject to the provisions of subsection (3)(b).
§ [MISS HARVIE ANDERSON in the Chair]
§ 8.30 p.m.
§ Mr. Baxter
May I have clarification on a very simple point? If we were members of the European Community and a treaty was in existence on nuclear power for the Community including West Germany, could that treaty be ratified by this House merely by an affirmative Resolution, or could it be rejected by this House?
§ The Solicitor-General
Of course it could he rejected or ratified. I shall come to that in my discussion of the consequences of the subsection (3,b) procedure. I think that was the point made by my right hon. and learned Friend the 1339 Member for Hertfordshire, East. If either House refused consent to an affirmative Resolution under the second part of subsection (3), that treaty would form no part of the treaty complex and would not operate to change the law in this country.
My right hon. Friend the Member for Wolverhampton, South-West came back a moment ago to the question of whether or not the Communities treaty-making power can or cannot be extended. I ask the Committee to follow me closely. I will try to be clear about it. Can there be, he said, any extension of the sphere of treaty-making power on the part of the Communities by means of the definition of the word "treaties" in subsections (2) and (4)? The answer is: yes, if and in so far as the scope of the definition of treaties or Community treaties is extended to cover future treaties, but that can happen only subject to the safeguards of the second part of subsection (3).
I should make clear to the Committee the extent of the Communities' treaty-making power. This was foreseen in the debates in 1967. The Rome Treaty itself lays down, in Articles 111, 113, 114, 228 and 238, the scope of power of the Communities to make treaties. This was expounded by the Leader of the Opposition in the debate on 8th May, 1967, when he said:It would he implicit in our acceptance of the Treaties that the United Kingdom would, in future, refrain from enacting legislation inconsistent with Community law. I should explain, too, that apart from the impact of Community law on our present and future national law, adherence to the Treaties would restrict our independence of action in future international dealings in matters falling within their objectives. Broadly speaking, it would have the effect of vesting in Community institutions our power of concluding treaties on tariffs and commercial policy."—[OFFICIAL REPORT, 8th May, 1967; Vol. 746, c. 1089.]That is quite clear.
I think the hon. Member for Waltham-stow, West (Mr. Deakins) asked if other Community countries provided in their legislation for their acceptance in advance of the treaty-making power of the Communities. The answer is that once they adhered to Article 228, which says that treaties arrived at under that Article take effect and are binding there after on the member States, they accepted 1340 that proposition, and it is a proposition which we are accepting.
§ Mr. English
I quite follow the hon. and learned Gentleman's argument, but I do not see that it very much matters. Normally in a federal States or federal institution, if the federal government, as it were, exceeds its powers, an individual can bring it before the appropriate court of the federation. But in this case, if the Communities exceeded their treaty-making powers no individual could bring them before the court of the Communities because it would not be a matter directly addressed to the person concerned, which is the only case in which an individual can bring an action against any Community institution, and then only under certain restrictions. While the hon. and learned Gentleman may be absolutely correct in some form of theoretical law, how can this be enforced?
§ The Solicitor-General
This is a point to which the hon. Member keeps returning, and I do not criticise him for doing so. It is slightly off the main stream of what I am talking about. If an act of the Communities is effected by a regulation-making act or a treaty-making act which is outside the scope of the Community institution's power, it is an invalid act and the hon. Member may be right in saying that one could not go, as it were, for a declaration to challenge the validity of that act. The individual concerned, if he claimed to be subjected to any consequences or penalty as a result of that invalid act, would be able to challenge the validity of it.
§ The Solicitor-General
The right to challenge the validity of the act when it is being used against one is something available to the individual. It is in contrast to the other right, which of course the hon. Member has in mind, the challenge to the validity of the act itself at the outset. This is away from the mainstream of this argument, and we shall have an opportunity to return to it.
§ The Solicitor-General
I want to be allowed to get on with my argument.
I was coming to the extent to which the second part of subsection (3) can be 1341 regarded as a safeguard. It is an important point, but nevertheless it is one to which there is a valid and effective answer. The treaty-making power of the existing Community institutions is as defined by the existing treaties. If any attempt was made, or any desire expressed, by member States to extend that treaty-making power outside the commercial and tariff territories which were referred to by the right hon. Gentleman the Leader of the Opposition five years ago, that would involve an amendment of the Community treaties—of the same quality, for example, as those listed in the first part of Schedule 1 which altered the nature of the institutions in establishing a single Council and so on.
Treaties of that kind to extend the scope of the original treaty-making power of the Community institutions would require participation of member States. They would be altering the ambit and nature of the powers hitherto vested in the Community. They would be treaties falling within the second part of subsection (3) to which the United Kingdom would be a party and in respect of which the procedure there set out would have to be followed.
There are many previous examples of treaties of that kind. I know that my right hon. Friend the Member for Wolverhampton, South-West thinks he has an answer to that and says "But look at how frail is the effectiveness of the power reserved to Parliament by the second part of subsection (3)". It is there that I challenge my right hon. Friend.
§ Mr. Powell
Since my hon. and learned Friend the Solicitor-General is coming to the main argument, I take it that what he has just said would apply not only to an extension of a treaty-making power in the Community, but also to an extension of a sphere within which the Community could make directly-acting law?
§ The Solicitor-General
That would be right, yes. The existing power of the Community to make directly-applicable law derives from the treaties and the operation and the various articles there set out. Any extension of that would require further participation by the member States in the making of new treaties which would be subject to the 1342 second part of subsection (3) as a safeguard.
I suggest that that can be regarded as a significant, effective and valid safeguard, and that my right hon. Friend and anybody else who subscribes to the same argument are wrong in that context to regard that as a frail bulwark, as he suggests. The point of order argument is not one I would regard as impressive. The question before the House would be whether to approve by resolution a draft of the Order in Council specifying whether a treaty should be so regarded. I cannot imagine that in such a debate on that question it would not be open to the House and hon. Members to argue that we should not approve this Resolution because we do not like this treaty—this treaty to which the United Kingdom is to he a party and which would extend the present ambit of Community institutions. The question would be entirely at large, and it is important that it should be so.
Hon. Members have raised the same argument in the context of debates that we have already had, and the House would still be subject to the same proposition that a treaty has either to be approved or rejected in that debate. But the Executive would be subject to exactly the same constraints in making such a treaty as are described by Lord Atkin in the passage which has been cited so many times. If the Executive made a treaty which came under this category seeking to extend the scope of the Community institutions, it would know that it did so beyond the limits of what Parliament would affirm at its peril. If the treaty was not so confirmed by the Order in Council procedure, it could not be taken to ratification and would not form part of the Community treaties in the context of this Bill.
It is wrong to say, as a matter of parliamentary control and as a matter of law, that the House and Parliament are now buying blind the whole future development of the Community. I do not conceal from the Committee that those who have supported this application do so in the belief that the institutions of the Community will develop and prosper and will be a framework in which we can enjoy a better future, both nationally and internationally.
1343 8.45 p.m.
To suggest that the whole of the road which may or may not lie ahead of us is now pre-empted, that there is no turning back, no opportunity for Parliament to check or regulate which road we go down, is to misrepresent, though not in any sense deliberately, the decision that we are now taking. At each stage of extension of that kind, Parliament would retain the right to affirm or not to affirm, and before that stage was reached all the opportunities for debate and discussion would be developed.
The hon. Gentleman asked me where the Government stood on the question of a federal or non-federal Europe. One could pose the same question—I do not mean this irreverently—to each party in this House, each group of a dozen members of the House of whatever party, because this is something which is developing, and all those matters are yet to be debated, both here and in Europe, and the opportunity for checking or restraining further progress does follow from the second part of subsection (3).
§ Mr. Denzil Davies
I raised a point of order in my speech, relating to the second part of subsection (3). May I put it again to the hon. and learned Gentleman. Suppose that after 22nd January, 1972, the United Kingdom entered into a treaty with the Communities, and also possibly with the other member States, which was clearly a treaty within the scope of the fundamental treaties, and suppose the Executive did not seek to specify that treaty as a Community treaty. Does it follow that any rights arising under the treaty would not be enforceable in English law?
§ The Solicitor-General
Dealing with the United Kingdom, a treaty entered into after 22nd January, 1972, will not be regarded as a Community treaty unless it is so specified and unless a draft of the specifying order has been laid before the House. There is a firm safeguard for a future treaty in respect of which this country is a party. I have dealt with the point earlier, and I come back to it now.
§ Mr. Jay
The hon. and learned Gentleman is apparently now saying that Parliament would be free to reject one of the 1344 affirmative Resolutions implementing a new treaty entered into by the United Kingdom; so presumably that treaty would not have legal effect in this country. If that is so, why should we not be equally free to reject one of the existing treaties, and why should all discussion of such treaties be ruled out of order?
§ The Solicitor-General
From the very outset of the application made by the previous Government it was made clear by the then Prime Minister and the then Foreign Secretary that the Government accepted the treaty regulations and decisions flowing from them. It was made explicitly clear in the speech by Lord George-Brown to the Council of the W.E.U. which I have cited many times. That is why the package which exists is a package; and no one who has considered this with any seriousness—and I do not wish to be discourteous to the hon. Member—has doubted that future treaties are in a different category. That is why they are covered by the second part of subsection (3). In respect of the future treaties Parliament will control the ultimate right to pull down the Government, to overthrow the prospective acceptance or approval of the Order in Council. Specifying the treaty would remain, and it really would be unfair to Parliament itself, and almost a parody, to suggest that it would not, and could not, remain able to reject or accept future extensions under the second part of subsection (3), as it has done in the past. That is a real, effective and genuine safe-guard, and it does not deserve to be dismissed in the way in which some right hon. and hon. Members have sought.
It is on the basis that that safeguard would be removed if the Amendment were accepted that I invite the Committee to reject the Amendment.
§ Mr. Hugh Jenkins
The Solicitor-General has a ponderous dexterity which is impressive and practically anaesthetising in its effect upon the Committee. However, it is necessary for hon. Members to remain wide awake when the hon. and learned Gentleman is speaking, because the effect of his words frequently is different from the sense that they convey when read the following day in the OFFICIAL REPORT. We shall have to read in HANSARD tomorrow precisely what he has said in his intervention.
1345 This is a fundamental debate about the nature of the Bill. When it is said that the Clause is one of definition, that is an inadequate description. The Clause describes itself as a Clause of interpretation, and that is rather different. It is one thing to define. It is quite another to interpret. All that the hon. and learned Gentleman has said indicates that he, too, regards this as an interpreting Clause which sets the scene and says precisely what the situation is.
The reason why I feel doubtful about the words of the Solicitor-General in this context is that sometimes he gives the impression of meaning one thing while saying another. When he last spoke on this subject he discussed the effects of the treaties and for the first time came into the open. He said about treaties:They are as such unamendable by Parliament, which does not mean that the Bill itself is unamendable."—[OFFCAL REPORT, 6th March, 1972; Vol. 832, c. 1155.]That is a distinction which the hon. and learned Gentleman drew clearly for the first time. He distinguished between the treaties themselves and the Bill, and he suggested that the treaties were unamendable but that the Bill was amendable.
What the hon. and learned Gentleman said on 20th January was very different—[Interruption.] I am sorry to see that the hon. and learned Gentleman appears to be leaving the Chamber. It is unfortunate that he should be out of the Chamber when I am about to accuse him of misleading right hon. and hon. Members. On 20th January, replying to his hon. and learned Friend the Member for Northwich (Sir J. Foster), the Solicitor-General 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 … ".—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 794.]The intention of the Solicitor-General then quite clearly was to give the impression that the treaties themselves and not merely the legislation were capable of amendment. He was telling us at that stage that if we decided to enact legislation which rendered any part of a treaty inoperable, that treaty could be changed. He therefore appears to have changed 1346 his tune. This is why I am sorry that the Solicitor-General is not present to agree that he has changed his tune.
On 28th January the hon. and learned Gentleman was suggesting to the House that the treaties could not only be thrown out in toto but could be changed in detail, whereas today he is telling us that the treaties cannot be changed but the legislation can. I believe that the Solicitor-General has intentionally or unintentionally deceived the House of Commons on this matter and I am sorry that he is not here to tell us whether this was so.
The treaties which we are questioning in the Amendment are complex and I would remind the Committee that the three European Communities are governed today by their founding treaties. The Treaty of Paris set up the Coal and Steel Community which entered into force in August, 1952. I recall this particularly because I travelled to Europe then to look at the new organisation. I formed a very bad impression of it which has lasted ever since. I never did like it and never shall. It seemed to me to set Western Europe on a wrong path which it has never left. Two treaties were then signed in Rome on 25th March, 1957, which established the European Economic Community and the European Atomic Energy Community which came into being on 1st January, 1958.
We are seeking to question those three treaties and their consequences. This is desirable for those of us who have not been so close to legislation as some of the occupants of the two Front Benches. The entry into force of those three treaties during January, 1966, was delayed by a constitutional deadlock between France and the other members of the Community. The treaties did not eventually come into effect until 1st July, 1967. It is intended that this development shall be completed by a fusion of the treaties to form a single Community. The treaties have been developing and, as the Solicitor-General said, this development will continue. Some would welcome this and would like to move towards federalism and others, including hon. Members on the Government side, would regard the development of federalism as undesirable. On this side of the Committee, I believe that the development of federalism would 1347 be entirely wrong at this time and in Western European society and we should avoid it.
The Rome Treaty provides that the Parliament and the Council set up under the treaty are to decide upon provisions for elections by direct universal suffrage by a uniform system. Therefore, if we ratify these provisions we will condition the future activity of Parliament here. This worries many of us. By passing this legislation in its present form without amendment, to what degree are we seeking to tie the hands of future Governments?
When entering upon a process we must have regard to the end of the process. We are seeking to establish a body which might openly, without any qualification, seek to establish a European Parliament and European court. This might be tolerable and thinkable if we were talking about Europe. However, although we glibly use the word "Europe we must remember that we are talking about a community of six Western European countries, not Europe.
The question which we have to decide is whether the setting up of an organisation which has this effect is appropriate to give the Crown, which in effect is the Government, the power, by Order in Council, to declarethat a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined".The question which I wanted to put to the Solicitor-General, which he would not allow me to put, is one to which I believe I know the answer. However, I should have liked the answer from the hon. and learned Gentleman in order to be absolutely sure about it. Clause 1(4) states that the word "treaty"includes any international agreement, and any protocol or annex to a treaty or international agreement.Does this mean any directive issued by the Council? I think that it does. Therefore, the wordsor annex to a treatyratify not only the major treaties themselves, but the directives of the Council, of which there are a large number.
I want to refer to some of those directives. The first directive to which I should like to draw attention seeks to 1348 harmonise the legislation of member States concerning turnover taxes. This legislation, as all Community legislation, stems from the Treaty of Rome, and all legislation in the Treaty of Rome stems from one of the articles in the original treaty.
The reason why we seek to delete subsection (3) is that it seems to establish far too much power in the Executive. For example, Article 99 of the Treaty of Rome, from which this directive stems, states thatThe Commission shall consider how to further the interests of the common market by harmonising the legislation of the various Member States concerning turnover taxes, excise duties and other forms of indirect taxation, including compensatory measures in respect of trade between Member States.Arising from that article, the Council of the European Economic Community, on 11th April, 1967, said:Having regard to … Articles 99 and 100"—of the Treaty of Rome—Having regard to the proposal from the Commission; Having regard to the Opinion of the European Parliament; Having regard to the Opinion of the Economic and Social Committee;Whereas the main objective of the Treaty is to establish, within the framework of an economic union, a common market within which there is healthy competition and whose characteristics are similar to those of a domestic market".There are two pages of statements which I will spare the Committee although I am reluctant to do so. If I were concerned to drag out the time instead of hastening the business of the Committee, I should read them all. Indeed, perhaps I ought to do so, but I shall take it for granted that some Members will have read the directive to which I am referring. After all that, we come to the phrase "has adopted this directive".
Article 1 states:Member States shall replace their present system of turnover taxes by the common system of value added tax defined in Article 2.It seems, therefore, that we are bound to introduce a value-added tax, and the Government have accepted this by declaring their intention to do so. They really had no choice in the matter. They therefore propose to introduce a value-added 1349 tax and they say they are not conditioned as to the level of this tax. They say they had to propose it but they do not tell us that the next stage, which is already determined and forecast, is that the value-added tax itself shall be harmonised; not only the shape of the tax but the amounts shall gradually be harmonised. There will thus be removed from the House of Commons the power to determine not only what sort of taxation we have but also the level of it. That is a power I would have thought the House of Commons would never surrender. I find it particularly astounding that a Conservative Government of all Governments are prepared to surrender to an assembly outside this country the power to decide not only the nature but also the rates of our taxation. This seems to me to be fundamental, because in altering the nature of taxation we alter not only the economic but also the social nature of the country.
That is why we on this side of the Committee have a fundamental objection to this sort of Clause, because it means, as far as we are concerned, that we surrender to an outside Community decisions on how much taxation our citizenry shall bear. It means also that we surrender to a body outside this country the determination of the levels between poor and rich within our own country. We therefore surrender the Dower to determine the economic structure of our own country, which is fundamental to the power which ought always to rest with the elected representatives of the people. For what else did people elect us to the House of Commons if not to exercise this sort of function? It was not to hand over to a body over which they have no power or influence whatsoever the question of what sort of taxation they should bear.
It is no wonder that some hon. Members on the Government side do not go along with their own Government on this proposition. It is fundamentally objectionable, sometimes for quite different reasons. The reasons why some hon. Members opposite take grave exception to the legislation which we are seeking to amend are different from the reasons which some of us on this side have for objecting to it but they are none the less worthy. As an hon. Gentleman opposite said, if he had to control taxation within 1350 the House of Commons he might introduce quite different taxation from that which I would introduce, hut that does not affect the fact that we have in common the wish to have the control here. That is the point we have in common—the desire, the determination indeed, that we shall continue to exercise the rightful control of the affairs of this country in this Chamber.
§ Mr. Marten
I should like to say that as far as I am concerned I have not objected to value-added tax provided it is under control of this Parliament. After all, our Government have given an assurance that it will not be imposed on food. What I object to is that when it becomes harmonised, as I understand it will, the harmonisation may involve placing the tax on food. I object to that, for two reasons: we will have given away that amount of sovereignty and we will have gone back on a promise we made.
§ Mr. Jenkins
The hon. Gentleman has underlined correctly the progressive nature of this. We are not taking a single step but we are jumping on an escalator which has a momentum of its own, and once we are on it we are inevitably carried in that direction which will make a number of hon. Members on the Goverment side wish that they were able to get off. It will not be easy to get off the escalator once we are on it.
There seems to be some ray of hope about the turnover tax. Here we have the Third Council Directive of the European Communities. This one came along a little later. It also refers to Articles 99 and 100. Everything done here becomes part of the law of our land, whether we know it or not, whether we have seen it or not. But there seems to be some possibility of deferment.
This directive says that Italy and Belgium made known to the Commission that they could not comply with the date of 1st January, 1970, for the introduction of value-added tax and that therefore the date of January, 1972, had been substituted. They got a reprieve for a couple of years. It might be possible to hold the axe off our necks for a couple of years or so. The E.E.C. could pass a special directive to give us a chance. That is the extent of the humiliation to which the House of Commons will be reduced— 1351 going to the Common Market to ask for a favour.
§ Mr. Arthur Lewis
My hon. Friend is wrong. The Chancellor of the Duchy of Lancaster has already informed me in writing that those directives which have been agreed by the Council of Ministers must be accepted by us in toto. None is amendable or alterable in any shape or form. There are some 2,500 that we know of. There are still 1,000 that we do not know of and about 1,500 which the Chancellor of the Duchy of Lancaster has never even seen. But we must accept them in toto, and we cannot alter them.
§ Mr. Jenkins
My hon. Friend is right. I may inadvertently have misled him. I was trying to say not that we do not have to accept everything that has happened, but that in future we might be able to defer this or that for six months if we could not afford it. But that is a very small crumb of comfort and is no reason for not pressing the Amendment to the full.
Some parts of this legislation are very obscure. I have concluded that the Government do not understand the legislation themselves. I do not profess to be an expert on the Bill but I know a little about one part of it. It is so complex that one can study only one part effectively. I have tried to study the consequences of this on the film industry, with which I am particularly concerned. It is no exaggeration to say that those consequences will be disastrous.
What did the Secretary of State for Trade and Industry say on Second Reading? He said:We thus comply with the obligation imposed on all member States by directives requiring the removal of restrictions on the right of establishment and the freedom to provide services in the film industry.
The First Deputy Chairman
Order. I hope the hon. Member will not anticipate too fully the contents of Clause 8.
§ Mr. Jenkins
I will not, Miss Harvie Anderson. I am about to leave the point. I would just like to complete the quotation, which is this:The practical effect of these changes will in fact be small."—[OFFICIAL REPORT, 16th February, 1972; Vol. 831, c. 446.]Nothing could be further from the truth. The practical effect of these changes may 1352 be really disastrous. We have to make some changes in Clause 8, whether they are fundamental or not. I do not know how they will be regarded. We must make some changes in Clause 8 if we are to preserve the British film industry. I take your warning, Miss Harvie Anderson, and will not pursue the matter further now.
Having said that, one other thing I would like to say is that we have some decisions which have not been translated: we have some that have not been published and some that have not been translated. I wonder how we are to get an effective translation because we are concerned here with all this legislation which is already in existence, which will come into force and which we cannot avoid. How are we to know—not everybody speaks French—what we are taking on? I wonder whether it would be in order for me to read the essential part of this French version of the decision which has been made, in rather bad French, so that it could go into the record and a translation might be made of it.
§ Mr. Arthur Lewis
On a point of order, Miss Harvie Anderson. Is it not permissible for my hon. Friend, who has respectfully pointed out that his French is not so good, to give his own translation of it? If he were to read his own translation, that might be accepted by the Official Reporters as a good translation. It would help me because his French is much better than mine, because mine is non-existent.
The First Deputy Chairman
If the hon. Gentleman likes to give his own translation, that would be in order.
§ Mr. Jenkins
That would be a risk I really could not take. If a translation is made of a French version of a Community treaty, that translation is the only thing we have. It becomes the nearest thing we have to an official translation. I will not undertake the responsibility of being the nearest thing there is to an official translator. It would be quite improper for me to do that. This document exists, and it is important in my view that we have an official English translation of it. I would, therefore, 1353 merely like to give it its title, if that would be in order, and to request the Government to provide a translation of this document so that we know what we are talking about. I warn the Committee, as indeed Winston Churchill gave a warning on another occasion, "Prenez garde, jeparle francais".
§ Mr. Arthur Lewis
With great respect, Miss Harvie Anderson, I am raising a serious point of order. It is the custom, is it not, when an hon. Member quotes from a document, that the Official Reporters often ask him to send up the notes from which he has quoted? Is it not possible that my hon. Friend may well be asked by the Official Reporters to submit his documents and that the Official Reporters could and would assist the House of Commons by giving to us in the OFFICIAL REPORT a translation from the documents which the hon. Member will no doubt submit to them?
The First Deputy Chairman
No such service as the hon. Gentleman suggests is provided by that department in the House.
§ 9.15 p.m.
§ Mr. English
Further to the point of order. I accept, Miss Harvie Anderson, that it has always been the practice in the House of Commons not to quote documents in languages other than English. But you will recollect that since the last edition of "Erskine May" was published two Bills have been before the House, one of which I believe was passed and is now an Act of Parliament, which had attached and incorporated into them a Schedule in French, which is the official text for the purposes of the English courts. It is not the English text that is the official text but the French text. I submit, therefore, that there are two precise precedents for a complete reversal of the former rule of the House.
I do not ask for your opinion immediately, Miss Harvie Anderson, but I hope that the Chair generally will consider the point because it will arise later on the Bill. Rather than have an off-the-cuff answer now, I should prefer it if you took the point back and communed with your colleagues to produce an answer later.
For example, as has been mentioned by the right hon. Member for Wolver- 1354 hampton, South-West (Mr. Powell), and as I have repeatedly mentioned, there are documents which I have asked the Leader of the House to have translated, but as he has refused to have them translated, and did so last Thursday on the Floor of the House in response to a question from me, I should like to quote them. I would entirely accept the Chair's ruling on whether they are relevant. I believe that they are absolutely relevant. It will be necessary to quote them in the only language in which they are available. I am quite prepared to give a rough translation, but I cannot be responsible personally, nor can any hon. Member, for giving an authoritative translation of not merely ordinary French but legal French. For the benefit of the Committee, we must be able to quote them in the original language.
The First Deputy Chairman
Order. I am grateful to the hon. Member for the way in which he has put his point of order. It is my recollection that he is quite correct in saying that there have been such Schedules to Bills which have been passed. It remains the point from the Chair that hon. Members should address the Committee in the generally understandable English language. I shall look further into the point the hon. Member has raised, although he will understand that I can give no undertaking now.
§ Mr. Eric S. Heffer (Liverpool, Walton)
Further to that point of order. This is a serious point of order, Miss Harvie Anderson, because if, in the event, we are faced with these documents or similar documents in various languages, those of us who have very little knowledge of those languages will have no idea what is contained in them. Therefore, in considering this matter, should we not consider having a number of official translators available for the benefit of hon. Members so that if a document of this kind requires to be discussed, the official translator, with the permission of the Committee, could perhaps be brought in to translate the document as required by an hon. Member for the benefit of all hon. Members?
I am being serious about this matter. In the Council of Europe I remember that the matter was simply handled. One had earphones and a number of different translators were in a box somewhere and 1355 gave, as a delegate was speaking, a simultaneous translation. We understood what was being said. In this Committee we are not in that fortunate position. As we shall have to consider on many occasions during the passage of the Bill documents which are published only in French, Italian or some other language of which many of us have very little knowledge, we ought to have official translators brought to the Committee and made available to hon. Members when we need documents of this kind translated.
The First Deputy Chairman
I appreciate the point made by the hon. Gentleman and recognise it as a serious point. There are, perhaps, others to whom it would be more appropriate to address this matter. The Services Committee will read what the hon. Gentleman has said, and I am sure that that Committee will take any appropriate action.
§ Mr. Hugh Jenkins
Purely for the purpose of identification, I shall read as best I can the title and the first two lines of the document:
§ "DROIT D'EST A BLISSEMENT, LIBRE PRESTA T ION DES SERVICES, DROIT DES SOCIETES
§ 24. La Commission a adopté, le 27 juillet 1971, puis transmis au Conseil, deux propositions de directives—dans le domaine de la cinématographie—"
§ That, I think, is sufficient to identify the document. Having done so may I return to the matter we are concerned with here. The Bill is a collection of decisions which have been made and in the Amendment we are questioning the Government's right to present us with a packet and to say to us "Accept it or reject it as a whole"
§ I sincerely hope, with the help of hon. Members on the Government side, that the Committee will decide not on the question of the Common Market and whether we are for or against it but as a matter of principle that we must not be faced with a fait accompli of this sort.
§ Mr. Jenkins
On a point of order. I promised my hon. Friend the Member 1356 for West Ham, North (Mr. Arthur Lewis) that I would give way to him. Would you allow me to do so, Miss Harvie Anderson?
§ Mr. Arthur Lewis
My hon. Friend the Member for Putney (Mr. Hugh Jenkins) has always declared that he is honourably connected with British Actors Equity, which is a very fine trade union. Have the Government at any time discussed with Equity or any of the trade unions in the cinematographic industry aspects of the matter to which my hon. Friend refers? Has Equity had an opportunity of discussing this and putting its view to the Government?
§ Mr. Jenkins
There has been no such discussion, but in order to enable the Government to begin rectification of that situation I propose to lay this document on the Table.
The First Deputy Chairman
I think the hon. Member knows that he cannot do that but no doubt his words will have been well noted.
§ Mr. W. Baxter
I am in an unfortunate position, Miss Harvie Anderson, in that I am unable to understand French. My hon. Friend has stated that he has a document and he has referred to it in the French language. Does this presuppose that it has been accepted by Parliament that French is now an accepted official language of the House of Commons?
The First Deputy Chairman
The hon. Member will have heard me allow the hon. Member for Putney (Mr. Hugh Jenkins) to quote the title but no more.
§ Mr. Will Griffiths (Manchester, Exchange)
The Committee is getting into very serious difficulty. You are in charge of order, Miss Harvie Anderson, and you have allowed my hon. Friend the Member for Putney (Mr. Hugh Jenkins) to quote from the document which he has told us——
§ Mr. Griffiths
I beg your pardon, Miss Harvie Anderson, I was carried away by the hon. Member for Ilford, South (Mr. Cooper), who certainly has not been here. Presumably my hon. Friend the Member for Putney was in order in addressing the Committee in the way he did or you would have asked him to resume his seat. You allowed him to make his speech. He told the Committee that the directive to which he was referring was only available in a language other than English. This resulted in a number of points of order being raised, and my recollection is that you said that this was a matter which you felt might be dealt with by the Services Committee. If in the course of our proceedings during the rest of the evening and tomorrow a situation like this keeps recurring, as well it may, then surely it is not good enough to say that the matter might be referred at some future date to the Services Committee. It is slightly more urgent than that. Perhaps the Chairman of Ways and Means might be consulted at any earlier stage this evening.
The First Deputy Chairman
I have undertaken to go into this further, but I have made clear what the present position is.
§ Mr. Fell
I do not wish to detain the Committee very long. We listened yesterday to a great speech by the hon. Member for Ebbw Vale (Mr. Michael Foot), and to day we have heard a number of important speeches, one from my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), one from my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) and, not least, one from my hon. and learned Friend the Member for Northwich (Sir J. Foster).
It is all very well for us to listen to such great speeches by highly practised and well-versed Members, many of them expert legal minds, giving their interpretation of what is to happen when we enter Europe. The speeches have been made in connection with the Amendments in the widest sense. As an ordinary back bencher who happens to be opposed to entry—[HON. MEMBERS: "Hear, hear."]—I am grateful to those hon. Members who so kindly agree that I am an ordinary back bencher—I want to put my interpretation on the words. [Interruption.]
1358 I am stalling a bit, because I had hoped that my hon. and learned Friend the Member for Northwich might come into the Chamber, as it was about his speech that I wanted to speak. I greatly admired it. It was one of the first speeches by a pro-Marketeer that really spoke the truth. It told hon. Members where he stood. [Interruption.] If my hon. and learned Friend the Member for Solihull (Mr. Grieve) wants me to give way, I shall be delighted. I shall listen carefully for any further little quivers from his sedentary position, even though they put me off what I am trying to say a little.
I understood my hon. and learned Friend the Member for Northwich to say that it is not true that we are giving away our sovereignty but that it certainly is true that we are giving away some of it. Fine. But he did not go far enough in saying what would happen when he admitted that certain decisions would be taken away from the House and be made in other countries in Europe. Where he did not go far enough—although he did admit it in part and was more honest than anyone else—was in describing the amount of weakening that would be sustained by this House when we move the centre of decisions from here to Brussels or wherever.
[Sir ROBERT GRANT-FERRIS in the chair]
It must weaken it. It is all very well for hon. Members to say it will not, but, as everyone knows, once the emphasis is taken away from this place and our constituents come to us about matters we cannot take up anything affecting them whether it be taxation, transport, steel prices, or anything. The moment we are divorced by——
§ Sir John Rodgers (Sevenoaks)
It is true that the United Nations does not deal with such things, but it is equally true that the imposition of sanctions in 1359 Rhodesia costs this country something like £160 million a year, and yet we cannot argue about it here.
§ Mr. Fell
My slate is clean. I never believed in the United Nations and said so from the word "Go". I shall incur your displeasure, Sir Robert, if I go on in this way, but if I am asked to vote for sanctions against Rhodesia this year I shall not be able to do so.
What my hon. and learned Friend the Member for Northwich was saying in his brilliant speech was "Yes I am a European". He used those words. He said, "I believe we should do this even though it will mean a reduction of sovereignty for the British Parliament".
§ Col. Sir Tufton Beamish (Lewes)
On a point of order, Sir Robert. My hon. Friend in opening his speech asked whether it would be in order to speak about the Amendment. Would it be in order?
§ Mr. Arthur Lewis
Further to that point of order, Sir Robert. Is it not offensive that an hon. Member who has not been here all day, who does not know what has transpired—he has probably been in Europe—should try to correct an hon. Member who is replying to part of the debate?
I think it may very likely annoy the hon. Member but it is not a point of order for me. There are so many things to annoy me that I have to be careful.
§ Mr. Fell
It will be in the recollection of occupants of the Chair and of hon. Members who have been here—there are one or two who, significantly, have not been here all the time—that everything I have said, except for my answer to the interruption from my hon. Friend the Member for Sevenoaks (Sir J. Rodgers)—has been concerned with matters which have been discussed this afternoon by hon. Members. I ask you, Sir Robert, not to pull me up in the few more minutes for which I intend to speak. If hon. Members interrupt me, I am in the habit of giving way, particularly in Com- 1360 mittee, but if I have no more interruptions I shall speak for only another two or three minutes.
There is a plain difference, in the words of my hon. learned and straightforward Friend the Member for Northwich between his clean, straight and honest view of the pro-Marketeer and what I hope is the honest and straight view of some anti-Marketeers. I cannot speak for other anti-Marketeers, but my view has been quite straight and clean.
My right hon. and learned Friend the Chancellor of the Duchy greatly disappointed me a little while ago when he was less than fair in answering an interjection from the hon. Member for West Ham, North (Mr. Arthur Lewis). He referred to the many regulations which we have to accept and on which we shall not be able to vote individually——
§ Mr. Rippon
I do not know what my hon. Friend is talking about. I have not intervened in the sense that he is suggesting. I do not know what incident he refers to. He is obviously completely muddled.
§ Mr. Fell
This is my complaint. My right hon. and learned Friend has the nerve to get up at the Box and deny something that happened five or ten minutes ago. He quite clearly was saying that he disagreed. I am arguing that we have been misled by many of the pro-Marketeers, and not least by those on the Government Front Bench, during these debates.
§ Mr. Rippon
I resent very much what my hon. Friend is saying. We had a debate yesterday with which the House dealt in a satisfactory way. We have made clear time after time to right hon. and hon. Members, ever since the application was made in May, 1967, the extent to which we would have to accept Community law in this country. As my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) said, we have presented 1361 an honest Bill. It may be a stark Bill, a harsh Bill, and some hon. Members may not like it, but it is an honest Bill, and it is clear and straightforward.
§ Mr. Fell
I am grateful to my right hon. and learned Friend for allowing me to intervene again. He may not believe he has done so, but I assure him that he has apparently misled those of us who have opposed entry to the Common Market throughout. Right from the beginning he has told stories that we have not credited and have not believed. It is no use his saying to us now that everything is lovely in the garden and that the Government have told the truth from the word "go", because we just do not believe it.
§ Sir T. Beamish
Will my hon. Friend give an example of the way in which he has been misled by my right hon. and learned Friend, or is this just a lot of hot air?
Order. I hope that the hon. Member for West Ham, North (Mr. Arthur Lewis) will behave himself.
§ Mr. Fell
My hon. and gallant Friend is very angry with me about this, but he has been very angry with me ever since he stopped speaking to me when the negotiations over the Common Market started. That was approximately 10 years ago. I could give many examples, but I shall not be side-tracked. I will give just one. Of course we were misled about the Sugar Agreement. We were misled to the extent that we did not believe that an agreement which was really workable had been made. We thought there had been a runner.
§ Sir T. Beamish
In view of the fact that every producing country heavily dependent on the export of Commonwealth sugar has accepted the agreement, what is my hon. Friend talking about?
§ Mr. Fell
I am sorry that I have got under the skin so obviously of my hon. and gallant Friend. He of course has had experience of this—[Interruption.] If he wants me to answer a question I will do so. He should have had fairly good experience of this for all the time that he 1362 has spent on it for the last 18 months. He is perfectly entitled to his view, as I am to mine. The view of my hon. and learned Friend the Member for Northwich is honest. At the same time, let no one tell me that my hon. and gallant Friend has not attempted to mislead the country about Britain going into the Common Market. I have heard him say things on television which caused me to say, "I wish to goodness I had been there to answer him. I could have torn it into shreds".—[Interruption.]
Order. I think we should leave this exchange now and concentrate on the Amendment. The hon. Member for Yarmouth (Mr. Fell) assured me that he was anxious to come to his peroration.
§ Mr. Fell
Of course you were absolutely right, Sir Robert, to call me to order. I apologise to my hon. and gallant Friend for the fact that I almost lost my temper with him as well. That I should not like to do because I would sink to that level.
This is an unfortunate Bill, and before we have finished with it I fear that it will break up many friendships and do much harm. The only reason for my intervention is to say that I admire and have the greatest respect for those pro-Common Marketers who lay their cards on the table and say, in the words of my hon. and learned Friend the Member for Northwich, "I am a pro-European. I know Parliament is going to be affected by it, but I am still pro-Europe and will go on fighting for it." At the same time I wish some other pro-Europeans who are less frank would give us the benefit of the doubt of believing sincerely in what we say, that this will weaken Parliament and that some of us whose main reason for being against joining is our fear that part of the power of Parliament will be lost. Whatever anyone may say, it is quite impossible to convince any of us that this will not be so, particularly after the brilliant speeches made by my right hon. Friend the Member for Wolverhampton, South-West and others who have spoken in the last couple of days.
I apologise for taking this amount of the Committee's time since originally I had no intention of doing so. However, I thought it important that at least one person from this side of the House should 1363 put a very ordinary view as one who, for a long time, has believed that the people of Britain are to be found here in this House of Commons. There is nothing more natural than the reflection given in this House of the views of the people of Britain on the Common Market.
§ 9.45 p.m.
§ Mr. Shore
I shall not interfere with the argument which has developed between the hon. Member for Yarmouth (Mr. Fell) and his hon. and gallant Friend the hon. and gallant Member for Lewes (Sir T. Beamish). Frankly, I am not in the least surprised that there should be a heightening of temperature when we turn to a serious discussion what is involved in this Bill and in joining the Common Market. We can congratulate ourselves on the way in which the long discussion of this important matter has been conducted so far and the very high quality and seriousness of the arguments which have been deployed.
I have always assumed that a Committee stage on a Bill such as this should lead hon. Members to turn their minds seriously to the matters which are before them. One thing which is agreed by us all is that this is a Bill of supreme importance to the country and to our future, and that we should not do less than to give careful and deep consideration to matters as they come before us. We would not be worthy to be in this place if we were not prepared to do that. I accept that now and then a cry of rage and pain will ring out in this Chamber, because we are all deeply involved in these matters. However, we should not treat issues frivolous or simply be content to score points. We want to unravel the provisions of the Bill.
The Solicitor-General at an ungodly hour last Thursday morning said:the Committee has now moved on to the meat and substance of our proceedings".—[OFFICIAL REPORT, 1st March, 1972; Vol. 832, c. 698.]He was referring to Amendments No. 49 and No. 99, which are now before the Committee. At that time I would have been surprised if he had realised just how much meat and substance there was on those two Amendments. Anybody who has sat here during the many hours which 1364 have passed during this afternoon and this evening and who has listened to the arguments deployed on both sides of the Committee will not fail to agree that we have been dealing with very serious issues indeed.
We have put down these Amendments with two purposes in mind. One of our purposes is to probe the Government's intentions. We said that this had turned into a reconnaissance party into the unknown territory of Clause 1, to find out exactly what was there, if we could, and to report to the House and the country on what we had discovered. I shall come back to that, because there is a lot in it and I do not think we have yet been able to carry out the exploration in depth of Clause 1 to discover what treaties are packaged within it about which we really need to know.
We also had the purpose in Amendment No. 99 of dismantling the machinery of Clause 1(3) whereby future treaties can be agreed and, having been agreed, imposed upon us. So the double purpose of these Amendments was to explore and carry out our first reconnaissance into the territory of the treaties and then to dismantle what we then thought and now know to be a very dangerous and threatening piece of treaty machinery which could have very great consequences for this country and for the future of this Parliament.
We asked the Solicitor-General to answer some of the questions about the treaties referred to in Clause 1. We remember his original attempt to answer them in the early hours of last Thursday morning. We have now had the benefit of hearing my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray), who gave us a brilliant exposition of the various packages brought together in the Clause. It is very surprising that nowhere in the Bill have the Government thought fit to spell out what exactly are the Community treaties to which we are acceding. That is a very strange omission. We know there are the treaties listed in the Schedule, and it contains the original treaties plus certain consequential treaties of some importance.
Then there is the mysterious paragraph 7, an open-ended rag-bag. We do not know what is in it. There could be any 1365 number of treaties to be brought under paragraph 7 of Part I of the First Schedule. It certainly has not been made clear to me what are the treaties to be inserted into paragraph 7. If it is a simple matter and if we know what those treaties are, I cannot understand why the Government did not think it right to list the treaties concerned in an extended Schedule. We must therefore come to the conclusion that there is something of a mystery about the definition of "treaty" in paragraph 7.
Again, there is the whole uncertainty in Clause 1(4) about what exactly, for the purposes of this Clause and this paragraph, the definition of "a treaty" is. Clearly, it is very important for us to know how "a treaty" is to be defined, what kind of international agreement is to be considered as a treaty and, specifically, as a Community treaty for the purposes of this Bill and this Clause. In a rather striking phrase, the Solicitor-General spoke of the Community "treaty complex". I must say that it remains a complex for me in more senses than one.
We can say so far that we have been able to carry out a reconnaisance by no means wholly to our satisfaction. We still feel that, even in terms of the treaties which have already been agreed and to which we are apparently acceding, we are left in great uncertainty about what they are and even what their names are. That is the first important part of our discussion.
But, rightly, it is the second focus of our discussion which is of even greater concern. I refer to the problem of looking at the machinery by which, in this Bill, future treaties are to be added to the existing Community treaties and made operative in this country. It is on the machinery for adding future treaties to those which exist already that the discussion has rightly centred.
As we were told, there are two broad categories of future treaties. There are those which will be made by and entered into by the Communities. They are treaties which will be made not with the active or direct participation of this country but perhaps by the Community 1366 in our name and the names of others. Those treaties made by the Community as a whole will have a considerable effect upon us and upon our interests and connections in other parts of the world.
A remarkable feature of tonight's discussion, and one which perhaps reflects our difficulties in earlier debates in opening up these matters, is how little illustration there has been. We have talked about packages of treaties, but, with one or two exceptions, no one has been able to refer to the content of a single treaty. However, it is the content of the treaties and not the categories of treaties which is of concern to us, to the nation and to all those associated with us in different parts of the world. I make that point specifically in relation to the power of the Community to make treaties which will affect us but of which this country is not a signatory.
A number of examples could be obtained simply by looking through the 10 volumes of treaties which were published two or three weeks ago. I refer to the pre-accession treaties, many of which have been signed by the Community on behalf of its members. As we shall see, they cover matters of considerable importance. I could imagine, for example, that simply by exercising its power over making commercial treaties. and operating a common external tariff, the Community could in certain circumstances recommend tariff policies for the Community as a whole which were harshly discriminatory against, for example, the British Commonwealth. That is possible, just as they could against North America.
We assume and hope that the result of further trade negotiations in the world will be to reduce tariffs, but there are those who take a pessimistic view of the future and think in terms of tariffs and protection devices being re-erected. If that were the case, then we could find ourselves——
§ It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.