Amendment No. 96 proposed [7th March], in page 2, line 5, after 'and', insert
'subject to approval by resolution of each House of Parliament '—[Mr. John.]
§ Question again proposed, That the Amendment be made.
§ 3.55 p.m.
§ Mr. Douglas Jay (Battersea, North)
Any non-lawyer enters with a certain amount of diffidence the tangle into which the lawyers on the Treasury Bench have got us. But as the consequences of this legislation will be binding not just on lawyers but on the public as a whole, the more widely this issue is understood the better.
This series of Amendments attempts to introduce at least a measure of Parliamentary control into this extraordinary Bill. In yesterday's debate hon. Members described these Amendments as in part probing, and our first day's debate at least established that a great deal of probing of this Measure is highly necessary. Indeed, the more we have probed the more surprising and disturbing the nature of the Bill is revealed to be.
Though certain factors have now been established, far more questions remain unanswered, and there are a great many more to be asked. Such progress as we were able to make yesterday in elucidating the Bill was made almost entirely without assistance from hon. Gentlemen opposite who support the Government, apart from the hon. and learned Member for Northwich (Sir J. Foster).
It will not be lost on the general public that the Government have got no support for these provisions from their supporters on the benches opposite, except the hon. and learned Gentleman, who seems 1458 largely to have lost faith not merely in our legal but in our parliamentary system. If that is not the case, he can prove the point by voting for this series of Amendments.
It is clear that the Committee should renew its attempt to get clear answers from the Ministers responsible about the meaning of the Clause in its present form and what it will mean if these Amendments are accepted. So far we have had no real answers, though I agree that there is at least one distinction between the Solicitor-General and the Chancellor of the Duchy of Lancaster; the Solicitor-General tries to answer our questions, while his right hon. and learned Friend hardly even does that.
The Chancellor of the Duchy of Lancaster spent a great deal of his time yesterday telling us that everybody has known for years that if we joined the E.E.C. we would have to mutilate our system of parliamentary Government, and, therefore, apparently it is not much good this House discussing it or even worrying about the matter any further.
As this has been said on many occasions by the right hon. and learned Gentleman, I would like him to tell us why, if Ministers knew all the time that joining the E.E.C. would mean such a sweeping curtailment of the powers and rights of this Parliament, and therefore of the electorate, they refrained from making that fact clear in the White Paper and the popular version thereof, of which they distributed millions of copies last summer.
Ministers now tell us that it was known all along that these sweeping constitutional changes as a result of the acceptance of the treaties mentioned in the Clause would have to be made. However, the July White Paper simply said on this subject:The English and Scottish legal systems will remain intact. Certain provisions of the Treaties and instruments made under them, concerned with economic, commercial and closely related matters, will be included in our laws. The common law will remain the basis of our legal system, and our courts will continue to operate as they do at present.That is all the public were told.
§ The Chancellor of the Duchy of Lancaster (Mr. Geoffrey Rippon)
The right hon. Gentleman has quoted correctly from the White Paper. It dealt 1459 predominantly with the results of the negotiations—we had the benefit of the 1967 White Paper on the legal and constitutional implications, which the Leader of the Opposition, then the Prime Minister, said remained valid as late as February, 1970.
§ 4.0 p.m.
§ Mr. Jay
The Chancellor of the Duchy of Lancaster seems incapable of giving anything other than the record to which we have just listened. But as that is apparently in order, what I am saying must be in order also. The shortened version of the White Paper, distributed in enormous numbers, merely said:The English and Welsh and Scottish legal systems will continue as before, except that there will be certain changes under the treaties concerning economic and commercial matters.Does anyone think that this bears any resemblance to what right hon. and hon. Gentlemen are saying today?
§ Mr. Percy Grieve (Solihull)
Would the right hon. Gentleman tell us where the Welsh legal system is to be found in the law books of this country?
§ Mr. Jay
I am merely quoting from the White Paper. If the hon. and learned Gentleman cannot distinguish between my speech and a quotation from a Government publication, he had better keep quiet.
If Ministers now tell us that they knew all the time that a major part of the basic legislative powers of Parliament would be taken away from us, they convict themselves, as authors of these documents distributed at public expense, of wilful mendacity. To mislead the public in this way, and to do so at the expense of the taxpayer, seems to be a particularly deplorable abuse of their responsibilities as Ministers accountable to the House of Commons.
§ Mr. Rippon
It is important that the right hon. Gentleman should not mislead the Committee and the public by these wild allegations about sweeping changes in parliamentary control. Parliamentary control and our law are affected only to the extent that we have explained time after time, in debates both in the House and in Committee.
§ Mr. Jay
If the Chancellor of the Duchy is now saying that there will not 1460 be sweeping changes as a result of the Clause—
§ Mr. Eric Deakins (Walthamstow, West)
That is what he is saying.
§ Mr. Jay
—then he is contradicting himself again. However, I hope that we shall have rather more candour from the right hon. and learned Gentleman this afternoon.
The first still unanswered question raised by this group of Amendments is this. The Chancellor appeared to say yesterday, at any rate at one time, that even if one omitted subsection (3) of the Clause, referring to Orders in Council, a treaty entered into by any of the Communities or the United Kingdom would be automatically binding in any case on our courts by the operation of Clause 2. If that is so, what is the point and what is the effect of the references in subsection (3) to Orders in Council in the case of either the Community treaties or the United Kingdom treaties? Speaking as a non-lawyer, I do not think this has been cleared up yet. I do not see how one can be sure of the effect of this group of Amendments, which is the best that we can make to improve the Bill, unless that has been cleared up.
Is the Chancellor saying that subsection (3) is just another hollow sham and deception of the public and that these treaties will be automatically binding whether or not future Governments trouble to issue declaratory orders or to lay affirmative orders before the House of Commons? If that is not so, what did the Chancellor mean by saying that the treaties would be binding in any case? What we want to know on this point, therefore, is what would be the legal effect of the Bill if all reference to these Orders in Council were omitted.
If, on the other hand, Ministers maintain that there is some real and genuine safeguard in at least the second part of subsection (3)—that is, that a treaty, if I may paraphrase it, made by the United Kingdom in future should not come into force unless an affirmative Order has been approved—why on earth should this apply only to treaties made by the United Kingdom and not to treaties made by the Communities on behalf of the United Kingdom, which according to the Bill as I understand it would have an equally 1461 binding effect on the British public and British courts? We have had no answer to that, either.
Surely, if Ministers have any respect left for the British constitution and the British Parliament—I suppose they claim they do—the need for parliamentary authority springs from the fact that the treaties' consequences would be binding on the British public and British courts. I see no logic, therefore, in inserting this safeguard—if it is a safeguard—for treaties made by the United Kingdom in future and omitting it for those made by the Communities. May we be given a reason for this central feature of the Clause? So far as I can find, we have been given none.
But there are a number of other ambiguities in the language of subsections (2) and (3) which it is the duty of the Committee to probe remorselessly until we get an answer. First—this may appear a small point, but we have to be clear about what the Bill means—what is the meaning of the words in line 6 on page 2with or without any of the member States"?To the non-lawyer, it would appear that the wordsany other treaty entered into by any of the Communities,mean exactly the same asany other Treaty entered into by any of the Communities, with or without any of the member States.How could a Community enter into a treaty neither with nor without a member State? I presume—though even this is not altogether clear—that the word "with" in this line means as a cosignatory, and not in the normal sense in which one would make a treaty with another party. Perhaps we could at least have that confirmed and suitably made clear in the Bill, as it will also arise on other Amendments.
§ Mr. Deakins
I thought that in this particular respect the Bill was perfectly clear. The comma in that line surely means that a treaty made by any of the Communities with another body could have either the member States as co-signatories or not. The reference is to a treaty made by the Communities with other bodies outside the member States, whether or not the member States, individually or collectively, are co-signatories.
§ Mr. Jay
If it means that, it seems that it could equally mean that with the omission of these words. At present I am merely suggesting that perhaps the authors of the Bill could clarify what they mean.
Next, if we may assume for the moment that the subsection has some meaning and is not merely decorative, as some of us suspect—I am using reasonably complimentary words—the Solicitor-General has not cleared up to my mind the sensc of the words "a treaty" in line 11. On the face of it, this would appear to be any treaty, whether made by the United Kingdom or the Communities, or anyone else in the past or future, with the exception only of treaties made by the United Kingdom after 22nd January, 1972. As ordinary language, it would be possible for a future Minister to declare any treaty he liked, including, as one of my hon. Friends pointed, the Treaty of Versailles or the Treaty of Utrecht, as a Community treaty, and that would be conclusive.
It is worth reading those words to the Committee again: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.The subsection states "a treaty", so there is a good deal to be cleared up there.
The Solicitor-General said something not very audible about the words being taken in their context. But surely at the very least if what is meant here is a treaty made by the Communities or the United Kingdom within the present jurisdiction of the Communities the Bill should say that clearly and unambiguously. It is not good enough, at least by the standards of legislation to which we have been accustomed hitherto, to legislate in one sense and then for the Minister to say casually that the Bill really means something else. Unless this is some presage of the sort of legislation that we can expect in the future, I hope the point can be cleared up beyond doubt.
The words "any other treaty" which we are attempting to amend have to be read together with subsection (4), which contains the following remarkable words:(4) For purposes of subsections (2) and (3) above, 'treaty' includes any international agreement, and any protocol or annex to a treaty or international agreement.1463 What exactly do these, to my mind, imprecise words mean? Are the Government saying that any exchange of letters, for instance between Trade Ministers, such as all of us who have been Trade Ministers have known, automatically becomes the law of the country because a Minister issues an order saying it is so?
§ Mr. Nigel Spearing (Acton)
Is my right hon. Friend aware that in the appendix in Cmnd. 4862, part one, on page 142 it cites an exchange of letters of the 6th June, 1961, on the Central Commission for Rhine Navigation? It is certainly an international agreement as I understand it, and if the precedent of an exchange of letters on internal matters between Community countries has been accepted, we would expect what my right hon. Friend says to be so. On page 141 there is a vague phrase called "internal agreement" concerning Tanzania, Uganda and Kenya, which are Commonwealth countries, and so one would expect what my right hon. Friend says to be correct in these matters.
§ Mr. Jay
We should find out the facts because if any agreement of this kind is a treaty for the purposes of the Bill and if the Government can make it the binding law of this country by issuing an Order in Council it seems an incredible infringement of our normal legislative process.
Does an agreement under the subsection even have to be written, or could a verbal agreement become an international agreement and therefore a treaty? If I remember correctly, and I am open to correction, I believe that under the restrictive practices legislation an agreement or arrangement need not be written in order to come within the scope of that legislation. Is this so in this case? Are the Government saying that in future a verbal agreement reached between Ministers, perhaps in private for all I know, can automatically become the law? If they are not, should not this be clearly and precisely laid down in the Clause?
Does an international agreement have to be an agreement between Ministers or between Governments? It does not say in the Clause. I can hardly believe that Ministers intend international agreements between companies or other unofficial 1464 authorities or even private individuals—and, heaven knows, there are such agreements—to be regarded as treaties for the purposes of the legislation. If they do not, ought we not to say so explicitly in the Bill if it is not to be thoroughly slipshod and slovenly? It is not good enough for Ministers to adopt, as they might be tempted to do, the familiar line of argument put forward by the Chancellor of the Duchy of Lancaster that it does not matter what the words say or mean because obviously no future Government would interpret them in this fashion. That is not the way for the House to legislate. If the British Parliament in the 17th and 18th centuries had taken the view that it did not matter what the legislation said because all future Governments could be trusted, our constitutional development would have been very different.
This is not purely an academic point. Only yesterday the E.E.C. countries reached an agreement to limit the margin of fluctuation of exchange rates, which if applied to this country would be disastrous to our economy and to our employment policies. Would this be an international agreement for the purposes of the Clause? I would have thought very diffidently as a non-lawyer that it might. If it was it would be automatically binding for this country without even the procedure of an affirmative order, or at very best, only with an affirmative order. I suppose that treaties reached by the Community, with, say, South Africa about the sale of arms, or with Spain on commercial matters, or with other countries, would be covered by the Clause. Here again we see the enormous hidden effects of the Bill which must be brought into the open before we approve it.
The following over-riding unanswered question seems to me to remain: what is the legal position if Parliament rejects one of the affirmative Resolutions under subsection (3)? The Solicitor-General appeared to say in his soothing and corn-forting but unconvincing fashion that in that case the United Kingdom would be in breach of treaties, and he could not say what would happen next. If that is so, the supposed safeguards would not seem to be worth very much if we do not know the consequences. The whole fundamental contradiction between British 1465 parliamentary Government and the Communities' constitution is made vividly clear.
But there is surely another contradiction involved in this question of what happens if Parliament rejects an affirmative Resolution. If it is within the scope of the Bill and it is the intention of the Government that Parliament can frustrate the decisions of the Community by rejecting an affirmative order, how can it be out of order in the rest of the Bill even to put down Amendments which would frustrate Community decisions because they are beyond the scope of the Bill? We should have the point cleared up even though, I agree, it involves your discretion, Sir Robert, as well as the much more reprehensible behaviour of the Government. But in this case they seem to me to be inextricably intertwined.
Alternatively, if Ministers are saying that the rejection of one of these orders by Parliament would simply be null and void and automatically over-ridden by Community decision, directive or regulation, is it not really a farce and a sham to present this subsection to the public as some protection of parliamentary rights. We must have an answer to that before we proceed further on the Bill.
These questions will no doubt be answered in the course of the day, but one thing has already emerged pretty plainly even to the amateur mind. Whether or not it is necessary for an Order in Council to be made to make binding a treaty entered into by the Community, it is clear that if the Bill is passed, as the right hon. Member for Wolverhampton, South-West (Mr. Powell) said yesterday, British Governments in future, apparently at the cost of an hour-and-a-half debate and a vote on an affirmative Order, can make all the obligations arising out of the new treaty binding as legislation on the British public and the British courts. That, I suppose, would include treaties such as I have mentioned, and, given that there was the affirmative order, could include a treaty made by a British Government with, say, the Soviet Union, undertaking to make this country a one-party State. It may be said that that is absurd, unthinkable and remote; but we should know when we are legislating whether that would be the effect of the Bill—
§ Mr. Clinton Davis (Hackney, Central)
Does my right hon. Friend agree that many of those treaties will necessarily impinge upon conceptions of our common law, and that there is a radical difference between the continental systems of law and our system? Has he any views on how the courts can go about reconciling those different conceptions?
§ Mr. Jay
I believe that what my hon. Friend says is true, and that if all these provisions are carried out the legal changes must begin to impinge on the normal conduct of the British courts and the common law.
But the essential point I was making was that apparently we have a proposal that, under the guise of the royal prerogative, the power to legislate should be handed back by Parliament to the Executive. For this Parliament at this stage of history to hand back to the Crown and the Executive the power of legislation which they have not exercised since the time of the Stuart kings at the latest is so extraordinary that many people will find it hard to believe that that is what the Government propose. Even with the safeguards proposed by the Government for United Kingdom treaties only, and by this group of Amendments for other treaties, that is what the Bill as drafted evidently would mean. Do Ministers attempt to deny that? If they do not, is it not obvious that they must redraft the Clause and the Bill before taking these proceedings further?
§ Sir Robin Turton (Thirsk and Malton)
We are clearly dealing with an important part of the Bill. My right hon. and learned Friend the Chancellor of the Duchy of Lancaster admitted late last night that the parliamentary relationship to treaty-making was not satisfactory as the Bill was drafted. I shall come later to his suggestion as to how it should be dealt with.
It is a good thing to remind the Committee of the present practice, and to go back to the history of the Ponsonby Rule. Mr. Ponsonby said in 1924:I think … that we shall carry the general approval of the House with us if we endeavour so to adjust the practice with regard to the submission of Treaties as to give Parliament, not arbitrarily in this or that case, but completely in all cases, an opportunity for the examination, consideration and if need be the discussion of all Treaties before they reach the final stage of ratification.1467 That was generally agreed when it was announced. It was not a new procedure, but it put into clear form what had been the procedure under preceding Governments. The announcement was made during a debate on the Treaty of Peace (Turkey) Bill, arising from the Lausanne Treaty. Mr. Ponsonby added:… it seems to the Government necessary that the instrument in its final shape should in all cases be submitted to Parliament which ultimately is the supreme governing body of the nation."—[OFFICIAL REPORT, 1st April, 1924; Vol. 171, c. 2002–4.]Those two references are of interest because they show the difficulty we are in. Parliament will no longer be the supreme governing body of the nation, because in certain respects the European Commission will take over.
There are two alternative ways of dealing with part of the problem in the two Amendments selected for discussion. I prefer the method chosen by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). I believe that it is the best way, and that it is more consistent with the practices and precedents of the House than to try to deal with the problem by affirmative Resolution. But a way must be found to deal with it. I do not believe that the country generally wishes Parliament to disregard its responsibilities over treaties. The right hon. Member for Battersea, North (Mr. Jay) raised the important point of what happens if Parliament disapproves but it is a minor matter compared with the right of scrutiny and discussion that this House has always had with regard to treaties.
Late last night my right hon. and learned Friend the Chancellor of the Duchy of Lancaster intervened in the matter to say:… clearly the committee"—the ad hoc committee—would wish to consider the scope of Parliamentary consideration in respect of treaties as in other matters.I welcomed the suggestion that there should be an ad hoc committee to consider delegated legislation, but it alters the whole concept of that committee to suggest that it should do what we should be doing in a Committee of the whole House, deciding how Parliament is to be brought into the question not only of 1468 treaty-making but of consideration of treaties made by the Community.
My right hon. and learned Friend and I may disagree about the advantages or disadvantages of entry into the Community, but the Amendment proposed by my right hon. Friend would be beneficial to him. It would strengthen the Bill and not weaken it. If he cannot accept it, I ask him to give a clear undertaking that the Report stage will not begin until there has been a report from the ad hoc committee dealing with this specific point, which is vital to the whole of parliamentary consideration of treaties.
I should like to clear up one point on Amendment No. 96. It has been said that if the consideration of a treaty was carried out by the affirmative Resolution procedure there would be only a 1½-hour debate. I think that hon. Members who suggest that are in error. Standing Orders Nos. 3 and 4 lay it down clearly. Standing Order No. 3 says that such proceedings shall terminate at half-past eleven o'clockProvided that, if Mr. Speaker shall be of opinion that, because of the importance of the subject matter of the motion, the time for debate has not been adequate, he shall, instead of putting the question aforesaid, interrupt the business, and the debate shall stand adjourned till the next sitting (other than a Friday)".Standing Order No. 4 is to similar effect. Therefore to take the example given by the right hon. Member for Battersea, North, if there were legislation to deal with a treaty to make the United Kingdom a one-party State, Mr. Speaker clearly would not allow the debate to be finished in 1½ hours but would use that Standing Order to allow it to go on on another day. I think everybody would regard that as the duty of Mr. Speaker.
§ Mr. Neil Marten (Banbury)
It is only nuts and bolts.
§ 4.30 p.m.
§ Sir R. Turton
It may be only nuts and bolts. I do not want to keep the House very long, but I want to try, if I can, to put this position as I see it and ask my right hon. and learned Friend if I am right in my construction.
Let me consider the position of sugar, which concerns a great many of us. As I see it, in the treaties we have got it is quite clear what is the position regarding sugar during the transitional position until the end of 1974. Presumably at the end 1469 of 1974 or before that the Community will conclude with those territories that are associated territories engaged in the production of sugar a treaty to deal with the post-Commonwealth Sugar Agreement period. That, under Article 113, will presumably be dealt with by the Commission and the Council of Ministers.
What discussion will there be in this House on such a treaty as the Bill is now drafted? I am quite certain that hon. Members on all sides would like to have a discussion on the position, especially as it affects the Caribbean in the post-1974 period. This is the answer we had from my right hon. and learned Friend, and I am sure that on reflection he will think it not entirely satisfactory:Under the treaty the agreement [in Article 113] has to be concluded by the Council acting on a qualified majority. I am told, however, that all agreements so far concluded have been agreed by unanimity.He was implying that, after all, there would be no agreement unless everybody was unanimous. That is far from the case. It might well be that we might be the odd man out, and I think, knowing the pledges which my right hon. and learned Friend and the Prime Minister have given to the Caribbean countries, that we probably would be if the post-1974 treaty on sugar is not satisfactory to the Caribbean countries. If my right hon. and learned Friend says that agreement has always been unanimous so far, ought he not in the course of negotiations to have said that we would join only if Article 113 was altered by protocol so that it said "by unanimous agreement" and not "by a qualified majority"? I should like my right hon. and learned Friend, or whoever is replying, to say whether I have construed this correctly.
To me this is the kind of treaty that Parliament would like to discuss, if possible before ratification; but if it is a Community one that may be very difficult. I should have thought this to be the kind of problem that the Amendment of my right hon. Friend—Amendment No. 81—is really designed to deal with. I hope, therefore, that we shall embark on this not merely by a savage cut and thrust between those who are pro and those who are anti but as people who are dedicated to trying to improve parliamentary procedure, realising that if we have—as I think, unfortunately—to enter the 1470 E.E.C., we must preserve the rights of this Parliament, otherwise we shall be abandoning something whose loss will he a very great disgrace to the whole of our generation.
§ Mr. Eric S. Heffer (Liverpool, Walton)
Listening to the debate both yesterday and today I must say that as a non-lawyer I tend to get somewhat confused because of the very difficult lawyer's language that is used and also the depth of knowledge that is required about treaties and the general aspects of our constitutional law itself. The Solicitor-General was absolutely right yesterday when he agreed that the House was entitled to regard this Clause—the so-called definition Clause—and the Amendments that we are putting forward as an important part of the Bill. It is obvious to me, listening to these debates, that it is one of the most important parts of this Bill, and I think we would all agree on that.
The Amendment before us is also of the greatest importance. The words in the Bill are:… any other treaty entered into 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 Kingdom.The Amendment seeks to ensure that this must be subject to approval by resolution of each House of Commons. This leads to the essential point that was raised by the Father of the House the right hon. Member for Thirsk and Malton (Sir Robin Turton), who has just spoken, because it seems to me that the British people are now being placed in a position in which we are not giving the proper parliamentary scrutiny. After all, we are only here because they put us here, we are here as their representatives; therefore, if we are not able to scrutinise properly the legislation that we are being asked to accept in the name of the people of this country, obviously the British people are not being given the fullest opportunity to know precisely what they are having put upon them as a result of this particular Bill.
What is being asked in this Amendment is the very least that can be asked for. My own opinion is that we should go much further even than this Amendment in fact, we ought to have a number of debates, not only on future legislation with which we may be faced but on past 1471 legislation that we are being asked to accept, because when we look at that mountain of legislation that we have had put in front of us and begin to consider some of the aspects of it, it is appalling what we are being asked to accept without proper scrutiny in this House. I wonder what is going to happen when the British people wake up one day and discover that they have had this great mountain of agreements, treaties and arrangements suddenly thrust upon them and introduced into our law. They will say, "When were we ever consulted in relation to this?" Surely that is the essence of the argument at the present moment. This is a very important matter.
§ Mr. Anthony Fell (Yarmouth)
But is it not more likely that rather than their having such a rude shock the whole thing will be a gradual infiltration into our lives and we shall not even notice it? That is how liberty is lost.
§ Mr. Heffer
I quite agree. We always have to fight for our liberties—both to extend them and to preserve what we already have. One of the most vital things I learned at my father's knee is that we always have to fight to protect our liberties, and to extend them. When our liberties are being whittled away as they are as a result of this Bill, it is high time that not just we in Parliament but the whole nation sat up and said, "We are not prepared to allow this to happen."
I have been in this House for only a brief period of seven years. Like many other hon. Members, I have come to love the House, not because of the building but because of what it stands for—because we have a parliamentary democracy for which our forefathers fought and struggled. They did not have democracy handed to them on a plate. Moses did not come down from the mountain handing out the tablets. It was the efforts of the ordinary people of this country, of all classes and all ages, who fought for the basic democratic rights and principles of parliamentary democracy that we now possess. Anything which whittles that away must be resisted in the strongest possible way by Members of the House of Commons and the British people as a whole.
This is a vitally important matter, because the Committee is being asked 1472 to accept a whole series of treaties and agreements to which we have in no way been a party at any time. Whether we like it or not, they are being thrust upon us by the provisions of this Bill. This is what will happen if the Bill remains unamended and if we do not assert our rights to ensure that we shall have the opportunity to go into past treaties and agreements which we are being asked to accept.
This Amendment at least would restore, though only to a minor degree, some of the sovereignty of this House. I have referred to the treaties which are involved. Some of those treaties are contained in 10 volumes recently published by the Stationery Office under the title "European Community Treaties and Related Instruments". I have not had the opportunity of reading all the treaties and related instruments. If I were to attempt to do so, I should be engaged on nothing else for the next few months and my parliamentary work in other directions would come to an absolute halt. There is a mountain of material contained in these ten volumes.
§ Mr. Richard Body (Holland with Boston)
There are 41 volumes in all.
§ Mr. Heffer
I have not mentioned all the others which relate to the regulations, and so on. The volumes with which I am concerned include amendments to various treaties, such as the treaty concerning Euratom. Volume 8, which is in five parts, deals with treaties with countries outside the E.E.C. such as Greece, Morocco, Tunisia and Spain. These treaties set up joint ministerial committees and provide for close contacts between the Community and the countries concerned. These treaties are being incorporated by paragraph 7, Schedule 1, of the Bill. Little is said about those treaties, but that is the situation. When we look at the few brief words in this provision, we must remember that we are talking about 10 volumes which are in the Stationery Office for anybody to buy at a cost of £6—[An HON. MEMBER: "And the rest!"] I am referring only to the volumes with which I am dealing. The whole set would cost a great deal more. However, the ordinary person cannot fork out even £6 for a small part of what we are supposed to be discussing.
1473 These treaties are to be incorporated in this Bill without any individual consideration of them by the Committees. The Amendment with which we are dealing may not cover the point I am seeking to raise, but I hope that it will go some way towards asking for some consideration of this point.
[Mr. E. L MALLALIEU in the Chair]
It is only future treaties which will be subject to the affirmative resolution procedure; past treaties will not be in any way affected. Let us look at some of the treaties concerned. No doubt we all have different opinions about the various countries involved in these treaties. Although hon. Gentlemen opposite may disagree with me about régimes in those countries, I hope that they will agree that I have the right to raise objections to those régimes and also, in the last analysis, to vote on any agreements which relate to those countries.
I should like to refer to two countries which come within the ambit of these treaties, in one case involving a semi-Fascist régime and in the other case an out-and-out Fascist régime. I refer to Greece and Spain.
The agreement with Greece is of long standing and concerns the importation of wine. It was agreed on 30th June, 1963—long before the colonels came to power in Greece. Therefore, I suppose one could argue that there were mitigating circumstances involved in that agreement with Greece. Nevertheless, we are entitled to ask why we should assist trade with Greece automatically, through the various treaties and agreements which have already been agreed with the Community, without our having any say on those agreements. Although the régime in Greece is dictatorial, it is not quite in the same category as that of Spain. If we as democrats want to urge the Greeks to return to the democratic parliamentary system, we could use as a bartering weapon the question of trade with that country. It could be one of the sanctions we use. We could say "Yes, we shall agree to an extension of trade with you, but we shall only do so if you in Greece will agree to return to democratic principles".
§ Mr. R. T. Paget (Northampton)
Does my hon. Friend think that we would be likely to trade with somebody who said, "Your trade with us depends on your changing your constitution?"
§ Mr. Heffer
I do not know what would happen. All I am saying is that at least we would have some say. I know that my hon. and learned Friend is much more interested in supporting dictatorships than I am, but I feel that we shall find ourselves saddled with an agreement which has been incorporated as part of this Bill, without our having any say whatever on the agreement itself. I am not in favour of the situation in Greece, and this is one way of dealing with it.
Much more important than Greece is Spain. An agreement with Spain was entered into on 29th June, 1970, and it is outlined in Volume VIII, part 3. The agreement gives respectability to an undemocratic régime. In June, 1970, hon. Members were not following very closely agreements being made by the E.E.C. On our way to the hustings in the early morning we may have noticed that something was going on but we did not follow it too closely. We were more interested in being returned to the House. All hon. Members, whether they are antiMarketeers or pro-Marketeers, should be concerned about agreements made with Spain on which he have had no say. My hon. Friend the Member for York (Mr. Alexander W. Lyon) has said recently that it would be in the best interest of our people for us to have full debates and discussion on all these issues in front of the nation, so that the people would know precisely what is involved in accepting the Bill.
The Solicitor-General said yesterday that when we originally applied to join the E.E.C. we all knew exactly what was involved, and he quoted Lord George-Brown. I remember the speech which Lord George-Brown made at the Labour Party conference in which he said, quoting what he had said at The Hague, that he had reserved certain fundamental questions such as the common agricultural policy, levies and value-added tax. Although an application for membership had been made, at no time was it accepted that we had to join without first negotiating these matters, and if we could not get the changes we wanted ultimately deciding not to join.
1475 At the meeting of the Council of Ministers at The Hague in December, 1969, it was agreed that future applicants must accept all treaties and arrangements already entered into by the E.E.C. That is what caused me eventually to come out against entry. I believed that as long as we were able to negotiate and to repudiate certain existing agreements there was a possibility of our going in on favourable terms, but once it was made absolutely clear that we had to accept all the previous agreements without having a chance to renegotiate or discuss them I had to say "No".
The agreement with Spain states:Determined to consolidate and extend the economic and trade relations existing between the European Economic Community and Spain,Aware of the importance of the smooth development of trade between the contracting parties,I am not in favour of consolidating and extending economic and trade relations with Spain. The hon. and learned Member for Solihull (Mr. Grieve) smiles. He is entitled to disagree with me, but if we have the opportunity to debate the matter in the House and I am defeated I have to accept the democratic decision; but I do not want to accept the agreement without having the opportunity, on behalf of my constituents, to say that I do not want it, and that is what is happening now.
§ Mr. Michael Foot (Ebbw Vale)
I should like to reinforce what my hon. Friend says. Presumably, that agreement, which would be binding as he rightly argues, was made by countries which did not take into account the situation in Gibraltar and the desires of the people in Gibraltar. Therefore, the agreement, which will become legally enforceable in this country, did not take into account a matter of supreme importance to this country and to Spain.
§ Mr. Heffer
I am grateful to my hon. Friend; he has underlined the position very clearly. I say to the hon. and learned Member for Solihull that there is a special arrangement between East Germany and the Communities which we shall have to accept if we join. He may not like that, but he will not be able to say anything about it. Whether we like it or not, we shall have to accept it. We should have the right to say what we feel and to vote on the matter.
§ Mr. Daniel Awdry (Chippenham)
Has the hon. Gentleman any objection to this country trading with Communist China?
§ Mr. Heffer
We have the right to say in the House whether we want to trade with Communist China. That is a different matter. Arrangements are now being thrust upon us in which we have had no say.
§ Mr. Awdry
I think the hon. Gentleman has missed my point. I am asking for his personal view. His personal view is that the United Kingdom should not trade with Spain. I am asking him what is his personal attitude to trading with China?
§ Mr. Heffer
My personal view does not matter. I am all in favour of trading with China, but I want to have the right to be able to say in the House on behalf of my constituents whether or not we should do so. Then, at the next General Election if my constituents do not think I am right they will know what to do about it.
§ Mr. Peter Shore (Stepney)
My hon. Friend, clearly, does not need any assistance—he is making a very effective speech—but I should like to add one point. If the Community were to negotiate a trade agreement with China that agreement would be binding upon us.
§ 5.0 p.m.
§ Mr. Heffer
I am not in favour of consolidating existing economic and trade relations with Spain. Therefore, in all honesty I cannot say that I want to see the smooth development of trade with a Facist régime.
The agreement holds out further development prospect. If we look at it, it will be seen that it is a paving agreement, first, for association with the Community and, secondly, for full membership. I have been against Spain becoming a member of the Council of Europe and a member of N.A.T.O., and have said so in the House. Why should I now be placed in the position of seeming to be in favour of such an agreement without the opportunity to say anything about it?
I have looked at Article I of the agreement and I regard it as being part of a paving agreement. It says:The gradual elimination of obstacles to the essential elements of the trade between the1477European Economic Community and Spain shall operate in two stages, in accordance with the procedure prescribed hereafter.2. The first stage shall last not less than six years.3. The transition from the first to the second stage shall be effected by a Common Agreement of the contracting parties, insofar as these conditions are fulfilled.Under the heading "Trade" there are many matters regarding import duties and tariffs with regard to Spain. Under title II, the General and Final Provisions in Article 13 lay down that a joint commission shall be established. There will be regular consultations between the contracting parties and the joint commission shall pronounce decisions by agreement and the presidency of the joint commission shall be taken in turn.
I am against such a joint commission and against the presidency of it being held in turn by these parties. I do not except all hon. Gentlemen opposite to agree, but I do not want Spain as a Facist régime to be given any respectability in democratic communities. However, like it or not, I and my constituents are being forced to give such respectability. I can understand that the Government may not take my view. After all, the Foreign Secretary has just returned from Spain. I would hope that a Labour Foreign Secretary would not make such a visit. I am not arguing whether it is right or wrong for someone to visit that country, but at least I can get up in the House and criticise and oppose the visit by our Foreign Secretary. If any agreement is made with Spain as things stand, I would be able to say that I did not agree with such agreements or decisions. Here we have an entirely different situation, which is why I say that this is a paving agreement for something much wider.
It could be argued that the objective is to bring Spain into the Community without any change of régime. Surely such an agreement should be scrutinised by the House of Commons very closely. That is why we ought to carry this Amendment as a first step in that direction. While I believe that the British people like holidaying in the sun, in the main they do not approve of the régime in Spain and would be shocked if they thought they were being forced into the kind of agreement I have suggested without their representatives having any real say. This is a serious matter, and no 1478 one should be prepared to accept such agreements. Agreements with other countries such as Morocco and Tunisia may involve other hon. Members in the sort of objections that I have over Spain. Yet they will not have the chance to scrutinise any such agreements in depth. They will not have the opportunity of pronouncing one way or another.
This Clause raises important matters such as the whole issue of the consent of the British people. We are being asked to accept treaties and agreements which do not have the consent of the British people. In the strictest terms they do not even have the consent of the House. The people have no real knowledge of what is involved in these treaties or agreements. The White Paper and its popular version sold throughout the country said little, if anything, about this. That is why I say that people are being deceived and the parliamentary democracy is being undermined by this Bill, which I hope will be opposed by all parts of the Committee.
I am not asking hon. Members to accept my views on Spain any more than I would necessarily accept their views on other issues. We shall probably profoundly differ, but having differed over an agreement made with an outside body, as things are at present we would at least be taking our decsions democratically and not having them thrust upon us in a deceptive way, which is what will happen here. I hope that I have been able to illustrate the point of principle involved so that all hon. Members may accept it and will he prepared to support this Amendment and restore some of our sovereignty which is being taken away through this Bill.
§ Mr. Peter Rees (Dover)
I hope that the hon. Member for Liverpool, Walton (Mr. Heifer) will forgive me if I do not accompany him on his rather hypothetical Mediterranean excursions. If his argument for not joining the Community is that it might clothe Spain with respectability, it is one of the most original arguments to have been put forward in these debates so far.
The hon. Gentleman raised certain points of principle, and he is right when he says that the Amendment must be judged by reference to questions of principle. It is implicit in the various votes 1479 taken by this House that we recognise that in joining the Common Market there must inevitably be a measure of executive and legislative delegation. After all, that is the point of joining. People may be for it or against it, but that is the principle of the Common Market.
§ Mr. Deakins
Surely the word "delegation" is wrong. "Delegation" means that at any future stage it can be taken back. The proposal is to give up permanently. That is not delegation.
§ Mr. Rees
I chose my word with care, and I am sure that constitutional lawyers such as the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) will confirm that this is what is implicit in our acceding to the Common Market. We should by sanctioning a delegation of legislative and executive power to the institutions of the Common Market—
§ Mr. Michael English (Nottingham. West)
§ Mr. Rees
The word that I have chosen is "delegation". I pick my words with more care than the hon. Member for Nottingham, West (Mr. English) does from a seated position. The hon. Member for Walthamstow, West (Mr. Deakins) said that this was permanent delegation. It may be intended by the supporters of accession that it should be permanent. If the decision is taken, I hope that it will be. But it need not be so under our constitutional precedents—
§ Mr. English
§ Mr. Rees
No. I have given way to the hon. Member for Walthamstow, West, and I am dealing with his point. I hope that I shall be allowed to develop it.
It need not be permanent delegation. This House or the Crown in Parliament remains permanently sovereign in respect of this country unless and until we form part of a unitary State in Europe. We formed one unitary state by the unions with Scotland and Ireland. But we are not forming one by acceding to the Common Market. Therefore, the Crown and Parliament remain supreme. It may be that taking the country out of the Common Market would involve a breach of our treaty obligations. But as a pure 1480 constitutional proposition there is no permanent delegation necessarily involved.
§ Mr. William Baxter (West Stirlingshire)
Under which article of the Treaty of Rome does the hon. and learned Gentleman find that we delegate our powers to the Common Market countries?
§ Mr. Rees
Unfortunately, I have not a copy of the treaty before me. But it is implicit in the treaty. It is the whole essence of the treaty. There is the Council of Ministers, and there are Community institutions to which the constituent members delegate certain powers. One does not have to point to a specific article in the treaty. This is the essence of the treaty.
§ Mr. English
I spoke earlier from a seated position because the hon. and learned Gentleman would not allow me to stand up in order to intervene. The hon. and learned Gentleman seems to have produced a rather confused argument which ignores Article 6 of the Act annexed to the Treaty of Accession. If he looks at the treaties for which we are legislating, he will find it stated there specifically that they may be repealed or amended only by the means provided therein. That is Community law. According to this Bill, any decision of the European Court is incorporated in our law by a later Clause. He will find that we are incorporating Community law into the law of this country.
It is no good the hon. and learned Gentleman saying that in the past it has always been held by our courts that Parliament can reverse a decision, because that has never been held in the case of certain types of decision. When, for example, we have transferred power to a colony and made it an independent State, no court would hold that that could be reversed. In practice, it cannot be reversed. Furthermore, the hon. and learned Gentleman is wrong when he says that the only way in which this could be altered is by our agreeing to become part of a unitary State. There are more arguments about the extent of political control in Europe. There are arguments about whether we should become part of a federal State. But no one has ever suggested a unitary State. However, a country can lose its sovereignty 1481 in part by becoming part of a federal State like the United States of America, without having to become part of a unitary State.
§ 5.15 p.m.
§ Mr. Rees
I apologise for my acerbity in dealing with the hon. Gentleman's earlier intervention from a seated position. I understand his point. However, I was merely adducing my own point about a unitary State as one of the possible outcomes that would involve a permanent loss of sovereignty and not merely permanent delegation.
There are many possible outcomes. We might choose to become part of a confederal system, part of a federal system, or part of a unitary system in Europe, and that might involve a permanent loss of sovereignty. But under the Treaty of Accession we should be involved merely in a delegation of our legislative and executive powers.
Taking the hon. Gentleman's other point, it is right to say that we import Community law and the decisions of the European Court into our own legislative framework. That is one of the provisions of Clause 2. But that does not preclude us in this House, with the concurrence of another place and the Sovereign, from repealing the whole Bill. That might involve a breach of our treaty obligations. But our courts would be obliged to take account of the legislative position in the light of the Act of repeal.
§ Mr. Clinton Davis
How does the hon. and learned Member for Dover (Mr. Peter Rees), reconcile what he has just said with the statement of the Solicitor-General yesterday that:The intention of the Bill is to secure the supremacy of Community law."—[OFFICIAL REPORT. 7th March, 1972; Vol. 832, c. 1333.]There it is in a nutshell, and it is totally irreconcilable with what the hon. and learned Member has just been saying.
§ Mr. Rees
I have profound respect for my hon. and learned Friend the Solicitor-General. However, I am making my speech and giving my own view of the law. My hon. and learned Friend will have plenty of opportunity to make his own speech and give his view. If the hon. Member for Hackney, Central (Mr. Clinton Davis) looks closely at what my hon. and learned Friend said, he will see 1482 that it is not irreconcilable with my point. We are endeavouring to give supremacy to Community law and even to Community judicial decisions. If the hon. Gentleman had been following my point, he would have known that I was arguing that we should be in a position to repeal this Bill and take ourselves out of the Community. That might involve a breach of our treaty obligations. But our courts would be bound by the subsequent legislation introduced by this House.
I am fortified by the support of the hon. and learned Member for Northampton (Mr. Paget), with whom I crossed swords on Monday. I am gratified to know that we see eye to eye on this point. It is a substantial one, and I am endeavouring to relate the Amendment with this important point of principle.
I entirely understand and sympathise with the motives which have led right hon. and hon. Gentlemen opposite to put down the Amendment, but the consequences are plain. It would reduce the Community, to which we would be a party, from being a dynamic association to a rather inert customs union. We can take our choice. However, I think that all the votes on questions of principle taken by the House demonstrate clearly that the House, at any rate, wants a dynamic association such as that envisaged by the Treaty of Rome and our Treaty of Accession. So on a point of principle I could not conscientiously support the Amendment.
The right hon. Member for Battersea, North (Mr. Jay) raised certain other technical points. He wondered how subsection (3) could be reconciled with subsection (2). These are technical points. I am sure that my hon. and learned Friend the Solicitor-General could deal with them more adequately, but as I am on my feet perhaps I may be allowed to offer my view to the Committee.
Subsection (3) is, on the whole, to assist the courts of this country in that it might be difficult in litigation to demonstrate whether a treaty could be regarded as a Community treaty and, therefore, how far the courts of this country had to take account of it. If the matter is put beyond doubt by an Order in Council, it is enormously simplified for those who 1483 need to have recourse to the British courts. This is, as it were, pure machinery.
§ Mr. Jay
Would it not have the effect of removing the decision whether it was a treaty from the courts and putting it in the hands of the Government of the day?
§ Mr. Rees
Yes. However, the courts have never regarded it as their function to make law, except in the interpretative sense. In the legislative sense, the power must rest with the Government of the day, or, indeed, with the institutions of the Community. All that I am endeavouring to point out is that subsection (3) has certain merits to my way of thinking, because it simplifies the task of the courts in determining whether a treaty, which may have certain consequences on litigation in this country, is a Community treaty.
§ Mr. Spearing
The hon. and learned Gentleman has said that it might be a good thing for the Government to make law on this point. Therefore, he is saying, is he not, that it is a matter for the Privy Council to make law? Does he agree that this is a reversion, as my right hon. Friend the Member for Battersea, North (Mr. Jay) pointed out some time ago, to something which has not happened in this country for at least 300 years? If the Privy Council decided to make law something which had been made law in treaty terms in the Community, that is, in effect, taking away the legislative power of the House. Is the hon. and learned Gentleman content with that for the future?
§ Mr. Spearing
§ Mr. Rees
Perhaps the hon. Gentleman will allow me to elaborate. In a marginal sense I suppose subsection (3), if implemented, could be said to involve the making of law because there might be an area of doubt in litigation in this country whether a treaty was a Community treaty. Therefore if the matter is put beyond doubt by an Order in Council, I concede that that involves making law. However, it is to such a marginal extent that I should not find great difficulty in accepting subsection (3) if that is the only 1484 objection to it. No doubt there will be many objections taken in subsequent Amendments.
I should like to move on, because the right hon. Member for Battersea, North was inclined to sketch out some horrific scenarios. For example, he suggested that the Government of the day might enter into a treaty with Russia turning this country into a one-party State. However, the right hon. Gentleman overlooks one point. As I see it, subsection (3) must be read subject to subsection (2). Subsection (2) governs subsection (3). I should think that subsection (3) is more machinery than substance. Subsection (2) clearly states,and other treaty entered into by any of the Communities".I hope that that will set the right hon. Gentleman's mind at rest. It is not just any treaty which can be designated by Order in Council as a Community treaty: it must be atreaty entered into by any of the Communities",because one must read subsection (3) as subject to subsection (2).
§ Mr. Rees
Perhaps the right hon. Gentleman will allow me to finish this point.
On the question of treaties to which the United Kingdom accedes, again, by reference to subsection (2), they must be treaties ancillary to any of the treaties or the Community treaties. So it is a little fanciful to suggest that a treaty with Russia which had no bearing on any of the Community treaties could be, as it were, legitimated by the procedure under subsection (3).
§ Mr. Jay
That does not comfort me at all, because it does not say that in subsection (3). If that is the intention of subsection (3), surely even the hon. and learned Gentleman would agree that it should clearly say so, and then there would be no argument between us.
§ Mr. Rees
The right hon. Gentleman puts me in a difficult position. I am not responsible for drafting the Clause. It may be that it could be spelt out explicitly in words of one syllable which would satisfy the right hon. Gentleman. I can only say, with due humility, that it struck me as fairly plain, because it must 1485 be read as subject to subsection (2). No doubt my right hon. and learned Friend the Chancellor of the Duchy of Lancaster is taking full account of what the right hon. Gentleman has said, and if he feels that the courts of this country will be in real difficulties on this point he may consider an Amendment. With respect to the right hon. Member for Battersea, North, it does not strike me as a point of real substance.
The right hon. Gentleman—I apologise for taking so long—said that there would be a massive incursion into the common law of this country. This is a point of very little substance. The Bill and our accession to the treaty will make only a marginal difference to our common law. In any event, the common law of this country is not some ossified corpus which is not susceptible of development and alteration. The essence of our common law is that it has developed from generation to generation and, regrettably perhaps, is being superseded by statutory law. I remind the right hon. Gentleman, to allay his fears, that we have now been connected with Scotland for over 2½ centuries; as far as I am aware, the law of Scotland is still fundamentally different from ours, and is likely to be so for many generations to come. Therefore, I see no great force in that objection.
On the general point of principle, I believe that to accept the Amendment would deprive the Community of much of its life force.
§ 5.30 p.m.
§ Sir Elwyn Jones (West Ham, South)
I intervene at this stage in the debate to raise one or two matters which, I suggest, abundantly justify the Amendments which the Committee is now discussing. Others of my right hon. and hon. Friends who will be seeking to catch your eye hereafter, Mr. Mallalieu, have other important matters which they desire to raise on these Amendments, and I hope that they will forgive me for intervening now.
It is agreeable to follow the hon. and learned Member for Dover (Mr. Peter Rees). He has stated that it is implicit, indeed explicit, that in joining the Community some delegation of legislative or executive power to the Community organisations is involved. However, this is delegation, if that is the right word, with a difference. It is not like normal 1486 delegation if the Bill becomes law. As time goes on, it will be almost impossible to recall it. It is, and will become, a once-for-all departure and decline of parliamentary sovereignty. If this comes to pass, the inevitable consequence will be that after some years the involvement of this country with the countries of the Community and the Community itself will become so complex that, although as a matter of law it will theoretically be possible to pull out, as a matter of practice it will become almost impossible and impracticable to do so. So the importance of these debates is that this is, as I said a few days ago, a "last opportunity" occasion. It is vitally important that what is involved should be made clear beyond doubt, since Clause 1 is no mere interpretation Clause, but has been conceded to be the very foundation to the Bill.
I still find a good deal of obscurity in the meaning and construction of important parts of the Clause. First, what is the precise ambit of the words "any other treaty" in line 5 on page 2? It appears to be "a treaty or a Community treaty". But the treaties there referred to all pre-accession treaties or post-accession treaties or both? It is astonishing that this should be a matter of doubt.
If the ambit of these words is confined to pre-accession treaties, why does not the Bill say so? It would seem unlikely that it is so confined because, as the right hon. Member for Wolverhampton, South-West (Mr. Powell) said, Schedule 1(7) deals expressly with that category of treaty. The Solicitor-General and the Parliamentary draftsmen are too astute and skilful to engage in unnecessary and repetitious padding.
If the phrase relates to future treaties, Parliament should still have a voice in deciding whether such a treaty is to be treated as a Community treaty for the purposes of the Act and should be able to control the Government's judgment of whether it is a Community treaty. Parliament cannot, and should not, be bound by the judgment of the Government over the classification of a treaty, which may be an arbitrary and wholly wrong judgment.
What has come to be identified by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) as 1487 Part A of Clause 1(3) provides no protection for Parliament. At most, it is merely a piece of restrictive evidential machinery, and in itself provides no opportunity for even discussion by Parliament of the Government's ipse dicit that a treaty declared as such in an Order in Council is to be regarded as one of the Community treaties. That mere assertion in an Order in Council by the Government is to be final. Not only is Parliament to be shut out, but so are the courts, except in extravagant circumstances where the ultra vires doctrine might be called in aid.
If the phrase "any other treaty" is intended to refer to past treaties, Parliament is being invited to buy a pig in a poke. We do not know what they are. They are not even identified, unless it is said that, in so far as they are past treaties, they are all identified in Schedule I. But it does not say so.
If only because of the uncertainty in which the words of the Bill leave the matter, apart from the intrinsic merit of the proposal, it is right in the circumstances that the Committee should insist on inserting the words proposed in Amendment No. 96. Parliament should demand that as a minimum requirement, in view of the importance of this matter and the unsatisfactory state of the drafting of the Clause.
We have not yet had much discussion of Amendment No. 147, but Parliament is also entitled to this protection and influence. The Government have conceded under subsection (3) that the country is entitled to some parliamentary control in respect of treaties entered into by the United Kingdom after 22nd January, 1972, other than a limited class which is set out in the parenthesis. But all that they are offering is an opportunity for debate and, if need be, rejection. That is not enough.
We are dealing with treaties which will hereafter be negotiated by the Government without Parliament's intervention, certainly at the negotiation stage, and perhaps without even the knowledge of Parliament. There is no procedure set out for a statutory undertaking that Parliament will at every stage be informed and consulted. Parliament is entitled to a full examination of such treaties, and 1488 Parliament well knows that the best method of doing so is by the full process of enactment.
I should like to reinforce some of the impressive observations of the Father of the House, the right hon. Member for Thirsk and Malton (Sir R. Turton). When we were discussing the withering away of Parliament's rôle yesterday, the Chancellor of the Duchy fell back on the possible machinery which this ad hoc committee might propose. It was to that that he was looking for protection. However, according to The Times report of it—I heard the right hon. and learned Gentleman's speech and would call this an accurate report—what the Chancellor of the Duchy contemplates is not by any means reassuring. The report tells us:when he moved the second reading of the Bill he had said the Government believed there was a need for the House to have special arrangements under which it would be apprised of the draft regulations and directives. The ad hoc committee he proposed would consider the most suitable arrangements.Thus, what the right hon. and learned Gentleman contemplates is mere apprisal, and that is not enough. Mere apprisal means simply that Parliament will be told. It is hoped that Parliament will not be left completely in the dark; but at best it will be left in a dim twilight.
I submit that Parliament should not only be "apprised" of draft regulations, directives, treaties and so on but should be given power to instruct the Government to tell their representative at the Council of Ministers or Commission, as the case may be, to vote or abstain on any future matter in accordance with Parliament's decision.
§ Mr. Spearing
Unfortunately, the right hon. Member for Thirsk and Malton (Sir Robin Turton) is not in his place, but I know that he had a copy yesterday of what the Chancellor of the Duchy had said. I have obtained a copy from the Library. The right hon. and learned Gentleman went on to say:the House of Commons cannot get away from the position stated as long ago as May, 1967, that there is this field which I have defined, a limited but definite field, which successive Governments have said they accept, together with everything that flows from them, to make these treaties.He did not even accept that Parliament had the right to say whether or not it accepted.
§ Sir Elwyn Jones
Perhaps the Solicitor-General will clarify what his right hon. and learned Friend said in the twilight of last night—in the black dark of last night might be a more accurate description.
The Times report of what the Chancellor of the Duchy said and my understanding of his remarks show that he contemplates mere apprisal. On the other hand, I submit that whatever machinery is set up should involve Parliament and enable Parliament to be involved at every stage before changes affecting our law, commerce and finance are effected in the Community and by Community organisations.
It is intolerable that in this "last opportunity" Bill proper parliamentary procedures have not been set out. We are simply left with the hope that, with the assistance of the ad hoc committee, suitable arrangements will be made after the Bill has become law. I submit that the time is now to embody in the Bill the parliamentary safeguards which we feel are essential.
The bland assumption of the Chancellor of the Duchy that all will be well—that all we need do is wait for the ad hoc committee and take the Government on trust—is not enough. It is not enough to say that all will be well in the long run. As J. M. Keynes used to say, in the long run we shall all be dead. In the long run Parliament's strength and authority in the critical spheres of finance and commerce may also be dead. Now is the time for Parliament to assert the need to create machinery of supervision and involvement.
§ Mr. Baxter
I am extremely interested in my right hon. and learned Friend's discourse about the need to write into this Measure certain safeguards for our parliamentary procedure, compared with what is contained in the Treaty of Rome. Some of us believe that that treaty, which was discussed by this Parliament in the first place, places certain obligations on this Parliament, as it does on other assemblies in the treaty organisation. It was suggested on that occasion that those obligations should be amended before we entered the E.E.C., but, unfortunately, the Cabinet of which my right hon. and learned Friend was a Member more or less accepted the implications of the 1490 Treaty of Rome, so that what we are discussing now are simply the nuts and bolts to operate the treaty, which, as we know, will take away many of this Parliament's powers.
I am anxious not to make a speech when intervening in my right hon. and learned Friend's contribution, and I intervene at some length only because Scottish hon. Members are debarred from speaking in this debate. [HON. MEMBERS: "No."] Oh yes, we are. There has been only one Front Bench speaker—
§ 5.45 p.m.
The Second Deputy Chairman
Order. The hon. Gentleman must not make a speech or be led away from his intervention.
§ Mr. Baxter
I agree, Mr. Mallalieu. It is tempting to be led from the straight and narrow path. I am intervening only in an attempt to put my right hon. and learned Friend back on the path of reality. The Treaty of Rome will take away considerable powers from this legislative assembly.
§ Sir Elwyn Jones
The House has heard of the taciturn Scot. I do not think my hon. Friend can be included in the distinguished band. He drew attention to the 1967 White Paper, but we had not at that stage worked out the details of the massive legislation that was contemplated. I am certain that we would not have accepted machinery of the kind to be established under this Bill, which will leave parliamentary involvement and influence utterly naked.
The Chancellor of the Duchy sought some comfort in his speech last night in the fact that in certain circumstances there will be need for consultation with the European Parliament. I do not want to traverse again the ground covered already in various aspects of this debate, in which the hollow reed of the power and influence of the European Parliament as it exists has been exposed.
It is because of our concern with the situation with which the Bill confronts us that my hon. Friends tabled Amendment No. 163, which proposes a new subsection to Clause 1. This Amendment seeks to insert:Notwithstanding the provisions of subsection (3) hereof a treaty which changes the general law of the United Kingdom or imposes1491financial obligations on Her Majesty's subjects shall not be regarded as one of the Community treaties unless accepted and approved by an Act of Parliament.Such an admittedly exceptional provision is justifiable by reason of the exceptional nature of the treaties with which we are dealing. Parliament has always had power to accept treaties with reservations, and it is right that this basic provision should be clearly spelt out in view of the obscurity of some of the provisions of this Clause.
Full statutory procedures are the safest machinery for the protection of Parliament and the people in future. Prerogative power is a seductive but dangerous mistress for a Minister in a parliamentary democracy. This series of Amendments will restrict that power and protect the Solicitor-General from the grave temptation which now confronts him.
§ Sir Derek Walker-Smith (Hertfordshire, East)
It is always a privilege to follow the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), who brings to bear the great weight of his legal and parliamentary distinction on all these matters, more especially where matters of law are involved. But I should say to the Committee that, although a number of hon. and right hon. Members who have been taking part in these debates have been legally qualified Members of Parliament, what we are discussing today is not only, nor indeed primarily, a matter of the mechanics of treaty-making, important and interesting as they are, nor only nor primarily concerned with abstract and arid questions of international law, important and interesting as they are.
We are concerned here with great questions of principle as to how far it is proper for our basic law and arrangements to be handed over to extraneous and supra-national processes and thereby to that extent divorced from that parliamentary control which hitherto through the generations has been axiomatically considered to be the indispensable ingredient of our constitutional arrangements. The reason why this involves these great matters of principle is the close link between Clause 1, which we are discussing, and the treaties and regulations made thereunder, which we shall come to in more detail on Clause 2. Of 1492 course, the freer the rein given to extraneous treaty arrangements under Clause 1, the greater the subordination of Parliament to the regulations made under those treaties under Clause 2.
I make no apology for referring to this link; indeed I think it ought to be referred to throughout the discussions on this Clause. In the days of ancient Rome Marcus Cato laid himself open to the charge of tedious repetition by ending every speech, on whatever subject, with the words "Delenda est Carthago". But in this particular case, because of the description given to Clause 1, the somewhat inapposite description of an interpretation Clause merely, it is necessary for all hon. Members to have in mind this very close link with the effective provisions of Clause 2, the heart of the matter as it has been described, which effectively subordinates the sovereignty of Parliament to regulations made under the treaties we are discussing.
We have had indentified for us, thanks to the clear, analytical processes of the hon. and learned Member for Edinburgh, Leith (Mr. Murray King) in a most impressive parliamentary performance yesterday, no fewer than 11 categories of treaties with which we are here concerned. My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) simplified that to two categories, the existing treaties and the future or prospective treaties. We are concerned in the particulars of Amendments which the Committee is discussing primarily with the category of future or prospective treaties. Those fall within the last two of the hon. and learned Gentleman's identified 11 categories. Those are the two which he called in an apt and felicitous phrase "the portmanteau provisions" which follow each other in lines 5 to 8 of this Clause.
Both these two portmanteau provisions have similarities and also differences. They are similar in that they are in the future category of treaty. They are similar in that they are portmanteau provisions; that is to say, they are susceptible of unlimited expansion in the future. They are similar in that they are both capable of spawning innumerable regulations which will be self-executing and binding in every respect. Their differences are as follows: The first category of Community treaties 1493 is those to which Britain may not be a party at all, even though British rights and the British economy will be affected. In this category Parliament, I think it is now agreed, has no rights at all beyond the vestigial and academic right of identification under Part A of subsection (3) merely as a matter of evidence or machinery. In the second category of these treaties where Britain is a party there is, of course, the protection of Part B of subsection (3), for what it is worth.
I shall say a brief word first in regard to the Community treaties. Here I would think the position is wholly and patently unsatisfactory. We are, we are told in effect, to be prisoners of Article 228 of the Treaty of Rome. We are told that that precludes even the limited protection of Part B of subsection (3) of Clause 1. The operative words of paragraph 2 of Article 228 are:Agreements concluded under these conditions shall be binding on the institutions of the Community and on Member States.What are these conditions which, if satisfied, would make the future Community treaties, of unknown scope and content, binding upon us in every respect? First, they are to be "negotiated by the Commission". That would hardly bring much comfort to democrats. Secondly, they are to be "concluded in the Council" of the Community. Of course there is no requirement of unanimity in respect of these treaties under Article 228. The wording of that article, which is the general article, is different from the wording of Article 238, which does require unanimity but is concerned only with the limited context of treaties of association. For Article 228 a qualified majority is enough. Therefore, there could be no right of veto on the part of this country in regard to these future Community treaties.
The third condition is "after consulting the Assembly", but that is a requirement of consultation only. That somewhat shadowy body will have no executive rights in this matter no rights of approval or rejection or even of amendment. It is therefore because of Article 228 that the Community treaties will be subject only to Part A, only to the evidential provisions, of subsection (3), and, of course, the Orders in Council, as we are now aware, are a 1494 matter of convenience only. The treaties and regulations would be just as binding if they were not evidenced by any Order in Council. At most it would make them by that degree more difficult to prove.
What is the defence which is made in this matter? I also have had the advantage—
§ Mr. English
Before the right hon. and learned Gentleman passes to another point, I wonder whether he would care to inquire why it is therefore necessary? I am sure he is absolutely right in the argument he has used about Community treaties and, therefore, that a portion of subsection (3) is not necessary, as he said. If he passes on to consider why it is there, he might ask himself whether that is because it is possible that the Council might exceed its powers.
§ [Sir MYER GALPERN in the Chair]
§ 6.0 p.m.
§ Sir D. Walker-Smith
As the hon. Gentleman and the Committee know, I am a person of very trusting and unsuspicious mind. I was prepared to take the explanation as given; that it does, from an evidential and machinery point of view, make matters easier. But on the point with which we are really concerned, there can be no doubt that it adds nothing effective at all to parliamentary control.
Therefore, we have to consider the Government's defence to this position. I also have been able to refresh my memory with the text of the speech of my right hon. and learned Friend late last night. What he said was this:Looking at the list of existing Community treaties we see that many of them are only of very limited interest to this country and Parliament.That seems to be cold comfort. What about the other ones which are of more than limited interest? What about the future ones whose scope and content we cannot yet know? It is not even as good an excuse as the classically unsatisfactory excuse of the housemaid in regard to its being only a little one, and even her defence would have been treated with greater scepticism if there had been reason to believe that she was contemplating the production of triplets in the very near future.
But even the existing Community treaties are not as limited as my right 1495 hon. and learned Friend suggested. There was some discussion about the Iranian Treaty with the Community, but the hon. Member for Pontypridd (Mr. John) was able to point out in an intervention that Articles 3 and 4 of that treaty introduced substantial modifications in trading arrangements. But, in any event, it is not, with respect, a question whether particular provisions in particular Community treaties happen to be good or bad. Whether they be good or bad in these economic matters will, clearly, be a value judgment based on economic criteria which may be disputed. I have no doubt that King Charles I and Strafford would have been able, on economic and administrative grounds, to deploy powerful arguments for ship money, and they did. But it did not alter the fact that it was subordinating the democratic institutions of the country. The question is, what is the breadth and scope of the Community treaties? If they range wide, or are liable to range wide—I know of no reason to suppose that they will not—the erosion of parliamentary sovereignty and national sovereignty will be deep indeed.
As to the remedies suggested in the Amendments for this unsatisfactory state of affairs, Amendment No. 96 would bring the Community treaties within the ambit of parliamentary control by making their operation—and hence the operation of the regulations under Clause 2(1)—subject to approval by affirmative Resolution. That is a considerable improvement. But in my respectful opinion, the remedy prescribed by my right hon.—and, technically only, not learned—Friend the Member for Wolverhampton, South-West in Amendment No. 81 would be even greater. It is a more radical remedy, because it would take the future Community treaties out of the definition of treaties in Clause 1 and thereby effectively, as it were, vasectomise the Community's power to produce self-executing regulations; a drastic remedy, no doubt, but as we have no guarantee or even any likelihood of continence, this salutary and painless surgery may well be a more appropriate remedy even than the mild therapy suggested by Amendment No. 96.
I pass, for a moment only, to the second category—the treaties entered into by the United Kingdom. This matter 1496 turns on a narrower point. It turns not on the total absence of parliamentary control which we have in regard to the Community treaties but on the insufficiency of the parliamentary control, such as it is, afforded by Part B of Clause 1(3). I ventured to ask yesterday what sort of treaties were envisaged into which the United Kingdom would be entering in this way, and what would be their scope and nature. But so far—due, possibly, to the exigencies of time—we have had no information on that point. But we know, at any rate, that their effect would be wide. Therefore, the question for the Committee is this: is the necessity of approval of the draft by affirmative Resolution a sufficient parliamentary safeguard? I believe that there is no need to labour this point. I believe that this is a question which every right hon. and hon. Member will and can answer from his instinct and his parliamentary experience. I believe that the answer must be "No". The answer must be that such a short, once-for-all, single, limited parliamentary occasion as that contemplated in Part B of subsection (3) is wholly insufficient.
We then come to the suggested remedies for this situation. Amendment No. 147 is an effective remedy. It would substitute the full legislative parliamentary processes for the limited and insufficient parliamentary action envisaged by the Bill. Here, it may be that my right hon. Friend's more drastic surgical remedy, under Amendment No. 82, would not be necessary if effect is given to Amendment No. 147.
I should be less happy with Amendments Nos. 162 and 163, which we are discussing in this group of Amendments. The suggested new subsection (5) contains the words "the general law". I doubt very much whether this is a term of art which could be readily interpreted in the courts. It seems, therefore, that that Amendment would give rise to difficulties of definition and there is no need to court such difficulties if statutory effect can be given to the clear language of Amendment No. 147.
I summarise the advice which I would respectfully give to the Government and to the Committee—in regard to Community treaties, to accept either Amendment No. 96 or, preferably, Amendment 1497 No. 81, and in regard to the other category of treaties, to accept either Amendment No. 82 or, preferably, Amendment No. 147. Only by such wise action can parliamentary and democratic control he in some measure safeguarded against an onslaught unprecedented in scale and consequences.
§ Mr. Denzil Davies (Llanelly)
The Amendment moved by my hon. Friend the Member for Pontypridd (Mr. John) last night seeks to focus attention in particular on Clause 1(3). Much attention has been focused upon it, to the benefit and elucidation of the Committee. The first Amendment, moved by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) of necessity touched upon the implications of subsection (3). I shall not seek now to repeat various remarks I made then about that subsection.
I turn my attention to issues that arose out of the debate on the subsection and are now particularly relevant. The first part of subsection (3) has been labelled Part A, although I dislike this "shorthand", because there is really no Part A or Part B and it is slightly confusing. The first part of the subsection—as far as the semi-colon—which deals with treaties to which the United Kingdom would not be a party, gives the impression that it provides some although not much safeguard. Closer examination, however, shows that the opening wordsIf Her Majesty by Order in Councilprovides that the subsection is only permissive.
In the debate yesterday I pressed the Government about the scope of the first Part and asked what would happen if Her Majesty did not seek by Order in Council to designate a treaty as a Community treaty. I am dealing now with treaties between the Communities and third party countries. It took a long time to get an answer. I was not given an answer by the Solicitor-General, but late last night the Chancellor of the Duchy of Lancaster was a little more frank. He said that it would have no effect, because these treaties were completely self-executing. That has been said today.
It is plain that the safeguard which appeared to be contained in the first part of the subsection is a complete sham. If Her Majesty decides not to specify a 1498 treaty as a Community treaty, as it is self-executing the right under that treaty will be incorporated automatically into the law of the United Kingdom. An Order in Council would often not be necessary, because it would he obvious that they were Community treaties.
Having obtained this valuable admission from the Chancellor of the Duchy of Lancaster, it is necessary to re-examine subsection (2), because if the Chancellor says that rights arising under treaties entered into with third party countries could be incorporated into the law of the United Kingdom without those treaties being designated as Community treaties, subsection (2) must mean what it says it means—treaties, and not Community treaties.
We then come to the second part of subsection (3), and the same question arises. Let us consider the treaties which the United Kingdom would enter into with the Communities or the other member States and consider the effect of non-designation of one of these treaties, which may be important. There were reports in the newspapers this morning about the first steps towards monetary and economic union. We read about the narrowing of parities. If the talks go ahead, as I am sure they will, they will eventually lead to a common currency. The whole package of economic and monetary union will be concluded by means of agreement between the United Kingdom and the Communities and possibly the other member States. It will at any rate be a treaty within the wide definition contained in subsection (4). That means that there could be a treaty of fundamental importance which limited the sovereignty of the House to determine exchange rates—a matter of fundamental economic and social importance. On my interpretation of subsection (3), it is not necessary for the Crown even to seek an Order in Council, or even a designation of that treaty as a Community treaty. Following what the Chancellor of the Duchy of Lancaster said, it is clear that rights can arise under these treaties without designation as Community treaties. A court might have to look more closely at such a treaty, because there was no Order in Council, but it would not spend long determining whether that kind of treaty was a treaty as envisaged under Clause 1.
1499 We find, therefore, an extremely important treaty for which Clause 1(3) does not provide any safeguard. Although the Solicitor-General has not admitted it, the subsection is merely a piece of machinery to enable the Crown to designate a treaty as a Community treaty for the convenience of the courts. I put the question to the Solicitor-General and he said that a United Kingdom 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."—[OFFICIAL REPORT, 7th March, 1972; Vol. 832, c. 1343.]It is nothing of the sort. It is not a firm safeguard as I and others, far more learned, read it. It merely provides machinery for the Crown to designate a treaty a Community treaty. The affirmative Resolution is related to that and nothing else. No doubt the Crown may wish to specify such a treaty—perhaps establishing economic unity and a common currency—as a Community treaty, but it does not have to do so under subsection (3).
The subsection says that an order "shall be conclusive". I believe that the right hon. Member for Wolverhampton, South-West (Mr. Powell) raised this issue and it was taken up in an intervention. The matter was dealt with by the Solicitor-General, who referred to the case known as the Ansiminic case. He said that it did not matter that this was conclusive, because there were dicta, although he did not have the authority at hand. The Solicitor-General said that there was authority for saying that the courts could consider these matters even when Parliament had declared something to be conclusive, and he cited cases. I should have thought that he would tell the Committee the ambit of that authority and to what it related, for the cases he cited had nothing to do with the courts being asked to decide whether the Sovereign had exercised the prerogative correctly. In those cases the court was dealing with the activities of an inferior tribunal, as the courts like to put it—the Foreign Compensation Commission—when it was held that although the statute did not lay down the process of appeal, the courts could see whether the 1500 inferior tribunal had acted ultra vires. The authorities are clear from older cases—when an inferior court does something, the courts may consider it.
But the Solicitor-General did not deal with that issue. He tried to deal with it by reference to wholly different cases, and there are precedents for saying that the courts will not inquire into certificates presented by the Secretary of State—cases involving the Spanish Civil War, for instance, when certificates issued by a Secretary of State in relation to the recognition of foreign States were deemed to be conclusive. That is far from being a safeguard, for it is unlikely that any English court will question the prerogative of the Crown in these matters.
When these Amendments were drafted it was felt that they might provide some stronger safeguard, but we had not then had the benefit of this debate, and it is now clear that although the Amendments are an improvement on what the Government suggest, they are still flimsy safeguards. However, Amendment No. 163 goes a little further. It provides that when a treaty alters the general law of United Kingdom, or imposes a financial obligation upon Her Majesty's subjects, that treaty should be approved—if that is the word—by an enactment and not just an affirmative Resolution.
I entirely accept what the Solicitor-General said about the drafting of the general law of the United Kingdom. The phrase was taken from a great constitutional authority, Professor Hanson, who used it in 1908. This comes to the crux of the matter.
My understanding from Professor Hanson and Lord McNair had always been that treaties which changed the general law, or imposed financial obligations on Her Majesty's subjects, clearly required the approval of Parliament, although there might be some doubt about what form that approval should take. In view of the importance of these matters, I should have thought that that approval should be by an enactment.
We are arguing for an enactment for another reason, namely, that so many of these treaties—again the example is that involving a common currency, an economic and monetary union, a realigning of the parities—limit the sovereignty of Parliament. There is good authority 1501 for the proposition that treaties limiting the sovereignty of Parliament require approval by means of an Act of Parliament. The matter was mentioned by the Chancellor of the Duchy in our debates last week, especially that on the Chairman's Ruling, when the right hon. and learned Gentleman grudgingly agreed that treaties by which the Crown tried to cede territory by constitutional convention needed the approval of Parliament by means of an enactment, as McNair and Hanson made clear.
That is exactly the kind of situation that we have in this instance. If the Crown wishes to cede territory and thereby limit the geographic sovereignty of the House, that is no different from the treaties into which we shall be entering and which will also limit the sovereignty of the House, and do so in a much more important way than the cession of some outlying territory.
§ Mr. Peter Rees
The hon. Gentleman is enunciating a new and interesting principle of constitutional law. How does he reconcile that with the classic judgments of Lord Atkin v. the Privy Council and the Attorney-General of Canada v. the Attorney-General of Ontario?
§ Mr. Davies
It is not a new principle. If the hon. and learned Gentleman reads the 1908 edition of Hanson's "Law of the Constitution" or reads his hon. and learned Friend's speech—when he admitted that a treaty involving the cession of territory by convention required the approval of Parliament—he will see the principle made clear. I am saying that there is nothing special about a treaty ceding territory and that it needs parliamentary approval because the Crown, by entering such a treaty, limits the sovereignty of the House. The Crown may do anything in international affairs, but when that something tends to limit the sovereignty of the House, the House has the right to approve or disapprove as it thinks fit.
I am saying that these treaties will change the general law of the United Kingdom and impose financial obligations on the citizens of the United Kingdom, and this involves a limitation on the sovereignty of the House. I should like the Solicitor-General to confirm that subsection (3) would not affect the substance of the matter if the Crown should not 1502 seek to ask for an Order in Council in relation to the treaties mentioned therein.
§ Mr. Michael Grylls (Chertsey)
The hon. Member for Liverpool, Walton (Mr. Helfer) spoke about treaties with countries of which he disapproved, countries which might be dictatorships. I understand his feeling, but in my view it would be better for this country to try to exert influence on treaties drawn up with countries of which he disapproves, or of which others disapprove, by being within the Community rather than without it. I have always thought it better foreign policy to develop trade and contacts with countries rather than just to disapprove of them, and I hope that there will he more and more agreements with countries on either side of the Iron Curtain, about trade and other matters.
§ Mr. Paget
I do not disagree with that sentiment, but we are being asked to take on treaties with continuing obligations negotiated when we were not present. That with Spain is an example. If we had been there, we might have negotiated something which did not involve the blockade of Gibraltar. But, without consideration to have to take a series of trading obligations with Spain regardless of the embargo of Gibraltar carried on by Spain seems a bit much.
§ 6.30 p.m.
§ Mr. Grylls
It seems to me that what I said is still true. Obviously, we have to accept treaties negotiated with the Community up to now. What is important is what happens in the future. If the hon. Member for Liverpool, Walton feels so strongly about Spain, Greece or other countries, it is better to try to exert influence within the Community as to what sort of treaties, if any, it should have with them.
§ Mr. J. Selwyn Gummer (Lewisham, West)
Only last year we made a treaty with Spain which provided for continuing arrangements in relation to the peaceful uses of atomic energy. That was done in the same circumstances as the agreement referred to, and I do not remember the hon. Member for Liverpool, Walton (Mr. Heffer) demanding a great debate on that. Indeed, it was not brought before the House, as such treaties never are.
§ Mr. Grylls
No doubt the constituents of the hon. Member for Liverpool, Walton 1503 will want to know why he was not on his feet disapproving of such arrangements with Spain, but that is up to him.
I turn to the speech of the right hon. Member for Battersea, North (Mr. Jay), who tried to alarm us by talking of the possibility of the Government's approving a treaty by Order in Council which had nothing to do with the Community—trying to get it through by sleight of hand. That possibility was covered very ably by my hon. and learned Friend the Solicitor-General yesterday, when he saidI 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."—[OFFICIAL REPORT, 7th March, 1972; Vol. 832, c. 1334.]With our own judicial system, surely we have an absolute safeguard there?
§ Mr. Jay
Is that really so? Subsection (3) does not state that treaties can be specified only if they are Community treaties. It says:If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded…There is no safeguard in the Clause providing that that can be done only with a Community treaty.
§ Mr. Grylls
I maintain that such action would still be challengeable in the courts. I am not a lawyer, but my hon. and learned Friend's exposition seemed to me to be fairly convincing.
The right hon. Gentleman also tried to alarm the Committee about possible changes in the common law of the land. Here I should like to read a passage from paragraph 32 of the 1967 White Paper. It said:anxieties that British subjects would be liable to criminal proceedings in which they would not enjoy the safeguards of the criminal law and procedure of this country … appear to be based on misconceptions.So the right hon. Gentleman's Government seemed to think that that was not a serious possibility. It is wrong to try to alarm the Committee, and perhaps even worse to try to alarm the country at large, about threats of changes to our civil and criminal law.
My right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) 1504 was rightly concerned about a possible sugar agreement entered into by a future Government. He felt there should be a special protocol to cover it. If a new agreement is entered into in 1974 or 1975 and we, as members, discuss and agree it with the Community, it is inconceivable that the matter will be dealt with in the way specified in the Bill. It would be essential for the Government of the day to have a major debate in the House on something so important. If they did not, the Opposition would make jolly sure there was such a debate, irrespective of the 1½-hour debate specified on the approval of a resolution.
§ Mr. Keith Stainton (Sudbury and Woodbridge)
As this is such an important matter, can my hon. Friend say on how many occasions the re-negotiation of the Commonwealth Sugar Agreement and the International Sugar Agreement, to which the Community is not a signatory—a very important point—has been debated here?
§ Mr. Grylls
I cannot say off the cuff, but if the House believed that a new sugar agreement should be debated in the Chamber, as I am sure it would, it certainly would debate it, and it would be a day's debate or at least a half day's debate. It is inconceivable that proposals or agreements on monetary policy such as were discussed yesterday in Brussels would not be discussed for a day or two days in the House.
In the excessively legalistic debates that we are having it is right to put into the scales the fact that if we join the Community we shall be part of a community. In the debates of the past few days we have sometimes talked of the Community as an abstract body that will suddenly start ruling this country and in which we shall have no voice. But the essence of a community is that we are all part, and we all have a say in what goes on. We shall be working among friends and allies. If anyone should try to steamroll this country or any other member into something it did not agree with, presumably the Community would break asunder, because that is not what the Community is about. The essence of a democracy is that we work together, certainly on the major decisions, otherwise the Community would collapse.
§ Mr. Hugh Jenkins (Putney)
Has the hon. Gentleman taken no account of the stresses, strains, arguments and bitterness between members of the Six? Certainly the Community has held together, but to suggest that it is one happy family is to exaggerate the situation to say the least.
§ Mr. Grylls
In the long nights of discussions, arguments and perhaps even verbal battles in the Community since 1967, important decisions have been reached only after unanimity has been achieved. There are arguments among friends. They sit up all night and try to arrive at a solution. In joining the Community we have the advantage of looking back and seeing that it has worked as a corporate body, because it has held together during some of the most difficult stages of its development. That is one of the greatest safeguards we have. Let us remember that we shall be part of this body together.
I believe that in most instances those Members who have picked out some of the tight, legalistic points are chasing shadows, and seeing pitfalls where none exist.
§ Mr. Paget
We are dealing with a very important matter. I do not go along with the views of my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) on the desirability or otherwise of trying to use economic means to interfere with other countries' domestic policy. Generally, that strengthens our enemies and weakens our friends. It happened in Rhodesia.
When giving block sanction to a mass of legislation it is important to see whether that legislation is of such a nature that we have a special interest in it which was not considered when it was passed. An example arises in the case of Spain. The Common Market countries were not in conflict with Spain over the question of Gibraltar; we were. They negotiated a large trade agreement. We have to take that agreement without amendment, without consideration, without discussion and wholly regardless of how it affects the blockade being conducted by Spain against Gibraltar. As far as I know, nothing in that agreement will mitigate that blockade.
Another instance concerns diseases. Owing to an insular position we have 1506 a moat that protects us. Foot-and-mouth disease is an instance; rabies is an instance. To what extent do these Acts commit us to a freedom of trade which will prevent our taking that sort of precaution? Assurances one way and another have been given to the agricultural industry in this connection, but nothing very specific and nothing very clear. If there has to be a regulation to give the effect of law here to much of these 42 volumes—or whatever it is, of regulations—that at least means that a look is going to be taken at them.
As the Solicitor-General said when he went through the lists, a great many of them do not affect us at all so there is no occasion to make them part of our law. Those which we have to make part of our law ought to be specified by an order and brought before us, and that process would at least make somebody—I do not believe that anybody, anywhere, has yet done so—go through this mass of stuff, see which of them require legislation in order to implement them, and which of them have special provisions which are exceedingly awkward for us, in which case we might have to inform the Community that having looked into them in detail we find there are certain provisions which we would not be able to implement. That would at least save us from the trouble with the Community if we join it.
Simply from the machinery point of view, it is highly important that we have the kind of examination of this mass of stuff that will tell us what we do not require, what we have to bring into our law, and what is really so inconsistent that we cannot cope with it here and have to tell our partners that. I am sure that there would be understanding over that sort of thing—over Gibraltar, and things like that.
There is one other general point with which I wont to deal—the one raised by the hon. and learned Member for Dover (Mr. Peter Rees), which has been mentioned a good deal, namely, that we are only delegating this legislative power; that we can bring it back to ourselves; that Parliament still retains the sovereignty to repeal this Measure. That, I would immediately concede, is legally so but, as I said in an intervention to the hon. and learned Member for Dover, it is quite unimportant, because that is the 1507 kind of power which is of its nature revolutionary. It is the power to tear up laws and treaties. We can decide to break our treaties; we can decide to break the Community laws which we have adopted; we can decide to do it unilaterally—and whether or not we have the constitutional power to do that really does not matter at all; we have the physical power.
We are in the same position as the southern States. Under State law they had the power to secede, but it meant breaking the contract with the federal authority. The federal authority was in a position, after a bloody war, to enforce that contract. Europe is not in a position to enforce that contract, because Europe is an impotent body. One of my great objections to joining Europe is that it is impotent; that it is incapable of taking decisions to defend itself from us or from anybody else. That is the great danger. But here we are adopting with practical finality a whole block of laws which we have not looked at; which nobody has examined in any detail; which have been negotiated without consideration of our interests, and which we may not even look at now to see whether they deal with our particular interests.
That is the first reason why I think we should accept this Amendment—to make sure that we know what we are talking about, that we have considered how much it is necessary to bring into our law and whether there are reservations which we should make and ask our friends in Europe to consent to as concerning things which are particularly difficult for us—rabies regulations, and things of that sort; quite small nuts and bolts, but things which will occur.
My second major point is this: if we are making these major changes in our legal system we ought at least to put ourselves in a position to know what our new law is. Subsection (2)(a) provides that we acceptthe treaty relating to the accession of the United Kingdom to the European Economic Community".Surely to heavens that at least could be put in a Schedule to the Bill. It is important that it should be, because while the Treaty of Accession has an English 1508 version—from accession, English is one of the official languages of the Market—the treaty which we are adopting does not have an official English version, because English was not at that time a language of the Market. Therefore, as I understand it, it will, according to our law, be possible—and may indeed be obligatory—to call expert witnesses as to the translation of these documents. When we are interpreting in a court of law just what a document means, the question of just how it is translated is highly important and also enormously controversial on many occasions.
§ The Solicitor-General (Sir Geoffrey Howe)
The point the hon. and learned Gentleman is discussing is more appropriate to Clause 3(1), just as his last point related to Clause 2(1) and not to the Amendment before the Committee.
In fact, from the date of accession—1st January, 1973—all the treaties and all the legislation published in them will be the subject of authentic and agreed translations. It is hoped by that time to have all the decisions of the Community Court similarly translated. Clause 3(1) provides that our courts have regard to the Community Court decisions in that way, but by that point in time, looking at the question as a matter of law and not as a matter of fact—as the hon. and learned Gentleman's expert evidence, for example, would suggest—all the relevant documents will be available in authentic English translation for consideration as a matter of law, and not as a matter of fact. I make the point to direct the hon. and learned Gentleman's attention to the fact that this arises out of Clause 3(1).
§ Mr. Paget
I am grateful to the hon. and learned Gentleman. I could not find in Clause 3(1) what gave authority to the translation. Perhaps the right time to deal with that matter will be when we reach that Clause. By that time all these volumes of regulations and treaties will have an agreed translation. If that is to be the case, why should not they be appended to this legislation when it becomes an Act, so that within our statute law we shall have that which our courts will have to apply? By the time the Act becomes operational, that is to say, when we join the Market, cannot a Schedule be provided so that there is available to our courts an official body of our law?
1509 We have had a great deal of discussion as to what is meant by subsection (2), which refers to:any other treaty entered into 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 Kingdom".To what words does the phrase "by the United Kingdom" apply? Does it apply to all? Is it any other treaty entered into by any of the Communities and also by the United Kingdom, or is it only the ancillary treaties which must be entered into by the United Kingdom? If there is an ancillary treaty which is not entered into by the United Kingdom, is it or is it not binding upon us? It is the most ineptly drafted Clause that I have ever read, and shows the extent of difficulties of interpretation which it will involve.
This does not have to come into operation until the date of our accession to the Market, and by then it will be possible to examine these various laws to see which are ancillary. We should know whether it is to be added to a Schedule or will simply be a statutory order which will enable us to know what the law is. That is the enormous difficulty that we face.
I urge the Government to reconsider this matter. There is no particular hurry over this point. They have all the time in the world to prepare a regulation which will show the laws that we are to make. The same applies to subsection (3), which seems to provide the optional procedure of putting in a regulation so that it shall be available for reference. If that is suitable for one regulation, why cannot it be suitable for the lot?
Two years are available for the Government to draft these regulations—they do not have to provide them now—to enable us to have some knowledge of what the law will be when this legislation comes into operation. I should like to know what the situation will be before this legislation is passed. It would be of assistance to have an assurance that by the time it comes into operation it will be intelligible, so that we know that somebody in Government has considered in detail what changes they want to make.
I am sure that nobody in the Government has considered the matter in detail. Nobody has been through these volumes with the detail required by the 1510 Committee so that we may examine just what changes are necessary and to see how they affect us. If we have to set it out in the statutory documents before the Clause becomes operational, at least we shall have the assurance that that much has been done. Therefore, if we are to have this legislation let us make it a little more intelligible and workable. This Amendment is certainly not a wrecking Amendment; it is one that should be supported by anybody who believes in this legislation.
§ Mr. Enoch Powell (Wolverhampton, South-West)
You will be aware, Sir Myer, that the Chairman of Ways and Means has indicated to the Committee that he will be submitting for decision not only Amendment No. 96, but also Amendment No. 81 which stands in my name; indeed, Amendments No. 81 and No. 82 essentially hang together. I want to direct the Committee's attention to those two Amendments, or rather to the vital four lines on page 2, namely, lines 5 to 8.
I wish at the outset to get rid of one small and niggling drafting point which is perhaps worth mentioning. It is a general rule in the drafting of Acts of Parliament that one endeavours to avoid circularity, but it seems to me that in lines 7 and 8 on page 2 we have fallen into a circularity. We are defining a treaty and say, amongst other things, that it is a treatyentered into, as a treaty ancillary to any of the Treaties, by the United Kingdom".If we are to be quite clear what are these Treaties, with a capital "T", to which that treaty has to be ancillary in order that its being entered into by the United Kingdom shall make it one of the Treaties, with a capital "T", we find that we are involved in an infinite circularity which is contrary to the general rules of good draftsmanship. Whether that could be remedied by the insertion in line 8 of the word "other" before "Treaties" is rather a matter for a Parliamentary draftsman than for a humble Member of Parliament to say.
I observe—this may be a curiosity of the Bill and may even be unique—that its interpretation depends on the use of a small or a capital letter—it is either "treaties" with a small letter or "Treaties" with a capital letter. But it 1511 is not the minutiae of drafting—though it is vital to get the minutiae of a Bill such as this absolutely right, if we can—with which the Committee is concerned, or indeed with which the Amendments in my name are concerned. The four lines to which those two Amendments refer, lines 5 to 8 on page 2, refer if not exclusively at any rate preponderantly to future treaties—in other words, to post-accession treaties. The right hon. and learned Member for East Ham, South (Sir Elwyn Jones) may well have been right in saying that, as the Bill is drafted, they could and probably do somehow overlap and include pre-accession treaties, but I think the Committee will accept that the essence of the matter is that they are concerned with treaties to be made in the illimitable future from accession onwards, and that we are here considering to what parliamentary procedures, if any, all future treaties and their consequences should be subjected.
[Sir ROBERT GRANT-FERRIS in the Chair]
The speech made yesterday by my hon. and learned Friend the Solicitor-General and that which was made later by my right hon. and learned Friend the Chancellor of the Duchy have greatly assisted hon. Members in the interpretation of these four lines in the context of subsection (3). One obvious pitfall that they saved us from is that of assuming that the two halves of lines 5 to 8 correspond with the two halves of subsection (3). Indeed, they do not. The true division of these future treaties both for the purposes of subsection (2) and for the purposes of subsection (3) is a different one, and it is a distinction which was clearly drawn by my hon. and learned Friend and my right hon. and learned Friend.
The distinction is between, on the one hand, treaties entered into by the Community as such by itself and, on the other hand, treaties to which other countries including the United Kingdom are parties. It is to that sub-division that the sub-division of subsection (3) corresponds, in that where treaties are entered into by the Community alone, the procedure of the first half of subsection (3) applies, and where the United Kingdom is a party either with the Community or by itself, 1512 the second half of subsection (3) applies. I hope that is both clear and agreed by the Government and by both sides of the Committee.
The treatment of these two classes of treaty is different in the Bill, and the arguments which apply to them are to a considerable extent different. I wish to take first the former of the two categories, the Community treaties which, as the Bill stands, will require to be recognised as such and to have their self-executing effect in the law of this country without any prior parliamentary procedure at all.
My right hon. and learned Friend the Chancellor of the Duchy pointed out that the Communities exercise this power only within defined limits and that the Communities cannot as such make treaties except within the limits of the treaty-making powers which the existing treaties leave open to them. He pointed out, therefore, that the scope of this first class is at any given time limited by whatever the treaties are at that particular time. He also pointed out that the consequences of those Community treaties are binding by virtue of the Treaty of Rome directly and automatically upon the member States. Upon those two propositions he grounded his defence of the first half of subsection (3) of the proposition that they should not require for their recognition or for their action any parliamentary procedures at all.
With that I disagree. I believe that at the very least the consequences of Amendment No. 96 are not merely desirable but necessary. First—and here I am traversing ground which the hon. and learned Member for Northampton (Mr. Paget) and others have covered—it is surely necessary that the treaties made by the Communities which affect this country should be formally brought to the notice of the House of Commons and that the House of Commons should be obliged by Statute to take note of them. That is putting it at its very lowest.
The hon. Member for Liverpool, Walton (Mr. Heffer) was not entirely fanciful when he said that, like the god of the priests of Baal, we might at the time be journeying or hunting, while the Communities go on with their treaty-making from month to month and from year to year and the consequences come home to this country. Parliament at 1513 least should be called upon to register what is being done by the Communities and what impinges upon us. Even on that, the very narrowest, ground, there should at least be the requirement of a Resolution, which the first of the Amendments we are discussing would secure.
The matter goes beyond that. The necessity of such parliamentary action carries with it, whatever may be the construction of the rules of order, the necessity of some degree of debate or explanation, if not apology. The House of Commons would not merely have to register the fact that this treaty had been made; it would require formally as a House of Commons to be given some information about it, and it would go hard with the House of Commons if it could not find a way to discuss it. "Ah, but", says my right hon. and learned Friend, "the House of Commons can discuss it, but, since under the basic treaty the provisions of Community treaties are binding automatically upon members of the Community, the House of Commons could not do anything about it".
This is the dilemma which we have explored so many times. This is the cage against the bars of which we have found ourselves knocking many times already in these debates. But even my right hon. and learned Friend concedes—and this was the argument of my hon. and learned Friend the Member for Dover (Mr. Peter Rees)—that there is nothing ultimately which prevents the House of Commons from saying "No", instead of the expected "Yes". It does not lie in the mouth of my right hon. and learned Friend, to say as he has done in previous days of debate, that we can throw out Clauses 1, 2 and 3 of the Bill to the evident destruction of the Treaty of Accession—he even went so far as to contemplate that we might carry some Amendments which were inconsistent with that Treaty—and then to say we cannot have a parliamentary procedure because if the answer were "No" it would place us in conflict with the treaty. We are all by now aware of that dilemma, but in no context so far, and I guess in no context that is to come, has it prevented the House of Commons either from debating the Bill now or from considering what ought to be the parliamentary procedures in the future.
1514 It may be—and the intervention of the hon. Member for Walton was valuable in this respect—that we shall often not be concerned in these Community treaties with minor matters; they may be major in their effect. They may be matters which if they were being considered independently by Her Majesty's Government in the United Kingdom would call for not just one day's debate but days of debate, and on which the House might be passionately divided. It is a small thing, in my opinion too small a thing and my Amendment goes beyond it, to ask that no parliamentary notice whatever should be taken of such acts when they are the acts of the Communities.
I readily concede that that class of treaty, the Community treaty, is less grave in its impact upon the rights of the House of Commons than the other class; namely, the class to which the United Kingdom Government is a party and which attracts the procedure of the second half of subsection (3) in the Bill as it stands.
The Solicitor-General, in patient response to a series of questions, has left us in no doubt that the fuure expansion, development and evolution of the Community, the future stages of progress towards that economic and political unity which is officially the objective of British membership, will take place by means of joint decisions recorded in instruments which for the purposes of this Act, if it ever becomes one, and this Clause will be treaties. So we are concerned with future stages each of which may be as momentous in their content as, if not more momentous than, this initial step of acceptance of the Treaty of Accession.
We are being asked, but for subsection (3) as it stands, to accept with no further formal parliamentary procedure the possibility of the entire development from the present form of the Community to a political and economic unit. All there is in the Bill along all the successive stages of the road, all that is statutorily required by the Bill, is a Resolution. The Solicitor-General waxed almost lyrical yesterday in his praise of this safeguard—it was a wonderful safeguard; what more could the House want than the opportunity to pass a resolution? He rounded upon those of us who had felt there was something inadequate about a simple resolution and that, even if, as my right hon. Friend the Member for 1515 Thirsk and Malton (Sir Robin Turton) pointed out earlier, we might be allowed, and probably would be allowed, by the Chair to have more than an hour and a half to discuss it, it is nevertheless somewhat inadequate and inapt to the consequences of such treaties as we are now thinking of.
It is an almost unbelievable incomprehension of the procedure of this House to imagine that there can be any comparison between the control exerted by the necessity of carrying a resolution and by the necessity of carrying a Bill. What happy men Ministers of the Crown would be today, what happy men they would have been in days gone by, if the two things were equivalent, or almost so, which is my hon. and learned Friend's contention! He says, "Do not mind. It is all right. You have got a resolution." How blessed they would have thought themselves if all they needed to do, to achieve some of the immense purposes which would be achieved by the successive stages of evolution, was to come to this House and carry a Resolution—no Second Reading debate; no three days generously conceded on Second Reading for discussing, as my right hon and learned Friend said, the principle of the Bill, our opportunity, as he said, to examine the contents of the treaty; no such proceedings as we are now having, to examine whatever might impinge upon the law of this country and require legislative action. Clause by Clause, line by line no necessity of submission to the way in which this House can assert its will. For this House is a legislative chamber and a great part of its power derives from the exercise of its legislative function. It is not a Resolution-passing House. That is a very minor part of its functions. It is a legislating House which takes Bills, and, if it pleases, gives them a Second Reading, Committee stage, Report stage and Third Reading. These two things are worlds apart.
The Solicitor-General in the course of his encomium on the Resolution as a procedure for accepting for this country a treaty entered into by the United Kingdom which would further extend the legislation, taxation and the government of this country from overseas—from the Community—said: 1516I cannot imagine that 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. … The question would be entirely at large, and it is important that it should be so."—[OFFICIAL REPORT, 7th March, 1972; Vol. 832, c. 1342.]I am surprised at the boldness, after the experiences of the last week or so, with which my hon. and learned Friend takes it upon himself, not at 24 hours' or a few weeks' notice but for years into the future, to predict what might be the view of the Chair upon the scope of debate upon a Resolution declaring that such and such a treaty is a treaty for the purposes of what would be Section 1 of this Act.
I have said throughout that I believed my right hon. Friends were under a misapprehension about what we could debate on this Bill and that they really thought that we would be able to do more in considering the Bill, in examining the true and specific content of the treaty to which we are acceding. The Leader of the House was right when he said that no Government could say what would be in order.
However, let me take the argument the other way round. Let us suppose that my hon. and learned Friend is right and that he has correctly divined the mind of the Chair one, five or ten years' hence. Let us be generous and suppose that the Patronage Secretary of the day and the Leader of the House would organise a whole day's debate and in the course of that it would be possible for the House to examine and discuss the contents of the treaty, which it has to be remembered could be a treaty as far-reaching as this one in its consequences. There is no limitation in the formulae of the Bill.
If that is so, then a fortiori a Bill, a legislative act, would enable this House to examine the treaty. If it is accepted to be right and necessary, as surely it is, that this House should have the opportunity to examine a new extension, then let us not leave it to chance with a few hours' debate on a Resolution, to the chance that my hon. and learned Friend might be right in his estimate of the rules of order of the day. Let us make as sure as we can, subject to the embarrassments with which we have become already too familiar, even in the case of legislation, that the House of 1517 Commons in the future can form a safeguard to the further extension of the intrusion of the law, the taxation, and the policy of the Community into this country.
Perhaps I might illustrate what is meant in practical terms by a simple hypothesis. Amongst the pre-accession treaties set out in Schedule 1 is the treaty establishing certain budgetary provisions signed at Luxembourg on 22nd April, 1970. I have no desire to get the Leader of the Opposition out of any of his difficulties and embarrassments, but if we had had this Bill before us at any time before April, 1970, that provision would not have been in the Schedule, nor should we have been assenting, in so far as we are allowed to assent at all by these proceedings, to the budgetary provisions of the Community arrived at in 1970.
Let us consider what that Bill would have contained. It would not have contained Clause 2(3) in its present form. It would not have contained anything which is necessitated by or consequential upon the Luxembourg Agreement, and we would not have been discussing, as we have been able to discuss, the consequences of the "own resources" principle of the Community.
If we allow this Clause to stand in its present form, those are matters which can never be debated in Parliament. There will never be a discussion such as that which we had on the Ways and Means Resolution. There will never be a discussion on whether these funds should be carried out of the country from the Consolidated Fund. There will never be any of that unless we can manage to compress it within the scope of a Resolution.
It is a constitutional innovation of a portentous description that we should renounce the necessity of legislation for the future in respect of all the changes, small or great, which can be brought about in our law by future treaties made in connection with the European Community. Therefore, what I seek to do, and what I ask the Committee to agree to, is that, without prejudice to what we do about the existing law and the existing treaties, in future when there is a further movement forward, when there is a further change, when there is a new phase, the Government of the day, whichever they are, shall have to come back to this 1518 House as this Government had to come to this House at the time of accession.
Surely that is a request so moderate that one might stand as astonished as Lord Clive stood on a previous occasion by the moderation of it; for if it were not before us in the form of a Bill one would hardly have credited that at any time this House would be asked to renounce its legislative function for the whole of the future.
My right hon. and hon. Friends have an answer, of course. They say that we started too late in the process. They say that, long before it comes to a treaty either made by the Community under the first sub-division or entered into by the United Kingdom, all that is implicit in it will have been gone into in detail, debated over and over again and thrashed over so that it will be empty husks when it becomes a fact. Why, then, after all that should the House be bothered even with a Resolution, let alone with legislation?
In the context of this argument, we made the acquaintance in a new form of the innovation of my right hon. and learned Friend the Chancellor of the Duchy of Lancaster, the ad hoc committee, which underwent a considerable expansion and development for the purposes of the argument on Clause 1. The Committee will recall that it had been a rather modest creature on Second Reading. At that stage it had been concerned only with draft regulations and directives; that is to say, the earlier form of preparation of Community law which is either self-executing under Clause 2(1) or has to be executed by an Act of Her Majesty's Government in this country under Clause 2(2).
In my right hon. and learned Friend's speech last night it was very different. The ad hoc committee was to go much further. It would consider how this House could be apprised of what was going on at every stage in the evolution of a new treaty or of a treaty to which eventually the United Kingdom might accede. The picture was drawn of one of Her Majesty's Ministers going off to Brussels, or wherever it might be, with the instructions of this House in his pocket—
§ Mr. Baxter
Not of this House; of the ad hoc committee.
§ Mr. Powell
Not quite. The hon. Gentleman has missed a very important stage to which I was about to come. The function of the ad hoc committee is only to make recommendations, to consider what would be the most suitable method of ensuring that this House is apprised of what is in store for it by way of regulations and directives and by way of treaties which will require no parliamentary action or which we shall be required to recognise as treaties by a Resolution of this House. That is what the ad hoc committee will do.
However, the ad hoc committee does not exist, unless I have missed something on the tape in the last few hours while I have been in the Chamber. It has not been set up yet, let alone has it reported, let alone has this House considered in the light of its report what sort of apprisal of or control over the processes it can have. Yet it is on the ground that there is to be such a process as that some time in the future that we are asked to renounce our legislative power over the consequences of future treaties.
My right hon. and learned Friend says that we should not worry, that there will be an ad hoc committee—one day. He says that that ad hoc committee will report—one day. No doubt this House will consider the recommendations of that ad hoc committee—one day. Whatever recommendations are accepted, if they are acceptable, may be put into effect—one day. But this is Clause 1 of the Bill. When we part with it we part with the heart of the matter and with the substance of legislative power. We cannot, out of mere self-respect, say, "Well, let it go, because there will be an ad hoc committee. One never knows, something might come out of it." That is no ground for this House to renounce its legislative power for the future over all that these treaties may bring. Something may come out of it, but, in the nature of things, nothing effective can come out of it.
I say that for a very simple but fundamental reason. If the Bill is passed, the balance of power between the Executive and Parliament shifts dramatically and permanently. My right hon. and hon. Friends will appreciate that there can be no criticism of persons or of Administrations over this matter; this is 1520 far beyond the reach of any brief period of time of any particular Government. In future, when the Bill is passed, on all matters which concern the Community the Executive which the House will confront will no longer be alone the Executive of this country. Over and behind the Executive of this country, like a shadow standing behind the Minister at that Box, will be an Executive power which the House cannot get at. We may be afforded information about its doings, but it is an Executive power which we cannot call to account. At no stage—it is in the nature of things—can instructions be given by this House on Community matters in advance to a Minister of the Crown. That is why it is not possible to say that the prior processes of consideration, the gestation of treaties and all Community decisions, will afford this House the opportunity to exert its power and the safeguard to be the spokesman and protector of the subject.
[Mr. BRYANT GODMAN IRVINE in the Chair]
We shall be considering, in connection with subsequent Amendments and Clauses, what we are asked to do in that respect as to the present and the past. As to that, what is past is prologue. That prologue we shall be debating in the coming days and weeks. But now we are talking about the future—we are talking about an unknown and unlimited future—and, faced with that, this Committee has no right to do anything but to insist that the legislative agreement of the House of Commons to any extension of what we now know shall have to be sought in future as and when a future Government may consider that to be necessary.
That is why I submit to the Committee—I think that this can equally be true of those who are for or against British membership of the Community—that we have the right to draw this line between the present and the future and say that for the future we must be asked, if the occasion arises, to legislate again. That is what these Amendments would achieve.
§ Mr. Hugh Jenkins
Great differences on policy matters exist between right hon. and hon. Members on this side of the Committee and the right hon. Member for Wolverhampton, South-West (Mr. 1521 Powell). However, it is right that someone on this side should say that the right hon. Gentleman has demonstrated, with great intellectual quality and sincerity, a real concern for the rights of the House of Commons. I am sure that the Committee will have taken full note of what he said.
The right hon. Gentleman concerned himself in the main with legislation which may come in the future. I think that in considering what we shall have to face we can get a good guide from what has happened in the past. Therefore, I hope that it will be in order for me to spend a little time referring to the body on legislation referred to in the Clause which we are required to swallow whole, lock, stock and barrel, without any debate whatsoever.
I think that the decision that this little Bill should be the means whereby the whole package should be shovelled on to us, both past and future, was profoundly wrong, even from the Government's point of view. It is wrong to produce a small Bill and to say that, with the passage of the Bill, this whole mass of legislation, some small part of which I have beside me on the bench, is to be swallowed undebated and unexamined. Furthermore, as the right hon. Gentleman pointed out, not only are we to take wholesale all that has gone before, but we are to bind our hands for the future. I wonder when this extraordinary proposal really germinated in the Government's mind. I doubt whether the Committee would have thought it possible that this should be attempted.
When we were in Government, I recall hack bench Conservative Members of Parliament fulminating against legislation which was not to be debated in the House. They suggested that it was a monstrous thing for the Government not to bring every piece of legislation for debate in this Chamber. Committees were established to make sure that the House had a fuller and better opportunity in future to examine legislation in greater detail, Clause by Clause and line by line.
What has happened in this instance? Delegated legislation to an unimaginable degree is suddenly thrust upon us in this Bill, and in this one Clause we are asked to swallow not only what may come to us in future but the whole body of 1522 legislation which it has taken years for the Community to acquire, and which we have had no part in framing. This comes to us as it is and we have no say in the matter. We have to make the treaty as it is. So from this Bill, which is the only thing that we have to debate, we go to this document, and this whole document goes into the Bill. We cannot amend one Article of it, so the Chancellor of the Duchy of Lancaster tells us. From this there stems a large number of other—
§ Mr. Rippon
§ Mr. Jenkins
I will give way to the right hon. and learned Gentleman in a moment. From this there stems a large number of other major treaties, and from those treaties there stems what is called the secondary legislation. We are to accept all this lock, stock and barrel. If the right hon. and learned Gentleman now wishes to intervene, I will give way.
§ Mr. Rippon
I apologise for interrupting the hon. Gentleman. However, he referred to a document. I wondered which document it was. Yesterday—I am sure, inadvertently—the hon. Gentleman misled the Committee on the so-called draft directive on the cinematograph industry which was formally translated, but not binding. I want to be sure this time that he is not suggesting that there is something here which none of us knows about.
§ Mr. Jenkins
This applies to the legislation which the right hon. and learned Gentleman has presented to us. This document states:This pre-accession series of English texts of the secondary legislation of the European Communities is published to show how the secondary legislation, as it stood on 10 November 1971, would apply to the United Kingdom when the Communities are enlarged. Notes at the end of the individual instruments indicate the adaptations which have been agreed or are under discussion with the Communities.Authentic English texts which will apply after the United Kingdom's accession to the Communities will be published in due course in an English Language Edition of the Official Journal of the European Communities.Even now this is not the authentic text. I am prepared to accept it as such—I think it likely that the text will vary in small degrees—just as the document which I quoted yesterday was the report of a draft which is going through rather 1523 than the draft itself. This may be nearer to the final draft than the document which I quoted yesterday. However, even this is not the final authenticated draft. None of these 42 documents is the final draft. However, I am prepared to accept that to all intents and purposes these are unlikely to be changed. The document of 28th July is also likely to go through in the form indicated.
However, as the right hon. and learned Gentleman has said, the Community is active all the time, so that even as we stand here meetings are taking place in various parts of the Continent, and legislation is going through which we shall have to accept lock, stock and barrel, with very little protection against legislation which is inimical and which, if we had a free hand, no hon. Members on either side would dream of passing.
§ Mr. Deakins
My hon. Friend will be aware that the Government have not yet told the Committee what is the position of the secondary legislation of the Communities passed between 10th November, 1971, and 22nd January, 1972, and under which part of Clause 1 (3) such treaties would be presented to the House of Commons. Would they rank as Community treaties? If so, is it not incredible—almost monstrous—that the Committee has no knowledge of them? It has knowledge of the 42 volumes of secondary legislation and 10 volumes of Community treaties, but there are other things that we know not of. One suspects that not even the Government know about them yet.
§ Mr. Jenkins
The further we examine this situation the less are we surprised. As my hon. Friend says, we are not being asked to swallow just legislation that we know something about; we are also being asked to take on trust legislation that we know nothing about. We are doing something which I never thought the Committee would ever contemplate. Many of those who may favour the principle of entering the Common Market if the terms are right equally never contemplated, I am sure, that we would go in like this, on our hands and knees. This is deeply repugnant. I hope that our Amendments, which seek to reserve to this Chamber the powers which are traditional to it—of debate, discussion and examination—will 1524 be carried. Whether we go in or not, surely we should not go in handcuffed.
I should like to illustrate the argument by citing one or two of the documents that I have here as examples of the sort of thing that we have to take en bloc. This secondary legislation might be called tertiary legislation, because most of it stems first of all from the treaty and sometimes from a secondary treaty.
These are 13 documents of general policy. There is one called "Budgetary Policy", which lays down the levies to be paid to the Coal and Steel Community and many other things as well. There is commercial policy, divided into two sections, all of which should be examined in detail and all of which is very important. There are also two sections on Community institutions. All of this will affect us very closely if we get into the Community—as I hope we shall not. Then there is the laying down of the most rigid competition. The form of competition laid down in the treaty, of which these Amendments seek to regain control, is savage. When the time is appropriate—it is not now—we shall want to examine this part of the treaty and what stems from it in considerable detail.
We shall also have to take all these provisions about customs questions, lock stock and barrel, without being allowed to examine them in any detail. The same applies to the provisions on economic affairs, energy policy, Euratom, and social affairs—the last of which deserves examination in the utmost detail. The same applies to taxation. These provisions take away one of our most cherished rights—the right to determine the nature of the taxation that we impose on the citizens of this country. In future, not just its nature but its level is to be determined from outside. There are also 42 further documents, relating in the main to aspects of food and agricultural policy.
The Committee should not be asked to take on these provisions without close and detailed examination. I especially hope that it will pass Amendment No. 147, which seeks to give the House of Commons the right to examine this legislation in detail instead of having to accept it en bloc. Then the Committee 1525 could debate the issue whether we go in or not on the basis of examining what we are taking on, instead of having to swallow it like a dose of castor oil.
§ The Solicitor-General
§ Mr. John Mendelson (Penistone)
On a point of order, Mr. Godman Irvine. I sat through yesterday's debates on the first Amendment and have sat here all day today without being called once, while other hon. Members have been called twice. To the best of my recollection, I have never raised a point like this before, but I ask for your consideration, Mr. Godman Irvine, to be called before the Solicitor-General replies.
The Temporary Chairman
It is the normal practice to call first one side and then the other, or first a supporter of one proposition and then a supporter of another. If a Front Bench spokesman wants to speak, it is usual to call him.
§ Mr. Fell
On a point of order. Would it be possible for my hon. and learned Friend to give some assurance that the debate will not be closed after he has spoken?
§ Mr. English
Further to that point of order. I am sure, Mr. Godman Irvine, that if we knew that you were going to call all the hon. Members concerned we would not be particularly worried in what order you called them. But I would like you to pass on to the other occupants of the Chair—since this difficulty is possibly caused by the rotation of people in the Chair—that, over the period of days, the circumstances of my hon. Friend the Member for Penistone (Mr. John Mendelson) have become well known to us all, and that they apply to others. It seems a little strange, to say the least, if some hon. Members are called on every Amendment while other hon. Members are sitting in the Chamber who have not been called on any.
I am sure that no one occupant of the Chair is responsible for this, but I hope that the Chair, especially in the case of overlapping Amendments like these, will take this phenomenon into account and try to rectify it.
§ Mr. Deakins
Further to that point of order. Is it not the normal practice for the Chair to call a Front Bench speaker at this stage, or slightly later, with the express purpose of answering the debate and winding it up? Are you calling the hon. and learned Gentleman for that purpose, Mr. Godman Irvine?
§ Mr. Mendelson
Further to that point of order. After experience of the Industrial Relations Bill and many others, I know that the hon. and learned Gentleman is usually courteous enough to allow hon. Members who have sat here all day to make their contribution before he attempts to reply. It is passing strange that he is not acting in the same way today.
The Temporary Chairman
Perhaps I can give the hon. Gentleman the assurance that I was in the Chair during debates on that Bill from time to time, so perhaps the same practice will apply here.
§ Mr. Shore
On a point of order, Mr. Godman Irvine. One can obviously envisage a situation in which the speeches from the benches opposite on this matter will be rather less frequent than the speeches, or the desire to speak, from this side of the Committee. I therefore hope that no sort of automatic calling of Front Bench spokesmen will take place because nobody apart from the Solicitor-General rose to speak on the benches opposite.
Some extremely serious points have been put by my hon. Friends, and I confirm that my hon. Friend the Member for Penistone (Mr. John Mendelson) has been trying to get into the debate for the last two days. He has a number of important points to put to the Solicitor-General, but we cannot be sure that the hon. and learned Gentleman will wish to speak again later in reply to my hon. Friend, should my hon. Friend have an opportunity to speak.
The Temporary Chairman
This is a matter entirely for the discretion of the Chair. The subject might be left there. [HON. MEMBERS: "No."]
§ Mr. Spearing
Further to the point of order raised with you by my hon. Friends, 1527 Mr. Godman Irvine I support their submission because I, too, for a substantial proportion of the debates on both days, have been sitting here waiting to speak. I have specific points to raise with the Solicitor-General. If the Amendment—
The Temporary Chairman
Order. We had better get on. Then there might be more time for hon. Members to make their speeches.
§ The Solicitor-General
I wish to deal with some of the many points that have been raised in discussing this series of Amendments. I understand the concern of the hon. Member for Penistone (Mr. John Mendelson), who has temporarily vanished from our midst, and the hon. Member for Nottingham, West (Mr. English), both of whom have been endeavouring to intervene on a number of occasions. One must, however, see the picture as a whole; there will be further Amendments on which they will be able to speak—[Interruption.]
Hon. Gentlemen opposite must allow me to finish a sentence. I was about to say that there will be further Amendments closely related to those under discussion; indeed, in some cases on almost identical points. There is a group of Amendments, previously grouped with those under discussion, which will deal with almost exactly the point we are considering. There are Amendments standing in the name of the hon. Member for Nottingham, West which are due to be called.
One must also bear in mind—I say this without any disrespect, Mr. Godman Irvine—the lack of a continuous flow of information between successive occupants of the Chair about, for example, the fact that some hon. Members have intervened in more than one of these debates and also—again, without any disrepect to the Chair—the fact that the points they have been making have not all been truly related to the Amendments that we are endeavouring to discuss. [HON. MEMBERS: "Disgraceful".]
The points raised by the hon. and learned Member for Northampton (Mr. Paget) were related to Clause 3(1), whereas the points made by the hon. Member for Putney (Mr. Hugh Jenkins) were related more to the secondary legislation, 1528 which is the subject of Clause 2(1), than to the Amendments which are under discussion. I hope, therefore, that they will forgive me if I do not deal with those points, save to make it clear that the hon. Member for Putney was quoting yesterday from the French version of a document which—I am sure he was not doing so intentionally—was not a good one from which to quote because it was a draft directive not in anything like the form in which it would be adopted as part of Community law. In other words, it is still under consideration within the Community.
The hon. Member for Putney was quoting from the European Community Bulletin, published in French, and it does not in that form amount to legislation. In fact, English translations of it have been made available by the Department of Trade and Industry to those interested in the subject. But it is, I emphasise, no more than a draft, and once we become members of the Community even drafts will appear in the Official Journal in the English as well as in any other language. I assure the hon. and learned Gentleman that it is not right to describe it as legislation.
My right hon. and learned Friend the Chancellor of the Duchy devoted most of his observations when he intervened last night to the question of Community treaties or treaties made under the Community's treaty-making power, and I shall have something to say about treaties involving member States.
It might be of assistance if early in my remarks I tried to remove some of the misunderstanding arising from the wording of particular phrases in Clause 1. The right hon. and learned Member for West Ham, South (Sir Elwyn Jones) asked what was meant by the words "any other treaty" in subsection (2)(b), and my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) returned to the point en passant.
The answer is that those words relate to future treaties. If one looks at the preceding provision, which begins by identifying the pre-accession treaties, one sees that those described in Part I of Schedule 1 begin with the items referred to in Clause 1(2)(a) and (b), while if one turns to subsection (3) one finds there the exposition of any treaty entered into after 22nd January, 1972. In other words, 1529 the same wording appears in Clause 1(2), which says:any other treaty entered into 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 Kingdom ".It is clear, therefore, that "any other treaty" refers to any future treaty.
My right hon. Friend the Member for Wolverhampton, South-West said there was a degree of circularity about the definition. I hesitate to cross swords even on a matter of geometry or trigonometry with my right hon. Friend because I suspect that his knowledge in this sphere is as extensive as his knowledge of the classics or the Welsh language.
My impression is that the definition is not a circular one; "any other treaty" or anytreaty ancillary to any of the Treatiescomes within the definition because it is ancillary to the first group of treaties as originally defined, particularly with reference to the pre-United Kingdom State treaties about which my right hon. Friend was talking.
For a new treaty by the United Kingdomancillary to any of the treatiesto become attached to and absorbed into Community treaties, it would have to be the subject of an affirmative Resolution. It would then be taken into the train of vehicles, so to speak, and it could then be a candidate to which the further treaty could be attached, but the definition is of the linear rather than of the circular variety.
§ Mr. Powell
I take my hon. and learned Friend's point about geometry and linearity, but my difficulty arose because in seeking the meaning of the word "treaties" in subsection (2)(b) one is referred back to the definition in subsection (3), as part of which one finds the phrase used. That is my difficulty, and I imagine that my hon. and learned Friend will wish to look at the matter again.
§ The Solicitor-General
I think I have understood my right hon. Friend's difficulty, and I think I have, having understood it, dispelled it, but, plainly, I have not done so to his satisfaction. I will, therefore, look again at the interesting 1530 geometric exposition that he has given to the House.
I come to some of the other verbal points that have been raised. The right hon. Member for Battersea, North (Mr. Jay) asked what was the significance of the wordswith or without any of the members StatesA more appropriate occasion for considering this will be when we debate Amendment No. 97, which proposes to add the words "or other States". His impression was that it was to make it plain that the latter provision in subsection (2)(b) applied toany other treaty entered into by any of the Communities, with or without any of the member Stateswhether or not the member State was a co-signatory to such a treaty. That is the intention of the words. The phrase is used to avoid any doubt, and if these words were left out it might suggest that such a treaty, in conjunction with another, was a different kind of treaty. These words are intended to make the position clear.
§ Mr. Jay
It would not alter the meaning of the Clause? It is for the removal of an hypothetical doubt?
§ 8.0 p.m.
§ The Solicitor-General
I think it might alter the meaning of the Clause, and that is why it is there. It is there because someone might argue—[Interruption.] The hon. Member for Liverpool, Walton (Mr. Heffer) follows very attentively and I do my best to explain. I am explaining this point, at least to the satisfaction of the right hon. Member for Battersea, North.
§ Mr. Heffer
It is very interesting.
§ The Solicitor-General
Turning to other points raised by the right hon. Gentleman about subsection (4) and the meaning of the word "treaty" and what is embraced by that word, he might agree that when we debate Amendments Nos. 29 and 31 that will be a more appropriate place to deal with the points which he put to me. Shortly, the reference there to "treaty" has to be taken with the reference to "treaty" in the early parts of the Clause. If one applies the ordinary meaning of the word, particularly in the context of the principles of international law in which they would be applied, an 1531 international agreement could not ordinarily include an agreement other than one between States and persons capable of entering contracts. It would not include an international oil company's treaty. If one looks at the Vienna Convention on Treaties, one sees that a treaty has to be in writing rather than oral, but, of course, it is a point, again if one looks at the Vienna Convention, that a treaty can be found in an exchange of letters or documents. All those points we can look at more closely when we come to the Amendments which actually raise them, but I thought it would be helpful to the Committee if I gave an indication of how these words should be interpreted.
§ Mr. Jay
To be quite clear, the Solicitor-General is saying that it has to be an agreement between Governments and it has at least to be written and cannot be altered. Is that correct?
§ The Solicitor-General
Yes, I say between governments, between persons who are international legal persons, which can include States or organisations of States in certain circumstances, such as, for example, the European Community, which is an international person and, I think, such bodies as the International Labour Organisation or the United Nations. It has to be a person in international law and the agreement has to be in writing. I hope that is sufficient—I do not mean sufficient for the right hon. Gentleman to be going on with, but—
§ The Solicitor-General
If I may be allowed to move on because now I am giving a kind of hors d'oeuvre of answers to questions which the right hon. Gentleman can raise again when we come to the Amendments put down to subsection (4).
§ Sir D. Walker-Smith
Is it not a person in public international law to whom my hon. and learned Friend refers? He says that it would not be an international oil company, for example. It is only a person in public international law. Is that right?
§ The Solicitor-General
I am grateful to my right hon. and learned Friend. That is the effect of what I mean, and 1532 that is comprised by the phrase "any international agreement", an agreement which would qualify as an international agreement, entered into by a person in public international law.
I believe the right hon. and learned Member for West Ham, South also asked how the past treaties are identified. I wish to respond to that. They are, of course, identified with the principal accession treaties by reference to the categories listed in Part 1 of Schedule 1, and the seventh category is listed by reference to the Appendix of the first volume of the Accession Treaty and reproduced in the 10 volumes of 4th February.
One comes to the question of how subsection (3) will work. As my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) pointed out, and as I said at the beginning of the debate on Thursday last week, the first part is intended to be evidential in order to make plain, in any situation where doubt might arise, that a treaty was to be regarded as one of the treaties as defined in this Clause. I think I dealt last night with the proposition of the extent to which there was to be a safeguard. That was in reply to my right hon. Friend the Member for Wolverhampton, South-West, who said that it was a threat rather than a safeguard. I did not go beyond asserting that it is not so much a safeguard as an evidential provision.
§ Mr. Deakins
I am not a lawyer, but I should like the Solicitor-General to explain why a court of law should have more regard to an Order in Council defining a Community treaty than to an Act of Parliament, such as this Measure may be, which defines treaties and sets them out, or shows where they can be found.
§ The Solicitor-General
If one considers the question of whether or not a given future international agreement does or does not constitute a treaty within this complex, it is easier and not, I think, unusual for that question to be answered in relation to that agreement by means of an Order in Council. It is for convenience as a matter of evidence that it should not be necessary to go before a court and say, "Is this or is it not an international agreement which should or should not come within the meaning of Clause 1(4)?"
1533 I think the hon. Member for Llanelly (Mr. Denzil Davies) challenged the extent to which I referred to the Anisminic decision yesterday as justifying the view that an Order in Council under the first part of subsection (3) could be challenged. I must confess that I react with some lack of enthusiasm to the point he put in his speech today when he said that it was almost irresponsible for the Solicitor-General not to have a copy of the Anisminic decision in his knapsack to help him if any point might arise. I was doing my best, and I hope that the Committee understood the answer I made to the point that was put to me. I expressed the view, which seems to have been accepted by the right hon. and learned Member for West Ham, South and then by my right hon. and learned Friend the Member for Hertfordshire, East, that the Anisminic decision justified the view that an Order in Council which went outside the scope permitted by subsection (3) could be challenged in the courts.
I do not wish to overstate that or to present it as a defence that could cover a wide range of territory, but I stand quite firmly on the proposition that that case supports that conclusion. Referring to a passage from the judgment, although the Anisminic case referred to a tribunal,—the Foreign Compensation Tribunal—the principle there set out refers to anyone exercising a power conferred upon them by Statute. The fact that this deals with a power to be exercised by Her Majesty by Order in Council does not mean that it is an exercise of the prerogative here but, by means of an Order in Council, of a power conferred by Statute. In these circumstances, the Anisminic principle applies. To quote one sentence from the speech of Lord Wilberforce:Equally, though this is not something that arises in the present case, there are certain fundamental assumptions which, without explicit restatement in every case, necessarily underlie the remission of power to decide".Within the frontiers of the decision, if the decision taken in respect of an Order in Council was manifestly outside the field of Community treaties, of course if it was taken in bad faith, it could be challenged under that decision. I do not wish to put it higher than that but to justify, if I can, the proposition which the hon. Member for Llanelly seemed to challenge.
1534 My right hon. and learned Friend the Member for Hertfordshire, East asked how far the first part of subsection (3) would apply to future Community treaties. The answer is that they, too, could be the subject of Orders in Council under the subsection. But—and this is the point made by my right hon. and learned Friend the Chancellor of the Duchy last night—future Community treaties can only be made within the scope of existing treaties. I shall come to the extending point raised by my right hon. Friend the Member for Wolverhampton, South-West later.
Community treaties can often be made, particularly if they are in the commercial field, without having any effect on the law of this country as a member State at all, and they have the same quality as other international commercial agreements. In that respect a future Community treaty would not need legislation, any more than a future international treaty of this country would need legislation at present if it was having no effect on domestic law.
The right hon. and learned Member for West Ham, South challenged to some extent the value of the right of apprisal which would flow from such recommendations as might be made by the ad hoc committee to which my right hon. and learned Friend the Chancellor of the Duchy referred. But it is important to recognise—before I return to the point in this particular context—the extent to which, notwithstanding the Ponsonby Rules, many treaties, quite apart from other actions of the Executive Government, can now be made and take place without Parliament having any right of apprisal at all. So in the field with which we are concerned the opportunity for the ad hoc committee to consider that is not something to be lightly disregarded.
I return to the other half of the question; namely, treaties entered into by the United Kingdom. The hon. Member for Llanelly returned to the point he made yesterday, suggesting that a treaty entered into by the United Kingdom as ancillary to the Community treaties would not need to be specified under the second part of subsection (3). I have tried to understand how he advances that argument. I fail to see how he can do so. As everyone has acknowledged, a treaty to which the United Kingdom is not a party can 1535 be specified under the first part of subsection (3) without any need for affirmative Resolution. If one looks at the second part of subsection (3), one finds that, as I said yesterdaya treaty entered into by the United Kingdom after the 22nd January, 1972 … shall not be so regarded.—in other words, shall not be regarded as one of the Community treaties—unless it is so specified, nor be so specified unless a draft … has been approved. Shall not be so regarded"—that is to say, regarded as a Community treaty within the definition of the words "Community treaties", so that it does not come into the complex from which, for example, rights, powers and liabilities can apply under Clause 2(1) unless it is brought within the concept of Community treaties. It cannot so be brought without being specified in an order which is subject to the affirmative Resolution of the House of Commons.
§ Mr. Denzil Davies
In that case we can read Clause 2(1) as meaning "by or under the Community treaties". The words "Community treaties" could be inserted there.
§ The Solicitor-General.
I am glad that the hon. Member raises that point. Line 15 on page 1 contains the words "Treaties" or "Community Treaties". If I may explain that before the hon. Member interrupts me again, the point is that for each of these treaties—the "Treaties" or "the Community Treaties", which we are now discussing, I think that the hon. Member will find throughout the rest of the Bill that the reference is always to the "treaties" and that there are no later references—I may have overlooked one—to the concept of the "Community Treaties". The phrase "Community Treaties" is included in the definition Clause here so as to be of use in other Bills and legislation at other times.
§ 8.15 p.m.
§ Mr. Denzil Davies
Reverting to the first part of subsection (3)—that is, treaties not entered into by the United Kingdom—the Solicitor-General's right hon. and learned Friend, in answer to my question last night, said that even those were not specified. The rights arising under them would become incor- 1536 corporated into English law. What I cannot understand is why, in relation to the first part of the subsection, it is not necessary to specify a treaty as a Community Treaty for the purpose of Clause 2(1) but it is necessary to specify it for the purpose of Clause 2(1) in relation to the second part of subsection (3). The first part is surely the same as the second part.
§ The Solicitor-General
I can explain the reason for that.
§ Mr. Heffer
This is legal argument; it is not politics.
§ The Solicitor-General
I really cannot win, Mr. Godman Irvine. When I try to deal seriously with the points raised by hon. Members, the hon. Member for Liverpool, Walton interrupts, from almost a recumbent position.
The answer to that question is that the first part of subsection (3) is evidential. As my right hon. and learned Friend said last night, a treaty could be a treaty within the meaning of the Bill without there having been an Order in Council, and that follows from the nature and quality of a Community treaty. I shall return to that matter later. But so far as concerns a treaty coming into the treaty complex to which the United Kingdom is a party, that kind of treaty is firmly subject to the second part of subsection (3), so as to set beyond doubt the right of both Houses of Parliament to have an affirmative Resolution in respect of United Kingdom treaties. It is in order to introduce the safeguard that we have been discussing in respect of United Kingdom treaties that the second part of subsection (3) exists.
§ Mr. Ronald King Murray (Edinburgh, Leith)
While the Solicitor-General is on that point, he mentioned yesterday that in his view treaties falling into the second half of subsection (3), into that category, could include some of those which fall into the first two lines of lines 5 to 8, that is to say, some treaties which were to be subjected to affirmative Resolution by subsection (3) could be of the commercial type, to which this country was merely a co-signatory, essentially commercial treaties which did not affect the internal law of this country? Is he right about that?
§ The Solicitor-General
Yes, I am. [Interruption.] The hon. Member for 1537 Ebbw Vale (Mr. Michael Foot) can sometimes launch that kind of gibe at me, but on this occasion I am confident.
Lines 5 and 6 are primarily intended to cover treaties entered into by the Community—Community Treaties. But in some of those cases the member States, including the United Kingdom, would be co-signatories. Once the United Kingdom becomes a co-signatory it becomes one in respect of which the second part of subsection (3) operates. Any treaty of which the United Kingdom is a signatory, whether one entered into by the Communities—that is, as co-signatories—or one entered into by the United Kingdom with other member States without the Community, comes under the second half of subsection (3). So the protection in the second part of subsection (3) arises in respect of treaties in which the United Kingdom participates.
§ Mr. Murray
The Solicitor-General has made a very important point. Does that mean that in the case of commercial treaties, which are essentially commercial treaties affecting the Community as a whole and not involving internal law at all, the effect of this proposition would be to give the United Kingdom, although it is embodied as a co-signatory only, on a technical ground, the right of veto, so that it could veto all these commercial treaties if the House of Commons cared to do so?
§ The Solicitor-General
I move to the next possible categorisation to explain that, because the hon. Member for Liverpool, Walton referred to the agreements which exists between the Community and Greece and Spain. I did not want to spend a great deal of time on this general discussion, but they conveniently illustrate the distinction that I want to make here. The agreement of the Community with Greece is an association agreement. It is made under Article 238 and is one to which member States are a party. Largely because of its nature, it extends outside the truly commercial field. The Community's agreement with Spain is made under Article 113 and is a trade agreement. It does not have member States as co-signatories. Broadly speaking, agreements within the strict trade scope of that Article do not have member States as co-signatories. They do when they are regarded as having gone outside 1538 that, as in the case of the Greek agreement, when the member State becomes a co-signatory.
§ Sir D. Walker-Smith
I raised this matter yesterday. I do not think that it was referred to late last night, although we have not as yet had the HANSARD record of the proceedings after Ten o'clock. Do we get any help from the Treaty of Rome or anywhere else as to the circumstances in which a Community treaty will be reinforced by member States being co-signatories. I have not been able to find anything in the Articles to which we have been referring—Articles 228 and 114, and so on. Can my hon. and learned Friend help on this?
§ The Solicitor-General
I will answer my right hon. and learned Friend so far as I can at the moment. As I understand it, the position is that there are certain treaties—for example, those under Articles 113 and 114—which are plainly within the treaty-making power of the Communities if they do not go outside that, as the Community's Spain Treaty does not go outside it. That is made by the Community without participation by member States, but, as a matter of practice, if it appears that the scope of the treaty being made goes, or may go, outside the defined area, the member States are invited to participate in order to place their imprimatur as individual member States alongside that of the Community.
I do not wish to say any more than that about the Spanish and Greek agreements at the moment, save only that the scope of the Greek agreement is, in its origin, intended to lead to association. As a result of the Greek coup in April, 1967, the Community froze its side of the E.E.C.-Greece association agreement. The freezing of the agreement did not affect the preferential treatment given to Greek products entering the Community, but it put an embargo, for example, on European investment bank loans to the Greeks, and it held up negotiations on the harmonisation of agricultural policies. The Greeks have continued the tariff reductions required by the agreement but the part of the agreement intended to lead towards association has been frozen.
On the Spanish Agreement, I know that hon. Members, at least on the Opposition side, have harsh views about the 1539 Spanish Government. But this is a commercial agreement. It recognises that Spain is an important and rapidly growing market for United Kingdom exports. If this were not a commercial agreement, the benefits of which we could enjoy after accession, the agreement would give E.E.C. exports of many kinds, apart from our own, preferential tariff margins against us. Our major European competitors in the Spanish market are all in the E.E.C., and if we did not share the preferences they have already got there exporters would face growing competition and risk losing sales. But this is a much narrower kind of agreement. I do not want to say anything more at this stage.
My right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) raised the question of the Ponsonby Rule and its modification or possible application in the matters that we are now discussing. He quoted from statements by Mr. Ponsonby to the House when the rules were enunciated. I hope that he will agree that when analysed they are more compact in their application than some of the phrases used in the House then. They are summarised in "Erskine May", on page 251:When a treaty requires ratification, the Government do not usually proceed with ratification until a period of twenty-one days has elapsed from the date on which the text of such a treaty was laid before Parliament by Her Majesty's command. This practice is subject to modification, if necessary, when urgent or other important considerations arise".I have always wondered whether when Mr. Ponsonby uttered these magic words, he knew that the name Ponsonby Rule would become so well known—because his speech seems to have been rather informal.
§ Sir D. Walker-Smith
I think that he would have put it better if he had known that!
§ The Solicitor-General
I respectfully agree with my right hon. and learned Friend. It will be noted that the rule is not invariable. It applies only where a treaty requires ratification. It does not apply to treaties which come into force on signature. Treaties entered into by the Community alone within the existing treaty-making powers of the Communities do not require ratification. As 1540 Article 228 makes plain, they are binding upon member States and they are not within the terms of the Ponsonby Rule. Treaties entered into by the United Kingdom with or without any of the Communities would be within the Ponsonby Rule if they required ratification, and they would also be within the requirements of the second part of subsection (3). So the Ponsonby Rule can be an unnecessary duplication, since the Order in Council procedure would apply to treaties to which the United Kingdom was a party, whether or not they required ratification.
The problem is the extent to which the Ponsonby Rule, or anything like it, can be made to apply to Community treaties as opposed to member States treaties. That is the kind of problem which my right hon. and learned Friend indicated last night would need to be considered in the context of the way in which Community treaties are actually made, by the ad hoc committee along with the other matters that it would be considering.
§ Mr. Michael Foot
We are particularly suspicious about the whole proposition of this ad hoc committee, particularly in view of the way in which it has been presented in these debates. It seems to be something thought up at the last moment to get the Government out of a lot of difficulties. Can the Solicitor-General say whether, at any stage in the Bill—and, if so, at which stage—the Government are proposing Amendments to the Bill to make sure that the statements that the hon. and learned Gentleman has made about the ad hoc committee and its rôle will be incorporated in the legislation? We would then be able to see whether the ad hoc committee fulfils the claims which the Government spokesmen are making for it.
§ The Solicitor-General
The point that I am making, and the point to which the ad hoc committee is directed, was raised some time back by the right hon. and learned Member for West Ham, South. If we had come forward with proposals, designed so far as they could be designed to meet this kind of point without having allowed Parliament, through an ad hoc committee, to consider them, we should have been accused of pre-empting the kind of conclusions that might have 1541 emerged from that committee's consideration of the problems. The Bill as it is presented gives effect to our obligations under the treaties to which we are acceding. Whether anything emerges from the considerations of the ad hoc committee we shall have to see.
§ [Mr. E. L. MALLALIEU in the Chair]
§ 8.30 p.m.
§ Mr. Foot
The Government are engaged in putting proposals to the Opposition, asking whether we would be prepared to enter arrangements to set up this committee and to have members on it to consider these matters and, presumably, to report to the House about the procedures to be followed. We are extremely suspicious about that proposition for the reasons I have given, but we have to decide whether to participate. We shall have to decide whether we are to take account of the recommendations which come from the ad hoc committee for inclusion in a Bill such as this. If the Solicitor-General is not making a statement about it here and now, will he undertake at an extremely early stage in the further consideration of the Bill to make a full statement about what is intended, what the Government hope will come out of the ad hoc committee and how that will be incorporated in the Bill? Or is it just a pious expression about some kind of committee to which these matters may be referred in a most amorphous way? That would be an unsatisfactory way in which to deal with matters which the Solicitor-General himself has described as important.
It appears to us that every time the Government got into difficulty and whenever the Ponsonby Rules are raised, or some other matter of that kind is raised, they suggest referring it to the ad hoc committee. That is an extraordinary way in which to proceed with a Bill of this major importance, which we are told the Government have considered and which they say could have been presented only in this way. Surely this whole matter should have been thought out long ago.
§ The Solicitor-General
The Bill is presented as a legislative vehicle for what is necessary. I should not like to trespass on what discussions may or may not have been taking place through the 1542 usual channels, but the ad hoc committee is a means whereby Parliament may be consulted about the best way in which these matters may be handled.
§ Mr. Foot
I may seem tedious to the hon. and learned Gentleman by interrupting again, but the Government apparently lay great stress on the ad hoc committee and the report which may come from it about how to deal with certain parts of the Bill. If they lay such stress on it, let them consider the matter completely and tell the House exactly which matters are to be referred to the ad hoc committee, how they are to be referred and what sort of amendment to the Bill will be required to translate into legislative form the kind of recommendations which the Government would like to see from the ad hoc committee. Certainly the Opposition will not enter into general discussions in the vaguest possible way. We want to know what are the propositions. On what the Government say about that we shall have to decide whether to participate in any ad hoc committee.
§ The Solicitor-General
I shall not respond to the hon. Gentleman's question on that now. My right hon. and learned Friend explained last night and in the Second Reading debate what would be the function of the ad hoc committee as proposed.
§ Sir Robin Turton
When my right hon. and learned Friend mentioned this matter in the Second Reading debate he made no suggestion that the ad hoc committee, which was to be a device of procedure, would be a channel by which draft treaties could be examined, which implied a replacement of the Ponsonby Rule. The Ponsonby Rule was under debate in the House long after Ponsonby. I remember its being debated for one whole day when I was an Under-Secretary and I remember its being stressed how important it was that major treaties, although perhaps not minor treaties, should be debated in Parliament. That is what is being denied under the Bill as drafted.
§ The Solicitor-General
No. I do not want to go back over the ground that I have covered already. I appreciate what my right hon. Friend is saying about the extent to which the Ponsonby 1543 Rules have been analysed and debated. As he says, they are far from clear. The point that I am making is that any treaties to which the United Kingdom is to be a party and which are made under the Clause would require an affirmative Resolution, in respect of an Order in Council, by both Houses. That is plainly provided for and that is wider than the Ponsonby Rules, because it will apply whether or not the treaties require ratification.
The problem arises in relation to treaties which are made by the Communities and to which the United Kingdom would not be a party.
One cannot go beyond the proposition that by Article 228 they are binding on member States. On the machinery whereby, and the extent to which, Parliament can be apprised of them and can consider the most suitable arrangements for dealing with them, I cannot go further than to say that they would be considered by the ad hoc committee.
§ Mr. Heffer
On a point of order, Mr. Mallalieu. The Committee is placed in an extremely difficult position. The hon. and learned Gentleman continues to refer to an ad hoc committee which does not exist. At present there seems to be no attempt to make an agreement to set it up, and there is no guarantee that the Opposition will agree to its being established. Yet we are told that it is essential in relation to the whole Bill. Therefore, surely it is impossible for the Committee to continue its consideration of the Bill until such time as the Government explain precisely what the functions of the ad hoc committee will be and when they intend to introduce Amendments to the Bill to define the position of that committee.
§ Mr. English
Further to that point of order, Mr. Mallalieu. All that we are basically asking is that the Solicitor-General should stop referring to a non-existent committee, or should refer the Bill to it.
§ Mr. Brynmor John (Pontypridd)
Further to that point of order, Mr. Mallalieu. Is not a third possibility that the Solicitor-General should give—as he has carefully refrained from giving—an undertaking that the Government will amend the Bill to implement anything 1544 that the ad hoc committee reports favourably upon? If it is to lay down a procedure it thinks the House should adopt in examining the treaties, the Government should undertake to implement that procedure before we go any further. The Solicitor-General says that he is merely introducing a Bill to give effect to our entry, but in subsection (3) he is giving effect to a parliamentary procedure. The fact is that nothing in the Bill recognises the ad hoc committee. We have no assurance that any of its recommendations will ever be implemented.
The Second Deputy Chairman
What the Government decide to do on these matters, interesting though they are, is not a question for me. The Government must decide for themselves. No point of order has arisen.
§ The Solicitor-General
I cannot give an undertaking of the kind for which the hon. Gentleman asks in respect of the ad hoc committee's recommendations. The Government have made proposals, which are no doubt being discussed through the usual channels, offering the prospect of involvement by Parliament in all these aspects, including the aspects of secondary legislation made by the Communities' proposals, which, until the very recent appointment of the committee under Lord Brooke, go beyond the extent to which Parliament has been able to be involved in such secondary legislation at home. It is not acceptable for the hon. Gentleman to say, "We will not have any part of this"—[Interruption.] That is what the hon. Member for Liverpool, Walton implied. The Government are doing their best to give Parliament the opportunity to consider these matters. I had best leave the matter there for the moment.
§ Mr. Powell
May I put a point to my hon. and learned Friend, in no contentious spirit? I understood his point to be that it would have been almost improper for the Government, in advance of consideration, such as by the ad hoc committee, to put forward their own proposals, whether in the Bill or outside the Bill, and that the Bill contains only what is necessary to implement the treaties. These are not matters of the internal discipline or procedure of the House, in which it would be an impertinence for 1545 the Government to interfere; they are similar in kind to the provision in subsection (3), which provision is not necessary in order to implement the treaties.
The Government need not have included subsection (3)—certainly not the second part. They have done it because they thought it was a proper parliamentary safeguard. If they think that there are other proper parliamentary safeguards, surely it is not only right but necessary that they should put them forward?
§ The Solicitor-General
The reason—and I will comeback to it when I deal with my right hon. Friend's question in respect of the treaties which are subject to the subsection (3) procedure—is that these treaties do not fall to be implemented automatically under Article 228. They do not raise the particular problems and consequences that there arise from the obligations under that Article of the treaty and which can be dealt with in the way in which the Government there suggest. But the quality of the question is different. My right hon. Friend the Member for Thirsk and Malton—
§ Mr. Shore
This is a genuine point of elucidation; we want to try to get clear the terms of reference of the right hon. Gentleman's ad hoc committee, as extended to possible future treaties. A moment ago he said that he envisaged the use of this ad hoc committee to look only at those treaties which are genuinely Community treaties—that is, treaties which would not have to come under Clause 1(3)(b) of the matter that we are considering. Or is he saying that it should cover both lots of anticipated future treaties?
§ The Solicitor-General
The terms of reference, as my right hon. Friend suggested in what he said last night, consider the most suitable arrangements in respect of treaties as in respect of other matters. I will read the passage again so that there can be no doubt as to what my right hon. and learned Friend said:As for the ad hoc committee, I said on second Reading that the Government believed that there was a need for the House to have special arrangements under which it would be apprised of draft regulations and directives, and that the ad hoc committee would consider the most suitable arrangements. I did not specifically refer to treaties, but clearly the com-1546mittee would wish to consider the scope of Parliamentary consideration in respect of treaties as in other matters. It is in that sort of way that we can be confident that, in practice, some of the anxieties that have been expressed will not prove too great.
§ Mr. English
§ The Solicitor-General
I cannot continue to give way on every aspect. I have reiterated what my right hon. and learned Friend said about that. I now come to the point with which I was going to deal. This was raised by my right hon. Friend the Member for Thirsk and Malton, who asked specifically about future agreements arising in respect of Commonwealth sugar. I am sure that he will know from what is set out in Protocol No. 22 about the different options which are there conferred on the sugar-producing States. Of course, if they were to take up the option in Article 238, that would be an association agreement of the kind requiring unanimity and would then be subject to the procedure that we have discussed in relation to a treaty in which the United Kingdom was participating. If it were an association of a narrower kind—for example, under Article 113—that the Commonwealth State was seeking to have, it would be governed by that aspect of the Rome Treaty. It would not then be formally subject to the unanimity rule, it would still be subject to the practice to which my right hon. and learned Friend has often referred, whereby in all vital national interests the Community would not proceed to an agreement without the concurrence of each of the member States.
That deals with the practice and the way in which it would be handled, and it is important to have that in mind. It would be a Community treaty and not a treaty to which the United Kingdom was a party, and would not then he subject to the specific provision of the second part of subsection (3) but would, as I think my hon. Friend the Member for Chertsey (Mr. Grylls) pointed out, no doubt be the subject of continuous parliamentary pressure and interest in this House, and could be the subject of such pressure in all the conventional ways even while the United Kingdom was taking part in the treaty-making process or defining the way in which the Community would undertake the treaty-making process.
§ 8.45 p.m.
§ Sir Robin Turton
The Solicitor-General has not quite answered my point. I suggested that this would come under Article 113 and could be made by qualified majority. We might well be in the majority and yet, unless Amendment No. 81 were passed, we would be denied the opportunity of raising that treaty in the House of Commons. I may be wrong, but I do not think the Solicitor-General has answered my point.
§ The Solicitor-General
With respect to my right hon. Friend, I think I have answered the point. I have made it plain that under Article 238 there would be the interposition of the United Kingdom parliamentary process. If the associated State was proceeding under Article 113, that part of this Bill would not provide the automatic right for parliamentary interpositioning. But even in respect of a qualified majority provision, as set out in the treaty, as my right hon. and learned Friend has made clear many times, that would in practice, having regard to the way in which the Community works and to the common law of the Community, be subject to the principle that they would continue until they had reached unanimous agreement. In respect of that, and in respect of the extent to which our Government followed a course on a matter of vital interest, all the parliamentary pressures which are normally available would be available in terms of Her Majesty's Government.
§ Mr. Jay
Is the Solicitor-General now taking refuge in what is known as the Luxembourg compromise? Would he not agree that that is not contained in the Treaty of Rome and has no legal force?
§ The Solicitor-General
The position of the Luxembourg compromise, as the right hon. Gentleman calls it, has been explained many times in this House by my right hon. and learned Friend. The right hon. Gentleman knows that it is not to be found in the terms of the treaties, but is part of the way in which the Community works and is central to the continued survival of the Community.
§ Mr. English
Will the Solicitor-General give way on this specific point? He has missed out—
§ The Solicitor-General
I turn to the specific Amendments which have been 1548 discussed separately and which fall into two or three different groups. There are those which seek to interpose an additional parliamentary procedure in respect of the Community treaties. There are those which seek to interpose a separate procedure in respect of the United Kingdom treaties. Hon. Members will recognise the extent to which Community treaties differ from United Kingdom treaties. Indeed my right hon. Friend the Member for Wolverhampton, South-West explained and acknowledged the extent to which Community treaties depend for their different nature on Article 228. They are required by the treaties to be directly binding on member States, and it follows from our accession to the Community that that result should follow.
In respect of those Community treaties, Amendment No. 96 applies only to Community treaties, and proposes the interposition of the affirmative resolution procedure even in respect of Community treaties. Amendment No. 81 proposes completely to exclude future Community treaties from the definition, so in effect seeks to insert the necessity of parliamentary legislative procedures. Therefore, Amendments Nos. 96 and 81 deal with Community treaties.
Amendment No. 82 seeks to remove from the definition treaties entered into by the United Kingdom so as to interpose the necessity for legislative procedures in respect of such United Kingdom treaties in the future as would affect any change in the United Kingdom law. The three other Amendments are partial variations of the three I have discussed. Amendment No. 147 requires legislation in respect of a United Kingdom treaty, and Amendments Nos. 162 and 163 require legislation in respect of a narrower category of United Kingdom treaty.
I shall invite the Committee to conclude that those which are relating to Community treaties—namely, Amendments Nos. 96 and 81—are not, and should not be regarded as, acceptable when one has regard to the treaty-making power of the Communities as defined within the scope of the existing treaties. Article 228 has always been there and has always been regarded as one of the features of joining the Communities. It is obviously convenient in the context of joining an economic community of this 1549 kind for the Community institution to have the power within the terms defined in the treaty of making treaties within that field—commercial treaties and tariff treaties. There is nothing intrinsically wrong or unacceptable in continuing to accept that which always has been accepted in the nature of these organisations; namely, the Community's treaty-making power as heretofore defined. I invite the Committee to reach that conclusion by rejecting Amendment No. 96 and Amendment No. 81.
I come now to the category of treaties on which my right hon. Friend the Member for Wolverhampton, South-West spent more time; namely, those to which the United Kingdom would be a party.
§ Sir Elwyn Jones
I am sorry to interrupt the hon. and learned Gentleman, particularly as he has passed the point, and I have not been able to hear all his speech, but is he saying that the treaties to which he is referring are confined to commercial and tariff treaties? That is what he has just said. Is it right?
§ The Solicitor-General
Yes; the Community treaties which can be made within the terms of the article referred to without participation by member States are those which arise in the 113 and 114 group of Articles. For example, an association agreement under Article 238, which goes beyond the merely commercial one, is one which requires participation by the member States as well. What I am saying, therefore, is that the treaties which can now be made by the Community treaty-making powers can only be made within the parameters so far defined by the Rome Treaty in relation to which the last Government made their application. I know that to some right hon. and hon. Members even that is unacceptable. What I am arguing is that that principle within that defined field was accepted, and reasonably accepted, for the reasons I have given. The consequence of those treaties being given legal effect in accordance with Article 228 is acceptable.
I come to the other category of treaties to which my right hon. Friend has attached importance, those which would require the participation of the United Kingdom, which would or could have the effect of extending the scope of the original Rome Treaty and, therefore, of extending, for example, the scope of the 1550 treaty-making power of the Community institutions. It is in respect of those treaties that the provisions set out in the second part of subsection (3) apply.
My right hon. Friend, perhaps too generously but not I think unintentionally, referred to my encomium of the affirmative order procedures there set out and sought to reduce it to something of no significance. I cannot accept that that is a true view to take of the matter. He referred to the necessity for any change, be it great or small, in the scope of the existing treaties being subjected to the full legislative procedures of the House of Commons. That is not either necessary or wise. I do not underestimate the importance of the point. A number of these ancillary treaties would no doubt require the participation of the United Kingdom, almost for the avoidance of doubts, on the perimeters of the existing treaty-making powers. They would be purely procedural and administrative matters and it would be trying Parliament too far to require legislation in respect of every one.
On the other hand, with treaties requiring United Kingdom participation—at the great rather than the small end of my right hon. Friend's anxieties—treaties potentially extending the scope of the European Communities step by step down the road which some people want to go more or less than others, then it is important that Parliament should be able to intervene. The opportunity for Parliament to intervene by way of the affirmative Resolution procedure should not be dismissed as frail and insubstantial—
§ Mr. Spearing
On this point the hon. and learned Gentleman said yesterday:The question would be entirely at large and it is important that it should be so."—[OFFICIAL REPORT, 7th March, 1972; Vol. 832, c. 1342.]Am I right in thinking that the affirmative Resolution would not be as to approval because the Bill says not "approve" but "regard". Therefore, the order would not be to approve a particular treaty but would be to say that it be regarded as a Community treaty. That is a different thing from what the Solicitor-General said yesterday.
§ The Solicitor-General
The hon. Gentleman does not follow the construction of the Clause:shall not be so regarded unless it is so specified.1551 It shall not be specified until the order has been approved so the approval has to be—
§ Mr. Powell
§ The Solicitor-General
Certainly. That is the point I dealt with yesterday and to which my right hon. Friend returned this evening. I re-assert the proposition I advanced yesterday that it is the Order in Council which has to be approved.
§ Mr. Spearing
Line 17 says:shall not be so regarded.I take that to be referring to what we now call Part A of subsection (3). Line 12 says that the order is to be regarded as one of the Community treaties. There is a semi-colon, and then line 17 says that it shall not be so regarded. I submit that the second "so regarded" is referring to the first.
§ The Solicitor-General
The "so regarded" means so regarded as one of the Community treaties, but it would not be so regarded unless specified and the order so specified has to be approved. I return to the conclusion I advanced yesterday. Suppose a treaty extending, or potentially extending, the scope of Community powers were to be introduced merely by Order in Council under that provision. Suppose, then, that a significant part of the House thought that it was one that required the introduction of substantive legislation, to make detailed changes of the kind contained in the second Part of the Bill, for example. That action would be one of the considerations that Parliament would want to bear in mind in deciding whether to approve the specification of a treaty in that way. One of the reasons why approval could be refused would be not merely that Parliament did not like it, but that Parliament was not prepared to tolerate the Executive resorting to acceptance of it merely by an Order in Council.
It is wrong to regard this as laying the the foundation of prerogative legislation. The different ways in which Parliament could intervene and the different provocations which could justify Parliament in intervening would all be taken into account, so that Parliament would not see fit to do so in respect of a peripheral, small extension for the convenience of 1552 the continued working of the institutions. But as the nature of the charge developed from small to large, the extent to which Parliament would react and would require the Government to react by taking the matter to legislation would depend on the nature of the matter under consideration.
I suggest that this is a properly adjusted, diverse method whereby Parliament can assert its control—[Interruption.]—diverse, because Parliament can react by making it clear that the treaty should be the subject of legislation or one that it would be prepared to accept by an Order in Council, with the Government facing the constant threat that they would not receive affirmative support for the necessary Order in Council.
§ Dr. John Gilbert (Dudley)
As the Solicitor-General appears, implicitly if not explicitly, now to concede that which has been known to the rest of us all along, that the process of enactment of legislation is a far greater safeguard for the British people than an Order in Council, can he say why he shows such a great preference for the Order in Council? Does he think that an Order in Council is not amendable and can only be accepted or rejected? If so, why is he still so shy about introducing legislation to meet his needs? We have an unamendable Bill before us now.
§ The Solicitor-General
The hon. Gentleman makes the wrong point. In this context, it is the strength and quality of the unamendability of the Order in Council which gives it its versatile and diverse power—
§ Mr. Heffer
The hon. and learned Gentleman must think we are stupid.
§ The Solicitor-General
If the Government were to come forward seeking to make a change by an Order in Council in a situation which Parliament regarded as more appropriate for legislation, no doubt approval would be refused—
§ Mr. Spearing
§ The Solicitor-General
No. I shall not give way any more. That is why I commend to the Committee—
§ Mr. Spearing
It was my point originally.
§ The Solicitor-General
It seems to have changed sides. However, I do not want 1553 to go hack to it again. I commend to the Committee the provisions of subsection 3 as they now stand.
§ Mr. John Mendelson
§ Mr. Mendelson
The reply that we have just received from the Solicitor-General proves conclusively that this matter requires a great deal of further discussion.
First, I should like to put a formal procedural point. Perhaps I might have the Solicitor-General's attention—we listened to him with great care—because this point affects him personally. After the hon. and learned Gentleman's reply yesterday he moved away from the usual practice by not giving a further reply, as is customary in Committee, to further contributions by hon. Members. The hon. and learned Gentleman's first intervention was not regarded by anybody, including himself, as a winding-up speech, as will be seen from HANSARD.
My point is that since the matters with which the Solicitor-General has just dealt are of such eminent importance and involve the whole principle of Parliament's control over treaties and the treaty-making power of the Executive, we ought to have an indication that the hon. and learned Gentleman is prepared to make a further reply.
As you know, Mr. Mallalieu, even in Committees upstairs, which are smaller bodies, it is customary to have more than one reply from the Minister most directly concerned. It would be most unsatisfactory, and moving away from all accepted procedure—even in Standing Committees upstairs, which, as I say, are smaller bodies and are not regarded, important though they are, as quite as important as a Committee of the whole House—if we were not to receive a further reply from the Government.
Tonight we have had the clearest indication of what the Government really 1554 have in mind in putting forward the legislation in this form. They have designed a system under which parliamentary control of these treaties and of the treaty-making power will be seriously reduced and, therefore, the position of the Legislature in relation to the Executive will be seriously diminished. That is the seriousness of the debate whch is now taking place.
Yesterday afternoon the Lord Advocate, whose presence we welcome, made a brief intervention in the brilliant opening speech for this side of the Committee by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray). I recall, from experience on many Standing Committees in the past, hon. Members representing Scottish constituencies asking that the Lord Advocate be summoned to the debate. The Committee is glad to see the Lord Advocate present on two consecutive days. At least this is an improvement compared with previous proceedings. I am sure that in making that statement I carry with me some prominent Members from Scottish constituencies.
The Lord Advocate, in his intervention in my hon. and learned Friend's speech yesterday—I am not quoting directly; I am merely giving a paraphrase—said, "What the hon. and learned Gentleman is saying may be interesting, but it is old hat, because I said all this, and more, in a lecture which I gave some months ago to a learned society in Scotland."
I have always accepted that the educational system in Scotland is very advanced. It is common ground among hon. Members from all parts of the kingdom that the Scots, therefore, have a high level of understanding and appreciation, and I can understand that the Lord Advocate had listeners who could follow these matters. However, it is surprising that the right hon. and learned Gentleman should have confined all this knowledge, which he has had for such a long time, to his Scottish listeners away from the centre of our political affairs and not given the Committee the benefit of that knowledge. It would have been of great value to Parliament and to the Committee in these proceedings if we had known of this for a long time. Even my right hon. and learned Friend would agree that this would be of the greatest 1555 possible value. But the hon. and learned Gentleman failed us. He did not communicate any of this hidden treasure of intellectual achievement and information to us until my right hon. and learned Friend made his own modest effort yesterday.
This is the crux of the matter. If the Solicitor-General has said one thing more than any other it is that this has been known all along. What he ignores is that this is the first time that this Committee has been asked to introduce all this into our legislation. So it is irrelevant for the Government to claim that all this has been known. What they have to prove is that it is useful and in keeping with the power of Parliament to pass what they have known for so long into our legislation. I hope that the Government will forget this phrase and try to defend what they are doing.
What alarms me is that the Solicitor-General found no defence tonight for the Government's decisions in this important field. I hope that they will keep away from purely legal argument. The country is gravely concerned about these decisions, and there is a great danger that these debates might be written off because of the impression given by the newspapers of experienced lawyers tossing legal points to and fro on erudite matters which are beyond ordinary understanding. We would do a disservice if we allowed that impression to be created. The Government should discuss the real meat of their proposals and not be evasive.
The newspapers should treat these proceedings not as law reports but as the heart of the matter. If we do not get satisfaction on Amendments like this, some of the most essential rights and powers of the House of Commons in relation to the Executive will disappear. Whatever we might do on other Clauses, this is as important a Clause as there is in the Bill.
§ Mr. Alfred Morris (Manchester, Wythenshawe)
Does my hon. Friend share my suspicion that there is no intention to give careful and considered and acceptable replies to our arguments, and that there is every indication that many right hon. and hon. Members opposite want to sharpen a guillotine to cancel proper discussion?
§ 9.15 p.m.
§ Mr. Mendelson
I have no knowledge of such matters, nor do I expect the Government to give us acceptable replies in all cases. What I do expect is that the Government should freely admit, against the material background of political and economic affairs as they are developing in the Community now, what they are asking the Committee to agree to. I am asking no more than that. Any speculation about what the future may hold is outside my competence, because I have no knowledge of any such intentions on the part of anybody.
I am grateful to my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) for introducing a great deal of political reality into this discussion by referring to the example of the Spanish Agreement. The perfunctory way in which the Solicitor-General tried to reply to this point illustrates what I have in mind. In subsection (3) we have two categories dealing with essential problems that will face this Legislature in future. The defence which the Solicitor-General has twice offered does not improve matters, although tonight he spoke more clearly than he did yesterday.
The hon. and learned Gentleman tried yesterday to say that any hon. Member who had suggested that the second provision in subsection (3) was a feeble safeguard for or defence of this Parliament was mistaken. He said that attacks had been made on the safeguard but he believed that it was a strong one. Let us examine the hon. and learned Gentleman's case in relation to the future accumulation of treaties.
Many hon. Members have been concerned for several years with the kind of arrangements that the Prime Minister has started discussing with President Pompidou about the future use of nuclear weapons. It is against the background of real problems of this kind that the Committee must look at these treaty-making provisions.
The Prime Minister has recently been saying—although he was not saying so some years ago—that it is far too early to talk about these matters in detail. "We do not have any active discussions in progress at the moment with the French or with any other Government about these matters", the right hon. Gentleman 1557 has been telling us. However, a few years ago, in a series of lectures at Harvard University, the present Prime Minister committed himself to a policy of such military nuclear co-operation, and it is well known that a number of people in Community countries regard British entry as something positive precisely because they want to use British nuclear know-how, in military terms, to build up a third nuclear community. That is not contradicted, and it is the view of a number of influential people.
Subsection (3) is directly relevant to these ideas. For example, a few weeks ago President Pompidou was to come to Britain for a weekend conference with the Prime Minister. Unforeseen circumstances—they were connected with the industrial situation at the time—resulted in that visit being postponed.
However, two days before the President was due to arrive, sources close to the Quai d'Orsay in Paris passed information to a number of French military and diplomatic correspondents to the effect that one of the items that would be on the agenda for the conference was future military nuclear co-operation between the United Kingdom and France. This is new information that has not been brought to the attention of the House in these debates, though it is directly relevant to this discussion.
The Government are asking us to pass legislation which is to operate for a very long time to come. When we talk about the ultimate powers of the House of Commons the Solicitor-General and the Chancellor of the Duchy of Lancaster keep saying that some time in the future Parliament could say, "We won't want any of this. We reject this or that treaty", but that is not a serious way of dealing with debates. They are not asking us to join a stamp club, which we can join one day and leave the next. It must be implied that this is for a long time, yet on the next day they say that in the end Parliament can reject the whole lot. Parliament and the country are being seriously asked by the Government to enter into this association with the intention of remaining in it for many years to come.
It then becomes practical politics that, if finally the legislation is passed and this country joins the Community at the be- 1558 ginning of next year, if there were negotiations concerning a third nuclear military command—which many in this country would regard with the greatest foreboding, and which is completely and utterly opposed to the point of view of the Labour Party as expressed by its Leader over many years, with the consent of the whole party—some treaty might be negotiated and concluded. Then it would come to the House as an Order in Council. Nothing that the Solicitor-General said this afternoon in reply to many points that have been made would change that position one little bit.
I ask hon. Members on both sides of the Committee—always excluding the Lord Advocate, for I do not know whether he has put it to the learned society in Scotland—whether they have always known that it would be possible to introduce such far-reaching new commitments and then have them passed by an Order in Council, even if the debate were not confined to 90 minutes but took five hours or a whole day under this procedure. I admit to being a little naïve. but I always thought that if the Prime Minister were to implement such a policy and to establish with other Powers a third nuclear command, it would have to be done in such a way as to allow the House of Commons to have everything in it under review, and to go into the detail of any such extension.
We had the news this morning of the important meeting that has taken place among the Six in Brussels over the last three days. When we look at the French Press, which is reporting this matter much more extensively than our Press, we find that the matters being discussed are designed not only to reduce parity between different members of the Community and to have an influence on the relation of Community currencies to the United States dollar; they go much further. We also know that in his last conference with President Pompidou the Prime Minister came to certain agreements as to the way in which these further negotiations were to be handled. He agreed to the setting up of a special secretariat. He did not make any move towards giving more powers to a European Parliament as so many hon. Members have from time to time fondly imagined.
1559 One of the arguments that we hear, which is strictly relevant to the discussion on these Amendments—and this is the one occasion when we can do anything about it—was made in the long debate before the 28th October decision. Many hon. Members who support our application said, "Yes, but what we are aiming at is the development of the powers of the European Parliament. We shall have a powerful influence in that direction." Those hon. Members will know that I am not misrepresenting them. This is the genuine argument which they put forward. The implication was that it does not matter if the powers of Parliament are somewhat reduced, because they will be replaced in future by greater powers given to the European Parliament. That has been the argument.
Hon. Members have been saying "If one joints a larger Community"—and, after all, this is something that one can contemplate—"and if that Community develops its own institutions, maybe one will have to give up some of the democratic powers inherent in the assembly that one has already." They have not dared so far to say that perhaps Britain will be reduced to a State like one of the 50 States of the United States of America and will have a governor, perhaps, and a State Assembly. But the implication was there, and it was there to prepare the way for hon. Members to become more amenable to the proposition that our powers will have to be reduced but that other powers will be increased. But not a bit of it. At the last conference that the Prime Minister had in France with President Pompidou, they moved altogether in the opposite direction. That is what I mean when I urge that we ought to discuss the provisions contained in the subsection against the background of real politics and of what is going on in the political world outside.
I can see the interests of the Solicitor-General. He wishes to turn it into a very quiet-spoken, legal argument, so that the fewer who follow the argument the better for him. He tried to do that in the long debates on the Industrial Relations Act. It has blown up in his face. I warn him that his tactics on this matter are equally misguided because the time will come when the people of Britain will realise that there are serious interests and serious 1560 future dangers involved in these legal arguments across the table. It is the duty of the House of Commons and this Committee to look at these things against the background of reality.
We have had reports this morning about far-reaching plans to go on beyond the creation of a new limited contrast between the currencies of the Six and the four applicant States, once they become members, to a European currency and to far-reaching federal arrangements. Once the Community moves on to that, the first essential steps towards a federated Europe will have been taken. A federated Europe is not just a dream. One of the essential characteristics of such a federation would be a common currency. Therefore, what we have to remember is that if we were on this occasion to give our approval without introducing essential parliamentary safeguards, as asked for by this group of Amendments, we should be giving carte blanche to the Government and any future Executive, of whatever party, to proceed in those far-reaching developments under the authority that they would receive.
The Solicitor-General came close to my argument at one point. He said that we must look at this matter against the background of real politics in the future and that there may be many other opportunities that will allow Parliament and the House of Commons to have long and serious debates about these matters in the future, if it were to come to pass. It may be possible in the future for Parliament to have long debates on these matters. It may be possible to ask Parliamentary Questions. The Solicitor-General referred to those methods. It may be possible in future to raise an application under Standing Order No. 9 for a debate. But the one thing that the Solicitor-General could not say is decisive, because the treaty-making power would be so confined that it would become an instrument for making the House of Commons impotent regarding the essential function it ought to have.
At that stage the Solicitor-General introduced the famous ad hoc committee. I do not wish to repeat what my right hon. and hon. Friends have said about the introduction of this late idea. All that needs to be said today is that it is not only the formal difficulty that the Committees find itself in but that this ad hoc 1561 committee has not been set up and is only an idea so far. As we advance in debate, every day Treasury Bench spokesmen claim new functions for this potential ad hoc committee.
[Sir ROBERT GRANT-FERRIS in the Chair]
We have seen an interesting progression in this field. The Government were claiming certain functions for a future ad hoc committee, and in the middle of the debate they added more functions to this ad hoc committee which is not in existence yet. No one knows what its functions will finally be. The Chancellor of the Duchy of Lancaster has spoken very little in this Committee stage, and I hope we shall hear more from him. It is unhelpful that the Law Officer should be bearing the brunt of the debates, and it adds to the false impression outside that these are merely legal issues handed across the table and returned by lawyers who have erudite arguments to develop which no one else can follow. I hope we shall hear more from the Chancellor of the Duchy of Lancaster and more about the actual economic and political background to the kind of Clause that he is supporting here.
I turn from the possibility of a third nuclear command in the future and the development of economic and monetary union, which have been the subject of discussion in the last few days, to something which concerns the Chancellor of the Exchequer. At some point in the proceedings of the Committee the Chancellor of the Exchequer should join his colleagues on the Treasury Bench. There have been many Standing Committees where Ministers from various Departments have come along to help out from time to time. Here we are discussing matters many of which come directly under the authority of the Chancellor of the Exchequer. No doubt the Chancellor of the Duchy of Lancaster had close contact with his colleagues throughout the negotiations when he was going to Brussels, Luxembourg, Paris and other parts of Europe. No doubt he will have developed his own system of close liaison with them. He was not obliged to tell the House in too much intimate detail what arrangements he had made, but I think he will admit that there must 1562 have been times when he could not make a decision on his authority but had to pass it on to the Chancellor of the Exchequer. I recall in the House, and it can be checked with HANSARD, when the right hon. and learned Gentleman had to say that on a particular question there was also another authority, and it was quite fair that he should say so. But ipso facto matters are being considered by the Committee which are under the authority of the Chancellor of the Exchequer, and he ought to be here to deal with them. We ought to hear from him about the vast economic powers which are going to form the background to the treaties. They will concern not only the value-added tax but also the monetary union and a common currency which come under the authority of the Chancellor of the Exchequer.
If we do not adopt some of the Amendments that have been moved and have been supported on both sides of the House we are left with very little parliamentary control over any such future development.
I come to my penultimate comment, which concerns the constitutional position of the House of Commons if no safeguards are introduced. I see the hon. Member for Sevenoaks (Sir J. Rodgers) smiling. I do not remember seeing him following the arguments, but he will be there at the end of the day smiling and voting, although I doubt whether he will know what he is voting about. During these two days I have learned an enormous amount by always being present. Many of the speeches of yesterday and today, from both sides of the Committee, made these matters much clearer, and made some clear for the first time.
§ Sir John Rodgers (Sevenoaks)
I am not getting much clarification from having listened to the hon. Member for the last few minutes.
§ Mr. Mendelson
Exactly. The hon. Gentleman arrived too late. I am not criticising him for having been absent, but for coming in now to express an opinion. The learning part is over and we have reached the stage of making use of what we have learned and applying it to this stage of the debate. The hon. Gentleman is a latecomer and will not reach the level of this form, for he has been left far behind; but he will vote.
1563 From now on, as was pointed out in the special article in The Times the other day, the power of the Legislature over the Executive will inevitably diminish as a result of the Government's proposals. No hon. Member will take that lightly. There are only two honourable positions for a Government to adopt with that prospect. I could understand the Government honestly saying that there was to be a serious diminution in the power of the Legislature, that other federations had grown up in that way, and that the States of the American Union, for instance, had had to accept that, that the 13 States were much more powerful than anyone else in that hemisphere at that time and regarded themselves as far more important than any future United States, and that whether they regarded it as necessary or unnecessary they had no doubts. The Fathers of the American Constitution came clean with the American people at the time.
I can understand the Government telling Parliament, "We know that the powers of Parliament are to be seriously diminished and we support that and we ask you to approve it." That is an understandable and honourable attitude and a point of view to be respected. The Government could say that they believed in diminishing the powers of the House of Commons because they believed that in due course, after some years, we should belong to a Western European Federation in which we were a member State, as France and the others would be member States, where the power would be at the centre, apart from the local government powers that we would retain. The Government could argue that they did not regard that as a disadvantage and thought that there should be some diminution in the powers of Parliament right away, that that diminution might not be as vast as we would say but still a serious beginning.
That is an attitude that I could understand, and there is to be such a diminution in the power of Parliament nobody in his senses could deny. No playing around with the future functions of ad hoc committees can in any way contradict that proposition. Some people outside the House argue this quite seriously. For example, M. Jean Monnet, the father of the Western European 1564 Union, always believed, and believes today, that it does not matter if the powers of the Parliaments in the various States in the Community are diminished, that it would be unhealthy if those powers remained too strong, because it would be an obstacle to the building up of the future federation.
We must observe what has happened in some other countries. Here I particularly refer to the French Parliament. An argument dear to the heart of some hon. Members is to point to the commissions in the French Parliament. This argument is being adopted by the Government when they talk about the famous ad hoc committee. The original argument always was, "It's all right. We shall have a number of committees here, just as the French have in their National Assembly. There will be a great deal of power in these committees, and they will control the Executive." I invite the Lord Advocate and all those others with a great deal of knowledge of these matters to go to Paris now and see the power of the French Parliament. It has been consistent Gaullist policy for many years to destroy this power, and it has succeeded. It is no matter to a Gaullist Minister or a Gaullist member of the National Assembly to accept the kind of subsection the Government have put before us, because they do not believe that there should be more power in the Legislature. They are by ideology and principle committed to the idea that the power of the Legislature should be diminished. They have diminished it very seriously, and they are going on diminishing it.
Is that a proposition that commends itself to Members of the British Parliament? No one will accuse Opposition Members of being chauvinistic when they point to the very real powers still in the hands of the House of Commons. The counter-cry usually is, "If you raise this point, you believe there is only one Parliament in the world. This shows how blind you are to what goes on in other countries." I hope that in the serious discussions of this Committee no such charge will be made. It is a fact of great political importance that this Parliament has remained the one powerful assembly, apart from the United States Congress, that could be called a Parliament endowed with the real powers that 1565 a Legislature should have. Hon. Members on both sides are concerned about losing that power.
In previous debates some of those who are particularly keen on getting this country into the E.E.C. have scoffed at some other hon. Members whom they have called unreconstructed anti-Europeans. They say, "You don't know what you are talking about. There is no need to be so proud of the powers of this Parliament. You are backward in your thinking if you say you must insist on retaining precisely the constitutional powers that you have now". Members have been taking the view in some of these debates that they were superior, more modern, more forward-looking if they were in favour of giving up some of Parliament's power.
But in the subsection we find a real test. This is the first time we get down to some of the real discussion. That is why I so much regret the absence of the Leader of the House, not only because he is a considerable constitutional expert but because he is charged with safeguarding the rights of the House. I hope nothing untoward has happened to him, because he has not graced our debates yesterday or today. He should be present, because we are discussing his Department.
Whether we believe in the application to join the E.E.C. is not relevant.
The Committee, acting for the House of Commons, is duty-bound to find some ways and means of at least putting in some safeguard against what the Government are trying to do. This is the relevance of the Amendments that are now before the Committee. They fall into two categories. One category is concerned with the first part of subsection (3), on page 2 of the Bill. That subsection has been divided into A and B, but one of my hon. and learned Friends is not very happy about that terminology. I will accept his advice and talk about the first and second portions of the subsection.
In fact, the remedy for the first portion must be to bring those automatic treaties—as one might call them—under some form of parliamentary control. The Solicitor-General, when replying to the debate not very long ago, said: "Well, 1566 it is quite normal; it has always been like this with Community treaties; for that kind of treaty you do not need or want parliamentary approval". That is all he said, as though it were self-evident. He did not argue that it was a good thing to have a whole series of future extensions of Community treaties, whether the United Kingdom had to be a partner or not, and whether it was a good thing not to have any such extensions subject to parliamentary control. All he said, as hon. Members will be able to read in HANSARD tomorrow, was that it had always been like that and had always been accepted that it should be like that. In other words, he was saying that it was self-evident that Parliament should accept it. What an absurd argument.
This is the major constitutional parliamentary occasion on which the Executive have an opportunity to give real reasons for the kind of Clause that they want the House eventually—after all these Amendments have been disposed of, and after debate on the Question, That the Clause stand part—to be in favour of passing. But they provide no arguments or reasons. The Solicitor-General made a very long speech lasting 45 minutes, but I would have been glad to listen to him for an hour and a quarter if he had gone on to make these points. All he said was that it had always been like that in the Community arrangements, that Parliamentary approval was not necessary for such extensions of Community treaties, and that therefore we should not have it in the future.
But this is the bread and meat of the future of ordinary United Kingdom citizens—and here we reach the crucial link with what is regarded as an extension of treaties within the Community. Once Britain becomes a member of that Community such extensions will have a day-to-day effect upon the lives of our people.
I move on to the other treaties—the second portion of subsection (3) on page 2 of the Bill, in which the Government are proposing only an Order in Council debate and we are told that there is such a vast difference between the two. In fact, however, as a result of the debate this afternoon—and it will be news to those hon. and right hon. Gentlemen who were not here when those interesting exchanges took place that we have made 1567 some progress in interpreting the Bill this afternoon—it has now been agreed that the real distinction between the two types is not as had hitherto been assumed but is this.
The first category concerns treaties that the Community enters into or develops. The second category consists of treaties in which the United Kingdom is a partner. On this point I carry the Chancellor of the Duchy of Lancaster with me. I say that because in Committee it is not always necessary to disagree. We can agree that we have made this amount of intellectual logical progress today. However, there is no suggestion, in the speech of the Solicitor-General or anywhere else, that this establishes a difference in category between the two beyond the formal legal category that we have just established.
This means that extremely important subject matter will be part and parcel of the first category of treaties, as it will be of the second. I happen to represent a steel constituency and it is clear that at some time in the future there will be development of the Coal and Steel Community, which may affect the livelihood of my constituents. This is the time to think about our constituents. Some of those extensions will put limits on organisation, expansion, and type of competition which the steel industry will have to face. In normal circumstances any such change by a Government would have to be put to the House of Commons in the form of a Bill.
I happen to be a veteran of the Steel Nationalisation Committee which sat upstairs for 13 weeks. The Conservative Members kept us going in the morning, in the afternoon, at night-time and again for breakfast in the morning. The then Minister for Overseas Development, with whom I became firm friends, was in charge of a Bill on pipelines and that Committee sat for 11 weeks. On that occasion we kept the other side very occupied, as the Patronage Secretary will remember.
I can imagine the reaction in a Standing Committee in those days if a Labour Minister had said, "Do not worry. We will have an Order in Council which can be debated for seven hours, as a result of which the steel industry will be reorganised." I wonder what fate would 1568 have awaited that Minister. Indeed, so powerful was the Opposition in that Committee that we spent the first two days discussing not steel nationalisation but a Motion that we should sit only on Tuesdays and Thursdays. All honour and glory to those Conservative Members who took that action.
I am at the moment surrounded by veterans on my own side who have been members, and who are now members, of Standing Committees in similar circumstances. It would be absurd on a future occasion to think that legislation involving extensions of Community arrangements could be passed through this House without any other act taking place than that of our being able to ask a Parliamentary Question or to table a Standing Order No. 9 Motion. That might well be out of order according to the predictions which have been made. Out of 11 applications for a Standing Order No. 9 debate only one is achieved. A wholly unsatisfactory situation would arise.
To remedy these dangers right hon. and hon. Members on both sides of the Committee have put forward these modest Amendments. The honourable course would be for the Government to admit that the powers will be diminished, but they say that the powers will not be diminished. The logical course would be for the Government to embrace the Amendments, to show that they are the guardians of the powers of the House of Commons.
If it is difficult for the Government to cross the political line, they could start by accepting the Amendment moved by the right hon. Member for Wolverhampton, South-West (Mr. Powell) and remain within the political family. Every hon. Gentleman opposite is a member of the same political family, just as my hon. Friends are all members of the same political family. I cannot make a pronouncement about the small family sitting immediately in front of me; they must speak for themselves. They also have their differences, but they are still a family.
This is a matter of such tremendous importance that party lines do not matter. If the Government wanted to give evidence that they are custodians of future parliamentary power they should cut across the dividing line of the Committee 1569 and adopt some if not all of the Amendments proposed by my hon. and right hon. Friends, which seek to introduce the power of legislation over future treaties. This would be fully justified by the self-executing treaty powers of the Community.
The Amendment proposed by the right hon. Member for Wolverhampton, South-West is in the true traditions of the House of Commons. The House of Commons always prides itself on its flexibility. If new political developments create new problems, the proper answer of Parliamentarians is to introduce additional safeguards to make certain that in the spirit of past ages the Legislature does not allow its powers to be diminished.
My right hon. and hon. Friends are seeking to introduce controls over the
§ Executive which would to some extent diminish the loss of parliamentary power. That is a proper description of the aims of my hon. and right hon. Friends. These are the kind of proposals we have worked out—
§ It being Ten o clock, the CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.