Clause 1

HC Deb 14 March 1972 vol 833 cc308-426

SHORT TITLE AND INTERPRETATION

4.0 p.m.

Mr. Michael English (Nottingham, West)

I beg to move Amendment No. 127, in page 2, line 11, leave out from beginning to 'but' in line 14, and insert: 'If a treaty is one of the Community Treaties as herein defined Her Majesty by Order in Council may declare that it shall be included in Schedule 1 to this Act'.

The Chairman

With this Amendment the Committee may also discuss Amendment No. 178, in line 11 after 'Council', insert: 'subject to annulment in pursuance of a resolution of either House of Parliament'. and Amendment No. 72, in line 12, after 'is', insert 'or is'.

Mr. English

The principal difference between the Amendment and the actual text of the Bill is that the text says that If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community treaties…the order shall be conclusive that that is so.

The Amendment does not make it conclusive. It states that if it is a Community treaty it can be included for evidential purposes in Schedule 1. That is a procedure similar to that used in the House of Commons Disqualification Act, where we keep adding to the Schedule any office which debars a Member from sitting in the House. It is not merely a technical Amendment; it has a considerable point behind it.

The point is that we are becoming bemused by the idea that there are only two views on British entry into the Community. There is the view loosely described as pro- and the view loosely described as anti- (the pro-Marketeers and the anti-Marketeers) and we are beginning to believe that the whole community is divided into these two views. However, I submit that there are at least three possible views on British entry into the Community, because the pro-Marketeers themselves are divided between what I should loosely term those who believe in democracy and those who do not. For practical purposes, I call them the democrats and the authoritarians. This division of view applies not only in this country, but in Europe.

The extreme poles are possibly the French, at the one end, who have tended, on all questions, to take a view which enhances the rights of the Executive in the Community and diminishes the rights, for example, of the Assembly or the possibility of the European Assembly ever being elected.

At the opposite pole we have perhaps the Dutch or the Germans. The Germans, for example, when they ratified the European Community treaties, incorporated several procedures designed to ensure that the Bundesrat and the Bundestag, the two Chambers of the German Legislature, had a considerable measure of control over their Executive and what it was doing in the Council of Ministers. They made sure, for example, that there was an observer from one of their Houses present at the Council of Ministers, and they also required the Ministers present at the Council to report on their discussions to the Bundestag or the Bundesrat.

Why is it that whenever they have been offered a choice between these two views the Government have always taken the more authoritarian approach? There is no reason why one cannot be a pro-Marketeer and a democrat.

You, Sir Robert, by your ruling stating that we cannot put down Amendments which vary the terms of the Treaty—I am not criticising that ruling; we have dealt with that issue—made it clear, strangely enough, that the Amendments which are now down do not vary the treaty. I do not think that any right hon. or hon. Member can honestly say that if my Amendment were carried it would prevent the United Kingdom going into Europe. It would do certain things, but it would not do that. There may be other Amendments on the Notice Paper which would. I am not saying that I am so virtuous that I would never move an Amendment which might wreck the possibility of British entry. However, I submit that this Amendment does not do that.

In order to ascertain what it does we must consider what Clause 1(3) means. I find it extremely difficult to understand why it is there at all. We have discussed at some length—I will not go over the points again—that, for example, there are the three categories of treaty involved. The first is the pre-22nd January treaty, which does not need approval by this House if incorporated by an Order in Council.

Why it is there? Surely the Solicitor-General and his staff of Treasury draftsmen did not put it in because of the possibility of slipshod drafting in the most important Bill ever to come before the House of Commons. In effect, they are saying of one type of treaty, "We may have forgotten a treaty and we want the opportunity to put it in later." But 22nd January, 1972, has long since passed. If we do not know now to what treaties the Government are assenting, if the Government themselves do not know to what treaties we are assenting, the outlook for this country is extremely strange. There are many things about which the Government do not know what they are doing, but this would appear to be a case where they are admitting to Parliament that they are not sure whether they have included every treaty and, because they are not sure of what they are doing, they want a provision to put it right afterwards, if necessary.

There is then the second category of the post-22nd January treaty to which the United Kingdom is a party. Why is that there? We have already discussed this issue. I will not repeat it, but it seems clear that the provision whereby that type of treaty can be approved by an Order in Council and then by the House of Commons and the House of Lords is solely designed to limit Parliament's rights. Instead of a treaty being approved by an Act, as this one is now being approved, it will be reduced from the whole of the procedure through which we are now going to a single Resolution of the House. Presumably it is there to limit our rights.

The third category is the treaty signed by the Community itself. This is the one which I find most puzzling and to which the Amendment is primarily directed. The only reason that I can see for subsection (3), in relation to treaties to which the Community alone is a party, seems to be to stop the courts considering whether they are acting within the powers of the Community. I do not see why this is so.

Clause 3, to which we shall come later, tells the courts to operate under Community law and to take notice of the Official Journal of the Community. It states that the courts are to cease making decisions in accordance with the law of England or Scotland, as the case may be, but that they are to make their decisions in the light of the decisions of the European Court and of Community law. This is obviously necessary if we wish to go into a Community of this character.

It also tells the courts that, as a matter of evidence, they are to take judicial notice, in the technical sense, of the Official Journal of the Communities in which decisions of the Communities—for example, the Council of Ministers—are published. The law of the Communities, so far as it is enacted law, is published in the Official Journal, and the courts are told to take notice of it.

Since the courts are told to take notice of the law of the Communities in Clause 3, why in Clause 1 do we have another provision, supposedly evidential, for an Order in Council of which the courts will also have to take notice? There seems to be either a duplication or some intent behind it which is more than merely evidential. I suggest—I hope that the Solicitors-General can prove me wrong—that the only possible reason for this provision is to cover acts of the Community which may not be in the Official Journal.

I will give one example. I have repeatedly asked the right hon. and learned Gentleman the Chancellor of the Duchy of Lancaster, the Solicitor-General and the Leader of the House for the publication of all decisions of the Council of Ministers which are to be incorporated into our law. One decision which is not published—which I have found only in a French text, not in any official text of the Community—which I believe is a text of the Council of Europe and not of the European Communities, concerns the rules of procedure of the Council. It is not just a technical set of rules of procedure. It is only in the rules of procedure—not in the Treaty of Rome, the Treaty of Paris, the Treaty of Luxembourg or any of the other treaties in the 10 volume which we have discussed at such length—that, by decision of the Council of Ministers, it is stated to meet in secret.

For the first time since the 18th century we are providing ourselves with a Legislature which, in part, meet technically in secret, and we are doing it in a strange way, for the decision that does it is, in fact, secret. It is a Community decision. It will be, presumably, part of the law of the Community and, therefore, of the law of Britain. But the situation is rather worse than this, and I am considerably worried in case hon. and learned Gentlemen on the Front Bench do not realise that we are going into a quite different system of law. On this point I was just discussing, for example, the Treaty of Rome says that the Council of Ministers shall lay down its rules of procedure. In actual fact, I think the reason the Government do not want to publish those rules is that technically the Council never has. It has made some provisional rules of procedure, from which I was quoting. The Council is authorised by the Treaty of Rome to arrive at its rules of procedure by a majority decision—by an ordinary majority, not a qualified majority, but the ordinary sort of majority which is appropriate for rules of procedure. In fact, the relevant article of those rules says it shall meet in secret unless its members unanimously decide otherwise. So if, as might well be the case, five out of the present six European States or nine out of the future ten all wanted to meet in public and one State did not, we should still be left with this 18th-century-type Legislature arriving at secret decisions in private.

In this country the procedure in case of a wrong act by the Legislature or the Executive is perfectly simple. The individual proceeds to the courts and there seeks an injunction to prevent a body acting wrongly, or seeks a declaration as to what that body ought to be doing. But here we are incorporating this different system of law—a situation that we have not had since about 1540 in this country. in a legal sense we are reversing the Reformation; we are putting people in the situation that many people were in in the early 16th century of having to decide ultimately whether they should obey one of two possible systems of law both of which still applied in the United Kingdom.

We are talking of a very different system of law, in which hon. and learned Gentlemen in this House, with the possible exception of my hon. and learned Friend on the Front Bench, are not qualified. It is the Roman law system. Because we can say in Britain that an organisation cannot exceed its powers, cannot act ultra vires, and because the two words happen to be Latin, we should not presume that to be a principle of Roman law. It is not. It is a principle that has appeared in Britain, the United States and other places which have systems of English law. The basic background of Roman law is that of a series of authoritarian empires in which the State institution—in this case the Communities—could enforce its rights against individuals. But it did not necessarily follow that individuals could enforce their rights against it. This is a very different system of law, which I am beginning to suspect that in some respects hon. and learned Gentlemen on the Front Bench opposite have not totally understood.

Look at what is said in this Clause: that if the Government say so a treaty becomes one of the Community treaties and, therefore, by this Bill, part of the law of Britain. Then, in the next subsection, we define a treaty not in the sense in which that term has hitherto been used in Britain but much more in the sense in which it is used in international law.

The Solicitor-General quoted on this question of treaties from the Vienna Convention on the Law of Treaties. I think he might have referred to the fact that the United Kingdom put down several reservations to that convention when it was ratified. This is a rather interesting point since the hon. and learned Gentleman was quoting from it in relation to reservations on treaties. Also, I notice that in November, 1971, that convention was still not in force, and I think he might have told people that as well. I accept that the Solicitor-General is entitled to look where he will for evidence of what international law on treaties is; I merely think that he should have pointed out that he was quoting from something that until quite recently, at least, was not in force and to which the United Kingdom had attached several reservations.

4.15 p.m.

Let us have a look at this because this is what it would appear that subsection (3) of the Bill is trying to incorporate into our law. If we look, for example, at Article 10 of the Vienna Convention we find the interesting statement that The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or —and this is the important point— agreed upon by the States participating m its drawing up". It could simply be, for example, a couple of Heads of State meeting—and I say "Heads of State" advisedly, because if we look at Article 7 of the convention which the Solicitor-General regarded as authoritative, it says of the people who have the power to commit a State to a treaty: In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty". So a secret agreement between, say, the Prime Minister and the President of France would be a treaty in international law. I might add that it would be permanently so unless it had a provision to the contrary. There is another provision in this convention—Article 56—which relates to that.

Mr. Deakins

Surely some secret agreement which my hon. Friend has called a treaty could not possibly be subject to the Order in Council procedure under the first part of subsection (3) which we are discussing, because it would then cease to be secret?

Mr. English

I do not think so. I think my hon. Friend will recollect that we all knew that the Prime Minister met the President of France; we all knew that they arrived at an agreement; and we all knew this from a look at the communiquéwhich they published at the end of their meeting; but none of us knew what they in fact agreed. It would be perfectly possible, as I understand it—and the Solicitor-General will tell us if this is not so—to conclude a secret treaty under this Bill and in international law and merely publish by Order in Council the fact that there was an agreement, because the Order in Council, we are told, is merely evidential in this instance.

I would accept that there might be later difficulties if there were an attempt to enforce an agreement that had not been published, but that is not the same thing, because this provision simply says that there would be an Order in Council which stated that a treaty was a treaty even if it was not, and that we would then, in certain circumstances, meet to approve it in this House, and that would be the end of it. It does not say that the treaty has to be scheduled to the Order in Council, and, indeed, we know that not necessarily all documents we are agreeing to now are published. I have quoted from one that is not at the moment published in any authoritative text at all, yet includes matter of great importance. We believe that a democracy should have the right to know what its legislature is discussing when changing its law. This is a point of importance which does not need to be enforced against the Council of Ministers in the sense that it is self-enforcing by the Council of Ministers, which has agreed it amongst itself.

In incorporating these things into our law, and excluding the courts by the present provision which my Amendment seeks to dispel, I would also submit that we are doing this permanently. That is disastrous. In international law, if a treaty has no provision for its termination or withdrawal, then one simply cannot terminate it or withdraw from it except under certain conditions, such as fraud or something of that character. That has been generally accepted in these debates. What does not seem to have been accepted in these debates, and has been suggested by certain hon. and learned Members whose views differ from my own on this issue, is that we are limiting the rights of Parliament.

I said earlier that we are in a legal sense reversing the Henry VIII portion of the Reformation, the one which did not deal with theology but merely dealt with the structure of the canon law. People seem to be under the impression that Parliament can agree to this treaty, go into the Communities, and then, if it wishes, come out legally. It certainly is not true in international law. As the right hon. Member for Wolverhampton, South-West (Mr. Powell) said, it is a strange basis to go into something thinking that one could always break at least a portion of the law. That is not true of the law of the Communities, because Article 6 of the act annexed to the Treaty of Accession says quite specifically that it shall be repealed and amended only in accordance with its own provisions. I submit also that it is only doubtfully true in English law.

I suggest to the Solicitor-General that he have a look at two cases in law, one of which will interest the House for more than one reason. It is the case of R. (O'Brien) v. Military Governor, N.D.V. Internment Camp in Ireland in 1922. Mrs. O'Brien wished to get out from her illegal arrest. She had been arrested and interned without trial for six months in 1922, just at the period when the war of rebellion was ending, when the Irish constitution in a form similar to that in which we now have it was coming into force, but when it had not yet come into force. Mrs. O'Brien sought a writ of habeas corpus. That was granted, but at the same time, in one day, a special Act of Parliament was passed stating that, although she had to be produced before the court in accordance with its order, that order should cease to be valid—a procedure with which this House will be quite familiar in the light of recent events. The Irish Court of Appeal ruled the Act invalid, the point being that there were certain provisions with which it did not comply.

There is another case, that of The Attorney General for New South Wales v. Trethowan, which will probably be familiar to many hon. and learned Members. That relates to a referendum provision. The Parliament of New South Wales, having passed a provision for a referendum, did not comply with it, and promptly the courts ruled that since it was not complying with this provision the Bill could not be submitted for Royal Assent.

I do not want to go into these issues of English law at this stage. I want now to come back to my Amendment. I believe that on all these issues, and many more which we shall come to in the course of the Bill, the Government for some reason wish to take a more authoritarian than democratic line. They have not suggested that we should have observers in the Council of Ministers, like the Germans. They have not suggested that draft proposals and provisions should be submitted to Parliament before the Council of Ministers considers them, like the Germans have. They had not even thought of the relationships between this House, the other House and the Communities until they suggested very feebly on Second Reading that we should set up an ad hoc committee, which is still being argued about.

In the Heath-Pompidou agreement it says that the discussion between the two led to a complete identity of view on the working and development of the Communities. Every single State in the European Communities, bar the French State, agrees that it wishes to democratise the Communities at least a little further. They might dispute how far. One of the reasons many Europeans want us in the Community is this. The entire Assembly, including the French Gaullists, has come down on the budgetary issue with the desire that the Assembly should have some power instead of this strange, secret Legislature of the Council of Ministers. The reason for the Government's attitude is clearly and openly expressed if one looks at the text of that agreement, that the Government are going to take a French line in Europe. They want to hand over power, not merely from Britain to the Communities but from Legislatures to Executives. From Legislatures meeting openly and in public and discussing legislation before the whole of the Community, they want to hand power over to a secret group of Ministers meeting in private in Brussels or Luxembourg.

Mr. Jay

Not even Ministers in some cases.

Mr. English

My right hon. Friend is quite right. I was putting it at its highest.

Sir D. Walker-Smith

Permanent representatives.

Mr. English

I was putting it at its highest and assuming that the permanent representatives are in some way under the control of their Ministers.

It seems to me that that is the political reason for the Government's attitude. I want the Government to do a very simple thing. I have spoken long enough, but I want them to answer one question. I want Members of the House—and not just on that side of the House but even on my side, because this is an issue which transcends party politics—to answer one question. Why, if one wishes to go into Europe, must one wish to go into an authoritarian Europe? Why can one not take the attitude of most Europeans and wish to go into a democratic Europe? That is the question I want this Government to answer on this and subsequent Amendments.

Democracy is not just voting at General Elections. It is not just the right to elect representatives to a Legislature. One of its simple bases, as we all know if we think of authoritarian States throughout the world, is the right of individuals—not great organisations, not great States, but individuals—to go to the courts and say "We know that you have the power to do so and so, but we do not think you have the power to do something that you have done" like these people in Ulster both in 1922 and recently who went to the courts and could do so. That could not be altered, except in the full glare of publicity by this House. That is the real essence of a free society. The free society is the one where one can sue the man who might knock on one's door to arrest one at midnight. That is the real essence of it. It is not just a matter of elections.

By this Amendment, without in any way in this Amendment trying to preventus from going into the Community, I want the individual to be able to go to a court and say that a treaty cannot be incorporated as a Community treaty by mere fiat of the Executive. The Solicitor-General said the other day that this could not happen, that something like the Treaty of Versailles or an agreement with Russia or China, or something of this character, could not be included. The courts would say that this was a gross misuse of the power. Maybe; let us accept that, but there is no reason why one could not include the Heath-Pompidou agreement in the Community treaty. That actually relates to the Communities. It is an agreement between the Head of State and the Head of Government of these two countries about the Communities. No court could say it was irrelevant.

If the Government said that was a Community treaty by Order in Council, I fail to see that anybody could regard that as a gross misuse of this power. We might not expect it. We might not have thought it, but if the Government sought to conclude an agreement with France by saying that on every possible issue they would agree with France that they did not want powers given to the Assembly or taken away from the Council of Ministers, or the Council of Ministers meeting in public or anything of that character, under our law this could be incorporated as a Community treaty. The other States of the Communities would not regard it as such, but under the Bill it would be.

I wish to take that power of judgment away from the Executive and put it back where it properly belongs, in the courts, so that any individual can go along and say, "As a mere matter of evidence, you can say that this is a Community treaty, but I, an individual, am asking you, the judges learned in the law, whether in reality it is, in your opinion; because if it is not it should be void and destroyed". I ask the Government Front Bench a simple question: why not leave individuals with the rights they at present have, even if we wish to go into Europe? Why not keep the basic principles of democracy and liberty as well?

4.30 p.m.

Mr. Nigel Spearing (Acton)

I follow my hon. Friend the Member for Nottingham, West (Mr. English) in his questioning of the Government about their intentions. I have listened for two days of Committee discussion on the Bill, in particular Clause 1. As I understand it, the burden of the Government's case as regards the procedures for Orders in Council is that there are safeguards, that we are not entering something where we have not got some chance to say "No" if we do not like it, and that there is some residual power left with the House of Commons. Indeed, The Times report and many other reports of our proceedings last week have emphasised the powers Parliament will still retain, and the word "safeguards" has been used in reports and by the Solicitor-General in his speeches.

I follow what my hon. Friend has said because I am genuinely mystified. Many hon. Members wish, for very good reasons of their own, for Britain to join the E.E.C. and there has been some discussion of terms. But part of the terms, I should have thought, is the machinery by which we attach ourselves to the Community—to use the analogy of my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray), the way in which the pipeline of Community law is attached to this country. It is the ability to detach that pipeline should we choose—as it were, to insert filters into it—that we are discussing on the whole of the Clause. The serious debate is about the machinery that the men at the pipeline valve can insert.

The Government have been saying, "Ah, we have good safeguards and we can insert them where we wish." There are those of us who are questioning whether that is so. I should have thought that this debate falls outside whether or not we are in favour in principle of entry into the Community, because we are concerned with the operation of words which have been used so often by hon. Members opposite when they say, "In operation it does not quite work out like that." I ask the Government a number of questions. I hope that the Solicitor-General will explain the answers, in some cases specifically and in others generally.

When the debate started in the early morning of last Thursday week, we heard the phrase which I think will become a keynote of our debates, "unravelling the package". Indeed, those were the words used in the first instance by the Solicitor-General. Why do we have to unravel the package anyway? Why is there a need to unpack? Packing surely obscures what is beneath. I had always understood that in legislation length was not material. If one wishes to make something clear, it is sometimes better to put it in a little longer way so that anyone reading it can understand what is meant, rather than compressing it to such a degree that the thing becomes impossible to untangle, as has been apparent in our last few debates. Why cannot we have a slightly longer Bill, even if it says exactly the same thing? Perhaps three or four Clauses could be used to cover the ground covered by Clause 1.

We have begun to use shorthand in the debate. We have talked about subsection (3) (a) and (b), and the lawyers have, perhaps, objected to that, because it is the first part and the second part of the subsection. Why could not we have had two subsections labelled (a) and (b)? Any member of the public wanting to know what we are discussing might go to his public library and demand a copy of the Bill. If he was wise, he would read the Explanatory Memorandum. As he knows that we are debating Clause 1, because the Press and the media report us, he might then try to read the Clause. It would be very difficult for any member of the public who is not a lawyer to understand what it means.

Indeed, my right hon. Friend the Member for Battersea, North (Mr. Jay), who is not inexperienced in matters of law or in the House of Commons, has said across the Floor of the Chamber, in answer to an intervention by the Solicitor-General, that he thought he knew what the Solicitor-General meant. Certainly that is true for my part. Every time we enter this debate we have to re-learn our definitions and get back into the swim of where we were before and to re-think our way into this muddle.

Why could we not have more definitions in the Clause? After all, it is a definitions Clause, as we are told. Apparently there are at least 11 sorts of treaty. At least we could have had two of them defined clearly, because we have discussed them ad nauseam in Committee, and every hon. Member who asks about it takes up the time of the Solicitor-General, who has to re-define, over and over again, the treaties which the Community can make off its own bat and to which members are not party, in so far as those are treaties inside the existing scope of the Treaty of Rome and relate only to commerce and finance—the Solicitor-General will correct me if I am wrong—and, secondly, other treaties which lie outside the ambit of those matters and to which every individual member of the Community has to be a party.

That sounds simple, but it is not simple if one tries to disentangle that from the Bill. Each of those two sorts of treaty requires a completely different sort of procedure. In our hours and hours of debate we come to understand something about it. Why could not that have been put down in easily understandable phrasing in the Bill, even if the legal language was put a little further apart?

The Bill reminds me of trying to eat mashed potato in its dehydrated form. We need more water of common sense to give it some body so that it is easily digestible and at least reasonable to taste. If right hon. and hon. Gentlemen opposite have so much confidence in their Measure, it might have been more palatable to some of us, on the merits of the matter—and I am not discussing the merits now—if that matter were sorted out. Surely that would have been reasonable.

My hon. and learned Friend the Member for Leith quite properly says, again using his analogy, "Let us look at this package and see what contraband we have inside". The Solicitor-General, in his bland, reassuring way, says that there is no contraband other than what anyone would have had to put into a Bill if they had assented to the principle of entering the E.E.C. We find in the Clause the mechanism for the progressive assimilation of Community law. That has been understood. It is the machinery of conversion for not only existing Community law but, under subsection (4), a vast, almost unimpeded range of other possible agreements. It is, as it were, the alchemist's touchstone, something which touches and converts one type of agreement into another, all by Order in Council, which I shall come to shortly.

The Explanatory Memorandum says that Clause 1 deals with general provisions and provides principle definitions. These definitions are not laid out, certainly to any reasonable degree. On the ancillary treaties to which the United Kingdom becomes a partner it finishes with the flourish that such a treaty: …on terms settled by that date, is included only if a draft Order in Council declaring it to be included has been approved by resolution of each House of Parliament. That is meant to be a good safeguard and it is a safeguard on which the Solicitor-General harped all the time. Nearly half of the Explanatory Memorandum is in regard to Part B, the so-called conversion Clause of the Order in Council. Why did the Explanatory Memorandum not say something like: "The purpose of the Clause is to give effect to jurisprudence of the European Court, which therefore requires the courts of the United Kingdom to secure the supremacy of Community law"? That is what it is about. Nobody can deny that because they were the two sentences used by the Solicitor-General in explaining the Clause. That seems fairly simple language. I do not believe it was because of inefficiency by the Government that it did not say this and I do not believe it was inadvertence. I do not understand it. The Solicitor-General used these words on 7th March: The intention of the Bill is to secure the supremacy of Community law."—[Official Report, 7th March, 1972; Vol. 832, c. 1333.] A little earlier he said: The Bill seeks to make it clear that, as has always been plainly necessary, the courts in this country could give effect to the jurisprudence of the European Court, and to the treaty obligations as they were discussed to some extent.…"—[Official Report, 7th March, 1972; Vol. 832, c. 1331.] and so on. The Explanatory Memorandum should be such that a member of the public going into his public library to read it knows what we are discussing. This change of emphasis and lack of frankness by the Government, who are not being honest with the House or the public, is the sort of thing which my hon. Friend the Member for Nottingham, West mentioned.

I want to deal next with the question of Parliament and its function and the so-called safeguard right. On 7th March the Solicitor-General, referring to the Order in Council and the affirmative Resolution, said: 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.] The hon. and learned Gentleman has been described by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) as a Houdini. He can get through a tiny crack. Any ordinary person not learned in the law would say that it sounded fair enough. The treaty requirement is to be converted to our domestic law under subsection 3 Part B and the question will be entirely at large. This was what the Solicitor-General said. But this is part of his technique. He is a very clever man, or perhaps he is not very clever, because the important word in his phrase is "question", and the question is not whether we approve the treaty but whether an Order in Council defines it one way or the other. The most important question in the proceedings of the House is not whether a treaty be approved but whether the definition which the Order in Council gives it is correct, and that is quite a different thing. I imagine if he were questioned about this that would be the explanation of the Solicitor-General. Behold, Houdini has got through the crack which was not apparent when he used the phrase.

The Solicitor-General later said: Parliament would retain the right to affirm or not to affirm."—[Official Report, 7th March, 1972; Vol. 832, c. 1343.] But he did not say what it is affirming. It is only affirming an Order in Council which defines; it is not affirming the treaty at all. Finally, he said: That is a real, effective and genuine safeguard, and it does not deserve to be dismissed in the way in which some right hon. and hon. Members have sought."—[Official Report, 7th March, 1972; Vol. 832, c. 1344.] In other words, these fine phrases sound good until we examine them, as I have tried to do. The Solicitor-General has told us we have a fine safeguard in subsection (3).

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

4.45 p.m.

Anyone reading the reports of our debate might be so persuaded because they would consider the Solicitor-General to be an honourable man who knows all about the law. They might believe that the Government would not deceive them. So, I come back to my original question: why was this sort of thing not laid out clearly in the Explanatory Memorandum? There is, admittedly, nothing in the Order in Council because of the fine flowing words that it must be passed by both Houses of Parliament. That is a safeguard which everyone understands. I offer the Government these phrases for the Explanatory Memorandum: "Subsections (3) and (4) enable any Government to make an Order in Council declaring any treaty, protocol or annexe to a treaty through any international agreement entered into prior to 22nd January, 1972, to be regarded as one of the Community treaties. After 22nd January, 1972, any such treaty, protocol, annexe or international treaty can be regarded as a Community treaty provided that a draft so defining it has been approved by each House of Parliament."

That seems to be the substance of what we are trying to discuss, and we have taken several hours to discuss it. Here is the contraband of my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray). Contraband is not of itself unhealthy, but it has not been declared, and the Government have not declared the sort of points that I have made.

There is a further stage, because whilst sticking to his guns—saying that this is a great safeguard the Solicitor-General has been forced down a most unexpected turning. Late last Wednesday night in his speech to raise some of the points I have not outlined. He had to admit that it was clear that it was not an affirmation approving the treaty but an affirmation approving its definition. There appeared to be no exit. But Houdini did it again. He said on 8th March: Suppose, then, that a significant part of the House thought that it was one that required… that is the Order in Council— …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". So the Solicitor-General has now agreed we are not discussing the merits of the treaty but only its definition. He says that before deciding this definition we want to look at the sort of treaty it is and if we wish we can make legislation. He said: 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."—[Official Report, 8th March. 1972; Vol. 832, c. 1551.]

In other words, it is the so-called prerogative legislation. Parliament could say, "We don't like it. We want to do it ourselves. We shall have legislation on this matter." The Solicitor-General says that that would be quite in order if Parliament so wished. But whether it could get through the debate about the Order in Council on the definition, I do not know. I sense that at some stage a ruling from the Chair might stop such action.

But suppose we do legislate ourselves for something that an E.E.C. treaty says we must assimilate into our own law. Then, to use the analogy of my hon. and learned Friend the Member for Leith, instead of having a direct pipeline we have a sort of hydraulic mechanism to convert into British statute law an indefinite European legal terminology, making it something more customary in this country, something the courts can understand because it is in accordance with traditional Parliamentary practice. That sounds reasonable.

Unfortunately, we have reached this stage not because the Government said that would be one of the ways round the problem but because in the course of cross-examination the Solicitor-General had to produce this rabbit from a hat to get himself out of a difficulty. So we can add a third purpose of the Clause.

If the Government perhaps changed their mind and had to produce another Bill, I suggest that its Explanatory Memorandum should read: "Should Parliament not so approve the definition of the treaty it can as an alternative procedure pass legislation. Further, any such legislation must be fully in accord with the provisions of Clause 2(1) of the Bill, whereby all rights, liabilities and obligations arising under that treaty and all the treaties of the E.E.C. must be given effect. Parliament can by use of this procedure choose to interpret Community legislation into its own legislation and into the statutes of this country." In other words, we can do what the Solicitor-General says, or we might be able to if we can get that procedure under way.

But this is not as good as it sounds. If we left it at that, no doubt The Times, the radio and all the other commentators could say that we now have a procedure whereby we can legislate for ourselves. So far, so good, but we could not frame that legislation other than exactly in accord with all rights, treaties, obligations and so on as contained in Clause 2(1). When the Solicitor-General mentioned this, he was very careful and right to say, "…as, for example, in the second part of this Bill." But it is the first part of the Bill, if it becomes an Act, that means that any subsequent legislation on the matter must be within those terms. What safeguard is that?

We have the alleged safeguard in an Order in Council, which the Solicitor-General at one stage said was even more flexible than legislation. Then, after a great deal of cross-examination, he admitted that we can have legislation if we want to, which sounds fine. But when we examine it we find that if Clause 2(1) has been enacted the legislation must be in very tight terms, and therefore is no more a safeguard than a city council making byelaws under the terms of an Act of Parliament already passed.

There are three points. First, there is the question of what the law actually means, and that Clause 1 is a conversion mechanism. Secondly, the safeguards the Explanatory Memorandum makes out to be there do not exist at all. Thirdly, the Solicitor-General has introduced another means of perpetuating Community law by legislation of this House, which he did not mention earlier and which I have not heard mentioned at all, except last Wednesday evening in response to a question.

The Government are in some difficulty here. Either they have tripped up, as the right hon. Member for Thirsk and Malton (Sir Robin Turton)says, and have inadvertently produced a bad Bill, or there is another explanation. I can only assume, as the Government keep on saying that they wish to deal openly and honestly with the country, and that every- one has known that this would happen, that they have been remiss, that perhaps the Parliamentary draftsmen have been busy on other Bills, like the Housing Finance Bill. Perhaps they have had the youngest men on this Bill. Perhaps they were so anxious to save paper and the time of the House that they have compressed it into interlocking phrases so complex that nobody can understand. What is the explanation if it is not that?

I know that many hon. Members want to go into the E.E.C. with open eyes. That can be done only when we have examined the mechanism, which is highly defective. It is partly contraband, as my hon. and learned Friend the Member for Leith has pointed out, and the bits and pieces of it are appearing from the package as we unravel it. It may even be that the Solicitor-General is inventing the mechanism as we go along. If he is not, why did not he mention the legislative process when he introduced the Clause, and earlier in the debate? Why did it emerge only when he was questioned closely on the so-called safeguards of the procedure of the Order in Council? My hon. Friend the Member for Nottingham, West asked whether we were moving in a democratic way or an authoritarian way.

The Amendment must be supported, or the Government must tell us why it should not be, and answer the questions we have put to them.

Mr. Powell

The hon. Member for Acton (Mr. Spearing) complained that this interpretation Clause did not contain enough interpretations. I intervene only briefly to ask my hon. and learned Friend the Solicitor-General for one interpretation on the Clause which I think arises directly out of the Amendment, moved by the hon. Member for Nottingham, West (Mr. English), the object of which was it to make sure that no Government now or in the future could arbitrarily designate a treaty as being one of the treaties that trigger the consequences of the Bill. That is the purpose of the amendment of the first two lines of subsection (3).

When we look at the scope within which a Government could so act arbitrarily or, to put it the other way round, the scope for interpretation of the words in subsection (2), it seems to me that the limits of the subsection are fairly narrow and precise. As we read through the definition of treaties, we find that subsection 2(a) is precise and that subsection 2(b) is precise, but then we come to lines 5–8, in the first part of which we read of a treaty entered into by any of the Communities, with or without any of the member States", That at any rate has its limits; a treaty that was not a Community treaty at all could not be regarded as falling within that definition.

So finally, in pursuit of the opportunity that might be open to the Government to recognise the Treaty of Versailles as a treaty for the purpose of the Bill, we come to lines 8 and 9: or entered into, as a treaty ancillary to any of the treaties, by the United Kingdom; Will my hon. and learned Friend direct his attention to that expression, which is of considerable importance and of which it would be helpful to the Committee to know the Government's interpretation? It centres upon the word "ancillary". Does "ancillary" mean "in the general context of the treaties, to do with the Community or with the development of the Community", or does it mean, in a stricter and narrower sense, "subordinate"?

5 p.m.

Of course, the natural meaning of "ancillary" is subordinate—carrying out a purpose already determined by the treaties which exist. I must admit that that is how I would have been inclined to interpret the word "ancillary" but for what the Solicitor-General told the Committee in previous sittings. When hon. Members have asked how the future development of the Community would take place, by what instruments the successive stages of development would be marked, I understood my hon. and learned Friend to point precisely to those lines and to say that it would be by treaties entered into by the United Kingdom, which would become treaties for the purposes of Clause 1.

If this is so, it would seem that the word "ancillary" has a very wide sense, that it means not merely subordinate to existing treaties but building upon existing treaties to extend their scope. This appears to be an unusual meaning of the word. I should be grateful if my hon. and learned Friend would indicate whether I have correctly understood his previous advice to the Committee and in what sense the Government themselves take the term "ancillary" here, for it is in those lines that the principal scope lies for that arbitrary decision on the part of a Government in future which the hon. Member for Nottingham, West wished to remove by his Amendment.

Mr. William Molloy (Ealing, North)

Whether we are opposed to this country's entry to the E.E.C. or in support of it, I think every hon. Member will agree that this is one of the greatest issues that has ever come before the House of Commons. Some of us have from time to time argued that even if we were not in possession of the facts in detail, there was a grave risk of the authority of the House of Commons being diminished and, ipso facto, the authority of the people of the country being diminished in deciding their way of life in general.

As now the terms are slowly but painfully being spelled out, we can see some of the grave dangers which lie ahead. Some of the warnings of crags, rocks and shoals which lie ahead and for which the Government appear to be heading are being pointed out by hon. Members such as my hon. Friend the Member for Nottingham, West (Mr. English) and the right hon. Member for Wolverhampton, South-West (Mr. Powell). Paradoxically it is they, who have expressed grave apprehensions about the whole business, who have shouldered the responsibility of pointing out these grave dangers.

It seems that only when we start amending our copies of the Bill, for example to see how it would read if the Government were sensible enough to accept this Amendment, that we can see how dangerous are some of the aspects of the Bill. Already in discussion of this Amendment we have heard of the danger of limitation, if not of obliteration, of the rights of the House of Commons. It must follow if there is any impingement on or erosion of the rights of the House of Commons that there must be erosion of the rights of the people who sent us here. This the Government have not seen. In so far as we are all agreed, as I think we are, that this is a massive issue—probably the greatest that the House has ever debated—there should be some administrative arrangements to make transparently clear to the people what is going on day by day in this Committee.

This is not a matter which should be left to people's judgment according to whatever newspaper one reads or to what television or radio report one listens. I ask the Solicitor-General to consider this. Perhaps he will not be able to answer at the end of today's discussions or tomorrow, but he could take this matter to the Cabinet. I do not think he would disagree that with his right hon. and learned Friend the Chancellor of the Duchy of Lancaster he is in charge of legislation referring to a great issue facing the country. This is not a Bill to deal with our law per see, nor to denationalise some undertaking. The Government have given up silly ideas like that. It is not a Bill to take something into public ownership, which someone else can undo later. It is not a Measure which simply relates to the courts of this country; it relates to the entire make up of the nation and the rôle which our people shall play. It is a Measure which will affect every family in the country. Those who are not attracted to this Measure believe that it will do so in a dangerous way.

Perhaps the Government will consider illustrating what Clause 1 (3) means. They might ask my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) to produce a pamphlet which could be obtained at any post office and by which everyone could understand what the subsection means. That seems a very fair proposition. All Governments are guilty of thinking that it is their responsibility to make things clear only for lawyers. If on any issue such a myopic attitude should be abandoned, it is on this one for everyone in the land has a right to know what is being done in his name to reduce or take away his traditional rights.

Mr. Neil Marten (Banbury)

Is the hon. Member aware that in Norway the Government are giving a grant to the pro-European movement and to the anti-Common Market movement to help them to put their case? This is something which the hon. Member might consider.

Mr. Molloy

I am not given to speaking from notes, but if the hon. Member for Banbury (Mr. Marten) had been able to glance at my notes for this speech he would see that I would have been coming to that point in a few moments. Now I shall come to it immediately. I think the Committee knows that for some time I have had the privilege of serving on the British delegation to the Council of Europe. There is a massive division there. There are those on that great Council who believe in a much wider and broader form of European unity and those who belong to the Council who believe that this should be kept to a tight little group.

There are people who believe that Europe consists of Western Germany, Italy, France and the Benelux countries, and when Norway and Denmark are mentioned they say, "Oh, yes, of course, they are in Europe". A big argument is going on at the Council of Europe. The intervention of the hon. Member for Banbury is a valid one which supports my contention. The Norwegians consider that this matter is so important that the people's money should be spent in informing the people about their future.

Mr. Arthur Lewis (West Ham, North)

My hon. Friend will get the Charlemagne Prize if he carries on in this way.

Mr. Molloy

I am not responsible for the remarkable thinking of my hon. Friend the Member for West Ham, North (Mr. Arthur Lewis). He must not imagine that the ideas which spring to his mind are my motives.

Mr. William Baxter (West Stirlingshire)

I am interested in the point made by the hon. Member for Banbury (Mr. Marten). Will my hon. Friend comment on the fact that this Government and the previous Government subscribed substantially to the pro-Marketeers but neither gave any assistance to the anti-Marketeers?

Mr. Molloy

If I were to comment on that, Mr. Mallalieu, there is a possibility that you would rule me out of order.

The Labour Administration thought that they had a responsibility to examine what would be involved if the nation joined the E.E.C. They instituted certain examinations and said that afterwards the terms would be examined. That is what we are doing now, except that the Prime Minister has already agreed the terms. The Prime Minister has signed the Treaty of Accession although I do not believe that he knows every word contained in all the documents which are involved in Britain's joining the E.E.C. The House of Commons has a right to subject every line of the Bill to proper examination.

The Amendment by itself helps to clarify the situation. By substituting the words of the Amendment for the words deleted in subsection (3) one can see how serious the issue is. If the Government really thought that the Bill was couched in terms which the people could understand, they would go on record as a most arrogant Government. By making no attempt to explain the words of the Bill the Government are assuming that we are already in the Common Market and that the House of Commons does not exist.

5.15 p.m.

To be fair, there are hon. Members who are in favour of our entry into the E.E.C. but who are nevertheless apprehensive about the wording of subsection (3). Even those who are in favour of Britain acceding to the Treaty of Rome are not in favour of going into Europe on the terms set out in subsection (3). They should take their courage in both hands and support the Amendment. The right hon. Member for Wolverhampton, South-West (Mr. Powell) put his finger directly on several serious issues and asked challenging questions of the Solicitor-General which I hope he will answer.

The public at large do not realise that if we go into the Common Market there is the possibility of an unknown member of the Commission having power over their daily lives. That may seem to be an exaggeration but it is justified by subsection (3). A clear definition should be given of what are Community treaties. Even if we are prepared to accede to certain provisions in the Treaty of Rome and in other agreements which will be made, the House of Commons will always maintain its right not to implement instructions from the E.E.C., and this would not be the first time that this has happened. We know that the West Germans have been penalised for breaking Community law. We should at least have a right of challenge.

Unless we are careful about what we do, the British people in years to come will be faced with the question whether the voice which decides what is to be done in this country or in the name of this country is the voice of the British people and the House of Commons or the voice of the non-elected Commissioners in Brussels.

These are the great issues to which the Government should be turning their minds. I hope the Solicitor-General will take these points seriously in consideration and will have regard to the massive ramifications of the subsection. If they believe there are no dangers for the future of this country, then they should accept the Amendment.

Mr. Michael Foot

Several of my hon. Friends still wish to participate in this debate, and my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Donald King Murray) will be available to give his views to the Committee following the remarks of the hon. and learned Gentleman the Solicitor-General. I wish to intervene for a short time to make some comments about the official Labour Party view on these Amendments.

Although Amendment No. 72 does not appear to be far-reaching and in one sense is drafting, I believe it can be said that it clarifies the subsection. On those grounds alone the Government should be willing to accept it. It underlines the point embraced in Amendment No. 127, but I believe that the Committee would we well advised to accept our Amendment No. 72.

Amendment No. 178 seeks to introduce some form of negative parliamentary control over what is proposed in subsection (3). In our discussions last week—and indeed this will happen in future discussions—we sought to introduce more formidable protections than those which are set out in Amendment No. 178. We have sought by various means to strengthen the arrangements, not only by providing for an affirmative Resolution but also by introducing the even stronger protection of an Act of Parliament. My hon. Friend the Member for Acton (Mr. Spearing) referred to this matter, and this is the sort of protection that we feel should be secured. Such protection would have been secured if some of the Amendments tabled by the hon. Member for Wolverhampton, South-West (Mr. Powell) had been accepted. The same applies to some of the Amendments which we originally sought to table.

The Solicitor-General at the conclusion of his remarks during the debate last week mentioned how future Governments would deal with the major problem of how we are to be protected against future treaties in the Community which would become part of our law, namely by the sole protection of an affirmative Resolution. It appeared from the Solicitor-General's remarks that he felt more extensive protection should be available. His words are not entirely clear, but they are important. I hope that the hon. and learned Gentleman will choose to elucidate his views on this occasion.

Even more important, we should like to see the remarks he made at the end of his speech last week elucidated in the Bill itself. This is what we have been seeking to do by our Amendments. It is somewhat peculiar that the Solicitor-General tended to throw in this aspect as if it were a make-weight, as if it were just another ad hoc committee, or even something thrown to the ad hoc committee. We should like to know whether he will reaffirm his previous remarks and whether he will say in what form he will incorporate those undertakings in the legislation. We should also like to know in what form he will envisage any such resort to be made and how he will carry out the various and diverse means of dealing with these new treaties which will be forthcoming. I hope he will give a full explanation of this matter to the Committee. We regard it as crucial to these debates.

Some of the debates on these Amendments naturally overlap our previous debates, but it is clear that we are breaking some new ground. This is the first set of Amendments which begins to deal with subsection (3) without direct reference to the earlier part of the Clause. It is obvious that, as the right hon. Member for Wolverhampton, South-west has said, the definition of the word "ancillary" is important in indicating the extent to which Amendment No. 127, tabled by my hon. Friend the Member for Nottingham, West (Mr. English), is necessary. We hope that we shall be told. In other words, this is the first occasion on which we have approached subsection (3) by Amendments without having to take fully into account what is said in other parts of the Clause.

Subsection (3) is a somewhat strange provision, and the more we listened to the debates last week the more it became apparent that the subsection could be deleted altogether. Indeed, the Solicitor-General came near to admitting as much. If the subsection had never appeared it would have been possible for the Act to have proceeded and it would have carried out roughly what the Government are intending to carry out. Subsection (3) is an addition to what is required to carry cut the necessities of the treaties and of Government undertakings. For those different or contradictory reasons, it would have been possible for the Government to have introduced the Bill without including subsection (3). In other words, the subsection is a pure flight of fancy by the Solicitor-General.

It was said by Philip Gaudella, when writing of the christening of Palmerston, that he was christened John—"Henry" after his father, and "John" being a pure flight of fancy. It is roughly the same with subsection (3). The rest of the Clause is required for our entry into the Comon Market, but subsection (3) is a pure flight of fancy on the part of the Solicitor-General in order to impress the Committee with the suggestion that he has some liberal instincts, after all. Of course, he was not going as far as committing himself to passing an Act of Parliament to deal with these matters. However, this subsection is the Solicitor-General's very own. It is not part of the iron necessities of the Rome Treaty. It is the Solicitor-General's idea of a night out on the tiles. It is the Solicitor-General letting himself go and saying that, even though we have to be committed to all these requirements being incorporated in our law under the treaties that we have signed, we still make the pretence that we have some choice available to us. That is the explanation of this very peculiar subsection which, on the Solictor-General's own confession, could have been omitted altogether.

5.30 p.m.

This deals with the first part of the subsection to which the Amendment of my hon. Friend the Member for Nottingham, West is directly related. We have had many attacks on this Clause before. We have been told by the Solicitor-General that it is evidential, that it is a matter of convenience. When we have pressed him, we have been told that even if this provision were left out, it would not really make any difference to what would be the undertakings and the consequences of our having accepted the treaties. I believe that the subsection is a strange piece of window dressing.

I shall not go so much into the second part of it and the acceptance of the affirmative Resolution governing some part of our proceedings, or that part which some regard as the most important of all, which is the development of future treaties, how they are incorporated into our law, and how this Parliament is to have any protection against them. But I hope that the Solicitor-General has understood from our debates last week that we on this side of the Committee and a large number of right hon. and hon. Members opposite regard the protections set out in subsection (3) as being totally inadequate. The very fact that the Solicitor-General made the gesture is proof that he realised that what he was proposing was not satisfactory. Once the hon. and learned Gentleman accepted the idea of this kind of so-called protection and of the affirmative Resolution, he was already going a good deal of the way to admitting that he should go much further and accept the Act of Parliament, which is what we have argued and what he came near to admitting at the end of our debates last week. We shall press during our debates by every means possible to ensure that proper parliamentary protections are provided. Certainly we do not regard the protections which have been adumbrated so far as coming anywhere near meeting that definition.

Just before the Committee interrupted its proceedings last week, I ventured to suggest that one of the activities to which hon. Members might apply their minds over the weekend was to re-read our debates last week. As I did not contribute to them directly, I can say with the utmost modesty that I believe that they should be read by every hon. Member. I hope that they will be. At a time when we have important Committees considering Housing Bills, I realise that it is extremely difficult for hon. Members to attend the Committee stage of this very important Bill. But hon. Members in all parts of the House should recognise that we are engaged in a very serious business. We are engaged not only in discussing what is to happen to the Committee stage of this Bill. We are engaged in discussing what is to happen to a whole legion of Committee stages of Bills yet unborn. The list cannot be published in any Schedule. My hon. Friend the Member for Nottingham, West, has tried to make sure that all the treaties which should be incorporated are set out in the Schedule. I suspect that he is returning to what the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) described in some of our earlier debates as "the lurking treaties". But I say to the Committee, as I am sure other hon. Members are trying to say to their constituents, that what we are discussing in these debates is the future of Parliament. We are discussing whether Parliament is to be transformed into a different institution altogether.

It is no use anyone telling me that there have been changes in Parliament in the past 20 or 30 years which have altered the way in which we conduct our business on these matters and that therefore we should not be afraid of future changes. No one is afraid of future changes. However, we have the highest responsibility to ensure what those changes are.

As my hon. Friend the Member for Nottingham, West, my hon. Friend the Member for Acton, and the right hon. Member for Wolverhampton, South-West have illustrated, all the moves seem to be in one direction. They are all in the direction of removing powers from this Parliament and placing them in the hands of a distant Executive over which this House has no specific control under the Clause that we are debating.

The matter is made even worse by the fact that the Bill itself has been presented to the House in a manner which we on this side of the Committee regard as shocking. I am not returning to the form and scope of the Bill which in our opinion has defrauded this House of the capacity to discuss and vote directly on matters which it should decide. This Bill appears to have been introduced by people who have no respect for parliamentary procedures.

Anyone examining the debate on Second Reading will not see stated by the Chancellor of the Duchy of Lancaster in his description of its nature any reference to the implications of Clause 1, to what is to happen to future treaties, and how they are to be incorporated into the law of the land. All these are issues which have been unearthed in Committee. They were not brought to the attention of Parliament or the country by the Ministers responsible on Second Reading, in the debates on the Money Resolution and the Ways and Means Resolution, or in the Explanatory Memorandum. The methods which Governments, especially Governments who boast of their open style of government, normally employ to say what are the implications of Measures were not taken to tell the country and the House the implications that the Government saw in this Bill.

A notable and notorious speech was made at the weekend in which it was said that our affairs in this House are in some way arcane. That was the word used about some of our procedures in the last week or two. It is an exquisite word. The word "arcane" means hidden, secret, concealed. There has been nothing hidden or secret or concealed about our debates. But there is something hidden and secret and concealed—arcane to use this beautiful word—in the Bill itself. But the proceses of Parliament enable us to unravel these arcane mysteries. We have now discovered that the processes of Parliament itself have been used for that very proper purpose. Not merely have they been used properly: they have been used eximiously. They are being used eximiously and they will continue to be used eximiously until we compel all hon. Members to recognise what is happening.

We do not propose to relinquish the discussion on this Bill before everybody in the country knows what it is about. That is our elementary duty as hon. Members. We certainly seek to ensure, particularly in view of what has been unravelled and unearthed in the last few days—after all, we have had only two very short days of debate so far in Committee—[An Hon. Member: "None next week."] Next week, we may be discussing the value-added tax and some of my hon. Friends will be leading the battle against that part of the Common Market legislation. Let there be no mistake on these matters. There will be a permanent fight, which will not be relaxed in any sense. None of my hon. Friends should be under that misapprehension.

Of course we will sustain this fight and unravel the Government's proposals. But in the two reasonably short days of debate we have already started to unravel—although we have not yet secured the remedy, which is what we are searching for in these Amendments—what the right hon. Member for Wolverhampton, South-West has called prerogative legislation.

This was part of the reason why the Solicitor-General tried the escape of referring to the Act of Parliament which might be brought in to deal with the matter—because he knows that he is up against it and that what he is proposing under his Bill is prerogative legislation. The first part of subsection 3, which my hon. Friend seeks to amend, sets a form in which that prerogative legislation could be presented to the House. The second part of that subsection presents an entirely inadequate shield against prerogative legislation.

Therefore, even on the first Clause of the Bill, which was never thought to be of major importance, on any of the opportunities open to the Government—particularly on a Bill of this nature, on which the Solicitor-General had certain obligations—the hon. and learned Gentleman should have come to the House and told us. He should not have been the last to talk about the implications of Clause 1: he should have been the first. But we had to drag it out of him.

We were told before that Clause 2 is the important part of the Bill. There are many important and far-reaching aspects of Clause 2, but what has been discovered and what was never stated to us by anyone was that there were implications buried in Clause 1, which were defined only as dealing with the Title and interpretation. It is high time for the Solicitor-General to decide that he should treat the House with a good deal more can dour. Perhaps it will pay him in the end.

5.45 p.m.

We do not claim that these Amendments cure the whole disease. Some of the Amendments which the Government rejected last week would have gone further to deal with the disease. But we have put down Amendments, some of which were newly incorporated and which we put down as the result of the discussions last week, as we were entitled to do and as we shall continue to do as the debates proceed, particularly because of the revelations of the Government's mind and attitudes.

All Oppositions, and anyone concerned about the procedures of the House, will have to have protection from the Chair in ensuring that Amendments of this nature are properly considered. One of the Amendments has been put down on this account.

We are not claiming—so I hope that the Solicitor-General will not brush them away too flippantly—that these amendments cure the disease which I have been seeking to discuss. But we do say that, if they were incorporated in the Bill, it would at any rate be the first sign that the Government were aware of what they are up against. What the Solicitor-General and the Government have to realise is that the Committee will not allow this piece of legislation to be rammed through. If we did, we should betray everything that we have ever stood for.

Nor will we accept that most arrogant of all doctrines—especially on a Bill like this—that it is perfectly drawn and can not be altered at all. We all know why Governments try that trick—because they want to avoid having a Report stage—but that is not a good reason for dealing with a matter like this. We are dealing not only with this Bill but with scores and hundreds of future Bills. We are deciding how this is to be dealt with properly by the House.

I therefore urge the Solicitor-General first to consider these Amendments on their merits, to see whether he can incorporate them in his subsection. At least he could not argue that they do anything to injure the possibility of our entry into Europe one way or another. These Amendments can be accepted by those who wish to enter Europe as well as by those who do not.

The first thing that we wish to establish in these debates is whether the Government are interested in protecting the rights of the House. We have not seen a great deal of evidence of it in these debates. Nor have we seen much evidence of it in the form in which it has been presented.

I hope that the hon. and learned Gentleman will not come up with the old story that all this was agreed in 1967 by the previous Government. It is not the case, because that Government never translated the proposals for entering Europe into detailed legislative form. We have the clear assurance of the Attorney-General of the time that that previous Administration had in no way translated the proposals for entry into this kind of detailed legislative enactment. So that excuse will not work.

Even if it were true, it is not a fit argument for the Committee. Certainly when we argue with the Solicitor-General and say that a subject has to be dealt with on its merits, I wonder whether he knows what the words mean? If I say to him that Guinness is good for him, it is no good his saying he has seen in many reported statements in the past that it is good, and that is enough and that is the end of the argument. He has to produce the detailed evidence that it is good for our health and for our prospects. He has to produce the detailed evidence that what he is suggesting is the best for the health of this British House of Commons and for the people that this British House of Commons is supposed to serve.

That is the level on what the Solicitor-General must conduct this argument, and it is still not too late for him to do that. If he is going to do it, it will mean that the Government will have to give their mind to which Amendments they are going to accept—Amendments dealing with a whole range of matters. If the Government came to us in that spirit and said that they were going to examine all the Amendments and arguments put forward from both sides of the Committee, it would make a great deal of difference to the conduct of this debate and would, indeed, be very good for the Committee.

It should also be recognised that we are dealing with a situation in which these matters are not confined to the views put forward from this side of the Committee. Hon. Members in all parts of the Committee—I hope I can include the Liberal Party in this—want to protect the rights of Parliament.

I hope that the Solicitor-General will not say that these are such trivial matters that the Cabinet should not be interrupted to deal with them. They are not trivial matters at all; they concern the whole future of the House of Commons and its relation to the people, and how it can serve the people. We propose to use our parliamentary rights to the limit to ensure that those matters are properly discussed and properly settled, and we will do that with every means available to us, to force the Government to adopt this attitude. So far they have shown little sign of wishing to do so, but I hope we are going to have some change of heart from the Solicitor-General.

The Solicitor-General (Sir Geoffrey Howe)

The hon. Member for Ebbw Vale (Mr. Michael Foot) has returned with a narrowly repetitive réprise of the general theme he has been advancing throughout our whole debate on this matter for some weeks, tendentiously and occasionally relating to the Amendments currently before the Committee, generally asserting and reasserting the broad case, which he has done on many occasions, for upholding the rights of Parliament. I accept the strength of that but it does not increase the force or relevance in the context of these debates merely by repetition, nor by repeated links with something which verges on, if I may be allowed the phrase, personal assaults in relation to my own rôle in relation to this legislation. The hon. Gentleman continuously asserts that previous considerations of the principles are irrelevant to the merits of the Bill and he seeks to demolish the argument, which we have inevitably been obliged to advance many times already, that a lot of this was very well known and appreciated in 1967, as irrelevant.

The hon. Member invites me to accept as equally cogent the supposition that Guinness is good for me. Let me show him how the Guinness argument applies to this. The Guinness in this legislative bottle is the same Guinness as that which commended itself to the last Government and the one before, and I am entitled to say, in assessing the merits of this, that a very large number of other Ministers in a previous Government and the one before tasted this liquid and found it worthwhile. Indeed, I am entitled to say that the beverage was tested by the last Government almost to destruction.

The hon. Member for Ebbw Vale can never have read the passage on page 387 of that notable work written by the Leader of the Opposition describing how the last Government approached the problem. He described—it is not irrelevant though it may be embarrassing for hon. Members opposite—the immense detail with which each issue was the subject of an authoritative paper presented to the Cabinet and how papers were submitted, including one on the constitutional issues involved, prepared under the direction of the Lord Chancellor.

The Leader of the Opposition said he was anxious that no colleague should feel that the decision was in any way rushed, that any relevant issue—even the most tangential—was not examined and discussed, or that he, or the Cabinet as a whole, was being 'bounced' into a decision.… I told my colleages that the fullest time would be available for so important a matter and that the final decision would not be taken until every minister felt that it had been adequately discussed. We met roughly twice a week from Easter until the beginning of May, taking one or two subjects at each meeting. Whenever any asked for more information, or a further paper—or for a matter to come back to us for reconsideration—this was agreed. If anyone had asked for a document on the effect of entry into the Market on British pigeon-fancying, he would have got it; but no one did. Was ever Guinness so truly tested as that?

Mr. Foot

I thank the hon. and learned Gentleman for giving way. Many people have said, from all sides, that we all know that the general considerations about entering into the Common Market were discussed before. What we are doing under the Bill is dealing with the question of parliamentary protection and the form of the Bill. Therefore, when the hon. and learned Gentleman quotes members of the previous Administration, perhaps he will at the same time note what was said by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones), the former Attorney-General, who can speak with absolute authority about this. He said last week: 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."—[Official Report, 8th March, 1972; Vol. 832, c. 1490. That is the view of the Minister who was most intimately concerned with this aspect of the Bill, and I hope the hon. and learned Gentleman will apply himself to that.

The Solicitor-General

I am only too willing to do so, but I feel it necessary, if only for the record, to spend a moment or two answering the more general and more relevant arguments which the hon. Member advanced, and also to challenge his assertion that explanations and expositions on this Clause or any other part of the Bill has to be dragged out of me or any other Minister. He may recollect that we had to sit some nine hours through the first futile night before I was able to speak to the first Amendment and place on the record a correct exposition of the points he has presented to me as though they were new discoveries.

I do not propose in replying to deal with any of the points raised by the hon. Member for Nottingham, West (Mr. English) about the definition of treaties, which arises under the next subsection and Amendments to it, or with the Amendments by the hon. Member for Acton (Mr. Spearing) dealing with the second part of subsection (3), because those either have been debated on the previous trio of Amendments or arise on the next trio. I am dealing with the points raised—

Mr. Spearing

The hon. and learned Gentleman has mentioned the points I raised in regard to the trio of Amendments. Would he not agree that this matter came up fairly late on 8th March and we have not had an opportunity for debate? Further, will he reply to my point about the expanding size of the Bill?

The Solicitor-General

I have listened to the points the hon. Gentleman has made.

The hon. Member for Nottingham, West asked about the extent to which decisions of the Council of Ministers have been published and are available. All the material texts in force, the first batch, prepared on 10th November, 1971—that is, all of those which will be binding upon us—are already published and I have told the House of Commons that arrangements for subsequent publication are now going through. The rules of procedure of the Council of Ministers regulating matters of internal procedure have no effect on the Community law applicable to this country. By the Treaty of Accession they are to be adapted after entry.

6 p.m.

The hon. Member for Nottingham, West dealt with the point to which he had previously referred about the extent to which the citizens of this country can challenge the acts of the Community. I repeat, with more amplification, that the distinction is not as substantial as the hon. Gentleman seeks to suggest between the civil system of law in this country and that practised in the Communities.

By Article 173 any person who is directly and individually concerned with a Community instrument can directly challenge it before the European Court of Justice. By Article 175 any person similarly affected can challenge a failure of the Community institutions to act. By Articles 178 and 215 any person who suffers damage can, in the Community Court, bring proceedings for wrongful acts of the Community. By Article 183 a person can get a remedy in the courts of his national country for breach of contract.

By Article 177, to which I referred when the hon. Member for Nottingham, West raised this matter last time—this is an important point—if any Community instrument is invoked against any individual he can challenge that instrument directly in our courts. He cannot seek a declaration to set it aside, but he can challenge its validity in our courts which, under Article 177(b), can refer it to the Community Court, if necessary.

[Sir ALFRED BROUGHTON in the Chair]

Mr. English

Does the hon. and learned Gentleman accept that the definition of "directly and individually concerned", in respect of the person who can challenge, is rather more restrictive than might be imagined? It is something similar to our law of definition. If I were to say "All Conservatives are something defamatory", no Conservatives could sue me because there are too many of them; they are too amorphous a number. However if, outside Parliament, I were to say, "All Conservative Members of Parliament are something defamatory", any one of them could sue me. Does the Solicitor-General accept that this is a more limited category? For example, an illegal Act might raise the taxes of every taxpayer. They would be far too amorphous a mass; they could not bring individual actions because it would not, within the meaning of the Roman law decisions, be of direct and individual concern

The Solicitor-General

There is a difference of degree of that kind. The hon. Gentleman will recall that in this country, for a person to found his right to a declaration in the courts, he has to establish a sufficient locus stand, a sufficient interest. Therefore, this is only a difference of degree. If a regulation or instrument of the Community affected an ascertained number or class of people, that would probably be sufficient to give a right under Article 173. apart from the shield available to a person under Articles 177(b) and 173.

The hon. Member for Nottingham, West, on the inter-relationship between Amendment No. 127 and matters about which I have just been talking, suggested that if we left the first part of Clause 1(3) as it is, we might set aside or reduce to no value the right of a citizen to challenge whether a treaty was or was not a Community treaty. The question is whether, apart from his rights in our courts, a citizen would have an opportunity, under Article 173, to challenge the validity of a Community treaty before the Community Court. I am sorry. A citizen would not have that right. A member State would have the right, under Article 173, to challenge the validity of a treaty before the Community Court. Aside from that, the individual citizen would probably have a right under Article 177(b).

That at least is the analysis of Gerhard Bebr, one of the favourite authors of the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), who suggests, in his book "A Judicial Control of the European Communities" that that opportunity would exist for the individual citizen. The opportunity under Article 177(b) to challenge before a member State court and, finally, before the Community Court the validity of a Community treaty would not be affected by the form of Clause 1(3) as it stands or by the Amendment.

Mr. Powell

My hon. and learned Friend has just made what seems a very important interpretation. I am looking at Article 177(b) of the treaty. Do I understand my hon. and learned Friend to be saying that the validity of measures taken by the institutions of the Community—the words in Article 177(b)—would cover the question raised by the Amendment whether a treaty was a treaty for the purposes of Clause 1?

The Solicitor-General

It will cover the question whether a treaty was or was not made validly by the Community institutions. A challenge could be brought, whether the treaty was validly made within the powers conferred upon the Community institutions, under Article 177(b). I do not want to go further than I should, because there is no case law so establishing it. However, it is the fairly well argued conclusion of Gerhard Bebr, in the book to which I have referred, that that is so.

Sir D. Walker-Smith

Is my hon. and learned Friend certain about this proposition? Looking at Article 177(a) and (b) he will see that there is a clear differentiation or dichotomy in language. The part relating to treaties, which is the point raised by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) which is germane to the Amendment, uses the word "interpretation" only. The validity comes under Article 177(b). Is it not right that there is a lesser jurisdiction regarding treaties which might not extend to this point, because of the difference of that language? Has my hon. and learned Friend considered that in the context of Article 177?

The Solicitor-General

I take my right hon. and learned Friend's point. Article 177(b) gives the court jurisdiction to give rulings on the validity and interpretation of acts of the institutions". We are categorising a treaty under that article as an act whose validity could be considered.

Sir D. Walker-Smith

What I am suggesting —

The Solicitor-General

Perhaps I may finish the exposition. I am not asserting that Article 177 has yet, on the case law of the European Court, been used to determine the validity or otherwise of a treaty made by the Community institutions. I am asserting that there are what seem to be reasonably well founded arguments to that effect in Gerhard Bebr's book at pages 54 and 187. Perhaps my right hon. and learned Friend might like to consider the matter further in that way.

I come now to the Amendment. The Bill as it stands provides that if an Order in Council is made declaring 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". I suggest that Amendment No. 127 is unnecessary if it is supposed that Clause 1(3) enables the Government to make an Order in Council declaring some quite unconnected treaty applicable under these provisions. As I explained when we discussed this matter on two occasions last week, 7th and 8th March, it is clear that the validity of an Order in Council of that kind could be challenged and that the power of the courts to examine the vires of the order would still remain along the lines which I discussed last week.

As the Bill stands, a treaty specified in the order must be reasonably capable of being within the scope of the definition of Community treaties since the power is to declare that a treaty…is to be regarded as one of the Community treaties as herein defined". This follows from the whole structure of the first part of Clause 1.

My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) asked about the meaning and significance of the word "ancillary" in the latter part of subsection (2). I respond to him by saying that "ancillary" is more likely to be given the narrow rather than the broad construction; in other words, the construction which he suggested. My right hon. Friend tended to suggest that, in response to questions last week, I indicated that an extension of the rôle of the Communities would be undertaken by making treaty after treaty linking on to the last one. I think that the question was "could it be" rather than "would it be". I suggested that, to certain limits at least, it could be done provided that each treaty was properly regarded as ancillary in that way. I certainly do not suggest that it would be done because obviously one of the alternatives would remain—the opportunity of using legislation rather than an Order in Council as being more appropriate in any significant or substantial cases.

Mr. Jay

If I understood aright, the Solicitor-General said it was quite clear that a treaty under subsection (3) must be within the scope of the Community treaties. That is not clear to me anywhere in the Bill and it is certainly not in any of the words of subsection (3). Subsection (3) does not say "if an Order in Council specifies a treaty as herein defined to be a Community treaty"; it says "if it declares a treaty to be a treaty as herein defined." There is nothing, so far as I can see, and the Solicitor-General has not told us anything, which limits the treaties that can be declared in that way to be Community treaties.

The Solicitor-General

It is on that ground that the vires of an Order in Council could be challenged if it sought to give the status of a Community treaty to something which could not and should not be regarded as a Community treaty "as herein defined." We come back then to the phrase about which my right hon. Friend was asking me. So I suggest that this argument has been covered at least twice and there is no need to make the change suggested by the hon. Member for Nottingham, West.

Mr. Jay

I think there is—

The Temporary Chairman (Sir Alfred Broughton)

The right hon. Gentleman must not interrupt if the Solicitor-General will not give way.

Mr. Jay

On a point of order, Sir Alfred. We are in Committee and this is an extremely important point. Surely it would be normal for the hon. and learned Gentleman to allow this point to be cleared up and not to refuse to give way—because he does not know the answer.

The Temporary Chairman

That is not a point of order for the Chair. If the hon. and learned Gentleman will not give way, the right hon. Member must not interrupt.

Mr. John Mendelson (Penistone)

On a point of order. It will quickly become a point of order for the Chair. It is my experience in Committees upstairs, Sir Alfred, that the Minister responsible for an important piece of legislation always extends to the Committee the normal courtesy of allowing himself to be interrupted by hon. Members who make serious points. We are not going to take it if that courtesy is not shown to hon. Members in this Committee.

The Temporary Chairman

That is not a point of order for the Chair.

Mr. Laurie Pavitt (Willesden, West)

On a point of order, Sir Alfred. In the event of the hon. and learned Gentleman not giving way, and since we are in Committee, is my right hon. Friend entitled to intervene at a later stage and will the hon. and learned Gentleman have a chance of replying?

The Temporary Chairman

When the hon. and learned Gentleman has completed his speech, if the right hon. Member rises and is fortunate enough to catch my eye, he will be able to speak.

Mr. Jay

On a point of order. Would it not be far more expeditious, Sir Alfred, to clear up this point now?

The Temporary Chairman

That is not a point of order for the Chair.

Mr. Molloy

Not only was the dialogue we were listening to between the Solicitor-General and my right hon. Friend interesting, but if it could have been followed it might have been informative. I understand that that is the purpose of a Committee stage. I did not follow precisely the very pertinent point my right hon. Friend was making and I wanted to listen very carefully because I was absorbed and wanted to know what the reply of the Solicitor-General would be. I understand that that is the purpose of the Committee stage, and perhaps the hon. and learned Gentleman will take cognisance of my words.

The Temporary Chairman

The hon. Gentleman is putting forward an interesting personal opinion, not a point of order for the Chair.

The Solicitor-General

The hon. Member for Penistone (Mr. John Mendelson) will know that I am not unwilling to give way and to answer questions as far as I properly should but, as I have said, I have dealt with that point on at least two previous occasions and I cannot now deal with it any further.

Mr. Jay

On a point of order—

The Temporary Chairman

The right hon. Gentleman must not interrupt if the hon. and learned Solicitor-General is not prepared to give way.

6.15 p.m.

The Solicitor-General

Coming to Amendment No. 72, on which we have had only a sentence or two of explanation, the insertion of the words there suggested would have the opposite effect from that desired by hon. Members opposite. By inserting the words "or is" the scope of a valid or legitimate Order in Council would appear to be broadened so that it would not only extend to the case where the treaty is but would add a distinct category—a treaty which is to be regarded as one of the Community treaties. I suggest that an extension of that kind is unnecessary and unjustifiable.

I invite the Committee to say that the third Amendment, No. 178, is neither necessary nor desirable. So far as pre-accession treaties are concerned, there would be no purpose in including a provision for annulment in that way because it would not prevent pre-accession treaties falling within the terms of the definition. So far as that Amendment concerns future treaties entered into by the United Kingdom, the second part of Clause 1(3) already provides that an Order in Council must be made if the treaty is to be within the definition, and in that case the Order in Council requires an affirmative Resolution. So it would be quite otiose and pointless to provide for it to be subject to annulment as well. So far as future treaties entered into by the Community without member States are concerned, such treaties are included by definition in Clause 1(2) whether or not there is a declaratory order under the first part of Clause 1(3). So to provide for annulment in that way would not affect the substance of that. I therefore invite the Committee to conclude that not one of these three Amendments would justify its place in the Bill.

Mr. English

The hon. and learned Gentleman said that he was not going to answer at this stage the points I raised about the law of treaties, but he went further and did not answer the small point I made suggesting that quite validly within the scope of the Bill something like the Heath-Pompidou agreement could be declared a Community treaty by Order in Council. That point ought to be answered as it does not directly concern the law of treaties.

Mr. Jay

I thought that perhaps the Solicitor-General wished to answer the question addressed to him by my hon. Friend, but on the assumption that that is not so I will put some further points to him. It is unfortunate if the Solicitor-General refuses to answer questions in their logical order when we are pursuing a point in dispute. This will prolong the proceedings because we have to go back to the point and explain to the Committee what is under discussion.

The Solicitor-General seemed to me to show the weakness of his case today because once again he had to start his speech not by relating an argument of his own but by referring back at some length to speeches made by other people three, four or five years ago. I do not think that enhanced the strength of his speech.

We have got one point at any rate clear about the Clause. It is not, as was originally suggested and as the Bill states, a Short Title or interpretation or definition Clause; it is a Clause which has substantial effects as legislation in making these treaties binding on the country. The fact that a Clause with that substantial effect was presented to us as being merely a definition Clause will rightly make us somewhat suspicious and exacting in our examination of other areas of the Bill.

A point which, it seems to me, the Solicitor-General—who has far more information about this than I, and that is why I thought he would be able to answer my questions—did not deal with the question he has been asked several times: what is there to prevent the Government, under subsection (3), declaring to be a Community treaty a treaty which is not a Community treaty at all? The Government may have no intention of doing that. The Solicitor-General may not intend the Bill to give that power to the present Government or any future Government. The fact remains that it appears to many of us that there is nothing in the Clause to prevent the Government from so doing.

The right hon. Member for Wolverhampton, South-West (Mr. Powell) in his intervention referred to the words a treaty ancillary to any of the Treaties". Those words occur in subsection (2), and there is nothing grammatically or logically in the Clause to necessitate the words "a treaty" in line 11 being limited or qualified by those words in subsection (2). It may be the general intention that they should be, but subsection (3) says: If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded". The Government might have meant to say: If Her Majesty by Order in Council declares that a treaty within the definition in subsection (2) to be regarded as one of the Community Treaties as herein defined", That would have been one way of doing it, but that is not what the subsection says. If the Government were to introduce a Bill which said: If Her Majesty declares the hon. Member for Wolverhampton, South-West (Mr. Powell) to be the hon. Member for Wolverhampton, South-West", that would for legal purposes have one effect. If, on the other hand, they introduced a Bill which said: If Her Majesty by Order in Council declares any Member of Parliament to be the hon. Member for Wolverhampton, South-West", that would have a totally different effect.

Do the Government intend that subsection (3) should give future Governments the power to declare any treaty whatever, whether it be a treaty made by the Community or by the United Kingdom either in the past or in the future, to be a Community treaty when it is no such thing? If the Government do not mean to say that, I suggest to the Solicitor-General that it would be wise to accept one or other of these Amendments—perhaps my hon. Friend's wording is not ideal—to make it clear that only genuine Community treaties, somehow appropriately defined, can be treated in this way.

We are discussing whether a treaty, so declared, shall be binding on the courts and on the people of this country. This is a substantial matter, because if the Government really intend to bring in other treaties my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) would not be right in saying that this is merely window dressing. This would be a substantial Clause, giving power far beyond what the House of Commons has been told and far beyond what any of us would wish to give.

Mr. Spearing

Will my right hon. Friend look in Hansard tomorrow and check the words of the Solicitor-General? My hearing of his phrase, before the exchange with my right hon. Friend, was that the Solicitor-General meant to imply that the meaning of the subsection was as my hon. Friend suggested the Government wished it to be and not as it is. The Solicitor-General, has said things have later turned out not to be what they appeared to be.

Mr. Jay

I will certainly study Hansard tomorrow. Today, however, I am trying to understand the Clause as it is.

I understood the Solicitor-General in his first and second replies on this point to say that a Government could, under the Clause, declare a treaty to be a Community treaty when it was not. He said that that would not matter because it could be challenged in the courts. Speaking to the hon. and learned Gentleman diffidently, because I am not a legal expert, I would like him to explain what that means. It means, presumably, that a citizen may go to the courts and challenge a Government who have by order declared to be a Community treaty a treaty which is not to be a Community treaty.

If the Bill were passed into law in its present form, a citizen who went to court would be faced by a spokesman for the Government who would present the Bill to say that Her Majesty, by Order in Council, had declared that a treaty specified in the order was to be regarded as one of the Community treaties as therein defined, and that that was conclusive that it should be so regarded. What would be the purpose of raising the matter in court if one were presented with an Act of Parliament which said conclusively that one was wrong? I do not understand the point of putting into the Bill the words shall be conclusive that it is to be so regarded". We ought to have an answer to this before we leave the Clause.

The other question which has not been answered was put by my hon. Friend the Member for Nottingham, West (Mr. English). Could a Government declare a treaty to be a Community treaty for the purpose of the Bill even though that treaty had never been published? My hon. Friend the Member for Ebbw Vale spoke earlier about the arcane proceedings of this Parliament. As the Council of Ministers in Brussels and the Commission meet and legislate in secret, and as the House of Commons legislates in public, I would have thought it was those institutions rather than this Parliament which should be described as arcane. Would it be possible for a treaty to be made in secret in one of those Community institutions and not to be published and for the Government to issue an Order in Council declaring that that specified but unpublished treaty was a Community treaty for the purposes of the Bill and that, therefore, its contents were binding upon the country?

It is noticeable to those of us who are trying to understand the Bill that subsection (3) states that if Parliament declares that a treaty specified in the Order". It does not speak of a treaty included in the order or set out or contained in the order. It says "specified in the Order". If one referred, for instance, to the Luxembourg compromise—I do not know whether that ranks as an agreement or treaty for the purposes of the Bill—would it be possible merely to specify an agreement by name without including any of the contents and for that, as a result, to be validly described as and declared to be a Community treaty?

The whole situation is exceedingly unsatisfactory. Under the Clause, unless we have words to the contrary, it would be possible for a Government to include by name in an Order in Council a treaty which might not be a Community treaty at all, which might never have been published unless Parliament rejected the order. All these legal consequences would follow. I cannot believe that that is what the Government intend. If they do not intend this, surely we should amend the Clause, by one of these Amendments or another, in such a way that at the very least the provisions of the Clause are limited to what are genuine Community treaties as defined in the previous subsection. The words of the Bill manifestly do not carry out that intention.

It is exceedingly undesirable in a matter of this importance to have such vagueness, imprecision and ambiguity. While seeking information, I invite the Solicitor-General to explain, if I am wrong, where I am wrong and, if I am right, to say how the Government intend to amend the Bill to ensure that it at least carries out their intentions.

6.30 p.m.

Mr. Hugh Jenkins (Putney)

I fear that my right hon. Friend the Member for Battersea, North (Mr. Jay) will be disappointed, for I doubt whether the Solicitor-General intends to explain anything.

The hon. and learned Gentleman treated us last week to a long playing record which led to a state of total confusion; the longer he went on playing it, the less clear the situation became. Today he played a single disc version, but so dismissive were his remarks that we know even less now than we did when we began discussing this issue.

The Solicitor-General was given an opportunity to explain how the rights and privileges of this Parliament were not being overridden. Instead of doing that, he simply said, "We have heard all this before. I do not intend to reply to it again". The hon. and learned Gentleman dismissed the Committee and put our rights on one side by saying, in effect, "Like it or lump it, we have a majority and we intend to shove the Bill through".

It is clear that this Measure is bound to do a lot of damage during its passage through Parliament. Already the reputation of the Solicitor-General has gone. I regret that, because previously he seemed to take a lot of trouble to explain various provisions with clarity and in detail. On this occasion, however, he has had such a bad brief that instead of abusing his opponents he has abused Parliament, and he stands condemned for so doing.

The hon. and learned Gentleman brushed aside Amendment No. 178, describing it as neither necessary nor desirable. I suppose that if one is engaged in pulling wool over people's eyes it could be considered unnecessary and undesirable, but from our point of view it is both necessary and desirable if it will help us to learn the facts.

One fact we are anxious to learn is precisely what is a treaty. The Bill should at least tell us that simple point. Apparently a treaty is a great deal more than the Treaty of Rome. We had hoped to elucidate in debating Amendment No. 178 precisely what the Government have in mind when they use the word "treaty". At a later stage we may be able to pursue this matter.

Presumably a treaty includes any international agreement. In other words, we are discussing not only the Treaty of Rome but treaties arising from it. These are treaties which have already arisen and future treaties which will stem from the original Treaty of Rome. For example, Article 114 of the Treaty setting up the European Economic Community states: The agreements referred to in Article 111(2) and in Article 113 shall be concluded by the Council on behalf of the Community, acting unanimously during the first two stages and thereafter by qualified majority. When one turns to Article 111(2) one reads: The Commission shall submit to the Council recommendations concerning tariff negotiations with third countries in respect of the common customs tariff. The Council shall authorise the Commission to open such negotiations. After referring to what happens then, Article 111(4) says: Member States shall, in consultation with the Commission, take all necessary measures to adjust, in particular, tariff agreements in force with third countries in order that the coming into force of the common customs tariff should not be delayed. This seems to open the possibility that member States may conduct negotiations with third countries for which we are responsible; countries in the Commonwealth or countries for which we have direct responsibility. Included in this category of treaties could be all sorts of trade agreements with underdeveloped and dependent Commonwealth territories, and it seems that they could be made not only by the Community as a whole but by individual member States.

The Solicitor-General rose—

Mr. Jenkins

I hope that the hon. and learned Gentleman will make the position clear, for it seems that by Article 111(4) Member States may in consultation with the Commission"— make various tariff agreements…with third countries and it seems that they could be underdeveloped or dependent Commonwealth territories and that that could happen without the knowledge, consent and agreement of this country. Is this so?

The Solicitor-General

To save the hon. Gentleman the trouble of pursuing the point, it might help if I were to explain that the whole of Article 111 applies to measures that were to be effective during the transitional period of the original Community; this is now entirely spent and has no bearing on the situation.

Mr. Jenkins

Let us hope that we can take the hon. and learned Gentleman's assurance as gospel. There have been previous contradictions between his statements and the wording of the Bill. At least I hope we have ascertained that one precious fact. Perhaps we should ring it round in HANSARD as a solid statement on to which we can hang. I trust that it will not be contradicted later.

On another occasion I shall pursue the whole question of secondary legislation and question to what extent that, too, is a treaty. There seems to be a stage between the treaty itself and the secondary legislation, which it is said is not a treaty, though it looks rather like a treaty. In other words, it seems that the intermediate governing provisions do not constitute a treaty while the secondary legislation does. We can debate this at greater length on later Amendments.

I have said enough to show how important it is for my right hon. and hon. Friends to stress the necessity of unearthing from the Solicitor-General what facts we can ascertain. If we have unearthed a tiny fact as a result of debating this Amendment, then we have proved the need to press and press still further our demand to know precisely what the situation will be under this legislation.

Mr. Anthony Fell (Yarmouth)

I rise first to profoundly disagree with the hon. Member for Putney (Mr. Hugh Jenkins) that my hon. and learned Friend the Solicitor-General has lost his reputation in the Committee. Not only was that a wild statement but it bore no relation to the truth.

I rise secondly to ask my hon. and learned Friend, for whom I and virtually the whole Committee have not only affection but the greatest possible respect, to attempt in his future dealings with the Bill to remember that a lot of us have no connection with or experience of the law. I mention that because some of the to-ing and fro-ing today between himself and my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) and my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith), and the interventions and the replies of the Solicitor-General, were extremely difficult to follow. That was shown to be so because it was obvious from the attitudes of both my right hon. Friends towards the Solicitor-General's replies that they did not quite understand either. It was fairly obvious that my right hon. and learned Friend was unable to put it into words that could be easily understood.

What I appeal about is this. We shall have endless discussions on the Bill. Somehow, those of us who are least versed in legal matters have to be convinced by the Solicitor-General, when it is his job so to do, that what he is saying is so. Somehow he has to make us understand what he is getting at.

Mr. Hugh Jenkins

I suggest that the only difference between the hon. Member for Yarmouth (Mr. Fell) and myself in this matter is that he thinks that the hon. and learned Gentleman the Solicitor-General is trying to make himself clear and failing to do so whereas I think that he is really not trying.

Mr. Fell

The hon. Member may think what he likes. One thing is certain: my hon. and learned Friend has to deal not just with the Opposition, which is mixed anyway—we all know that—but also with his friendly opposition on this side of the Committee. On a Bill of as great moment as this is to the future of democracy in Britain and the future of Parliament—an opinion shared by everyone—somehow my hon. and learned Friend has the mammoth task of carrying us all through the legislation and leaving us knowing exactly what he is getting at, what every Clause means and the reason why every Amendment he decides to reject is being rejected. The Bill has to become credible to those of us least versed in legal affairs.

Finally, of all Committee stages that I have had anything to do with—it is not all that many, but a fair number—in many ways this is the one where there has to be the most detailed consideration. We want to be absolutely certain that if the Bill is passed it leaves nothing to be desired in the way of protection of the House of Commons.

6.45 p.m.

Mr. Ronald King Murray (Edinburgh, Leith)

The hon. Member for Yarmouth (Mr. Fell) made a powerful plea. I hope that it will not fall on deaf ears. The Opposition are entirely dissatisfied with the way in which the hon. and learned Gentleman the Solicitor-General has handled these Amendments. I am inclined to say that he has handled the Committee in a cavalier fashion. I may return to that point in my concluding remarks. I propose to deal simply with Amendment No. 72, one of those which was so readily cast aside by the Solicitor-General.

When the debate opened the Opposition were in some doubt as to whether the Government might possibly be attempting to operate subsection (3)—I am concerned with the first part in particular—on the basis that they had no obligation to use subsection (3) procedure for publication of a treaty, that is, for evidencing a Community-type treaty where it plainly was a Community treaty. It might be said that there is no need to proclaim and declare that a treaty which obviously is a Community treaty is to be regarded as one of the Community treaties.

These worst fears have been confirmed by the Solicitor-General. It turns out that the Government intend to operate in this bare-faced fashion. In view of that fact, it is right that I should dwell on the significance of Amendment No. 72 and commend it strongly to the Committee. Its effect would be to make explicit one of the contradictory stands taken by the Solicitor-General on this matter when he opened an earlier debate. He explained that subsection (3) procedure was intended to be used where a treaty was a Community treaty or was to be regarded as a Community treaty.

That is directly contrary to what he has said today. Therefore, the Committee should attend very carefully to Amendment No. 72. It would simply add the words "or is", so that we would be dealing, in this subsection, with treaties which are Community treaties or are to be regarded as Community treaties. The Amendment has much in common with that moved by my hon. Friend the Member for Nottingham, West (Mr. English), with which the Opposition entirely agree.

I ask the Committee to look briefly at what the words "is to be regarded" mean. They are much the same as the word "deemed". Mr. Justice Cave, in the case of Queen v. Norfolk County Council, has said authoritatively, in pithy and relevant words, that a thing deemed to be something else is not that other thing.

The Solicitor-General cannot get away with it. He is on record in two contradictory senses, and he must clear this up.

I pass to another point and pick up a point dropped by my right hon. Friend the Member for Battersea, North (Mr. Jay), who said that there is no necessary connection, such as the Solicitor-General seems to assume, between the passage at lines 5 to 8 on page 2 and subsection (3) with which we are dealing. The word "ancillary" was stressed by the right hon. Member for Wolverhampton, South-West (Mr. Powell). I want to return to that matter. The right hon. Member made a powerful point about it. But it is important for the Committee to realise that there are no words in subsection (3) nor, as far as I can see, anywhere else in the Bill, to connect up to make a necessary connection between the procedure of subsection (3) and the passage in lines 5 to 8 which has given rise to so many of the troubles of the Committee.

It is all very well to say, for example, that the shield—if shield it be—of subsection (3) can be used to protect parliamentary procedure in regard to ancillary treaties. But if the shield of subsection (3) virtually allows ratification of treaties which are far beyond ancillary treaties, it will not be a shield but simply another weapon or instrument to disarm the power of Parliament and to remove its sovereignty.

I take up the point about the meaning of the word "ancillary". I have been able to find some law on this matter at short notice. The right hon. Member for Wolverhampton, South-West is right that in ordinary language something of the order of being subordinate to a thing would be said to be ancillary, if it assisted something else or was subordinate to something else. It seems to have that flavour in ordinary language. But, in law, the word "ancillary" has been construed, in the case of Smith v. Smith, 1925, 2 King's Bench, as being equivalent to "supplemental", and in the case of Green v. Britten, 1904, 1 King's Bench, as meaning "auxiliary". So these legal meanings would seem to be on the same lines as the line of thought of the right hon. Member for Wolverhampton, South-

West. But, as a matter of etymology, we should not forget that the word "ancillary" is derived from the word "ancilla", meaning a maidservant. Perhaps it is one of those unknown factors the Government are to operate as a maid of all work. Perhaps they will make it mean what they want it to mean when it suits them, and something different when they have a different purpose.

Indeed we begin to wonder and the more we look into words like "ancillary" and the more that bland assumptions are made that there is a necessary connection between subsection (3) and the offending and obnoxious passage in lines 5 to 8, the more we want to probe the meaning of words like "ancillary". I cannot help feeling that perhaps in the end "ancillary" is one of those words which will be used to make Parliament the handmaiden of the Communities.

Mr. Jay rose—

The Parliamentary Secretary to the Treasury (Mr. Francis Pym) rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The Committee divided: Ayes 230, Noes 205.

Division No. 84.]	AYES	[6.50 p.m.
Adley, Robert	Clegg, Walter	Goodhart, Philip
Allason, James (Hemel Hempstead)	Cockeram, Eric	Goodhew, Victor
Archer, Jeffrey (Louth)	Cooke, Robert	Gower, Raymond
Astor, John	Coombs, Derek	Gray, Hamish
Atkins, Humphrey	Corfield, Rt. Hn. Frederick	Green, Alan
Awdry, Daniel	Cormack, Patrick	Grieve, Percy
Baker, Kenneth (St. Marylebone)	Costain, A. P.	Griffiths, Eldon (Bury St. Edmunds)
Balniel, Rt. Hn. Lord	Critchley, Julian	Grylls, Michael
Batsford, Brian	Crouch, David	Gummer, J. Selwyn
Beamish, Col. Sir Tufton	Davies, Rt. Hn. John (Knutsford)	Gurden, Harold
Bennett, Sir Frederic (Torquay)	d'Avigdor-Goldsmid, Sir Henry	Hall, Miss Joan (Keighley)
Bennett, Dr. Reginald (Gosport)	d'Avigdor-Goldsmid, Maj.-Gen. James	Hall, John (Wycombe)
Benyon, W.	Dean, Paul	Hall-Davis, A. G. F.
Berry, Hn. Anthony	Dixon, Piers	Hamilton, Michael (Salisbury)
Biggs-Davison, John	Dodds-Parker, Douglas	Hannam, John (Exeter)
Boardman, Tom (Leicester S.W.)	du Cann, Rt. Hn. Edward	Harrison, Brian (Maldon)
Boscawen, Robert	Dykes, Hugh	Harrison, Col. Sir Harwood (Eye)
Bossom, Sir Clive	Eden, Sir John	Haselhurst, Alan
Bowden, Andrew	Edwards, Nicholas (Pembroke)	Havers, Michael
Bray, Ronald	Elliot, Capt. Walter (Carshalton)	Hawkins, Paul
Brinton, Sir Tatton	Elliott, R. W. (N'c'tle-upon-Tyne, N.)	Hay, John
Brocklebank-Fowler, Christopher	Emery, Peter	Heseltine, Michael
Brown, Sir Edward (Bath)	Eyre, Reginald	Hicks, Robert
Bruce-Gardyne, J.	Farr, John	Higgins, Terence L.
Bryan, Paul	Fenner, Mrs. Peggy	Hiley, Joseph
Buck, Antony	Fidler, Michael	Hill, James (Southampton, Test)
Bullus, Sir Eric	Finsberg, Geoffrey (Hampstead)	Holland, Philip
Burden, F. A.	Fisher, Nigel (Surbiton)	Holt, Miss Mary
Campbell Rt. Hn. G. (Moray & Nairn)	Fletcher-Cooke, Charles	Hordern, Peter
Carlisle, Mark	Fookes, Miss Janet	Hornby, Richard
Channon, Paul	Fox, Marcus	Hornsby-Smith, Rt. Hn. Dame Patricia
Chapman, Sydney	Fry, Peter	Howe, Hn. Sir Geoffrey (Reigate)
Chataway, Rt. Hn. Christopher	Gibson-Watt, David	Howell, David (Guildford)
Churchill, W. S.	Gilmour, Ian (Norfolk, C.)	Howell, Ralph (Norfolk, N.)
Clark, William (Surrey, E.)	Gilmour, Sir John (Fife, E.)	Hunt, John
Clarke, Kenneth (Rushcliffe)	Godber, Rt. Hn. J. B.	Jessel, Toby
Johnson Smith, G. (E. Grinstead)	Montgomery, Fergus	Smith, Dudley (W' wick & L' mington)
Jones, Arthur (Northants, S.)	Morgan, Geraint (Denbigh)	Speed, Keith
Jopling, Michael	Morgan-Giles, Rear-Adm.	Spence, John
Joseph, Rt. Hn. Sir Keith	Morrison, Charles	Sproat, Iain
Kellelt-Bowman, Mrs. Elaine	Murton, Oscar	Stainton, Keith
Kershaw, Anthony	Nabarro, Sir Gerald	Stanbrook, Ivor
Kilfedder, James	Neave, Airey	Stewart-Smith, Geoffrey (Belper)
Kimball, Marcus	Nicholls, Sir Harmar	Stodart, Anthony (Edinburgh, W.)
King, Evelyn (Dorset, S.)	Noble, Rt. Hn. Michael	Stoddart-Scott, Col. Sir M.
King, Tom (Bridgwater)	Normanton, Tom	Stokes, John
Kinsey, J. R.	Oppenheim, Mrs. Sally	Taylor, Sir Charles (Eastbourne)
Kirk, Peter	Osborn, John	Taylor, Edward M. (G' gow, Cathcart)
Knox, David	Owen, Idris (Stockport, N.)	Taylor, Frank (Moss Side)
Lane, David	Page, John (Harrow, W.)	Taylor, Robert (Croydon, N. W.)
Langford-Holt, Sir John	Parkinson, Cecil	Tebbit, Norman
Legge-Bourke, Sir Harry	Peel, John	Temple, John M.
Le Merchant, Spencer	Pike, Miss Mervyn	Thatcher, Rt. Hn. Mrs. Margaret
Lewis, Kenneth (Rutland)	Pounder, Rafton	Tilney, John
Lloyd, Ian (P' tsm'th, Langstone)	Price, David (Eastleigh)	Trew, Peter
Longden, Sir Gilbert	Proudfoot, Wilfred	Tugendhat, Christopher
Loveridge, John	Pym, Rt. Hn. Francis	Turton, Rt. Hn. Sir Robin
Luce, R. N.	Quennell, Miss J. M.	Vaughan, Dr. Gerard
MacArthur, Ian	Redmond, Robert	Waddington, David
McCrindle, R. A.	Reed, Laurance (Bolton, E.)	Walder, David (Clitheroe)
McLaren, Martin	Rees, Peter (Dover)	Walker-Smith, Rt. Hn. Sir Derek
Maclean, Sir Fitzroy	Rees-Davies, W. R.	Walters, Dennis
McMaster, Stanley	Renton, Rt. Hn. Sir David	Ward, Dame Irene
Macmillan, Rt. Hn. Maurice (Farnham)	Rhys Williams, Sir Brandon	Weatherill, Bernard
McNair-Wilson, Patrick (NewForest)	Ridley, Hn. Nicholas	Wells, John (Maidstone)
Mather, Carol	Ridsdale, Julian	White, Roger (Gravesend)
Maude, Angus	Rippon, Rt. Hn. Geoffrey	Whitelaw, Rt. Hn. William
Maudling, Rt. Hn. Reginald	Roberts, Michael (Cardiff, N.)	Wilkinson, John
Mawby, Ray	Roberts, Wyn (Conway)	Winterton, Nicholas
Maxwell-Hyslop, R. J.	Rodgers, Sir John (Sevenoaks)	Wolrige-Gordon, Patrick
Meyer, Sir Anthony	Rost, Peter	Wood, Rt. Hn. Richard
Mills, Peter (Torrington)	Russell, Sir Ronald	Woodhouse, Hn. Christopher
Mitchell, Lt.-Col. C. (Aberdeenshire, W)	Sharples, Richard	Woodnutt, Mark
Mitchell, David (Basingstoke)	Shaw, Michael (Sc 'b' gh & Whitby)	Younger, Hn. George
Moate, Roger	Shelton, William (Clapham)
Money, Ernle	Simeons, Charles	TELLERS FOR THE AYES:
Monks, Mrs. Connie	Sinclair, Sir George	Mr. Tim Fortescue and Mr. John Stradling Thomas.
Monro, Hector	Skeet, T. H. H.
NOES
Abse, Leo	Dalyell, Tam	Hannan, William (G' gow, Maryhill)
Allaun, Frank (Salford, E.)	Darling, Rt. Hn. George	Hardy, Peter
Allen, Scholefield	Davies, Denzil (Llanelly)	Harrison, Walter (Wakefield)
Archer, Peter (Rowley Regis)	Davies, Ifor (Gower)	Heffer, Eric S.
Armstrong, Ernest	Davis, Clinton (Hackney, C.)	Hooson, Emlyn
Ashley, Jack	Davis, Terry (Bromsgrove)	Horam, John
Atkinson, Norman	Deakins, Eric	Houghton, Rt. Hn. Douglas
Bagier, Gordon A. T.	Dempsey, James	Huckfield, Leslie
Barnett, Joel (Heywood and Royton)	Doig, Peter	Hughes, Robert (Aberdeen, N.)
Baxter, William	Dormand, J. D.	Hughes, Roy (Newport)
Benn, Rt. Hn. Anthony Wedgwood	Douglas, Dick (Stirlingshire, E.)	Hunter, Adam
Bennett, James (Glasgow, Bridgeton)	Douglas-Mann, Bruce	Irvine, Rt. Hn. SirArthur (Edge Hill)
Bidwell, Sydney	Driberg, Tom	Jay, Rt. Hn. Douglas
Bishop, E. S.	Eadie, Alex	Jeger, Mrs. Lena
Blenkinsop, Arthur	Edwards, Robert (Bilston)	Jenkins, Hugh (Putney)
Boardman, H. (Leigh)	Edwards, William (Merioneth)	Jenkins, Rt. Hn. Roy (Stechford)
Booth, Albert	English, Michael	John, Brynmor
Boyden, James (Bishop Auckland)	Evans, Fred	Johnson, James (K'ston-on-Hull, W.)
Bradley, Tom	Ewing, Henry	Johnson, Walter (Derby, S.)
Brown Hugh D. (G'gow, Provan)	Faulds, Andrew	Johnston, Russell (Inverness)
Buchan, Norman	Fernyhough, Rt. Hn. E.	Jones, Barry (Flint, E.)
Buchanan, Richard (G' gow, Sp 'burn)	Fisher, Mrs. Doris (B' ham, Ladywood)	Jones, Dan (Burnley)
Butler, Mrs. Joyce (Wood Green)	Fletcher, Raymond (Ilkeston)	Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Campbell, I. (Dunbartonshire, W.)	Fletcher, Ted (Darlington)	Jones, Gwynoro (Carmarthen)
Cant, R. B.	Foot, Michael	Jones, T. Alec (Rhondda, W.)
Carmichael, Neil	Ford, Ben	Judd, Frank
Carter, Ray (Birmingh 'm, Northfield)	Forrester, John	Kaufman, Gerald
Carter-Jones, Lewis (Eccles)	Fraser, John (Norwood)	Kelley, Richard
Castle, Rt. Hn. Barbara	Freeson, Reginald	Kerr, Russell
Clark, David (Colne Valley)	Gilbert, Dr. John	Lambie, David
Cocks, Michael (Bristol, S.)	Ginsburg, David (Dewsbury)	Lamond, James
Coleman, Donald	Gordon Walker, Rt. Hn. P. C.	Latham, Arthur
Concannon, J. D.	Grant, George (Morpeth)	Leadbitter, Ted
Conlan, Bernard	Griffiths, Eddie (Brightside)	Lee, Rt. Hn. Frederick
Cox, Thomas (Wandsworth, C.)	Griffiths, Will (Exchange)	Lestor, Miss Joan
Cronin, John	Hamilton, James (Bothwell)	Lewis, Arthur (W. Ham, N.)
Crosland, Rt. Hn. Anthony	Hamilton, William (Fife, W.)	Lewis, Ron (Carlisle)
Cunningham, Dr. J. A. (Whitehaven)	Hamling, William

Lomas, Kenneth	Oram, Bert	Skinner, Dennis
Lyon, Alexander W. (York)	Orbach, Maurice	Small, William
Lyons, Edward (Bradford, E.)	Orme, Stanley	Spearing, Nigel
Mabon, Dr. J. Dickson	Paget, R. T.	Spriggs, Leslie
McBride, Neil	Palmer, Arthur	Stewart, Rt. Hn. Michael (Fulham)
McCann, John	Pannell, Rt. Hn. Charles	Stoddart, David (Swindon)
McElhone, Frank	Parker, John (Dagenham)	Strang, Gavin
McGuire, Michael	Parry, Robert (Liverpool, Exchange)	Swain, Thomas
Mackenzie, Gregor	Pavitt, Laurie	Taverne, Dick
Mackie, John	Peart, Rt. Hn. Fred	Thomas, Rt. Hn. George (Cardiff, W.)
Maclennan, Robert	Pendry, Tom	Thomson, Rt. Hn. G. (Dundee, E.)
McMillan, Tom (Glasgow, C.)	Pentland, Norman	Tinn, James
Mallalieu, J. P. W. (Huddersfield, E.)	Perry, Ernest G.	Tomney, Frank
Marks, Kenneth	Prentice, Rt. Hn. Reg.	Tuck, Raphael
Marquand, David	Prescott, John	Urwin, T. W.
Marsden, F.	Price, J. T. (Westhoughton)	Varley, Eric G.
Marshall, Dr. Edmund	Price, William (Rugby)	Wainwright, Edwin
Mason, Rt. Hn. Roy	Probert, Arthur	Walker, Harold (Doncaster)
Meacher, Michael	Rankin, John	Wallace, George
Mellish, Rt. Hn. Robert	Reed, D. (Sedgefield)	Weitzman, David
Mendelson, John	Rhodes, Geoffrey	White, James (Glasgow, Pollok)
Millan, Bruce	Roberts, Albert (Normanton)	Whitehead, Phillip
Miller, Dr. M. S.	Roberts, Rt. Hn. Goronwy (Caernarvon)	Whitlock, William
Morgan, Elystan (Cardiganshire)	Roderick, Caerwyn E. (Br 'c' n&R' dnor)	Willey, Rt. Hn. Frederick
Morris, Charles R. (Openshaw)	Roper, John	Williams, Alan (Swansea, W.)
Morris, Rt. Hn. John (Aberavon)	Ross, Rt. Hn. William (Kilmarnock)	Wilson, Alexander (Hamilton)
Moyle, Roland	Sheldon, Robert (Ashton-under-Lyne)	Wilson, William (Coventry, S.)
Mulley, Rt. Hn. Frederick	Shore, Rt. Hn. Peter (Stepney)	Woof, Robert
Murray, Ronald King	Short, Mrs. Renée (W' hampton, N. E.)
Oakes, Gordon	Silkin, Hn. S. C. (Dulwich)	TELLERS FOR THE NOES:
Ogden, Eric	Sillars, James	Mr. Joseph Harper and Mr. John Golding.
O' Malley, Brian	Silverman, Julius

Question put accordingly, That the Amendment be made:—

The Committee divided: Ayes 205, Noes 225.

Division No. 85.]	AYES	[7.2 p.m.
Abse, Leo	Davis, Clinton (Hackney, C.)	Hughes, Roy (Newport)
Allaun, Frank (Salford, E.)	Davis, Terry (Bromsgrove)	Hunter, Adam
Allen, Scholefield	Deakins, Eric	Irvine, Rt. Hn. SirArthur (Edge Hill)
Archer, Peter (Rowley Regis)	Dempsey, James	Jay, Rt. Hn. Douglas
Armstrong, Ernest	Doig, Peter	Jeger, Mrs. Lena
Ashley, Jack	Dormand, J. D.	Jenkins, Hugh (Putney)
Atkinson, Norman	Douglas, Dick (Stirlingshire, E.)	Jenkins, Rt. Hn. Roy (Stechford)
Bagier, Gordon A. T.	Douglas-Mann, Bruce	John, Brynmor
Barnett, Joel (Heywood and Royton)	Driberg, Tom	Johnson, James (K' ston-on-Hull, W.)
Baxter, William	Eadle, Alex	Johnson, Walter (Derby, S.)
Benn, Rt. Hn. Anthony Wedgwood	Edwards, Robert (Bilston)	Jones, Barry (Flint, E.)
Bennett, James (Glasgow, Bridgeton)	Edwards, William (Merioneth)	Jones, Dan (Burnley)
Bidwell, Sydney	English, Michael	Jones, Rt. Hn. SirElwyn (W. Ham, S.)
Bishop, E. S.	Evans, Fred	Jones, Gwynoro (Carmarthen)
Blenkinsop, Arthur	Ewing, Harry	Jones, T. Alec (Rhondda, W.)
Boardman, H. (Leigh)	Faulds, Andrew	Judd, Frank
Booth, Albert	Fernyhough, Rt. Hn. E.	Kaufman, Gerald
Boyden, James (Bishop Auckland)	Fisher, Mrs. Doris (B' ham, Ladywood)	Kelley, Richard
Bradley, Tom	Fletcher, Raymond (Ilkeston)	Kerr, Russell
Brown, Hugh D. (G' gow, Provan)	Fletcher, Ted (Darlington)	Lambie, David
Buchan, Norman	Foot, Michael	Lamond, James
Buchanan, Richard (G' gow, Sp' burn)	Ford, Ben	Latham, Arthur
Butler, Mrs. Joyce (Wood Green)	Forrester, John	Leadbitter, Ted
Campbell, I. (Dunbartonshire, W.)	Fraser, John (Norwood)	Lee, Rt. Hn. Frederick
Cant, R. B.	Freeson, Reginald	Lestor, Miss Joan
Carmichael, Neil	Gilbert, Dr. John	Lewis, Arthur (W. Ham, N.)
Carter, Ray (Birmingham, Northfield)	Ginsburg, David (Dewsbury)	Lewis, Ron (Carlisle)
Carter-Jones, Lewis (Eccles)	Gordon Walker, Rt. Hn. P. C.	Lomas, Kenneth
Castle, Rt. Hn. Barbara	Grant, George (Morpeth)'	Lyon, Alexander W. (York)
Clark, David (Colne Valley)	Griffiths, Eddie (Brightside)	Lyons, Edward (Bradford, E.)
Cocks, Michael (Bristol, S.)	Griffiths, Will (Exchange)	Mabon, Dr. J. Dickson
Cohen, Stanley	Hamilton, James (Bothwell)	McBride, Neil
Coleman, Donald	Hamilton, William (Fife, W.)	McCann, John
Concannon, J. D.	Hamling, William	McElhone, Frank
Conlan, Bernard	Hannan, William (G' gow, Maryhill)	McGuire, Michael
Cox, Thomas (Wandsworth, C.)	Hardy, Peter	Mackenzie, Gregor
Cronin, John	Harrison, Walter (Wakefield)	Mackie, John
Crosland, Rt. Hn. Anthony	Heffer, Eric S.	Maclennan, Robert
Crossman, Rt. Hn. Richard	Hooson, Emlyn	McMillan, Tom (Glasgow, C.)
Cunningham, Dr. J. A. (Whitehaven)
Dalyell, Tam	Horam, John	Mallalieu, J. P. W. (Huddersfield, E.)
Darling, Rt. Hn. George	Houghton, Rt. Hn. Douglas	Marks, Kenneth
Davies, Denzil (Llanelly)	Huckfield, Leslie	Marquand, David
Davies, Ifor (Gower)	Hughes, Robert (Aberdeen, N.)	Marsden, F.
Marshall, Dr. Edmund	Pentland, Norman	Stoddart, David (Swindon)
Mason, Rt. Hn. Roy	Perry, Ernest G.	Strang, Gavin
Meacher, Michael	Prentice, Rt. Hn. Reg.	Swain, Thomas
Mellish, Rt. Hn. Robert	Prescott, John	Taverne, Dick
Mendelson, John	Price, J. T. (Westhoughton)	Thomas, Rt. Hn. George (Cardiff, W.)
Millan, Bruce	Price, William (Rugby)	Thomson, Rt. Hn. G. (Dundee, E.)
Miller, Dr. M. S.	Probert, Arthur	Tinn, James
Morgan, Elystan (Cardiganshire)	Rankin, John	Tomney, Frank
Morris, Charles R. (Openshaw)	Reed, D. (Sedgefield)	Tuck, Raphael
Morris, Rt. Hn. John (Aberavon)	Rhodes, Geoffrey	Urwin, T. W.
Moyle, Roland	Roberts, Albert (Normanton)	Varley, Eric G.
Mulley, Rt. Hn. Frederick	Roberts, Rt. Hn. Goronwy (Caernarvon)	Wainwright, Edwin
Murray, Ronald King	Roderick, Caerwyn E. (Br 'c' n&R' dnor)	Walker, Harold (Doncaster)
Oakes, Gordon	Roper, John	Wallace, George
Ogden, Eric	Ross, Rt. Hn. William (Kilmarnock)	Weitzman, David
O'Malley, Brian	Sheldon, Robert (Ashton-under-Lyne)	White, James (Glasgow, Pollok)
Oram, Bert	Shore, Rt. Hn. Peter (Stepney)	Whitlock, William
Orbach, Maurice	Short, Mrs. Renée (W' hampton, N. E.)	Willey, Rt. Hn. Frederick
Orme, Stanley	Silkin, Hn. S. C. (Dulwich)	Williams, Alan (Swansea, W.)
Paget, R. T.	Sillars, James	Wilson, Alexander (Hamilton)
Palmer, Arthur	Silverman, Julius	Wilson, William (Coventry, S.)
Pannell, Rt. Hn. Charles	Skinner, Dennis	Woof, Robert
Parker, John (Dagenham)	Small, William
Parry, Robert (Liverpool, Exchange)	Spearing, Nigel	TELLERS FOR THE AYES:
Pavitt, Laurie	Spriggs, Leslie	Mr. Joseph Harper and Mr. John Golding.
Peart, Rt. Hon. Fred	Stewart, Rt. Hn. Michael (Fulham)
Pendry, Tom
NOES
Adley, Robert	Elliot, Capt. Walter (Carshalton)	Jones, Arthur (Northants, S.)
Allason, James (Hemel Hempstead)	Elliott, R. W. (N 'c' tle upon-Tyne, N.)	Jopling, Michael
Archer, Jeffrey (Louth)	Emery, Peter	Joseph, Rt. Hn. Sir Keith
Astor, John	Eyre, Reginald	Kellett-Bowman, Mrs. Elaine
Atkins, Humphrey	Fenner, Mrs. Peggy	Kershaw, Anthony
Awdry, Daniel	Fidler, Michael	Kimball, Marcus
Baker, Kenneth (St. Marylebone)	Finsberg, Geoffrey (Hampstead)	King, Evelyn (Dorset, S.)
Balniel, Rt. Hn. Lord	Fisher, Nigel (Surbiton)	King, Tom (Bridgwater)
Batsford, Brian	Fletcher-Cooke, Charles	Kinsey, J. R.
Beamish, Col. Sir Tufton	Fookes, Miss Janet	Kirk, Peter
Bennett, Sir Frederic (Torquay)	Fox, Marcus	Knox, David
Bennett, Dr. Reginald (Gosport)	Fry, Peter	Lane, David
Benyon, W.	Gibson-Watt, David	Langford-Holt, Sir John
Berry, Hn. Anthony	Gilmour, Ian (Norfolk, C.)	Legge-Bourke, Sir Harry
Biggs-Davison, John	Gilmour, Sir John (Fife, E.)	Le Marchant, Spencer
Boardman, Tom (Leicester, S.W.)	Godber, Rt. Hn. J. B.	Lewis, Kenneth (Rutland)
Boscawen, Robert	Goodhart, Philip	Lloyd, Ian (P 'tsm' th, Langstone)
Bossom, Sir Clive	Goodhew, Victor	Longden, Sir Gilbert
Bowden, Andrew	Gower, Raymond	Loveridge, John
Bray, Ronald	Gray, Hamish	Luce, R. N.
Brinton, Sir Tatton	Green, Alan	MacArthur, Ian
Brocklebank-Fowler, Christopher	Grieve, Percy	McCrindle, R. A.
Brown, Sir Edward (Bath)	Griffiths, Eldon (Bury St. Edmunds)	McLaren, Martin
Bruce-Gardyne, J.	Grylls, Michael	Maclean, Sir Fitzroy
Bryan, Paul	Gummer, J. Selwyn	McMaster, Stanley
Buck, Antony	Gurden, Harold	Macmillan, Rt. Hn. Maurice (Farnham)
Bullus, Sir Eric	Hall, Miss Joan (Keighley)	McNair-Wilson, Patrick (New Forest)
Burden, F. A.	Hall, John (Wycombe)	Mather, Carol
Campbell, Rt. Hn. G. (Moray & Nairn)	Hall-Davis, A. G. F.	Maude, Angus
Carlisle, Mark	Hamilton, Michael (Salisbury)	Maudling, Rt. Hn. Reginald
Channon, Paul	Hannam, John (Exeter)	Mawby, Ray
Chapman, Sydney	Harrison, Brian (Maldon)	Maxwell-Hyslop, R. J.
Chataway, Rt. Hn. Christopher	Harrison, Col. Sir Harwood (Eye)	Meyer, Sir Anthony
Churchill, W. S.	Haselhurst, Alan	Mills, Peter (Torrington)
Clark, William (Surrey, E.)	Havers, Michael	Mitchell, Lt.-Col. C.(Aberdeenshire, W)
Clarke, Kenneth (Rushcliffe)	Hawkins, Paul	Mitchell, David (Basingstoke)
Clegg, Walter	Hay, John	Money, Ernle
Cockeram, Eric	Heseltine, Michael	Monks, Mrs. Connie
Cooke, Robert	Hicks, Robert	Monro, Hector
Coombs, Derek	Higgins, Terence L.	Montgomery, Fergus
Corfield, Rt. Hn. Frederick	Hiley, Joseph	Morgan, Geraint (Denbigh)
Cormack, Patrick	Hill, James (Southampton, Test)	Morgan-Giles, Rear-Adm.
Costain, A. P.	Holland, Philip	Morrison, Charles
Critchley, Julian	Holt, Miss Mary	Murton, Oscar
Crouch, David	Hordern, Peter	Nabarro, Sir Gerald
Davies, Rt. Hn. John (Knutsford)	Hornby, Richard	Neave, Airey
d' Avigdor-Goldsmid, Sir Henry	Hornsby-Smith, Rt. Hn. Dame Patricia	Noble, Rt. Hn. Michael
d' Avigdor-Goldsmid, Maj.-Gen. James	Howe, Hn. Sir Geoffrey (Reigate)	Normanton, Tom
Dean, Paul	Howell, David (Guildford)	Oppenheim, Mrs. Sally
Dixon, Piers	Howell, Ralph (Norfolk, N.)	Osborn, John
Dodds-Parker, Douglas	Hunt, John	Owen, Idris (Stockport, N.)
du Cann, Rt. Hn. Edward	Jessel, Toby	Page, John (Harrow, W.)
Eden, Sir John	Johnson Smith, G. (E. Grinstead)	Pardoe, John
Edwards, Nicholas (Pembroke)	Johnston, Russell (Inverness)	Parkinson, Cecil

Peel, John	Shelton, William (Clapham)	Trew, Peter
Pike, Miss Mervyn	Simeons, Charles	Tugendhat, Christopher
Pounder, Rafton	Sinclair, Sir George	Vaughan, Dr. Gerard
Price, David (Eastleigh)	Skeet, T. H. H.	Waddington, David
Proudfoot, Wilfred	Smith, Dudley (W' wick & L' mington)	Walder, David (Clitheroe)
Pym, Rt. Hn. Francis	Speed, Keith	Walters, Dennis
Quennell, Miss J. M.	Spence, John	Ward, Dame Irene
Redmond, Robert	Sproat, Iain	Weatherill, Bernard
Reed, Laurance (Bolton, E.)	Stainton, Keith	Wells, John (Maidstone)
Rees, Peter (Dover)	Stanbrook, Ivor	White, Roger (Gravesend)
Rees-Davies, W. R.	Steel, David	Whitelaw, Rt. Hn. William
Renton, Rt. Hn. Sir David	Stewart-Smith, Geoffrey (Belper)	Wilkinson, John
Rhys Williams, Sir Brandon	Stodart, Anthony (Edinburgh, W.)	Winterton, Nicholas
Ridley, Hn. Nicholas	Stoddart-Scott, Col. Sir M.	Wolrige-Gordon, Patrick
Ridsdale, Julian	Stokes, John	Wood, Rt. Hn. Richard
Rippon, Rt. Hn. Geoffrey	Taylor, Sir Charles (Eastbourne)	Woodhouse, Hn. Christopher
Roberts, Michael (Cardiff, N.)	Taylor, Frank (Moss Side)	Woodnutt, Mark
Roberts, Wyn (Conway)	Taylor, Robert (Croydon, N. W.)	Younger, Hn. George
Rodgers, Sir John (Sevenoaks)	Tebbit, Norman
Rost, Peter	Temple, John M.	TELLERS FOR THE NOES:
Russell, Sir Ronald	Thatcher, Rt. Hn. Mrs. Margaret	Mr. Tim Fortescue and Mr. John Stradling Thomas.
Sharples, Richard	Tilney, John
Shaw, Michael (Sc 'b' gh & Whitby)

Question accordingly negatived.

[Sir ROBERT GRANT-FERRIS in the Chair]

Amendment proposed:

In page 2, line 11, after 'Council' insert:

'subject to annulment in pursuance of a resolution of either House of Parliament'.—[Mr. Spearing.]

Question put, That that Amendment be made:—

The Committee divided: Ayes 208, Noes 221.

Division No. 86.]	AYES	[7.12 p.m.
Abse, Leo	Dormand, J. D.	John, Brynmor
Allen, Scholefield	Douglas, Dick (Stirlingshire, E.)	Johnson, James (K' ston-on-Hull, W.)
Archer, Peter (Rowley Regis)	Douglas-Mann, Bruce	Johnson, Walter (Derby, S.)
Armstrong, Ernest	Driberg, Tom	Jones, Barry (Flint, E.)
Ashley, Jack	Eadie, Alex	Jones, Dan (Burnley)
Atkinson, Norman	Edwards, Robert (Bilston)	Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Bagier, Gordon A. T.	Edwards, William (Merioneth)	Jones, Gwynoro (Carmarthen)
Barnett, Joel (Heywood and Royton)	English, Michael	Jones, T. Alec (Rhondda, W.)
Baxter, William	Evans, Fred	Judd, Frank
Benn, Rt. Hn. Anthony Wedgwood	Ewing, Harry	Kaufman, Gerald
Bennett, James (Glasgow, Bridgeton)	Farr, John	Kerr, Russell
Bidwell, Sydney	Faulds, Andrew	Lambie, David
Bishop, E. S.	Fell, Anthony	Lamond, James
Blenkinsop, Arthur	Fernyhough, Rt. Hn. E.	Latham, Arthur
Boardman, H. (Leigh)	Fisher, Mrs. Doris (B' ham, Ladywood)	Leadbitter, Ted
Booth, Albert	Fletcher, Raymond (Ilkeston)	Lee, Rt. Hn. Frederick
Boyden, James (Bishop Auckland)	Fletcher, Ted (Darlington)	Lestor, Miss Joan
Bradley, Tom	Foot, Michael	Lewis, Arthur (W. Ham, N.)
Brown, Hugh D. (G' gow, Provan)	Ford, Ben	Lewis, Ron (Carlisle)
Buchan, Norman	Forrester, John	Lomas, Kenneth
Buchanan, Richard (G' gow, Sp' burn)	Fraser, John (Norwood)	Lyon, Alexander W. (York)
Butler, Mrs. Joyce (Wood Green)	Freeson, Reginald	Lyons, Edward (Bradford, E.)
Campbell, I. (Dunbartonshire, W.)	Gilbert, Dr. John	Mabon, Dr. J. Dickson
Cant, R. B.	Ginsburg, David (Dewsbury)	McBride, Neil
Carmichael, Neil	Gordon Walker, Rt. Hn. P. C.	McCann, John
Carter, Ray (Birmingh' m, Northfield)	Grant, George (Morpeth)	McElhone, Frank
Carter-Jones, Lewis (Eccles)	Griffiths, Eddie (Brightside)	McGuire, Michael
Castle, Rt. Hn. Barbara	Griffiths, Will (Exchange)	Mackenzie, Gregor
Clark, David (Colne Valley)	Hamilton, James (Bothwell)	Mackie, John
Cocks, Michael (Bristol, S.)	Hamilton, William (Fife, W.)	Maclennan, Robert
Cohen, Stanley	Hamling, William	McMillan, Tom (Glasgow, C.)
Coleman, Donald	Hannan, William (G' gow, Maryhill)	Mallalieu, J. P. W. (Huddersfield, E.)
Concannon, J. D.	Hardy, Peter	Marks, Kenneth
Conlan, Bernard	Harrison, Walter (Wakefield)	Marquand, David
Cox, Thomas (Wandsworth, C.)	Heffer, Eric S.	Marsden, F.
Cronin, John	Hooson, Emlyn	Marshall, Dr. Edmund
Crosland, Rt. Hn. Anthony	Horam, John	Marten, Neil
Crossman, Rt. Hn. Richard	Houghton, Rt. Hn. Douglas	Mason, Rt. Hn. Roy
Cunningham, Dr. J. A. (Whitehaven)	Huckfield, Leslie	Meacher, Michael
Dalyell, Tam	Hughes, Robert (Aberdeen, N.)	Mellish, Rt. Hn. Robert
Darling, Rt. Hn. George	Hughes, Roy (Newport)	Mendelson, John
Davies, Denzil (Llanelly)	Hunter, Adam
Davies, Ifor (Gower)	Irvine, Rt. Hn. SirArthur (Edge Hill)	Millan, Bruce
Davis, Clinton (Hackney, C.)	Jay, Rt. Hn. Douglas	Moate, Roger
Davis, Terry (Bromsgrove)	Jeger, Mrs. Lena	Morgan, Elystan (Cardiganshire)
Dempsey, James	Jenkins, Hugh (Putney)	Morris, Charles R. (Openshaw)
Doig, Peter	Jenkins, Rt. Hn. Roy (Stechford)	Morris, Rt. Hn. John (Aberavon)
Moyle, Roland	Probert, Arthur	Thomas, Rt. Hn. George (Cardiff, W.)
Mulley, Rt. Hn. Frederick	Rankin, John	Thomson, Rt. Hn. G. (Dundee, E.)
Murray, Ronald King	Reed, D. (Sedgefield)	Tinn, James
Oakes, Gordon	Rhodes, Geoffrey	Tomney, Frank
Ogden, Eric	Roberts, Albert (Normanton)	Tuck, Raphael
O'Malley, Brian	Roberts, Rt. Hn. Goronwy (Caernarvon)	Turton, Rt. Hn. Sir Robin
Oram, Bert	Roderick, CaerwynE. (Br 'c' n&R' dnor)	Urwin, T. W.
Orbach, Maurice	Roper, John	Varley, Eric G.
Orme, Stanley	Ross, Rt. Hn. William (Kilmarnock)	Wainwright, Edwin
Paget, R. T.	Sheldon, Robert (Ashton-under-Lyne)	Walker, Harold (Doncaster)
Palmer, Arthur	Shore, Rt. Hn. Peter (Stepney)	Walker-Smith, Rt. Hn. Sir Derek
Pannell, Rt. Hn. Charles	Short, Mrs. Renée (W' hampton, N. E.)	Wallace, George
Parker, John (Dagenham)	Silkin, Hn. S. C. (Dulwich)	Weitzman, David
Parry, Robert (Liverpool, Exchange)	Sillars, James	White, James (Glasgow, Pollok)
Pavitt, Laurie	Silverman, Julius	Whitlock, William
Peart, Rt. Hn. Fred	Skinner, Dennis	Willey, Rt. Hn. Frederick
Pendry, Tom	Small, William	Williams, Alan (Swansea, W.)
Pentland, Norman	Spearing, Nigel	Wilson, Alexander (Hamilton)
Perry, Ernest G.	Spriggs, Leslie	Wilson, William (Coventry, S.)
Powell, Rt. Hn. J. Enoch	Stewart, Rt. Hn. Michael (Fulham)	Woof, Robert
Prentice, Rt. Hn. Reg.	Stoddart, David (Swindon)
Prescott, John	Strang, Gavin	TELLERS FOR THE AYES:
Price, J. T. (Westhoughton)	Swain, Thomas	Mr. Joseph Harper and Mr. John Golding.
Price, William (Rugby)	Taverne, Dick
NOES
Adley, Robert	Fletcher-Cooke, Charles	Langford-Holt, Sir John
Allason, James (Hemel Hempstead)	Fookes, Miss Janet	Legge-Bourke, Sir Harry
Archer, Jeffrey (Louth)	Fortescue, Tim	Le Merchant, Spencer
Astor, John	Fox, Marcus	Lewis, Kenneth (Rutland)
Atkins, Humphrey	Fry, Peter	Lloyd, Ian (P' tsm' th, Langstone)
Awdry, Daniel	Gibson-Watt, David	Longden, Sir Gilbert
Baker, Kenneth (St. Marylebone)	Gilmour, Ian (Norfolk, C.)	Loveridge, John
Balniel, Rt. Hn. Lord	Gilmour, Sir John (Fife, E.)	Luce, R. N.
Batsford, Brian	Godber, Rt. Hn. J. B.	MacArthur, Ian
Bennett, Sir Frederic (Torquay)	Goodhart, Philip	McCrindle, R. A.
Bennett, Dr. Reginald (Gosport)	Goodhew, Victor	McLaren, Martin
Benyon, W.	Gower, Raymond	Maclean, Sir Fitzroy
Berry, Hn. Anthony	Gray, Hamish	McMaster, Stanley
Biggs-Davison, John	Green, Alan	Macmillan, Rt. Hn. Maurice (Farnham)
Boardman, Tom (Leicester, S. W.)	Grieve, Percy	McNair-Wilson, Patrick (NewForest)
Boscawen, Robert	Griffiths, Eldon (Bury St. Edmunds)	Mather, Carol
Bossom, Sir Clive	Grylls, Michael	Maude, Angus
Bowden, Andrew	Gummer, J. Selwyn	Maudling, Rt. Hn. Reginald
Bray, Ronald	Gurden, Harold	Mawby, Ray
Brocklebank-Fowler, Christopher	Hall, Miss Joan (Keighley)	Maxwell-Hyslop, R. J.
Brown, Sir Edward (Bath)	Hall, John (Wycombe)	Meyer, Sir Anthony
Bruce-Gardyne, J.	Hall-Davis, A. G. F.	Mills, Peter (Torrington)
Bryan, Paul	Hamilton, Michael (Salisbury)	Mitchell, Lt.-Col. C.(Aberdeenshire, W
Buck, Antony	Hannam, John (Exeter)	Mitchell, David (Basingstoke)
Bullus, Sir Eric	Harrison, Brian (Maldon)	Money, Ernle
Burden, F. A.	Harrison, Col. Sir Harwood (Eye)	Monks, Mrs. Connie
Campbell, Rt. Hn. G. (Moray & Nairn)	Haselhurst, Alan	Monro, Hector
Carlisle, Mark	Havers, Michael	Montgomery, Fergus
Channon, Paul	Hawkins, Paul	Morgan, Geraint, (Denbigh)
Chapman, Sydney	Hay, John	Morgan-Giles, Rear-Adm.
Chataway, Rt. Hn. Christopher	Heseltine, Michael	Morrison, Charles
Churchill, W. S.	Hicks, Robert	Murton, Oscar
Clarke, Kenneth (Rushcliffe)	Higgins, Terence L.	Nabarro, Sir Gerald
Cockerham, Eric	Hiley, Joseph	Neave, Airey
Cooke, Robert	Hill, James (Southampton, Test)	Noble, Rt. Hn. Michael
Coombs, Derek	Holland, Philip	Normanton, Tom
Corfield, Rt. Hn. Frederick	Holt, Miss Mary	Oppenheim, Mrs. Sally
Cormack, Patrick	Hordern, Peter	Osborn, John
Costain, A. P.	Hornby, Richard	Owen, Idris (Stockport, N.)
Critchley, Julian	Hornsby-Smith, Rt. Hn. Dame Patricia	Page, John (Harrow, W.)
Crouch, David	Howe, Hn. Sir Geoffrey (Reigate)	Pardoe, John
Davies, Rt. Hn. John (Knutsford)	Howell, David (Guildford)	Parkinson, Cecil (Enfield, W.)
d' Avigdor-Goldsmid, Sir Henry	Howell, Ralph (Norfolk, N.)	Peel, John
d' Avigdor-Goldsmid, Maj.-Gen. James	Hunt, John	Pike, Miss Mervyn
Dean, Paul	Jessel, Toby	Pounder, Rafton
Dixon, Piers	Johnson Smith, G. (E. Grinstead)	Price, David (Eastleigh)
Dodds-Parker, Douglas	Johnston, Russell (Inverness)	Proudfoot, Wilfred
du Cann, Rt. Hn. Edward		Pym, Rt. Hn. Francis
Eden, Sir John	Joseph, Rt. Hn. Sir Keith	Quennell, Miss J. M.
Edwards, Nicholas (Pembroke)	Kellett-Bowman, Mrs. Elaine	Redmond, Robert
Elliot, Capt. Walter (Carshalton)	Kershaw, Anthony	Reed, Laurance (Bolton, E.)
Elliott, R. W. (N 'c' tle-upon-Tyne, N.)	Kimball, Marcus	Rees, Peter (Dover)
Emery, Peter	King, Evelyn (Dorset, S.)	Rees-Davies, W. R.
Eyre, Reginald	King, Tom (Bridgwater)	Renton, Rt. Hn. Sir David
Fenner, Mrs. Peggy	Kinsey, J. R.	Rhys Williams, Sir Brandon
Fidler, Michael	Kirk, Peter	Ridley, Hn. Nicholas
Finsberg, Geoffrey (Hampstead)	Knox, David	Ridsdale, Julian
Fisher, Nigel (Surbiton)	Lane, David	Rippon, Rt Hn. Geoffrey

Roberts, Michael (Cardiff, N.)	Stewart-Smith, Geoffrey (Belper)	Walters, Dennis
Roberts, Wyn (Conway)	Stodart, Anthony (Edinburgh, W.)	Ward, Dame Irene
Rodgers, Sir John (Sevenoaks)	Stoddart-Scott, Col. Sir M.	Weatherill, Bernard
Rost, Peter	Stokes, John	Wells, John (Maidstone)
Russell, Sir Ronald	Taylor, Sir Charles (Eastbourne)	White, Roger (Gravesend)
Sharples, Richard	Taylor, Frank (Moss Side)	Whitelaw, Rt. Hn. William
Shaw, Michael (Sc 'b' gh & Whitby)	Taylor, Robert (Croydon, N. W.)	Wilkinson, John
Shelton, William (Clapham)	Tebbit, Norman	Winterton, Nicholas
Simeons, Charles	Temple, John M.	Wolrige-Gordon, Patrick
Sinclair, Sir George	Thatcher, Rt. Hn. Mrs. Margaret	Wood, Rt. Hn. Richard
Skeet, T. H. H.	Thomas, John Stradling (Monmouth)	Woodhouse, Hn. Christopher
Smith, Dudley (W' wick & L' mington)	Tilney, John	Woodnutt, Mark
Speed, Keith	Trew, Peter	Younger, Hn. George
Spence, John	Tugendhat, Christopher
Sproat, Iain	Vaughan, Dr. Gerard	TELLERS FOR THE NOES:
Stainton, Keith	Waddington, David	Mr. Walter Clegg and Mr. Michael Jopling.
Stanbrook, Ivor	Walder, David (Clitheroe)
Steel, David

Question accordingly negatived.

Mr. Peter Shore (Stepney)

I beg to move Amendment No. 28, in page 2, line 14, leave out 'a treaty entered into by the United Kingdom' and insert: any 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 Chairman

With this Amendment it will be convenient to take also Amendment No. 2, in page 2, line 15, leave out from '1972' to 'shall' in line 17, and Amendment No. 83, in page 2, leave out lines 18 to 20.

Mr. Powell

On a point of order. Would you agree, Sir Robert, that the Committee might be permitted to divide on the third of the group of three Amendments which you have indicated are being considered together, namely, Amendment No. 83? You will be aware that the point which Amendment No. 83, in my name, raises is substantially different from that raised by Amendment No. 28. Amendment No. 28 is concerned with the resolution procedure and extending its application, whereas Amendment No. 83 is concerned with the need for legislation. I hope therefore, Sir Robert, that you will give the Committee the opportunity of dividing on it.

The Chairman

Yes, I give the right hon. Gentleman an assurance that I shall allow a Division on Amendment No. 83.

Mr. Shore

Amendments Nos. 28, 2 and 83, which are brought together for discussion, are all designed to prevent the erosion of the power of the Government and Parliament to conclude trade and other treaties with other countries. They are designed to preserve for us more adequate control over our future external relationships.

I have always believed that the external policy of the nation is very much concerned with trade and commercial policy. Indeed, the preferences that a nation can bestow upon or withhold from other countries express and determine its relationships with them. In that sense, commercial policy is often the larger part of foreign policy. Let us have no doubt about the importance of the matters with which we are dealing and how large a part commercial and trade treaties play in external policy.

Under the provisions of Clause 1(3) we are faced with a substantial loss of our present power to make commercial treaties, should we be unwise enough to join the European Communities. Indeed, there will no longer be a United Kingdom commercial policy; there will be only a Community commercial policy, and we shall have lost one of the most important and crucial powers that appertain to the business of being an independent State.

As I read Clause 1(3), the Government intend that future Community treaties—that is to say, treaties entered into by the Community directly—should not require the approval of Parliament. As we know from earlier discussions the Government make a distinction between treaties which are entered into by the Communities collectively and treaties which are entered into by the Communities and the member countries. I wish that someone could find a shorter title for those treaties. On that second group of treaties the Government by the second part of Clause 1(3) are allowing the House of Commons and Parliament to have at least the opportunity of discussing a Motion to approve an Order in Council.

We find these arrangements in Clause 1(3) wholly unacceptable and Amendments Nos. 28 and 2 are designed to bring the so-called Community treaties under the discipline of the affirmative Resolution procedure. On previous occasions we have sought to bring under strong protection treaties which fall into the second category, but no Amendment does that anything like as well as Amendment No. 83. Therefore, we shall look with great sympathy upon that Amendment.

I shall address my remarks mainly to the first category of treaties, the Community treaties which have been entered into by the Communities themselves acting on behalf of their members. We have not been very well served in these debates by the contributions of the Solicitor-General. I am sorry that he is not present because I wish to make some remarks about his contributions. Perhaps the Chancellor of the Duchy of Lancaster can take those remarks upon himself although I think they probably fall more to his hon. and learned Friend. The Solicitor-General has not been very helpful to us and neither has the right hon. and learned Gentleman.

At the end of our previous debates we thought we had established reasonably clearly the distinction in Clause 1(3) between Community treaties and treaties which we as a member State would enter into. We also thought that we had managed to slot into those two packages certain parts of the Rome Treaty. In particular we thought we had got into the first package commercial arrangements and agreements which are to be found in Article 113 of the Rome Treaty.

We also thought that the second category of treaty which would require the affirmative Resolution of the House of Commons and the other place would include agreements and arrangements under Article 238 of the Rome Treaty. This was the distinction which hon. Members who followed these matters had firmly in their minds at the end of our proceedings last Wednesday night. But a little patient digging into the treaties produces a very different picture from that which we had been given at the end of last week's debates. I will put to the Committee the information I have and try to draw some conclusions about it.

[Mr. JOHN BREWIS in the Chair]

7.30 p.m.

Let me first take the treaties which come under the heading of Article 113 and which broadly relate to trade treaties. The greater part of those treaties are those entered into by the Communities without the direct participation of the member States. To some extent that group of treaties fits into the slot of Article 113 or subsection (3)A of the Clause. But it is not a complete fit because one of the treaties—and there is no reason why it should be treated differently—is the Agreement on Trade and Technical Co-operation signed with the Lebanon in 1968. For reasons that I hope the Chancellor of the Duchy of Lancaster will explain, the treaty with the Lebanon—unlike the treaties with Spain, Israel, the Argentine and certain other countries, including Yugoslavia—was signed not only by the people representing the Communities but by each of the member States. I cannot pretend that I know the answer to this question, but it is important we should be told and I hope that the right hon. and learned Gentleman will enlighten us in his reply.

I turn to the much more serious anomaly which is contained in the package of treaties under Article 238. Those treaties were thought to be much more substantial than simply trade treaties—although in fact the trade treaties themselves are not insubstantial, which is a point I shall be taking up later.

The fact is that association treaties under Article 238 were thought to be of broader importance than trade treaties which are limited to the simple business of the exchange of goods. What we find under this heading is that five treaties have been concluded. I hope the Committee will be patient with me over this matter, since it is difficult to understand.

The association treaty with Greece, which was signed in July, 1961, and the association agreement with Turkey, signed in 1963, were dealt with under article 238 and were signed by the six member States, as well as by the Communities, namely by the President of the Commission and by the President of the Council. There are two other treaties, one with Tunis, which was signed in March, 1969, and the other with Morocco, which was signed in the same month of the same year, both of which are association agreements under Article 238. However those treaties are not signed by the member States but are signed only by the President of the Commission and by the President of the Council. They are Community treaties under subsection (3)A and there is in no sense a match with the categories established and with the explanations given by the Treasury Bench during the earlier discussions.

Because this matter is important, and because I do not wish to misunderstand what has been said by the Government, I should like to remind the Committee of what the Solicitor-General told us on 8th March when dealing with certain Commonwealth countries. He said: Of course, if they were to take up the option in Article 238"— that is, to become associated with the Community— that would be an association agreement of the kind requiring unanimity"— that is, the internal procedure— and would then be subject to the procedure that we have discussed in relation to a treaty in which the United Kingdom was participating.

The Solicitor-General was absolutely explicit in saying that it would be a treaty under the affirmative Resolution procedure and approval under Clause 1(3)(b)—that is what the Solicitor-General told us, and that is what we went to bed with last Wednesday night. To make the matter absolutely clear, when interrogated by the right hon. Member for Thirsk and Malton (Sir Robin Turton), the Solicitor-General said: I have made it plain that under Article 238 there would be the interposition of the United Kingdom parliamentary process."—[Official Report, 8th March, 1972; Vol. 832, c. 1546–7.] The hon. and learned Gentleman said the same thing again at c. 1549 because the Solicitor-General, like many other hon. Members, including myself, can be repetitive when he is bent on emphasising a point. He hammered the point home.

We thought we knew at the end of that discussion where we were, and therefore, we now find ourselves in great difficulty. We have been given these assurances that association agreements under Article 238 would be agreements which would come into effect only if all the member States, including the United Kingdom, signed and that the act of our signing would automatically bring with it the subsec-section (3) B provision in which treaties would require approval of the House of Commons. That is what we were told, but it turns out to be untrue. We have the two association agreements of 1969, under Article 238, which were not signed by the member States and which automatically fall outside the check and scope of the subsection (3)B provisions. There may be a simple and sensible explanation. I am saying that as it stands it is an obvious anomaly, and I hope that when the Minister replies he will enlighten us on this matter tonight.

It must be remembered that not one Member of the House of Commons saw these treaties until three weeks ago. The Treasury Bench has twitted us by saying that we have known about these things for many years. But these treaties were not even translated until quite recently. Indeed, they were not available to us until 4th February this year. Perhaps the Chancellor of the Duchy of Lancaster should have a word with his hon. and learned Friend the Solicitor-General to tell him not to be impatient when hon. Members want to ask questions about these matters. If hon. Members genuinely try to elicit further points, the Solicitor-General must not treat them in a tetchy or bad-tempered way. He must be willing to share his mind and his knowledge with us.

I turn to the last of the group of treaties, to the greatest mystery of all. I said that there were five association agreements under Article 238. I have mentioned four. I have in my hand a fifth and I invite the Committee to study its colour. It is not in the treaty series at all; indeed, it is not a treaty. It is part of the secondary legislation—the regulations issued by the Community up to the cut-off date of 10th November, 1971. It is the Association Agreement under Article 238 with Malta. It is a whole volume. It is here as a regulation. Clearly the worries of a number of right hon. and hon. Members about whether there was no serious relationship between the ability of the Community to spew out secondary legislation and its ability to create self-executing treaties are well founded. Here we have it. It has come together in the covers of a separate volume of regulations.

No doubt we shall have an interesting explanation from the right hon. and learned Gentleman—

Mr. Jay

In the case of the treaty with Malta, can my right hon. Friend tell the Committee whether it is a treaty simply with the Community or whether the member States also signed it?

Mr. Shore

That is a very good question. The truth is that it is not signed by the member States. It is a treaty made with the Communities, so it is automatic in that sense and again falls outside the subtle and comprehensive defence mechanisms of Clause 1(3)B and, instead, comes under the non-provisions of 1(3)A.

As the Committee will be aware, I am dealing with the need for this House to have much greater control over Community treaties. Having made this point in relation to treaties made under Article 238, perhaps I might return to the other question of trade treaties and the like which the right hon. and learned Gentleman admitted would not be defended by the 1(3)B procedure because they were treaties which came under the category of treaties made by the Communities without the participation of the member States and, therefore, were of no concern to this Parliament.

Mr. Eric S. Heffer (Liverpool, Walton)

Might I ask my right hon. Friend to clarify one point? I think the Committee may become a little confused. In fact, there is no Clause 1(3)(a) or (b). My right hon. Friend is discussing the first and second parts of subsection (3). I know that we have been referring to the two parts as though they were separate paragraphs to the subsection. But that may be confusing. I suggest that we should refer to them as the first and second parts of subsection (3).

Mr. Shore

There is a lot in what my hon. Friend says. We have a problem about agreeing the vocabulary which we should use to identify different parts of the treaty—

Sir D. Walker-Smith

As I was the author of those descriptions, which the Committee adopted subsequently, perhaps I might remind the Committee that I referred to them as Parts A and B. If we stick to that nomenclature, there will be no confusion. But I agree with the hon. Member for Liverpool, Walton (Mr. Heffer) that if one mentions Article 238 and then goes straight on to refer to "1(3)A", it is a little confusing. Perhaps we should stick to "Part A" and "Part B". Then the matter will be beyond doubt, as far as any of these matters can be.

Mr. Shore

We must try to make clear those matters which it lies in our power to make clear. We face a sufficient number of matters in the Bill which are inherently confusing and muddled as it is. However, I think that the Committee knows the part to which I am referring.

When the Chancellor of the Duchy of Lancaster sought to justify letting the Community make trade and commercial treaties on our behalf without having any opportunity in the House of Commons to interpose ourselves, the right hon. and learned Gentleman said: Since our treaty obligations will call for us to be automatically bound by treaties entered into by the Communities, their binding effect for member States cannot be dependent on action by national Parliaments. Because this was part of their power, he said that we must not interfere. Then he went on to soften the blow by saying: That may seem to some right hon. and hon. Members as being in some way strange. However, it is not so strange. Looking at the list of existing Community treaties in this category"— the category of self-executing treaties— we see that many of them are of very limited interest to this country and this Parliament."—[Official Report, 7th March, 1972; Vol. 832, c. 1395–6.] The right hon. and learned Gentleman went on to give an example. He sited the agreement with Iran in October, 1963, and mentioned that it dealt with grapes and caviar. That was splendid stuff. It was a matter of major interest and importance.

7.45 p.m.

What is extraordinary is that, given the opportunity to expound the meaning and significance of this part of Clause 1(3), dealing with treaties over which we have no control, the right hon. and learned Gentleman mentioned that but failed to mention the Commonwealth Sugar Agreement whose renewal depends entirely upon this procedure, and the Community treaty with New Zealand which will have to be negotiated in 1977 and which will never come to this House but, instead, will be under the Article 113 procedure. I do not think that that is frank. I do not think that it is fair.

The Chancellor of the Duchy of Lancaster (Mr. Geoffrey Rippon)

In future matters with which we shall be dealing in the Community, the position will be easier than in regard to past matters. Incidentally, I dealt with the treaty with Iran specifically at the request of the hon. Member for Pontypridd (Mr. John).

Mr. Shore

We are not dealing with past matters here. The future of the Commonwealth Sugar Agreement is a future matter, as is the New Zealand one. These other treaties about which the right hon. and learned Gentleman could have told us are very important. There was a rash of Community treaty making towards the end of the 1960s, and activity of enormous significance in terms of the future of the one-world trading system of which we have been part and which in my view was the great bulwark of our prosperity in the post-war years. It is being nibbled away by this Community preferential treaty-making process.

The right hon. and learned Gentleman tells us that it is all a matter of no importance and one of virtual indifference to us. All that he thinks it right to mention to us is that Iran has a treaty to sell us graps and caviar. I find it very odd. It is a lack of can dour which is surprising, and it will not help the right hon. and learned Gentleman's cause.

We have talked about Article 113, the trade treaty Clause of the Rome Treaty. But there is a similar Clause in the Euratom Treaty of 1957. Why the Opposition should have to mention all this and why it should be my job to give the Committee information and to expound the content of the treaties, I do not know. It should be the job of the Treasury Bench. It is a job for which clearly they have no appetite. So I have to remind the Committee that there is also another treaty and that under Article 101 we have the external relations of Euratom. That again is, as it were, a Community relations treaty with other States. Whether this is significant, I do not know.

I do not know anything yet about the pattern of treaties and agreements which Euratom has built up with other countries and trading groups, but potentially it is important. After all, Euratom deals with fissile material, presumably, and nuclear know-how. While it is confined to peaceful uses, can anyone pretend that it is not an extremely important matter that the treaties which may be conducted by this organisation, and, providing that our name is not on the treaty, may be signed with other bodies, will never come to this Parliament to be approved, will never be reported, and will never meet the requirement of an affirmative Resolution? Again, this was not mentioned in our earlier debates.

I emphasise what I said earlier, that all these trade treaties add up to a foreign economic policy, a granting of preference to one part of the world—the Mediterranean and North Africa in the main—the area of French power and ambition. The very act of granting preference to these countries in this area means the withdrawal and denial of preference to many other parts of the world, with which we are much more closely associated.

Mr. Deakins

Would my right hon. Friend agree that many of these preferential trading agreements break the rules of G.A.T.T. and are one of the reasons why, in recent years, the United States has been so annoyed with the overseas economic policies of the Community and in return has retaliated? This has led to an imbalance of world trade and the world monetary system which has reacted adversely on this country.

Mr. Shore

I agree with my hon. Friend—not that we have so far been engaged in this, because we have not been part of the Community. But it is an absolute and indisputable truth that the development of trading treaties by the Six in the last two or three years has sent a great wave of anxiety and resentment through the United States and virtually every other major trading nation.

It is one of the biggest bones of contention which is emerging to dog us in the 'seventies in our efforts to establish a really thriving world trade order. It is a very serious matter. That this should be tucked away and taken out of the competence of this House for discussion, that all the changes in this pattern of treaties should elude us in this way, is a very worrying development which we should not accept.

Where have we got to in this argument? I think that we have established our point that the so-called small matters which will be dealt with under the first part of Clause 1(3), over which we have no control at all, turn out to be very large matters indeed. No one can doubt this. For the benefit of some right hon. Gentlemen opposite who can think of nothing except what happened and what was said four years ago, I might say that a large number of the matters that I have mentioned—the specifics, like the treaties—have of course been concluded in the last two or three years or on what are really future matters like the Commonwealth Sugar Agreement and the New Zealand commercial agreement. They relate to years ahead and arise out of the negotiations which have been concluded.

Associated with all this, we have seen an interesting switch of tack. The Treasury Bench have, in the course of our debates, begun to move away from the proposition that these are just little matters, and have tried certain new lines of thought. One of them has been that it does not matter, not because the matters are small in themselves, but because, in the actual negotiation of a trade treaty or a Community association agreement, we would have, as they say, a veto inside.

I will not go far over that ground, but even if it were true that a veto existed there, we would still have to look at all these matters in the light of the give and take, the shove and pull of intra-Community politics—of my favour as against yours, the constant horse-trading and bargaining.

That is the reality, but in addition there are certain rules. The Chancellor of the Duchy pretends that he does not know anything about the rules, that everything will come under the formula of vital national interest. Clause 114 of the Treaty of Rome says: The agreements referred to under Article 113"— that is, trade agreements— shall be concluded by the Council on behalf of the Community acting unanimously during the first few stages of the transitional period and by qualified majority thereafter. As we all know, the transitional period ended on 1st January, 1970. We are now in the final period when qualified majority rule pertains. Unless the right hon. and learned Gentleman argues that on every issue that comes before the Community—like a trade treaty, for example, with Yugoslavia—he will say, "My national interest is involved," he first has to say that he would say it, second he must tell us why we should believe him and he must also say why he should think it effective against other countries in the Community which are claiming equally that it is in their vital national interest that our proposals should not be accepted.

He must also tell us, even more, where and by what authority a clear and unambiguous ruling of the Community has been overborne and rejected by the Community in any subsequent treaty or agreement. Let him point to it. He has not done so: of course not. So that safeguard does not look very strong.

The last matter on which right hon. Gentlemen opposite tried to base their defence is that, at the end of the day, we can have an ad hoc Committee to look at treaties before they are signed and to do something about it. I will not pursue that one, because I have always believed that in these debates we should keep rigidly within the ambit of our Amendments. Although I am tempted to deal with this, I shall leave it to another time and will simply conclude by saying that I have demonstrated, I hope sufficiently, that we were—no doubt unwittingly—very seriously misled during the debates last week, and that the precise categories of treaty which have been referred to turn out not to be precise at all, and that the so-called defences which we have heard turn out to be far weaker than the Chancellor or the Solicitor-General has even begun to admit.

With that in mind, when the right moment comes, I hope that the Committee will support the Amendment and any other which will increase the power of this House over the future making of treaties by this country.

8.0 p.m.

Mr. J. Selwyn Gummer (Lewisham, West)

The right hon. Member for Stepney (Mr. Shore) discussed a number of matters concerning the Amendment, but it would be worth the Committee's while to examine for a moment his complaint about preferential trade treaties. He thought it of great moment to point out that many of these were with countries which had formerly been associated as colonial territories with France but that very few were with countries formerly associated as colonial territories with Great Britain. That is hardly surprising, since France is a member of the Community and Britain is not.

It is likely that in future such treaties will be made, as indeed certain of them have already been made, with other third countries with long associations with this country. I thought it a not insubstantial point, particularly as it ignored the larger association treaties made with Greece and Turkey—neither, in the right hon. Gentleman's words, in the ambit of French colonial history.

These preferential trade treaties are complained of because they are made by the Community, working under the orders of the Council of Ministers and negotiated and then agreed to, if that is the answer, by the Council of Ministers. This is considered to be harmful and dangerous. More than that, it is considered to be something not within the ken of the Opposition in previous negotiations. I do not want to go back over that, but I noted that the argument was used that because certain treaties were entered into after negotiations, in which the right hon. Gentleman took some part at the beginning, there can be no question of suggesting that the Opposition, when they were in power, had any idea about this treaty-making power. Specifically, of course, it is true that certain of the treaties were agreed after that time, but as a general matter of principle everyone has always been perfectly clear that the Council of Ministers, on behalf of the Community, had certain powers to make treaties, which it made on behalf of the Community and which were not then subject to agreement individually by the member Parliaments of the Community.

What we are talking about is not that Great Britain shall have no part in the decisions or that the Council of Ministers shall not have the directing of those decisions, but that this Parliament shall not, after the treaties have been made, have power of emendation and alteration. It would be very odd if one could negotiate a treaty, carry out the treaty, make the agreements—"horse-trading" was, I believe, the phrase used—and then have the treaty unmade and be asked to go back and remake it. That is not the way we have been operating the Commonwealth Sugar Agreement, which was recently discussed clause by clause and line by line on the Floor of the House of Commons. It would be impossible for any Government to conclude any treaty if that was the way it was operated. Therefore, the objection must be not to some new method of creating treaties and to the law of treaties but to the fact that it is the Communiy and not the British Government which makes the treaty.

That is an objection that hon. Members must have had in 1967 and in 1962. It is perfectly reasonable to have that objection, but it is not reasonable to suggest that it is a new objection or is something which has been tucked away. I believe that if anybody is not being honest with the House, it is the right hon. Member for Stepney, because he is now suggesting that there has been some kind of plot to hide from him and his colleagues things which, if they did not know, they should be ashamed of themselves for not knowing because everyone else has known of them. It has been part of the Community, an essential part of the Community. What an odd Community to be joining, if it is so small that it cannot negotiate with other communities, discuss with other nations or see itself as a Community. That is a very odd kind of Community, one which is hardly worth joining. This has been quite clear all along.

Mr. John Mendelson

The hon. Gentleman says that it is not new. How often before has he, as a Member of Parliament, approved of the United Kingdom joining such a Community?

Mr. Gummer

It would be an odd Community, I suggest, which could not do this. I am suggesting that if it were unable to do so there would be very little point in joining the Community, because it would have no powers or means as a Community. It would be merely an association of States, of a kind which hon. Members would obviously be happier about because it would be less powerful and lessable to carry out the sort of purposes which we would want.

I would like to return to the suggestion that the Community and the treaties which it enters into, and the powers which the Clause contains and which the Amendment would seek to remove, have somehow been hidden from the House of Commons. I believe that this is the second series of Amendments on which that sort of suggestion has been made. More than that, the right hon. Member for Stepney suggested that in some way the Solicitor-General, and the Chancellor of the Duchy of Lancaster had specifically failed to make clear the points that he particularly wanted to have made clear, and he suggested that there was certain cavalier treatment of himself and his hon. Friends. The right hon. Gentleman was not present in the House when one of his hon. Friends complained that Article 111 did not tie up with Article 114 and my right hon. and learned Friend the Chancellor of the Duchy of Lancaster pointed out that the reason was that the first two lines related in one case to the transitional period and in the other case to the period afterwards. If the right hon. Gentleman and his hon. Friends are unwilling to read articles, they must not complain that they do not understand them.

It was more than a complaint. The suggestion was that the right hon. Gentleman and his hon. Friends had suddenly unearthed a precious piece of fact—those were the words. It is the first two lines of Article 111. An attempt is being made to say that it is unclear, that there is a great deal which it is not possible to discover and that in some way the Government are hiding it from the House of Commons. But the clarity of the Clause is so pronounced that some of my hon. Friends have all along very consistently objected, precisely as my hon. Friend the Member for Yarmouth (Mr. Fell) showed he had objected for many years to precisely the power of the Community. The right hon. Gentleman cannot have it both ways and say on the one hand that he has objected for many years—which he has—and on the other hand that the Government have hidden this power. The right hon. Gentleman has been very consistent and he made an earlier speech showing the distinction between the two.

I would suggest that the fact is that the power of the Community to make treaties has been enshrined in the Treaty of Rome ever since the Treaty of Rome was signed. Everyone has been aware of that power, and right hon. Members and hon. Members opposite who thought it worthwhile for us to associate ourselves with the Common Market by joining the European Economic Community cannot with honesty now suggest that they do not want the Clause or that they want to amend it because it contains something about which they did not know. They did know about it, and the rest of the world knows that they knew about it. This is in many ways, although not a wrecking Amendment, a fictitious Amendment as far as the right hon. Member for Stepney is concerned.

Mr. Peter Archer (Rowley Regis and Tipton)

I rise, Mr. Brewis, because one of the Amendments selected for discussion with Amendment No. 28 is Amendment No. 2, and it occurred to me that it might assist the Committee if at this early stage in the debate I said a word or two about the purpose behind the Amendment. It is in a sense on a different subject from the Amendment moved by my right hon. Friend the Member for Stepney (Mr. Shore). I would not seek to travel in the very deep waters of international economics which have been raised by my right hon. Friend's Amendment No. 28.

This Amendment is much more limited and it will not have escaped the notice of the Committee, and it is not a secret, that those who sponsored Amendment No. 2 are not opposed to the purpose of the Bill in so far as that purpose is to facilitate the accession of the United Kingdom to the Community. That is not the principle at stake in Amendment 2. Nor, I imagine, would any sponsor of Amendment No. 2, or indeed any hon. Member on either side of the Committee, seek to question the general principle that the United Kingdom ought to adhere to its obligations under a Community treaty or, indeed, any other treaty.

What is in issue in the Amendment is the right of the House of Commons to satisfy itself that what is alleged to be an obligation really is an obligation. The issue is as narrow as that. If it is said that a particular obligation falls within the constitutional short circuit provided by the Bill, that the treaty really is a treaty to which the Bill applies, I submit that the House of Commons is entitled to satisfy itself that that is so.

Clause 2 contains provisions for implementing the United Kingdom's obligations under these treaties. The Amendment merely raises the question: to which treaties shall Clause 2 apply; and where it is necessary that a particular step shall be taken before Clause 2 applies to a particular treaty, what shall that step be?

Subsection (3) states that such a treaty shall be defined by what lawyers, in a rather tiresome way, describe in their dog Latin as the ipse dixit of the Government. If the Minister says that it is in the box, then it is in the box.

We have no complaint that that is the position for a treaty entered into before the relevant date. Where the Government declare that such is the effect of a particular treaty, that is the effect without discussion in the House of Commons. There is no complaint about that, because we know what is in the existing treaties and we know which are the treaties because the Bill defines them. We may not be wholly familiar with all their terms—as my right hon. Friend the Member for Stepney said, we have not had a very long period within which to familiarize ourselves with them—but we know what treaties are being referred to and we have access to what is in them. Therefore it is not objectionable that subsection (3) should deal with the matter in that way.

However, where we are dealing with treaties which have not yet come into existence, for all we know, where certainly we have not had our attention brought to them because the United Kingdom has not acceded to them, we submit that different principles apply.

In the normal situation, the Bill properly provides that there shall be discussion in the House of Commons, because the Government cannot declare a treaty to be within Clause 2 unless there is an affirmative Resolution. We all know, sometimes from bitter and frustrating experience, that that is the only way to ensure that there shall be discussion in the House. Even where such an affirmative Resolution is not required, it is arguable that, when an Order in Council comes before the House, someone might choose to move a Prayer against it.

We all know what happens to Prayers of that kind. We are told that in the old days it was normal to ensure that debating time was found for them. In these days anyone who moves a Prayer of that kind is lucky indeed, or he has secured the approbation of the Government, if time is given to debate his Prayer. Therefore, the only way that we can ensure that there is a debate in the House for such an Order in Council is to bring it within this provision and to say that there shall be an affirmative Resolution.

Up to this stage we have no quarrel with the terms of the Clause. In fact, the latter half of the subsection is indeed assiduous for the rights of the House of Commons, as we would expect.

Mr. Deakins rose—

Mr. Archer

My hon. Friend seems to be in some doubt. I am merely pointing out that, so far as it goes, the latter part of the subsection adds a protection for the House. If that protection were not there, we would properly complain—[Interruption.] What I am arguing is that the protection does not go far enough. Perhaps my hon. Friends will allow me to complete the argument before they disagree with it.

The terms of the subsection do not extend the protection for the rights of the House to a pre-accession treaty, even if the United Kingdom has not yet acceded, if the terms are already settled. Even if we do not know what the terms are, we shall be saddled with a declaration by the Government that those terms impose an obligation which will automatically fall within the constitutional short circuit of Clause 2. We are being asked to pass the Bill without knowing all the obligations to which it is to give effect. That, in short, is the point of the Amendment.

8.15 p.m.

Where the criterion is that the Government have already entered into a treaty, there are no complaints because we know what treaties are being talked about. But where all that has happened is that the terms have been agreed, so far it is not self-evident to us that those terms should be beyond discussion merely because the Government later decide to accede to them. Indeed, it is far from clear what counts as the terms being agreed. How have they to be agreed? Can the agreement take the form of a casual discussion late at night over a glass of beer or during a walk round the garden between two senior Ministers, two plenipotentiaries, or between two relatively minor officials?

Mr. Arthur Lewis

Or over a coffee and cognac.

Mr. Archer

I should not complain if they were agreed over a coffee and cognac. My hon. Friend may disagree with that method, but I have no complaint about the method. I should like to know what counts as being agreed. What is the agreement about which we are talking? What are the terms? How are we to know when the terms have been settled? Are the terms to be published in a document? I am grateful to the Chancellor of the Duchy of Lancaster, because he seems to be nodding assent. So any memorandum of the terms will not be embedded in a file marked "Top secret". However, it is not self-evident from the text. I hope that we shall get a straight answer.

On this part of the Clause we are in difficulty because it is not clear what counts as the terms having been settled. If they have to be embodied in a document which is published, that makes it a little easier. But what happens after that? Will the Government then say "We will give effect to those terms exactly as agreed without the most minor amendment"? If a minor amendment is introduced, does that treaty count as giving effect to those terms?

I can imagine an endless vista of possibilities. Suppose that the draftsman, when he settles the treaty, points out that the draft is difficult to settle because some essential term was never dealt with. Those of us who on occasion have practised draftsmanship know how frequently that kind of situation arises. Then the lawyers, who are always on tap, not on top, in this situation, go back and say "Will you please tell us what you want to say about this?" It is only at that stage that any agreement comes into existence upon this particular term because no one thought of it previously.

What is to happen in a situation which no one had thought about previously? When the treaty comes to be drafted and that kind of problem arises and, in effect, a new term has to be settled because no one has dealt with it before, is the treaty giving effect to those terms? That is the kind of problem which has been troubling us.

I submit that the only satisfactory way of dealing with this matter is to say that the criterion shall be that there is a clear text, embodied in a treaty which has been acceded to before the relevant date, so that we all know when we discuss the Bill which treaties are being referred to and what their terms are. For any treaties acceded to after that date, there really is no problem. All that the Government have to do is to produce an Order in Council which is brought before the House of Commons, debated in the normal way and given effect by affirmative Resolution.

There is no secret about this. Those of us who sponsor the Amendment do so in no spirt of hostility to the Community. We wish the Community well. It is for that reason that we wish to ensure that its policies are subject to the proper control of the people through their elected representatives. Our purpose in supporting the Community was not to produce a less democratic and more bureaucratic society. We believe—no doubt some of my right hon. and hon. Friends will disagree with this—that slowly, not as quickly as some of us would like, the Community is moving in the direction of that very difficult reconciliation between effective democracy and effective internationalism. But we believe that it would be the worst of all possible precedents if, in the interests of acceding to the treaty, that process were retarded.

Mr. Powell

I wish to refer, amongst this group of three Amendments which is before the Committee, to No. 83, that which stands in my name and which raises, if I may say so with due respect to the other Amendments, the largest of the three issues; for the effect of that Amendment would be to ensure that if in future the United Kingdom entered into a new treaty in the framework of the Community, new legislation in Parliament would be necessary.

Certainly this is not the first time that this really fundamental question has been raised in the course of these debates. Nevertheless, it would be quite untrue to say that its renewal now in the framework of this debate is in any way otiose or repetitious. I leave aside the fact, which we have constantly to remember during these debates, that perforce a very large number of our colleagues on both sides of the House of Commons must miss a high proportion of the debates on the Bill, although they are just as much concerned as the rest of us with the constitutional consequences if the Bill were to pass. That is something we can never forget; nor can we overlook the effect upon the minds of hon. Members when they have the opportunity to hear that which those of us who are specially concerned with the Bill are debating from day to day.

But the main reason why I say it was right and necessary that the Committee should return to this question is that we only now have before us the important statements which, when it was last raised, were made by my hon. and learned Friend the Solicitor-General and by my right hon. and learned Friend the Chancellor of the Duchy of Lancaster, though there was a considerable difference, as I shall presently argue, between the points of view and the answers which were offered by my two right hon. and hon. Friends, and I shall therefore need to consider separately the two statements which they made. It is really impossible for the Committee, with a Bill of this sort before it, to address itself to the major questions which we have to answer unless we have already had the opportunity to hear the statements of the Government and to consider them maturely; and this is the first opportunity which we have really had to debate this point in the light of the statement made by my right hon. and learned Friend on the night of 7th March or that made by my hon. and learned Friend the Solicitor-General on 8th March.

I must say at once that I dissent from the remarks which have been made at various stages in derogation of my hon. and learned Friend the Solicitor-General. I consider that what he has said to the Committee on every occasion, but in particular on this subject with which I am now concerned, has been extraordinarily frank and, to that extent, extraordinarily helpful to the Committee. Whatever complaint I believe can be made about my hon. and learned Friend, it is not the complaint either of wilful concealment or of a desire to give the Committee short change; and I think anybody who addresses himself fairly to what my hon. and learned Friend had to say last week on the subject of parliamentary procedure on future treaties will be obliged to agree with my contention.

This afternoon in the debate from which we have just parted a new point in this context was raised by my hon. and learned Friend the Solicitor-General. Last week it was common ground between all hon. Members taking part in the debate that the successive future developments of the Community would take place in the form of treaties falling within the definition of Clause 1 of the Bill and thus attracting the procedure which it is now customary in the Committee to describe as Clause 1(3)(B). This afternoon, however, my hon. and learned Friend the Solicitor-General modified—perhaps I should more fairly say, extended—that statement by indicating that, although the development of the Community could take place by way of treaties which were within the terms of Clause 1, that would not necessarily be the case, and that one could envisage the development of the Community by way of new treaties which were altogether outside the Bill. Of course, I entirely concede that, so far as the procedure adopted was that of new treaties to which the Bill does not apply, the Government of the day would necessarily have to come back to Parliament and that therefore the case which I am making would not arise.

Nevertheless, I am quite sure that my hon. and learned Friend the Solicitor-General would not dispute that the progressive development of the Community not only could take place, but would be most likely to take place, by means of agreements and instruments which were fully within the definition of Clause 1 of the Bill. I think anyone who reads what my hon. and learned Friend said on that subject will admit that he was clearly envisaging that the Bill would be the vehicle for the subsequent development and extension of the Community. Indeed, some of the most important developments—in fact, all the important developments—which have taken place in the whole 15 years of the life of the Community have been in the form of amendments to existing treaties.

I think, therefore, that the Committee is addressing itself to the substance of the matter if we assume that normally the development, however far-reaching, however progressive, which the advocates of British membership look forward to, would take place under the guise of treaties as treaties are defined in Clause 1 of the Bill. In that sense, even after what my hon. and learned Friend the Solicitor-General said this afternoon, we are all of us in this Committee setting out from the same starting-line and assumptions.

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

8.30 p.m.

Last week my hon. and learned Friend the Solicitor-General took fully and candidly the point which I was making. He said on 8th March: He"— that was I— 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 exactly the contention I was making last week and it is the contention I am making tonight. Although my hon. and learned Friend pointed out that there could be many amendments of the treaties which would be of an entirely minor and even formal character, he did not seek to deny that other treaty arrangements which might fall under Clause 1 could be of very far-reaching importance indeed. He candidly said in relation to my argument: I do not underestimate the importance of the point. Later he said: it is important that Parliament should be able to intervene. There is, therefore, a further level of agreement between my hon. and learned Friend and myself and many other hon. Members of the Committee. My hon. and learned Friend expressly admitted that there could be future treaties—treaties in the sense of the Bill—for which the full parliamentary procedure of legislation would be right and justified. He was too candid not to say that; and he greatly helped the Committee by the frankness of that admission. But then he found himself in great difficulty, because the Bill as drafted envisages only a simple procedure by affirmative Resolution.

It is of the greatest importance that the Committee should address itself to the manner in which my hon. and learned Friend sought to reconcile his belief, as a good Parliamentarian, in what would be right and necessary with the terms of the Bill which he was defending. He said: Suppose a treaty extending or potentially extending, the scope of Community powers were to be introduced merely by Order in Council under that provision. He was referring to Part B of subsection (3). He went on: 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. The Solicitor-General was there still posing the dilemma, entirely candidly and frankly. He then resolved it in these words: 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."—[Official Report, 8th March, 1972; Vol. 832, c. 1550–51.]

What an enchanting picture for my hon. and learned Friend to put before us—an idyllic scene, one of pastoral simplicity which should be acted by shepherds and shepherdesses from the innocent age of mankind. Here, says he, are the Government, proposing a simple affirmative Resolution, which will bring into force automatically in the law of this country a big extension or development of the Community, an extension perhaps every bit as large as that involved in the Bill. But, says my hon. and learned Friend, a significant part of the House think that it should require substantive legislation. Note that he did not refer to "a majority" or even "a narrow minority", such as we are getting on current Divisions; he simply referred to "a significant part"—two or three dozen hon. Members, perhaps, who devote themselves to these questions and show themselves reluctant for the matter to be disposed of just by an affirmative Resolution, believing instead that there should be legislation—a view which hypothetically my hon. and learned Friend would himself accept, for he does not exclude that there could be cases in which that would be the right view.

My hon. and learned Friend's imaginary picture is that the Government, after hearing the speeches of this "significant part" of hon. Members, would say "In view of the objection to this procedure which has been taken by a significant part of the House, we shall withdraw the Resolution and introduce a Bill later in the Session". If you can imagine that, Mr. Mallalieu, you can imagine anything, Imagine a Government not, as this Government are at the moment, a suitor to Parliament for the entry of this country into the Community, but a Government already operating within the framework of the Community, who have negotiated a further extension and development of it and are laying this as an accomplished fact before the House of Commons in the one parliamentary procedure which is statutorily necessary, an affirmative Resolution.

Imagine that Government, on hearing the view expressed here and there from one side or the other, that this is really something which ought to be done by legislation, bowing to that expression of opinion and taking no notice of the three-line Whip which had been laid on for the occasion but gracefully sweeping the Resolution off the Dispatch Box in order to come back a few weeks later with a Bill, to be passed through all its stages in both Houses, whatever might be the legislative programme of that Session.

If this is an act of imagination, Mr. Mallalieu, which you find difficult to the degree of impossibility, how much more difficult must it be for my right hon. and hon. Friends on the Front Bench, who are engaged at present in ramming this initial legislation through, not against the disinclination of "a significant part" of the House of Commons but by majorities of eight, 13, or whatever they can scrape in the Division Lobbies, and with the knowledge of the deep resentment which this forcing of the legislation is incurring out of doors.

It was a marvellous picture, corresponding, if I may say so, to his own can dour and purity of heart, which my hon. and learned Friend the Solicitor- General placed before the Committee. The pity of it is that it has no reality or substance whatsoever. It would be one of those "scenes at which we have not assisted". Unless legislation is rendered necessary by the form of the Bill, there will be no legislation; for a Government who can do a thing by Resolution will always do it by Resolution, if they can get a majority of one in the Division Lobbies.

Mr. Deakins

Is the right hon. Gentleman putting a correct construction on what the Solicitor-General said at column 1551 of our debate last Wednesday, because the Solicitor-General could say that approval could be refused? That does not suggest to me that the Government would be willing to withdraw a Resolution if a significant voice had been heard in the Committee on all sides that legislation was necessary. I should have thought that the only proper construction of those words—and it is a damning construction—is that the Government would go ahead with the Resolution and, if they were defeated, would say that this was not a defeat on the Resolution but was a defeat which meant that they now had to bring in legislation.

Mr. Powell

The hon. Member can have it whichever way he pleases, but the effect is the same. The effect is that with the Bill as it stands, the notion of my hon. and learned Friend that we can still have our legislation if we make it clear enough somehow that a Resolution is not adequate simply does not stand up to examination. He concluded that this is a properly adjusted, diverse method"— that is an elegant word, "diverse", when incidentally there is only one method in the Bill; the diversity exists only in the imagination of my hon. and learned Friend— whereby Parliament can assert its control".—[Official Report, 8th March, 1972; Vol. 832, c. 1552.] He said 'diverse" because he thought Parliament could react by making it clear that a treaty should be the subject of legislation; but unfortunately that is a figment of his imagination, something which, in real parliamentary terms, in the circumstances of the power struggle in the House of Commons, simply does not happen. That is why we have to have the safeguard and the assurance of legislation in the form of the Bill.

Before I sit down I intend to suggest a way in which this can be done, which I hope may be acceptable, at any rate to my hon. and learned Friend the Solicitor-General, since his instincts in this matter, quite clearly from what he said, are on the side of Parliament, of Parliamentarians, and of those who say that in any major advance legislation by the House of Commons is necessary.

Before that, I want to come to the rather different approach of my right hon. and learned Friend the Chancellor of the Duchy of Lancaster. His argument is a different one. The essence of it is that a Resolution would be perfectly adequate, because by the time we reach the point of a treaty having been made and requiring to be recognised as a treaty for the purposes of the Bill, so much consultation will have taken place, stage after stage, that we shall not merely be familiar with the contents of the treaty—as familiar as we are with the White Paper of 1967—but the House of Commons will effectively have given its assent to the treaty and will, indeed, have been involved, by that process of consultation and consent, in the very making of the treaty.

That is the essence of my right hon. and learned Friend's contention. Indeed it is entirely and honourably consistent with the grounds on which he has denied the claim of those of us who say that the result of the Bill and the result of the policy which lies behind it will be a major diminution of the sovereignty of Parliament and of the House of Commons. Not so, says my right hon. and learned Friend, because in the future, as members of the Community and under arrangements which the House of Commons is quite capable of making, we, as a House of Commons, shall have been drawn into the preliminary processes and shall have influenced and moulded them to such an extent that when at last the treaty comes before us, preliminary to a Resolution, it will be the work of our own hands which we shall recognise. This is the story of the ad hoc committee and its recommendations. The ad hoc committee is to make recommendations about not only regulations, directives, and so on, but treaties.

On 7th March, my right hon. and learned Friend said: Clearly the committee would wish to consider the scope of parliamentary consideration in respect of treaties as in other matters."—[Official Report, 7th March, 1972; Vol. 832, c. 1397.] We are to have, though we have no idea yet what it might be, a procedure whereby at the previous stages, moving right up to the conclusion of a treaty, the settling of the terms—that, perhaps, would be the phrase which would occur to the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer)—the House of Commons would have been apprised of what was going on, would have been consulted and would have been involved in the decisions. That is the contention.

To regard anything of that kind as an alternative to legislation is a profound misconception of what the House of Commons is about, a profound misconception of the function and the functioning of the House of Commons and of Parliament. Last week I coined a phrase which has had some success, when I described some of the consequences of Clause 1 in its present form as "prerogative legislation". I will try another. I will say that the essence of my right hon. and learned Friend's case is to advocate legislation by consultation. But the House of Commons is not primarily or characteristically a consultative assembly.

I will go further and say that on the occasions on which it is consulted and told that it does not have to take a decision yet—because it is dealing with a Green Paper or because it is having a preliminary debate—it is at its worst and most ineffective. The House is itself only when there is a precise proposition before it, on which it has to say "Yea" or "Nay". A consultative function, however organised, cannot replace or displace its legislative function. It is from that legislative function that its power derives.

8.45 p.m.

It is not surprising that the proffer of a consultative function should be part of the Government's case; for consultative assemblies are familiar to the European Community. There are Parliaments in the Community which are purely consultative Parliaments. I say this without a shadow of disrespect; to point to difference is not a mark of disrespect. All those countries are entirely used to the notion of assemblies which, without the final, absolute sovereignty which made this House of Commons what it is, are brought into consultation and are enmeshed with the processes of the Executive.

It therefore does not reassure those of us who are fearful for the future sovereignty of Parliament to be told that an elaboration of the consultative processes will be a substitute for legislation. Indeed, that could not be, because at no stage can a consultative act be decisive: at all stages it is provisional. For instance, the Council of Ministers are now deciding by how much food prices are to be raised in the Community. There is a tremendous amount of to and fro and pressure from one side and the other, and we are told that it will be days, perhaps weeks, before something arises which can somehow be accepted by all the members of the Council of Ministers. It would be inconceivable that the House of Commons, consulted beforehand, could lay down terms and send a Minister to Brussels, or wherever it might be, telling him that he must agree to those terms and to nothing else. No Minister could accept such a remit. It is contradictory to the position of a member of the Council of Ministers.

But we have in our recent past experienced an even more vivid picture of what would happen under the consultative procedure leading up to a treaty. In what I am going to say, I mean no derogation from the great respect with which my right hon. and learned Friend the Chancellor of the Duchy of Lancaster has invariably treated the House during the last 18 months and more that he has held his present office. In the negotiations at every stage, as they have moved towards completion of the treaty signed at Brussels on 22nd January, he has come back to the House with a statement of the various elements of the negotiations. Within the tolerance of the Chair, we have had question and answer, sometimes for half an hour or three-quarters of an hour, following his statements. Then it was all wrapped up into a White Paper, and we had a debate in principle, a consultation perhaps, a 10-day debate in which, true, the major considerations, the major outer framework, of the decision for or against joining the Community could be discussed, but in which it was impossible for the House to address itself to the treaty as a treaty.

At no stage up to January—and this was nobody's fault, because it was in the nature of the process—was the examination by the House of Commons of the elements of that treaty, their balance, their relative advantages one with another, possible. Then when the treaty was at last a treaty, we were told—and this is "to renew an unspeakable sorrow", which I am no more anxious to do than Aeneas in the second book of the Aeneid—that "all that is now past; that must be accepted; that cannot be undone and examined; this is a Bill which is merely to provide the nuts and bolts".

How much more in the debate on a Resolution should we be told "You have heard it all. You had the opportunity to learn of this bit and that bit. There have been reports to the House. Perhaps there has been a Committee sitting upstairs which actually looked at some of the draft articles of the treaty. Now that it is a treaty you can only say 'Yes' or 'No'; and, by the way, it is quite impracticable for you to say 'No'".

Consultation cannot be a substitute for legislation. Even legislation, as we are discovering with the Bill, can be a very imperfect instrument of control for the House, but it is even so a formidable instrument of control, and we must still have it in the context of any major change or development of the Community.

Now I want to suggest to my right hon. Friends on the Treasury Bench how this can be achieved, for I do not make light of the point of my hon. and learned Friend the Solicitor-General when he said that some of these changes, some of these treaties, agreements, instruments, understandings, may be quite trivial, not suitable for a long and laborious legislative process. I do not wish to deny that. So I make two alternative propositions.

The first is that since my hon. and learned Friend himself recognises candidly, and presumably on behalf of the Government, that there are circumstances falling within the four corners of the Bill in which legislation is the right procedure, he should introduce into the Bill an Amendment which distinguishes between what the Government regard as the type of circumstances for which a Resolution is suitable, and those for which they will not seek to legislate now but which are to require new, future legislation.

It is certainly not beyond the capacity of Parliamentary draftsmen, briefed by my hon. and learned Friend, to find a formula which will match exactly what is his express view and opinion. So I say to my hon. and learned Friend "That is one alternative. Be as good as your word, and put forward an Amendment to the Bill which will satisfy the whole House, at any rate in principle; an Amendment which distinguishes the trivia from the essentials and makes it possible, if you wish, to deal with the trivia by Resolution, but necessary to legislate where the essentials, the major matters, are concerned."

However, if my hon. and learned Friend has instructions from my right hon. Friend the Patronage Secretary, too strict to be disobeyed, against any action which might be calculated to involve a Report stage of the Bill, and if he is therefore disinclined to formulate his own opinion in terms of an Amendment, I put forward the alternative, which is very simple and which I am sure his own parliamentary experience will commend to him.

It is one of the characteristics of the House of Commons that we know trivialities when we see them, and we get rid of them very quickly. That is something the public often misunderstand about the House. Those matters on which we are agreed, those matters to which no objection is raised, we dispose of very swiftly indeed. There is no loss of time in legislation which is required to do that which all are agreed is both necessary and relatively unimportant.

If my hon. and learned Friend the Solicitor-General will make a small test and take the legislative calendar for any Session, he will have no difficulty in picking out a whole series of Government Measures which have taken up hardly any time at all. So if he is right in saying, as I am sure he is, that many of these future treaties, in the technical sense of "treaty" in Clause 1, will be of little importance and little contention, let him not fear, let his colleagues not fear, that any loss of parliamentary time will be involved. It will not; they will go through in a manner proportionate to their unimportance and to the degree of agreement about them.

The simpler alternative, therefore, is that which I propose in Amendment No. 83. That is, to draw a clear distinction between past and future—to say that in the Bill we are legislating for what we know but that we decline to legislate in advance for what we do not know. If my hon. and learned Friend accepts that—I do not need to say "if". for his very argument last week showed that he felt and accepted it—and if my right hon. and learned Friend accepts that—and surely both as true Parliamentarians must do so—they will have lost nothing whatsoever. Here I am on the same point as the hon. and learned Member for Rowley Regis and Tipton. They will have lost nothing whatsoever in regard to their desire that this country should join the Community—that is not in issue on this Amendment—but they will have shown, in the form of the Bill, that they respect what we believe they really respect, the honour and dignity and supremacy of the House of Commons.

Mr. John Mendelson

The Committee has listened to a massive argument from the right hon. Member for Wolverhampton, South-West (Mr. Powell) which is a further indication of the essential nature of these debates in which the Committee has been and is engaged. It has also listened to an attractive case with which my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) introduced his Amendment.

My hon. and learned Friend knows that I have great respect for him as a colleague and a Member of Parliament. He will not take it amiss when I say that the Chancellor of the Duchy of Lancaster was not ill at ease when my hon. and learned Friend moved the Amendment, because he did not feel that it presented any great difficulty for him, that was because, before my hon. and learned Friend proceeded to make the case, he gave away two important cases which he ought not to have given away. I do not know to how much of the debates in the last few days my hon. and learned Friend has listened—I do not say this in any way offensively because if he has not been physically present he can have read the Report of the debates—but to say that he finds nothing at all disturbing both in the first part of the subsection and in the second part was a very far-reaching assurance to the right hon. and learned Gentleman. That was why the right hon. and learned Gentleman did not feel uncomfortable during my hon. and learned Friend's speech.

9.0 p.m.

Mr. Peter Archer

All I was saying was that Clause 1(3) was, so far as it goes, a concession on the part of the Government. I was not saying that there was nothing in the least objectionable in subsection (3).

Mr. Mendelson

Hon. Member on this Committee have laboured hard and have proved that what my hon. and learned Friend now calls a concession is no concession at all and what my hon. and learned Friend by implication would recommend to the Committee as a safeguard is no safeguard at all. It is because I respect my hon. and learned Friend that I deliberately began by bringing this point to his attention.

I welcome the presence of the Chancellor of the Duchy of Lancaster, but I enter a small protest at the absence of the hon. and learned Solicitor-General who should by now be back in his place. Many of the essential arguments that he, as the chief author of the Bill has put forward are now under serious consideration. For instance, he should have heard the speech of the right hon. Member for Wolverhampton, South-West (Mr. Powell), 75 per cent. of which dealt with the propositions advanced by the Solicitor-General. I ask the Chancellor of the Duchy to use the good offices of the Government machine to see that the Solicitor-General is here as soon as possible so that he can give his opinion to the Committee.

During our discussions on the Industrial Relations Bill, except on the occasion of Cabinet meetings and negotiations, both the Secretary of State for Employment and the Solicitor-General were present in their places throughout the debates. I do not underestimate the importance of the Industrial Relations Bill although I have never believed that it was half as important as the Government pretended it was, but no one would suggest that the Industrial Relations Bill will prove historically to be more important than the Bill we are now discussing.

The case put this afternoon by the Solicitor-General was the weakest that he has so far advanced. I also found that his temper had not improved. These are early days in the debate on this important Bill, yet the Solicitor-General showed a tantrum this afternoon which was worthy of the nursery and was certainly not becoming for a senior and influential member of Her Majesty's Government. His weak case may have accounted for his bad temper. The Solicitor-General also showed a spirit of considerable rudeness to some hon. Members who had advanced arguments in favour of a set of Amendments. That is no way for him to treat the Committee.

The Solicitor-General made light of the practical implications of the fears expressed by hon. Members, so it will be useful if I give a little meat to the argument. In the anxieties which the Committee has displayed over several days one central concern has clearly emerged, and that is the justified fear of the diminution of Parliament as a decisive and powerful agent in national and international affairs. The Committee has a duty to the House and to the country to build safeguards into the legislation. It is essential that we put some meat on the legal and constitutional skeleton which has been so ably discussed in these debates.

My right hon. Friend the Member for Stepney (Mr. Shore) mentioned the sugar agreement which in its new form, after the transitional period, would be part and parcel of our policy without any further debate in this House and indeed without any further legislation of any kind. That is the stark fact.

I wish to go into the sugar agreement in a little detail. The right hon. Member for Wolverhampton, South-West has rightly said that the Chancellor of the Duchy of Lancaster has given a number of detailed accounts of his stewardship during the negotiations. I was present on all those occasions and I would not dissent from that point of view. I would add that there were occasions when, either deliberately or otherwise, some of the details were missing from the accounts given by the right hon. and learned Gentleman. This applies particularly to the Sugar Agreement. I believe that what I shall say will be controversial, and I am glad that the Chancellor is present so that he may repudiate what I say if he wishes to do so.

What happened during discussions on the Sugar Agreement was this. The Chancellor of the Duchy put forward a point of view that was found to be quite unacceptable to the French Foreign Minister. In the end the right hon. and learned Gentleman completely failed to achieve his own stated objective about a firm agreement incorporating the detailed figures which were to apply and which were intended to give security to the sugar producers at the end of the transitional period. A little later the right hon. and learned Gentleman returned to London and there then occurred the famous meeting at Lancaster House. Unfortunately, not very many details have so far been reported, either in a White Paper or any other State paper, about the discussions at that meeting. All we have heard from the Prime Minister and the Chancellor of the Duchy is a statement that by and large the Ministers concerned have declared themselves to be satisfied with what was proposed. In fact it is well known, particularly in the countries concerned, that for a long time there was no agreement in the discussions at Lancaster House. It is also well known that at the beginning of the discussions one Minister, with the backing of some others, demanded that the right hon. and learned Gentleman should return to obtain agreement on the suggestions which he had put to the meeting of Ministers at Lancaster House.

Several Ministers declared themselves dissatisfied with the method that the right hon. and learned Gentleman proposed, which was simply to go back and read his statement of future intentions and desires and to leave it at that. We have never heard from the right hon. and learned Gentleman why he refused to accept the original request when it was made to him at the Lancaster House meeting—

The Second Deputy Chairman

Order. Will the hon. Gentleman help the Chair by relating these remarks to the Amendment?

Mr. Mendelson

I am concerned with the Amendments which are aimed at ensuring that all treaties, further agreements, and so on that the Community will enter into shall be debated by each House of Parliament before they are considered by the Community. I am adducing as what I consider to be a relevant part of my argument the facts which have never been put in full before this House and which led to the conclusion that it will be necessary at least in future at the end of the transition period that this House should be acquainted with all that goes on in these discussions. That is the burden of my case, and I think that it will be agreed that it is a serious one.

If this information has not been given in the past when the House of Commons was still the House of Commons and we were not members of the Community, there is a grave danger that after we have become members of the Community we shall be given even less information about vital discussions.

I am coming to the end of the case history that I have been giving. It became clear why the right hon. and learned Gentleman did not want to accept what he was urged to do by some of the Ministers at the private meeting at Lancaster House. Then he returned to the negotiations. He never reported fully on them to the House. At the end of these quite difficult discussions, in which he was involved all night, a joint Press conference was held by the right hon. and learned Gentleman and M. Schumann. According to the text published in France at the time and the semi-official text passed by the Quai d' Orsay for French newspapers, the right hon. and learned Gentleman and M. Schumann, sitting side by side at that Press conference, made completely different statements on the results of the sugar agreement discussions. I think that it was the duty of the right hon. and learned Gentleman to report to this House about that disagreement.

The right hon. and learned Gentleman repeated substantially what he had promised the Lancaster House meeting to read into the record. But M. Schumann said that that did not bind the Six and that it bound only the United Kingdom. That was the contrast between the statement given by the Foreign Minister of France—

The Second Deputy Chairman

Order. The hon. Gentleman must realise that this is not a debate on the sugar agreement. We must come down to future agreements.

Mr. Mendelson

I am reaching the end of this case history. I return immediately to the present and to the future.

These different statements were the final summing-up on that morning of the two positions. Those of us who got the information at the time had grave forebodings about the kind of agree ment that the right hon. and learned Gentleman had accepted. They have been confirmed since. This is the governing position today. We now see what probably will be the position under the proposed legislation in some future year in discussions about the future of the sugar producers and of the countries concerned. We must know that this is a matter of the difference between poverty and reasonable prosperity for the sugar-producing countries. We are discussing the future of these countries. To a large extent, we are responsible for these negotiations. They could not negotiate themselves. We had to do it. It was the responsibility of the United Kingdom Government—

The Second Deputy Chairman

Order. The hon. Gentleman must come to the Amendment.

Mr. Mendelson

I am not now returning to the case history with respect, Mr. Mallalieu. I am saying that the United Kingdom Government have to do the negotiating. Although until now I would not have dissented from your directions, I believe that I am now closely addressing myself to the Amendments. It is the continuing position that the United Kingdom Government will have to carry on these negotiations.

If, in those negotiations, the Government find that a one-sided declaration will not be followed by the other members of the Community—what can M. Schumann's statement on that morning mean but the complete repudiation of any responsibility for the statement by the United Kingdom Government representative?—a very grave situation will arise.

One cannot bind future Governments, but that is the significance of these debates. That is why we are concerned about these matters. The duty of the Committee is to see to it that the House of Commons can then say that we require from the Government legislation on these matters. In this case, we would not even get an affirmative Order in Council, because such a future agreement to the disadvantage of the sugar producers would fail under the first part of the subsection and it would not require any Parliamentary activity apart from talk. So what emerges is the absolute and urgent need for the Committee to move ahead and introduce some of these safeguards.

I turn from that to the point of the right hon. Member for Wolverhampton, South-West when he drew his distinction between trivia and essentials. I do not want to engage in any critique of the way in which he put his case—that is not my business, and he does not need any advice from me—but I do not share his view that the Government have so far been inspired purely by the love of Parliament and by their position as excellent parliamentarians. The greatest indictment—this is my personal view—of the Chancellor of the Duchy, the Solicitor-General and the Prime Minister, who are all equally responsible, is that they, who have all been regarded as Parliamentarians of some standing, have failed us. If they had acted as good parliamentarians, we should not be discussing these Amendments. Wishing to join the Community, they would have brought forward a different Bill.

They have so far used the argument about 1,000 or 2,000 Bills having to be introduced, in an attempt to bamboozle the Committee into believing that, because one had to have the trivia in order to have the essentials, one could not have either. Having created this Aunt Sally of 2,000 Bills, they have said that it would be absurd to introduce a Bill for each of these minor items—to make the Committee believe that this was the only choice.

Colonel Sir Tufton Beamish (Lewes)

In what way would a different Bill have made any difference whatever to the Community's treaty-making powers, which were clearly recognised by the Lord Chancellor of the last Labour Government and in the 1967 White Paper?

Mr. Mendelson

Ignore the bits about the Lord Chancellor and the 1967 legislation, because that is the bread and butter of the Committee. The hon. and gallant Member is not with us often enough to know this.

Sir T. Beamish

Will the hon. Gentleman answer my question?

Mr. Mendelson

I certainly will answer the hon. and gallant Gentleman, in my own way and in my own time, subject to the ruling of the Chair and not to his ruling. We are discussing the Lord Chancellor's statement and the 1967 White Paper all the time, but I will not go over the ground with him, because other members of the Committee would not thank me if I did. I come to the treaty-making powers, the essential question put by the hon. and gallant Gentleman, apart from propaganda.

Mr. Rippon

Why does not the hon. Member tell my hon. and gallant Friend that the answer is, "No difference at all"?

Mr. Mendelson

I thank the right hon. Gentleman for being so helpful in devilling for me and trying to answer, but I should like to give my own answer, if I am allowed. The answer is that we are discussing at the moment the Bill introduced by the hon. and gallant Gentleman's Government and party. We are not discussing only the treaty-making powers of the Community. We are discussing the legislation, and I submit—

Sir T. Beamish

We are meant to be discussing an Amendment.

Mr. Mendelson

I do not mind being interrupted. The cut and thrust of debate is all right for the Committee and I do not mind at all. The essential point of the argument is this: we are discussing Amendments to legislation. The treaty-making powers of the Community have been known for a long time. The Committee knows very well that I, at any rate, have never pleaded ignorance, before either the House of Commons or the Committee, on any of these matters; but that has nothing to do with the case put forward this afternoon, for instance, by my right hon. Friend and other hon. Members on this side of the Committee.

It was quite possible for the Government to have introduced a Bill, and it is still quite possible for them to withdraw this Bill and introduce another Bill, which would build into the legislation they have put before us legislative power for the House of Commons to examine and pass judgment on all future treaties that the Community might wish to conclude.

If the hon. and gallant Gentleman comes to my constituency and reads the manifesto of my Conservative opponent as recently as June, 1970, if he goes through it with a tooth comb and can prove to me that he can find there a sentence which say "If you elect me instead of the sitting Member for Penistone we shall not leave any power to the House of Commons to pass on future treaties that the Community, after entry, will conclude", I will buy him the biggest drink he has ever received. The candidates of the Conservative Party—now that the right hon. and learned Gentleman the Chancellor of the Duchy has joined in this shoddy argument—were the people who concealed the real implications of this legislation when they fought the last General Election. There was no beginning of any indication that this was what they wanted the House of Commons to be in future, that they wanted to say that such agreements could not be subject to future legislation.

That brings me to the point made by the hon. Gentleman the Member for Lewisham, West (Mr. J. Selwyn Gummer) who made a contribution earlier but who left the Committee about an hour ago. He told the Committee that it would be a very strange community indeed that would not reserve to itself all these treaty-making powers, and he was talking as if this Parliament was asked to join a Community like the E.E.C. twice every year. He made it appear like a Cup Final, an annual event. He made it appear so simple, and said that it would be a very strange Community indeed which would not have all these powers. The hon. Member for Lewisham, West did not sem to understand that, to put it mildly, we are now discussing the power not only of the Community, but of the House of Commons.

We require a serious reply from the Chancellor of the Duchy of Lancaster whether he is prepared to accept any of the safeguards embodied in the Amendments. We need to hear why the Government are so adamant in refusing Amendment after Amendment. If they are indeed good parliamentarians, if they want to win, as the Italians put it, the benevolence, the captatio benevolentiae, of the House of Commons and the people of this country, and if they want to win the good opinion of the Committee and perhaps advance the progress of their legislation, why does not the right hon. and learned Gentleman get up and say, "I will accept two of the Amendments and we will see whether they improve the Bill by introducing some of the safeguards which are being demanded and thereby make it a much better Bill"? This is the real answer to the hon. and gallant Member for Lewes (Sir T. Beamish). This is probably the optimum point at which I should close, leaving the onus for what I hope will be a serious reply on the right hon. and learned Gentleman.

Mr. Charles Fletcher-Cooke (Darwen)

No one who is a supporter of the Bill—I certainly am—could be honest with himself unless he admitted that we are paying a very heavy price in surrendering parliamentary power in exchange for entry into the Community. I have always recognised that, and so, I believe, did the last Administration. Further study of the famous 1967 White Paper, and so on, confirms me in that view.

Most of the Bill is concerned with the price which we must pay, in view of the negotiations which have taken place, and I think that we should honour our bargain. That certainly goes for the treaties defined in subsection (2)—the present Community treaties and those of the future which are what my hon. and learned Friend the Solicitor-General described as sometimes within the parameters and sometimes within the perimeters. However, whichever it is, I think we know what he means.

The same is true of Clause 2, as far as the regulations are concerned. I, in my humble way, have sought to put down Amendments to make clear the extent of the surrender of parliamentary power which is necessary, because I do not believe that the people, the courts, or anybody else should be under any misapprehension about that. However, it is a price which we must pay, or abandon the whole project. Therefore, the first of these Amendments, to my mind, conflicts with the general purpose of the Bill.

When we come to Amendment No. 83, in the name of my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), a rather different situation arises. That is a price which we do not have to pay, as I understand it. There is nothing in the bargain which has been struck by my right hon. and learned Friend which requires us to abridge our normal parliamentary procedures for the purpose of treaties which are outside the parameters or perimeters, of whatever it is, of the Community treaties. It is only there that Clause 1(3)B arises. By definition, it is only wholly new treaties not within these parameters or perimeters at all. For that purpose, nothing in the bargain requires us to pay this price.

I believe in a commercial approach: nothing for nothing and precious little for tuppence. Why should we be required to pay this price if we do not have to pay it, for it is, as I understand it, a surrender of parliamentary power?

Therefore, in a brief intervention, more in the nature of a question to my right hon. and learned Friend, may I as one who has up to this point wished him very well, ask whether he will tell us that the arguments put forward by the hon. Member for Penistone (Mr. John Mendelson), about how Community treaties ought to go through the mill of the House, really totally conflict with the ethos or the theology, or whatever the right word is, upon which the Bill is based?

9.30 p.m.

Clause 1(3)B, as I see it, does not. There is an abridgment of parliamentary power that is not necessary. If it is not necessary, why is it desirable? Can my hon. and learned Friend explain why it is desirable if it is not necessary? If it is merely convenience, then I think perhaps he is asking this House to swallow just that bit more than he need and just that bit more, perhaps, than is wise.

[Sir ROBERT GRANT-FERRIS in the Chair]

Mr. John Morris (Aberavon)

The hon. and learned Member for Darwen (Mr. Fletcher-Cooke) has raised some very interesting points in his support, as I understand it, of the Amendment of the right hon. Member for Wolverhampton, South-West (Mr. Powell). I will return in a moment to some of the arguments he has raised.

The whole of this discussion stems from two main propositions. The first is that Parliament is being shorn of its powers. This, I hope, is self-evident and needs no further argument. The second—and we have been told that this needs a substantial amount of consideration—is that subsection (3) in some way operates as a shield to ensure that Parliament is able to preserve a measure of power. This brings us to a third argument—the quality and nature of this particular shield, what it is worth and what is its value.

As regards the first proposition, it is obvious to all of us that by the very fact of proposing to enter the Common Market this Parliament is losing its sovereignty, is being shorn of its powers, and we are dealing with what remains. I must dwell for a moment on the first part of subsection (3), in which is set out the Community treaties as they have been before defined, the whole range of treaties on which the Order in Council shall be conclusive, and that is the end of the matter without further discussion. That indeed removes from the ambit of the House of Commons a whole range of treaties.

This brings us to the next question: what is left after having subtracted all that is covered by the first part of subsection (3)? All hon. Members who have read or have been here during the debates on the remainder of the Clause during the past week or so have heard time after time what is regarded and defined as a Community treaty, but I think it would be well to remind the Committee, even at this stage, of all the matters which are Community treaties and would not be subject to the shield for which the Government claim such credit.

It was suggested by one of my hon. Friends that this was a concession in one way or the other. I find that rather odd, but perhaps we look at these matters in a different light. The matters which are regarded as Community treaties are set out in Part 1 of Schedule 1: the E.C.S.C. Treaty, the E.E.C. Treaty, the Euratom Treaty, the Convention signed at Rome on 25th March, 1957, the Treaty of 8th April, 1965, that signed at Luxembourg on 22nd April, 1970, and lastly: Any treaty entered into before 22nd January, 1972, by any of the Communities (with or without any of the member States) or, as a treaty ancillary to any treaty included in this Part of this Schedule, by the member States (with or without any other country). More of what is removed from the so-called shield is set out in subsection (2)(b). The Treaty of Accession having been signed on 22nd January and the decision of the Council of the same date relating to the accession of the United Kingdom…and 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 drives a coach and four through a great deal of the shield. The terms are so wide and comprehensive that they encompass the interests of this country to such an extent that a great deal of those interests are, by definition, excluded from further debate in the House of Commons.

We are passionately concerned with matters affecting trade, for by tradition we are a great trading nation. Nevertheless matters of this kind, as set out in the Bill, are excluded from our further consideration. What remains after various factors have been excluded? All that remains is a treaty entered into by the United Kingdom after the 22nd January 1972, other than a pre-accession treaty to which the United Kingdom accedes on terms settled on or before that date, shall not be so regarded unless it is so specified, nor be so specified unless a draft of the Order in Council has been approved by resolution of each House of Parliament. It seems that we shall be left with the lesser amount of our interest whereas the greater amount will have been covered by treaties or decisions entered into by the Community. What, therefore, is the value, quality and nature of the shield? What protection is left?

I was attracted by the speech of the right hon. Member for Wolverhampton, South-West, supported by the hon. and learned Member for Darwen. They proved that the quality of the power of control remaining to Parliament will be exceedingly limited. Indeed, the only power left in this strictly limited class of treaties will be in relation to provisions which must be ratified by a Resolution of each House of Parliament.

Is it really necessary for the powers of Parliament, for even this limited class of treaties, to be reduced merely to a Resolution in each House? Time and again we have debated Orders in Council in the limited time and by the very limited rules of our procedure. We shall be in the same position in this case, but with extremely important topics. Why should not Parliament have longer to debate such matters? Has it been part of the Chancellor of the Duchy of Lancaster's negotiations that we should be so limited?

Reading the observations of occupants of the Government Front Bench when the example was given of the kind of Community treaties which might be excluded from further deliberation in the House of Commons, one sees that one such example was the treaty entered into with Iran on the import of grapes and caviar; but they ignored the important issues raised by my hon. Friend the Member for Penistone (Mr. John Mendelson), which would be of great importance to countries long associated with ourselves. We are deeply and passionately concerned with the Commonwealth Sugar Agreement. The mention of grapes and caviar reminds one of the Minister of Agriculture and his fixation at one stage with pigeons—or was it peaches? This is the reduction of the matter, an over-simplification of it, trying to bind the House of Commons to the real loss of powers and trying to raise as examples matters of trivia which will no longer concern us.

Therefore, passionately concerned as we are with the interests of the House of Commons to ensure that it has some remaining functions to examine matters of great importance to this country, I commend the Amendment moved by my right hon. Friend. The House of Commons should give serious consideration to the need for longer deliberation, and a much wider and more detailed examination than would be provided by merely discussing a draft Order in Council. The alternative is for Parliament to be heavily shorn of any influence over the real interests of this country.

Mr. Marten

When my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) intervened on Amendment No. 83, he made the point that he was a pro-European, yet I understood him to say that unless my hon. Friend could give good reason he would be inclined to support—I do not say in the Division Lobby but, anyhow, support—Amendment No. 83.

I want to put to the Committee one other aspect about all this legislation. A few moments ago I looked around and counted on our benches no fewer than eight lawyers. It is really to the lawyers that I wish to direct my remarks. I have here an article on the Bill from the Law Society's Gazette of this month. The article is written by David Green, who describes himself as devoted to the cause of European unity and to the entry of the United Kingdom into the European Community. When one reads this article it seems that the whole proceedings through which we are now going could, in the end, be a joke. The joke is, as this eminent lawer says: The refusal of the courts to give effect to legislation which is imprecise or ambiguous…is the keystone of British constitutional theory. My learned and less learned colleagues in the law will recognise that that is the fundamental part of our jurisprudence.

This article then goes on to say: In essence, the whole body of E.E.C. law is to apply in the United Kingdom, and, where it conflicts with domestic law, it is to prevail. That we accept and that we know. This is a notable departure from any historical precedent. In the past the extraterritorial commitment of treaties affecting domestic law has required detailed and specific translation into the language of British jurisprudence before becoming effective internally. The adherence of the United Kingdom to the 1952 Geneva Copyright Convention, for example, was meaningless in British law until its intentions were carried into effect by the 1956 Copyright Act. 9.45 p.m.

I am sure all my hon. and learned Friends would agree with that. The article continues: Neither the language of the treaties nor that of the E.E.C. Regulations renders them capable of being given effect by any criteria known to our jurisprudence. To do it would involve the mating of utterly dissimiliar juridical species. The E.E.C. Treaties and Regulations … are generalised to an extent that would be the despair of a United Kingdom lawyer. Despair is a generous word. It would be to their great profit if we entered, because there would be so much discussion amongst the lawyers about this imprecise law to which our courts would not pay any attention that they should have, as I said last week, quite a bonanza. The article continues: What the proponents of the Bill seem to have forgotten is that ultimately effect must be given—or denied—to the E.E.C. legislation by United Kingdom courts. One can say with a fair degree of confidence that unless our courts suddenly adopt unprecedented canons of interpretation, much E.E.C. legislation will never be given effect. This is the big joke of why we are here passing all this legislation, trying to get all the secondary legislation coming into our domestic law, when the courts, as lawyers present are well aware, will not take very much notice of legislation or secondary legislation which is as imprecise as it is in this Community law.

Mr. Deakins

I address myself briefly to Amendment No. 83 and to Amendment No. 2. I shall spend a little more time on the more substantial of the three amendments, namely Amendment No. 83.

By Amendment No. 28 we seek to ensure that Parliament in future shall be able to approve new Community treaties, that is, treaties made by the Communities without any of the member States, particularly the United Kingdom, as co-signatories.

This is a very important and necessary safeguard because many of these treaties made by the Communities in the sphere of trade relationships are gradually extending the scope, power and authority of the Communities in ways in which many of us, perhaps, would not wish to see them extended. We feel that it is only right and proper that any future such treaties should first have to be brought before the House of Commons before approval can be given to them. That is the main purpose of Amendment No. 28.

Regarding Amendment No. 2, it is not clear—not so much from the Amendment but from the particular provision in Clause 1(3) Part B, which the Amendment seeks to remove—what is behind the words that the Amendment would remove. I ask the Chancellor of the Duchy of Lancaster to say exactly what is meant by those pre-accession treaties the terms of which were agreed on or before 22nd January, 1972. It is not a question put to him my my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer), but if we are to know what we are discussing on Amendment No. 2 we ought to know what those words mean. On the face of it, there surely cannot be any major substantial treaty in existence the terms of which have already been agreed which has not been published and which is not known to the House of Commons; yet the words in Part B of subsection (3) must have some purpose and meaning if they are not superfluous. Can it, therefore, be that these are the words some of us have been looking for to cover those Community secondary treaties which have been entered into by the Communities with or without any member States between 10th November, 1971, and 22nd January, 1972?

We are still awaiting the publication of those Community treaties of the few months between late 1971 and early 1972 when we signed the Treaty of Accession. I hope when the Chancellor of the Duchy of Lancaster replies he will tell us whether this is a correct interpretation of the words which Amendment No. 2 seeks to delete.

My main purpose is to support Amendment No. 83 which is the most substantial of the Amendments. It is perfectly within the powers of the House of Commons to pass this Amendment without in any way conflicting with any of our existing obligations to the Communities. Perhaps this is a point which would appeal to many hon. Members who are pro-Market in their sympathies. We must ensure that there is adequate parliamentary control of new Community treaties. The Solicitor-General said last week that these fell into the categories of "trivial" and "much more important". But we do not know what types of treaties are likely to come under each head when we are dealing with treaties which have not been made and entered into. We can, however, learn to distinguish between trivial and substantial treaties by looking at one or two of the treaties contained in the 10 volumes of Community treaties which have already been published.

The Chancellor of the Duchy of Lancaster alluded some time ago to the fact that trade treaty with Iran was relatively trivial. That is broadly accepted by all hon. Members but there are a number of other treaties of much more importance and significance where one could not apply the epithet "trivial" and where we would feel justified in urging that there should be full parliamentary discussion and consideration of them.

I refer first to a number of categories of Community treaty to which the United Kingdom would be a party in the future and where other existing members of the Community have been co-signatories in the past. These treaties would require full discussion, the ability of the House to amend them and, if necessary, the ability of the House to enact them. They come under a number of broad headings. Some deal with aid and trade with the developing countries which is very important for the future of the world. I do not wish to specify them in detail because I want to come to much more important matters. No one can deny that such treaties, whether treaties in the conventional sense or international agreements, are important both to the future trading relationships of this country with the poorer countries and from the point of view of our moral obligations to those countries.

A number of such treaties, already contained in the 10 volumes, must give cause for concern to anyone who has the interests of the developing countries at heart. There are a number of treaties which seek to implement the generalised preference scheme of the second United Nations Conference on Trade and Development in March and April, 1968.

We find that the Community's attitude to the developing countries, when it comes to imports under a generalised preference scheme, is shabby in the extreme. There is no hint of any generosity. We feel when we look at these treaties, to which we are not yet parties, that the Communities have decided to do the bare minimum to satisfy the U.N.C.T.A.D. requirement of a generalised preference scheme. I hope I have said enough to show that here is a class of treaty which should be capable of full discussion, amendment and, if necessary, enactment by the House of Commons.

There is a second class of treaties, also trade treaties, this time not with developing countries so much as with semi-developed countries and almost fully-developed countries, where the objection that seem hon. Members might have would be not to the actual trading terms but to the political implications. A number of political issues have been raised by several of my hon. Friends. For example, my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) spoke about the treaty with Greece and the treaty with Spain. There are a number of treaties which give at least some hon. Members cause for concern about the future development of the trading relationships of the Communities with the rest of the world. It is only right, therefore, that we should have adequate time for discussing, amending and, if necessary, enacting the provisions embodied in that type of treaty.

I accept that we cannot go back over ground that has already been covered, but we are looking to the future and we have freedom here, if the Government wish, to ensure that these treaties shall be accepted by the House only by virtue of being embodied in legislation.

However, my main purpose in speaking to Amendment No. 83 is to draw attention to an even more important class of treaty, a class mentioned briefly by the right hon. Member for Wolverhampton, South-West (Mr. Powell), treaties which enlarge the scope and power of operation of the Communities. At present such treaties would be subject only to the affirmative Resolution procedure under subsection (3), part B. But there are two which are so important that their very existence shows that in future we must have some provision for legislation on important treaties entered into by the Communities of which this country will be a co-signatory. I refer to two, The Hague Agreement of December, 1969 and the agreement on economic and monetary union.

Last week I briefly mentioned The Hague Agreement. I do not want to bore the Committee by going over that ground again except to emphasise that the importance of that treaty has not been recognised in the House of Commons. Indeed, the treaty has not yet been debated in the House. It certainly was not a part of any of our Common Market debates, starting last July. Yet that agreement, which automatically passes into the law of this country, is typical of a class of Community treaty which we must be concerned about in the future. To begin with, there is a reference to paving the way to a united Europe. That may be just a vague phrase, typical of the vagueness in community legislation to which the hon. Member for Banbury (Mr. Marten) referred, but The Hague Conference was such an important conference that the House would do itself and the people of this country a disservice if it did not accept the implications of what was then decided.

Also in that Hague Agreement the Heads of State agreed to lay down a common financing policy for the common agricultural policy giving the Community its own resources. Whatever one feels about the Common Market and the Communities, no hon. Member could possibly deny—

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

Committee report Progress.