§ Mr. Peter Shore (Stepney)
I beg to move Amendment No. 29, in page 2, line 21, leave out subsection (4).
§ The Chairman
With this Amendment the Committee may also discuss Amendment No. 194, in line 22, after 'agreement', insert:'including an agreement entered into with reference to any of the Community Treaties and signed by one or more of the Member States,'and Amendment No. 31, in line 23, at end add'including declarations and exchanges of letters'.
§ Mr. Shore
Today we confront for the first time the last part of the Clause. We turn again to the vast, almost boundless, scope of the treaty complex, to use the Solicitor-General's phrase, the complex of agreements and obligations which the Government have accepted in the course of their entry negotiations.
558 As we journey day by day through this labyrinth of treaties and agreements, I have the sense of being on a voyage of discovery and exploration. I have also a growing sense of confidence and hope, encouraged not just by the votes last night, by the slender majorities the Government command from their hesitant supporters, but by the daily spectacle of the arguments and assertions of the Treasury Bench being ground to powder in our debates, ground by those very parliamentary procedures of legislative scrutiny that the Bill would, over a large part of our affairs, so mischievously remove.
Day by day it becomes clearer, at least to those who attend our debates—I am glad to see that the number is growing—that the treaties and the Bill embody terms that comprise not only a national defeat—indeed, a humiliation—but a surrender of democratic and parliamentary rights which Members of Parliament can hardly bear to contemplate, rights which have been inherited and defended successfully in our own lifetime, and which we intend to pass on to our successors.
So let the Government not deceive themselves that this matter is in any way settled, and I hope that they will not mislead and deceive the Governments of the Six in this respect. Perhaps it is right that I should make this point today because we have coming to our shores, and, in particular, to Chequers, this weekend President Pompidou of France, who will be engaging with the Prime Minister in very far-reaching discussions, about which we have yet been told virtually nothing, which follow on their previous discussions at the Elysée Palace.
It would be very wrong for the President of France to assume that any of these discussions will be based upon the reality of the Bill passing through this House. I say this deliberately because I think the President of France may so easily be misled by the difference between the status of the French Assembly under its Constitution and the powers of the House of Commons. So, in case there is any further doubt on this matter, let me say that we shall not sit quietly behind what we consider to be the bars of this treaty; we shall not be content to be prisoners in a cage of 559 these constraints; we shall assert the continuing sovereignty of Parliament. I say again that what this Parliament can do a successor Parliament can certainly undo.
The first Amendment in this cluster is aimed, of course, at deleting Clause 1(4), and in moving its deletion we are expressing our very great dissatisfaction with this subsection. We are drawing attention to the fact that in our view it is extraordinarily vague and open-ended. Here perhaps I may make a point of the relationship that may exist between Clause 1(4) and Clause 1(3). I think the Committee will recall that part of our complaint about subsection (3) is that it seems almost to allow Ministers to say that treaties are Community treaties simply because they say that they are. That seems to be the major test of what a Community treaty is. It is, indeed, a very loose restraint around Ministers that is provided by the words of that subsection.
What I rather fear now on Clause 1(4) is that we have in a sense a further refinement of the Clause 1(3) process, for we can now have a situation in which a piece of paper of indeterminate status can become a treaty, and a Community treaty, again because a Minister says so. That is the principal and opening criticism that I want to make of the drafting of Clause 1(4).
What we have tried to do in the associated Amendments which are to be discussed with Amendment No. 29 is to clarify what the international agreements referred to in Clause 1(4) are, what kinds of agreements those words actually encompass. We know, because the words tell us so, that protocols and annexes are included in Clause 1(4), so that should be clear enough. What we have to consider as well as almost a feature of substantial Community documents is not only the main text of the agreements, the annexes and the protocols but the other kinds of half-creatures which fill up so many pages of the text. The half-creatures I am referring to are those things which are called declarations; they may be joint declarations, they can be single declarations; there are exchanges of letters, and here in the Treaty of Accession there is a further category, if I may so call it, which comes under 560 the heading "Procedure for the adoption of certain decisions". All these things are within the compass of the text, and what we want to find out is what their status is.
I should like to say a few words about these various categories, and I may say that there are categories beyond those which are mentioned in the Treaty of Accession. I shall have a word to say about some of those other categories, too, in a moment. But the matters covered here are very important indeed. I am not going to go through the whole lot, because that is not my purpose, but I want to draw attention to what seem to me to be one or two of the most important and most representative.
One of the declarations to which I am referring covers an area of the world which contains, I suppose, about 20 per cent. or one third of the world's population; the whole of the Asian Commonwealth, the whole of the Indian subcontinent and South-East Asia are covered by a declaration of intent on page 117 of this document. It is not for me on this occasion to go into the content of these things, but I think it is scandalous that the whole of the Asian Commonwealth of 600 million people should merit only two paragraphs in a treaty of this kind and that their interests should be put in such a form.
If people want to know what joy they may get from our proposal to accede to the treaty complex, let them look at the words here. All they will get is an agreement or a declarationto examine with these countriesthe Asian countriessuch problems as may arise in the field of trade with a view to seeking appropriate solutions, taking into account the effect of the generalised tariff preference scheme and the situation of the other developing countries in the same geographical area.That really is closing the book on our responsibilities to the Asian Commonwealth with hardly a whimper. But there it is; that is one of the matters covered under the subject of declarations, and I suppose it is conceivable that the people in the Asian Commonwealth area may attach some importance to those words, or they may not. But at least they have aright to know, and we have a right to know, where that declaration stands in terms of its status in relation to the rest 561 of the treaties and matters covered in these documents.
There are other matters, including—and I shall not develop this—the free movement of workers, the definition of our own nationality, which are part of the declarations, and there are a number of other declarations. It is interesting to see the Minister of Agriculture here because the largest single number of declarations refer to matters in which he is presumably deeply involved. They are not very strong or binding declarations, and if anyone doubts that I advise him to have a look at the one on hill farming. It is very cautious indeed, and I do not think it would be likely to give satisfaction to hill farmers.
The next category that I want to get clear is the exchange of letters. There is only one exchange of letters in the document itself, and, as we know, it concerns the question of the sterling balances—a question which I am quite sure the right hon. and learned Gentleman the Chancellor of the Duchy of Lancaster would rather not discuss because it is not exactly one of his strong points. When I say that I do not mean to be in any way offensive to him, and he will agree that it is nevertheless a matter of enormous importance. In this exchange of letters covering the future of sterling and the sterling balances, commitments are entered into which are very far-reaching commitments indeed, however imprecise.
There we have it, that we agree to an orderly run-down of the sterling balances. We agree that they should not increase in the period before they begin to run down. I do not know whether they have stopped increasing. I should have thought that, with the bad management of our national affairs in which the Treasury has so conspicuously indulged in the last year by maintaining interest rates at a ludicrously high level when the dollar has been weak, a great flood of money has come in. I should be surprised, therefore, if the sterling balances had not greatly increased, although not only and not necessarily over a permanent and long period. I suggest that they have perhaps increased contrary to the undertaking understood to have been given when the Prime Minister went to Paris last May.
562 The other aspect of the agreement is the orderly run-down, which is qualified by the assertion that we would have due regard to the effect on our balance of payments. We also have to have regard to the commitment of the Six to establish within a 10-year period an economic and monetary union. To me it is almost inconceivable that we could have an economic and monetary union commitment. It is inconceivable that we should have it in any event; it is certainly inconceivable that we should have it until the sterling balance problem has been finally and securely settled.
We are in a weak and worrying position. We have an open commitment to run down the sterling balances. We know that we shall plunge into the most serious balance of payments problem with ever-increasing severity as we march through the transitional period, and at the end of the day we have facing us the requirement to enter into an economic and monetary union with fixed exchange rates and other of those damaging and difficult commitments at the end of the decade. So this is a very serious matter. We want to know the standing and status of this exchange of letters.
The other matter I would like to get clear, in seeking to understand the various agreements other than the formal treaty, the protocol and annexes, is the status of what is called a "resolution" of the Council of Ministers of the Six. The House will remember that the economic and monetary union commitment of the Six was launched at The Hague summit meeting in December, 1969. It was then put out to the Werner Committee at the beginning of 1970. The Committee made an interim report in June, 1970, and its final report later that year. The position so far is that the Council of Ministers, while broadly accepting this thing in terms of formal procedures, accepted it nevertheless with a resolution in February, 1971. It is not a decision; it is not a directive or any of those other words we are used to in dealing with the vocabulary of decision making in Europe. But it clearly has a status as a resolution of the Council of Ministers.
§ [Miss HARVIE ANDERSON in the chair]
§ 4.45 p.m.
§ Mr. Shore
That is a very important point. I want to be clear whether it is a treaty and to what extent we have entered into a substantial commitment. If it is a treaty in terms of the definitions we are using here, in terms of its binding commitment upon us, how does it differ from other declarations and other forms of words also included in the treaty complex about which we have heard so much? It is very important to get it clear.
I refer to the Treaty of Accession itself. Article 3 contains an extremely important and open-ended assertion of the commitment which the Government have entered into. Paragraph 3 of Article 3 says:The new Member States are in the same situation as the original Member States in respect of declarations or resolutions"—note the words—of, or other positions taken up by, the Council and in respect of those concerning the European Communities adopted by common agreement of the Member States; they will accordingly observe the principles and guidelines deriving from those declarations, resolutions or other positions and will take such measures as may be necessary to ensure their implementation.That is a most extraordinarily open-ended commitment, and it uses none of the formal language of the treaty. It is part of the treaty, but the words used are not the familiar words we have come to recognise as expressing the obligations between States. We are talking now about guidelines, resolutions, objectives, principles, but they are to be as binding upon us as upon other member States. Those who have studied these matters will know that the vast dream world of a recreated Charlemagnean Empire which fascinates and absorbs the Prime Minister is what is covered by those words. They cover virtually every matter which is of concern, socially, economically, politically and in terms of security, to the people of this country. So I want to come to the status and meaning of this agreement as well. I want to know how far the Government feel committed by the resolution of the Council of Ministers of February, 1971, to the formation of an economic and monetary union if this country were to enter the Common Market.
564 I want now to refer to the letter which the Chairman of Ways and Means wrote to my hon. Friend the Member for Acton (Mr. Spearing) in order to help us as to what Amendments were out of order, as it were. He classified certain Amendments into groups. He had a category B which were out of order in his judgment. These included an Amendment which sought to draw attention precisely to the economic and monetary union resolution. My hon. Friend sought to tack that on, as it were, to a part of Clause 1 and discuss it specifically, but it was ruled out of order, with others,because they related to declarations of intent and such like which have no legal force and therefore fall outside the scope of the Bill".I am anxious to have not the observations of the Chair in this matter but the observations of the Government, if they can help us, in order to get clear how they see the matter.
I expect we shall get some reply—I do not know how firm nor how much our enlightenment will be added to—at the end of this debate, I hope that we shall have some help on this because it is very important. So much is brought into these treaties, in the loose sense of the word, referring to the documents in the treaty complex, protocols, annexes, declarations of intent, exchanges of letters and so on, that it is inevitable because it is such a comprehensive complex that we should be struck by the odd things which are excluded. To be excluded from this rag-bag list of woolly pledges, commitments and prospects for the future, is a mark of the lowest possible status in terms of international agreement.
Let us look at the two most conspicuous absentees. I invite the comments of the Government Front Bench on these. The first and most important absentee is the right hon. and learned Gentleman's famous Lancaster House agreement on Commonwealth sugar, which was published in Hansard on 9th June, 1971. That was the occasion on which he said:The British Government and other Commonwealth Government participating regard this offerthat is, the offer of the Communities—as a firm assurance of a secure and continuing market in the enlarged Community on fair terms for the quantities of sugar covered by the Commonwealth Sugar Agreement in respect of all its existing developing member countries. The developing Commonwealth 565 countries will continue to plan their future production on this basis."—[Official Report, 9th June, 1971; Vol. 818, c. 1051.]There is that pledge, not in principle but in terms of the same quantities to follow on at the end of the present Commonwealth Sugar Agreement. I mention this because I do not understand how this document could have been excluded from the rag-bag which forms the treaty complex we have mentioned. The status of this declaration must be low indeed not to qualify to be brought within this complex, not even as a declaration or whatever it may be. It has no status whatever in terms of the treaty complex that we have been talking about. I am very worried about this, and I hope that we shall hear this afternoon a satisfactory explanation from the Government as to why it has been excluded.
There is no question at all that when the Government want to be explicit on a matter and get it clear on the record with the Six they can do so. Anyone who looks at the various documents in the Treaty of Accession could not fail to come at least to that conclusion. I shall quote one point to illustrate what I mean. Heaven knows what the reasons were, but the Government wanted to get the exchange of letters on sterling firmly established beyond a peradventure. They wanted it absolutely on the nail. So the right hon. and learned Gentleman wrote a letter to Monsieur Thorn, the Luxembourg Foreign Minister. He set out what he understood the agreement did, and ended by saying:I would be grateful if you would kindly acknowledge receipt of this letter and confirm the agreement of the Governments of the Member States of the Community…to the above-mentioned document.That is how he went about it when he wanted a firm, clear assurance on the matter of the agreement.
The right hon. and learned Gentleman got a reply, and an exact mirror of his own letter from the Foreign Minister of Luxembourg Grand Duchy, ending with the words:I have the honour to acknowledge receipt of this communication and to confirm the agreement of the Governments of the Member States of the Community…to the declaration contained in paragraph 1 of your letter.It is quite clear that they accepted it. Why could we not have had a similar 566 agreement on the matter of Commonwealth sugar? Why in heaven's name could we not have had it if it meant what Ministers said it meant? That is the first conspicuous absentee from the treaty complex.
I turn to the second, which some may think even more important. All of us who have been involved in these debates over the last 18 months would agree that the so-called doctrine of the national veto on matters of special importance to member States has played a crucial part in the argument, and perhaps even in the exercise of persuasion which the right hon. and learned Gentleman and his colleagues embarked upon on his side of the House and even on this side. They have relied most heavily on this.
We all know that there has been, as it were, a point in the history of the Six where that doctrine of a national veto was asserted. It was asserted in the heyday of power of the late President de Gaulle, and he brought the Community to a stop. There is a document which records the terms, as it were, on which he returned to the Community and agreed that the thing should function again several months after France had walked out. That was the agreement to disagree which was signed in Luxembourg at the beginning of 1966. I should like the Committee to note what it says. This is the substantive paragraph; the comments of the Five and the One follow:Where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the Members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the Members of the Council while respecting their mutual interests and those of the Community in accordance with Article 2 of the Treaty.That is saying that they will try to reach agreement but it does not prejudice the rule of majority vote. It goes on to say:With regard to the foregoing paragraph, the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached.Then it goes on to say:The six delegations note that there is a divergence of views on what should be done in the event of failure to reach complete agreement.567 Finally, it says:The six delegations nevertheless consider that this divergence does not prevent the Community's work being resumed in accordance with the normal procedure.It is on this form of words, which embraces an agreement, that the whole edifice of the doctrine of national veto is founded and on which the Government have based their claims.
This platform, however weak it may be, is the second most conspicuous absentee from the rag-bag of documents that make up the treaty complex. The volumes contain all those matters but not this one, the one which gives whatever credence there may be to the one defensive doctrine which the Government have advanced in all the debates to persuade us that they would not be overborne in matters of serious dispute about the Community once we were a member of it.
I hope that in the explanations and definitions that the Front Bench will give of what is a treaty, what is an international agreement and what is the status of the different kinds of international agreements, they will also tell us why some of the most important matters with which the negotiations have been involved have been excluded altogether from the treaty complex.
§ Sir D. Walker-Smith
The right hon. Member for Stepney (Mr. Shore) covered a great deal of ground with his characteristic industry and thoroughness. I propose to confine my observations almost entirely to the last but most important matter which he raised of the most conspicuous absentee, the so-called Luxembourg Convention, and to refer to it in the context of Amendment No. 31.
I have throughout these debates stressed the necessity of examining closely the definition of treaties largely from the point of view of circumscription. The reason for that is that the "liabilities, obligations and restrictions", to use the language of Clause 2(1), of these treaties give rise to the self-executing regulations which, contrary to all our practice and precedent, will become in every respect directly applicable and binding on this country.
That is not the whole of the story. The language of Clause 2(1), although mainly 568 onerous, is not entirely onerous. In addition to "liabilities, obligations and restrictions", we see in the first line of the subsection a reference to "rights" and in the third line a reference to "remedies". It follows, therefore, if there are rights and remedies, that it is important that they be specified by the Bill and clearly incorporated by definition. As the Bill is drafted the only rights and remedies are those contained in the treaties and enumerated, the 11 categories which the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) was good enough to identify for us last week. It is very important, if we are to have the benefit of the rights and remedies, that all of them, whether identified in the treaties at present or existing only in declarations, exchanges of letters and the like and not as yet part of the Bill, should be incorporated.
Facile princeps in this category of declarations so far omitted is the so-called Luxembourg Convention, a declaration with many names and of mixed significance. The Luxembourg Convention, this record of disagreement, or whatever its proper nomenclature should be, with the so-called right of veto which is said to derive from it, has been consistently paraded before the anxious eyes of Parliament and the people and used to still doubts and calm fears as to the inevitable and sweeping loss of sovereignty which accession to the Community would entail. Over and over again this so-called Luxembourg Convention has been prayed in aid with a view to seeking to show that the rigours of the treaty do not mean what they say, and that reality is not to be found in the rigours of the treaty but in this claimed right of veto which it is said is given by the so-called Luxembourg Convention and guaranteed subsequently by the conversations between the President of the French Republic and the Prime Minister of this country.
The introduction of this theme is clearly stated in paragraph 29 of the White Paper, the "notorious paragraph", if I may borrow an epithet from the hon. Member for Ebbw Vale (Mr. Michael Foot), which states:The practical working of the Community accordingly reflects the reality that sovereign Governments are represented round the table. On a question where a Government considers that vital national interests are involved…569 Then follow these words:it is established that the decision should be unanimous.That is what we were told in July last year. Yet having been told that we must look at the practice as represented by the so-called Luxembourg Convention, having been told not to scan the minutiae of the treaties too closely but to balance them with these practical realities, what do we find in the Bill now that we are being asked to legislate entry to the Community? We find that the treaties are expressly incorporated and accorded a clear statutory right to spawn this illimitable profusion of regulations, but we find on the other hand that the Luxembourg Convention gets no place or mention in these statutory documents.
Even more important than the Luxembourg Convention in a sense are the talks to which I referred and which for convenience we call the Heath-Pompidou talks. The Luxembourg Convention was a record of disagreement. Two views were stated, as the right hon. Member for Stepney's citation a moment ago showed, but the declaration of President Pompidou was an affirmation that the French point of view as recorded in the Convention would prevail; in other words, that the doctrine of unanimity from whence derives the right of veto should prevail. On the faith of that assurance that that would be the position if Britain entered the Community Parliament was asked to approve the principle of entry in October. It was wheeled out as the ark of the covenant. It was the answer to all the doubts and anxieties respecting sovereignty—doubts and anxieties which were deep, widespread and instinctive in the British people as a whole.
Those who have followed the law are familiar with the concept of agreements partly oral and partly in writing, or with the concept of oral agreements evidenced in writing. May not the declarations of President Pompidou come within one or other of those categories—oral agreements evidenced or supplemented in writing? If that be so, should they not constitute declarations which should be incorporated within the meaning of Amendment No. 31? Since so much has been built on these declarations, on the manner in which decisions would be taken, and on the degree to which we 570 would have a right of objection or veto in matters contrary to our vital national interests, perhaps this point could be mentioned in the Government's reply.
§ Mr. Deakins
If the Luxembourg Convention is an international agreement, it therefore ranks as a treaty under Clause 1(4). If, however, it is to be regarded as an international disagreement, it is not a treaty, and, therefore, the right hon. and learned Gentleman's point is very important.
§ Sir D. Walker-Smith
If it is an international agreement it should come under subsection (4) as it stands, but nobody reading the convention could interpret it as an agreement. It is clear from the text, and was abundantly clear from the citation made by the right hon. Member for Stepney, that it is not an agreement in any proper or legal sense. I have always argued that it is wrongly called an agreement. It is a record of disagreement because it states two points of view, but does not decide between them that there is no consensus ad idem between the parties. Therefore, for that reason it would not as it stands come under subsection (4) We require Amendment No. 31 so that it can be brought in as a declaration. It is a declaration of intent—of mixed and unresolved intent—but is indisputably a declaration and would come within Amendment No. 31, though outside subsection (4). I am obliged to the hon. Member for Walthamstow, West (Mr. Deakins) for clarifying that point.
§ Mr. Hugh Jenkins (Putney)
I find myself persuaded by the right hon. and learned Gentleman's argument, but would he deal with the possible answer that he might conceivably be given; namely, that an international agreement to disagree is none the less an international agreement? Would he kindly deal with that aspect? It seems to me that this is the best possible answer that can be given, and perhaps he would deal with that point.
§ Sir D. Walker-Smith
If that is the best possible answer I can anticipate, then I have singularly little to fear. Looking back on a long forensic career, I only wish that every case had been as easy as that. I think the situation is as I put it in answer to the hon. Member for Walthamstow, West.
571 Having had this degree of importance attributed to the Luxembourg so-called Convention, and there having been reference to the importance of the declarations of M. Pompidou, whether oral or in writing, we find none of these things incorporated in the Bill. The harsh words of the treaty alone are in the Bill. Undoubtedly, the Council and Commission may make regulations without restraint of unanimity, and these regulations are to be binding in every respect and to be directly applicable in this country.
Now we are face to face with the realities of the statutory position. We have now come to the practicalities of legislation as distinct from the generalities of October. What do we find? We find that safeguards on which so much reliance was placed in October are nowhere to be found. They are invisible. They are like the emperor's clothes—much talked of but without substance or reality.
Amendment No. 31 would at least do something to put matters right. It would open the way to give statutory effect to such safeguards as the British people think they possess, and indeed have been led to believe they will possess. I have always been doubtful about the efficiacy and practicability of the imposed unanimity rule and right of veto. I gave my reasons for this on Second Reading, and I will not repeat them now. I believe it would be even worse for Britain to enter without safeguards and without any shelter against the harsh requirements of the treaties which the Bill is incorporating into British law.
What is happening here—and this is a grave matter—is that a dangerous dichotomy is developing between law and parctice, between what is specified legally and what is said to be the practical position. We are told the practical position here will provide convenient escape routes from our legal obligations and commitments under the treaties. But will it, when put to the test?
I have been very familiar with this dichotomy in my professional practice over the years. I remember in one of the earliest building contract cases that came to me taking part in a long conference with the builders and instructing solicitors. I said to the builders "In the whole 572 course of these exchanges was there at any time any reference to the conditions of contract?" There was a short pause and then somebody said, "Oh, no. You see, at that time everything was most friendly". The point is that by the time the matter reached me as counsel things were far from friendly and people were looking at the conditions of contract. It was the conditions of contract which prevailed and not the practical working which the White Paper seems to put up in substitution.
The practical men—the sort of men we are invited to see ourselves as—can go a long way in averting their gaze from contractual obligations and in seeking to shrug them off, but they cannot go the whole way. Nemesis limps sternly, if slowly, behind and overtakes in the end. We are being asked to put our country's neck in this noose. We are being asked to avert our gaze from the harsh realities of the treaty and trust to the soothing generalities of paragraph 29 of the White Paper. It would be unwise to do this. What has been proved so often in commercial affairs will prove to be so again in the great affairs of the nation. It is a risk that prudent men would not take in their own affairs, and it is a risk that Members of Parliament are not entitled to take in the far greater affairs of the nation.
I conclude, therefore, that these Amendments, especially No. 31, should be supported. They will help at any rate to close the gap and to redress the balance. The drafting may be criticised. The Solicitor-General may seek to do that. But I repeat what I said in the small hours of this morning. That is not a reason for disallowing an Amendment. It has never been so considered in the House. Matters of drafting are matters for the expert attention of the Government, and they have opportunities in the subsequent stages of the Bill to correct any imperfections of drafting that they may identify. At this stage we are concerned with the principle of the matter, and I say that the principle thrown up by the Amendment is important and right. Therefore, it should be supported.
§ Mr. Jay
It is only courteous to welcome the Solicitor-General back to our debates. There was a time last night when it appeared that he had given up the struggle altogether and that we were 573 faced with the rather grim prospect of every Amendment being answered by the Chancellor of the Duchy of Lancaster. Therefore, we are very glad to see the hon. and learned Gentleman back with us this afternoon, if only for that reason.
The right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) has established plainly that the White Paper of last July, in stating that the supposed veto guaranteed by the Luxembourg agreement or disagreement had been established as a right, was entirely misleading the public. This statement that the right of veto had been established was yet another falsehood in the White Paper and another deception in the long tale of misrepresentation with which the Government presented this policy and the Bill to this House. Therefore, I hope that we shall hear no more about the Luxembourg compromise as the ultimate guarantee of our rights and our national interest in future, unless the Government are prepared at least to write it into the Bill.
The second reason why I welcome the reappearance of the Solicitor-General, even though perhaps it may be a brief one, is this. In this Committee it is the duty of the minority of us who are not lawyers to do our best to understand the Bill. It is the duty of those who are lawyers, especially those who sit on the Treasury Bench, to try to enlighten the rest of us as to what it means.
One problem that we ought to have clarified when considering this group of Amendments is what is meant by "an international agreement". If it is clear to hon. and learned Members on both sides of the Committee, it is far from clear to me. We debate this Amendment under the shadow of Clause 2, which declares that all these obligations, restrictions and binding powers, wherever they are found in a Community treaty, will be obligatory on the courts and on the public of this country.
In approaching these Amendments we have to remember that still we have not got it satisfactorily established in subsection (3) that treaties which are not Community treaties at all cannot be declared to be Community treaties by a Government for the purposes of this Bill. It may be that this cannot be done. But we still have had no satisfactory explana- 574 tion of it. If we cannot get it today, it is one of the points to which we shall have to return when we debate the Question "That the Clause stand part of the Bill", which no doubt is a good way ahead and will not be reached today.
The position is that all these treaties under Clause 2 will have a binding effect. We do not yet know that the treaties having a binding effect will even be limited to those which properly can be called Community treaties. In addition, we now learn that for this purpose a treaty, as in subsection (4), includes any international agreement. To the non-legal expert that opens up a large field, certainly for the future, over and above what are included as treaties in the documents that we have before us already.
In a debate on an earlier Amendment, I was bold enough to ask the Solicitor-General to make clear what constituted an international agreement: did it have to be an agreement between Governments, could it be an agreement between unofficial bodies, could it be an agreement between companies or even between individuals? Though the Solicitor-General got some assistance from the right hon. and learned Member for Hertfordshire, East, I did not find his explanation entirely clear.
The hon. and learned Gentleman said:Yes, I say between governments, between persons who are international legal persons, which can include States or organisations of States in certain circumstances, such as, for example, the European Community, which is an international person and, I think"—That suggests some doubt even in his own mind—such bodies as the International Labour Organisation or the United Nations.A little later, after some help from the right hon. and learned Member for Hertfordshire, East, the Solicitor-General said:That is the effect of what I mean, and that is comprised by the phrase 'any international agreement', an agreement which would qualify as an international agreement, entered into by a person in public international law".—[Official Report, 8th March, 1972; Vol. 832, c. 1531–2.]I hope that the Solicitor-General will help the Committee today by making clear what for this purpose is a person in public international law, assuming for the moment that he got the expression right on that occasion. I take it that 575 this includes agreements between Governments and between governmental organisations. That seems reasonably clear. I presume that it would include the United Nations or agencies of the United Nations, bodies like the O.E.C.D., G.A.T.T., the International Monetary Fund and the World Bank. Are they international persons for this purpose?
In addition, there are many organisations of a semi-official kind which go a good deal beyond those to which I have referred. Would the phrase include what is known as O.P.E.C., the organisation of oil-producing countries, which is a very important political and commercial force in the world at present? Would it include the Pan-Arab League, which, I suppose, is an organisation of Governments? Going even wider, would it include the Vatican and other international religious organisations, which, as far as I know without the help of legal advice, might be called "international legal persons"?
The Solicitor-General appeared to say that it could not include ordinary commercial or industrial companies. The question was raised in a previous debate about whether the international oil companies could be regarded as international legal persons for this purpose, and whether agreements between them and between them and individuals might not, therefore, be classified as treaties for the purpose of the Clause. Would Standard Oil or Shell, for example, count legally as "international legal persons"? Would it make any difference if we were dealing with a commercial organisation in which the Government had a large holding? For instance, would B.P. be in any different position from Shell or Standard Oil?
Where would organisations which are, in effect, State trading organisations and operate on an international scale stand for the purpose of the Clause? I can think of many organisations, British and non-British, which are not only State supported or State owned, but international trading organisations: the British Steel Corporation, the British Sugar Corporation or the Commonwealth Development Corporation. There are many more in existence within the confines of the United Kingdom.
576 Would State trading organisations of Communist countries be classed as "international legal persons" for this purpose? They are trading and industrial organisations, but they are also, in one sense, State organisations. Similar State trading or State purchasing enterprises exist in non-Communist countries, such as the Australian and Canadian Wheat Boards and various other enterprises of that kind whose main purpose is the purchase of raw materials.
We would like to know which, if any, of those different types of organisations would be included as "international legal persons" for the purpose of the Clause. Even if it is only a small minority, it opens up an extraordinarily large area of international agreements which apparently according to the Clause, are classed as treaties and, if classed as treaties, can be declared to imply and involve all the obligations, restrictions and binding effects of Clause 2.
I hope, therefore, that we may have this question clarified by our legal advisers this afternoon so that, at any rate, one portion of this still very obscure Clause may be made rather clearer than it is.
§ Mr. Percy Grieve (Solihull)
No one who has sat through the first three days of our long debates on the Committee stage of the Bill can have failed to be struck by the sameness of the speeches and the points which have been made upon each and every Amendment which has been discussed.
The reason is not far to seek. No one pretends that the Bill is perfect in the way that it sets out what it has to do. No doubt there will be much room for Amendments of a constructive kind as we proceed. However, I venture to suggest that so far all that we have seen is an extended Second Reading consideration of every point which has arisen. The Amendments proposed and the speeches made in support of them for hour after hour by those seeking to make the Amendments—I submit that this group of Amendments is no exception—are really seeking to go behind that which Parliament agreed in principle last October; namely, that this country should accede to the European Economic Community, and, by its vote on Second Reading, that it should seek to do so by giving 577 the treaty which marks our accession the force of law in this country.
§ Mr. Grieve
No, of course not. I am not to be taken as generalising and saying that every point made by every speaker during every minute of our prolonged discussions does not seek for information. I am submitting that each speech which we have heard—the speech which we have heard from the right hon. Member for Stepney (Mr. Shore) in moving the Amendments is no exception—has contained nothing more than an attack upon the principle of our adhesion—[Interruption.] Yes indeed. The principle—[Interruption.] I hope that right hon. and hon. Gentlemen opposite will not interrupt me. I have been present throughout the debate this afternoon and throughout the greater part of the debate yesterday, save when I went out to dinner in the Dining Room. I venture to think that no one in the Chamber has been present for a longer period than I during all our debates.
§ Mr. Richard Body (Holland with Boston)
Does my hon. and learned Friend agree that throughout the debates we have asked question after question after question but have received non-answer after non-answer after non-answer?
§ Mr. Grieve
I cannot possibly accept my hon. Friend's intervention. I pay personal tribute to my hon. and learned Friend the Solicitor-General and to my right hon. and learned Friend the Chancellor of the Duchy of Lancaster who, in long and painstaking speeches, have explained the Clauses with which we have been dealing. Right hon. and hon. Gentlemen opposite may not like what I say, but I venture to suggest that it is the truth and that it is apparent to anybody who has been listening to our debates.
§ Mr. Neil Marten (Banbury)
How does my hon. and learned Friend reconcile that view with the view set out by our right hon. and learned Friend the Chancellor 578 of the Duchy last night when he paid tribute to yesterday's debate for being long, interesting, and very important, or words to that effect?
§ Mr. Grieve
I will not join issue with the Chancellor of the Duchy of Lancaster on that. [Laughter.] Right hon. and hon. Gentlemen opposite may laugh. I am not suggesting that we have not had useful discussions; but for every five minutes of useful discussion we have had 55 minutes of time wasting going behind the principle of the Bill. [Interruption.] The reasons are not far to seek. I recognise the profound feelings of those who oppose our adhering to the Treaty of Rome, but they have brought out those feelings in the debates on these technical Amendments.
§ Mr. John Mendelson (Penistone)
On a point of order, Miss Harvie Anderson. Is it not time, particularly in view of his strictures, that the hon. and learned Gentleman addressed himself to the Amendments moved by my right hon. Friend?
The First Deputy Chairman
That is a matter for the Chair. The hon. Gentleman will have noticed that the hon. and learned Member for Solihull (Mr. Grieve) has been interrupted a good many times.
§ Mr. Grieve
I shall come to the Amendments in good time. The points which I am making are relevant to the Amendments, which I suggest have been yet more pegs on which to hang the general comments which have been made.
I now propose to comment on the speech of the right hon. Member for Stepney in moving the Amendments. He began, as his speeches have begun on Amendment after Amendment, with an attack upon the honesty of Ministers and gave the impression of conjuring up a whole web of suspicion and resentment about the Government's motives in this legislation. However, all this goes behind the principle which we have already determined. This was apparent in the right hon. Gentleman's comments and in the comments of the right hon. Member for Battersea, North (Mr. Jay) on the Luxembourg Convention.
I was sorry to hear my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) compare understandings between great 579 nations, which are the foundation of our affairs, with the position of clients of his who were up against those who had defaulted on a contract which he had considered at an early stage of his career at the Bar. I am second to none in pride in my own profession and in admiration, respect and friendship for my right hon. and learned Friend, but when I hear understandings which are the foundation of relationships between nations compared with the sort of arrangements made between contracting parties one or other of whom may be more or less honest and default, I am irresistibly reminded of something said to me many years ago by one of my friends in my own early days at the Bar—which I do not accept—"A lawyer takes all knowledge for his province and makes it provincial".
§ Mr. English
Surely the hon. and learned Gentleman does not dispute that the law relating to treaties in international law is derived from the law relating to contracts in Roman law, which was basically, as I understood it, the point being made by his right hon. and learned Friend.
§ Mr. Grieve
I am far from saying that treaties at an international level are not contracts between States. So they are. But there are also, and have been throughout history, honourable understandings between honourable States which have been the foundation of international relations. The Entente Cordiale between France and this country, which was the foundation of our relations with France and of the partnership which led us victorious to the end of the First World War, was founded on no treaty. It was an understanding.
If, because they are suspicious and resentful of the arrangements which we are making to adhere to the European Community, hon. Members opposite dismissed understandings as unreliable, they are dismissing what has been the foundation of honourable arrangements between countries for many years past. One cannot but feel behind this kind of comment a fear of change, a Chauvinistic looking backward which is afraid of the change which this country is making.
Mr. J. T. Price (Westhoughton)
If the hon. and learned Gentleman wishes to 580 give the Committee a learned disposition on the philosophical basis of contract law, which seems to be his purpose, he might consider the social contract between this place and the people who sent us here. I want to know, and have been seeking to get to know quite unsuccessfully throughout these debates, where is the authority in contract given by the people of this country. No mandate has been given to the Government of the day to enter into these contracts. The hon. and learned Member is merely talking about machinery and not about the honourable contract which I feel towards the people who sent me here and who did not give me or any other Member any authority to enter into these treaties. If the hon. and learned Gentleman would address himself to that matter, I should be very grateful.
§ Mr. Grieve
The hon. Member takes me to task for dealing with a matter which was raised by the hon. Member for Nottingham, West (Mr. English) who is sitting beside him. For that, I make no apology, because I did my best to answer the hon. Gentleman. As to his relationships with his constituents, I should be delighted to advise him outside this Chamber, but I should be out of order in seeking to deal with that point now.
I am now coming to the Amendment—[Hon. Members: "Hear, hear."] I have been dealing with these Amendments all along, and I have not strayed from the paths of the general discussion on both sides of the Committee. I have listened to speeches which have gone on for as long as 90 minutes on technical matters, to the great tedium of such young people as might have thought we would be having an interesting debate.
On the first of the proposed Amendments, to leave out subsection (4) would be to deprive the Clause of definition. It would then fall into the very vice which so many hon. Members opposite have been criticising. That is the short and irrefutable answer to this point. I was astonished to hear the right hon. Member for Stepney say with regard to subsection (4), "A piece of paper of indeterminate status becomes a treaty because a Minister says so." I think I have quoted him accurately: I wrote down the words as he used them.
581 Yet that same right hon. Member has also put his name to Amendment No. 31, which would add at the end of line 23 the words:including declarations and exchanges of letters".If anything could be vaguer than that, I should have to look a long way to find it. This shows the contradictory nature of the statements of the right hon. Member for Stepney.
The Amendments are very much of the same quality as many others which we have discussed. They contribute nothing to the Bill as an effective means of doing what Parliament has decided to do, and I for one shall oppose them.
§ Mr. English
That speech by the hon. and learned Member for Solihull (Mr. Grieve) was somewhat arrogant—
§ Mr. English
I am coming to that point.
For an hon. Member opposite to accuse hon. Members on this side of a fear of change is a remarkable thing in itself. I was always under the impression that there were at the moment, alas, more Conservatives on his side of the Committee than on mine.
I fail to understand the hon. and learned Member's first point in comparison with his last. His first was that every speech that he had heard was the same, that they were all Second Reading speeches, hanging general principles upon the pegs of Amendments. Yet he ended by saying that he had sat here for hour after hour listening to us discuss technical matters. But technical matters must be points of detail and the very opposite of Second Reading speeches.
§ Mr. Grieve
I accept that I said that Second Reading speeches were being hung upon the peg of discussions of technical Amendments. I do not accept that I said that all speeches which we had heard were Second Reading speeches.
§ Mr. English
The hon. and learned Member corrected himself on that point, after hon. Members on both sides had pointed out that he was wrong. But I should like to turn to more important personalities.
Like my hon. Friend the Member for Putney (Mr. Hugh Jenkins), I am most 582 pleased to welcome back the Solicitor-General—
§ Mr. Jenkins
To correct the situation—I would not normally bother—may I be allowed to say that I do not particularly welcome back the Solicitor-General?
§ Mr. English
I deeply apologise to my hon. Friend for attributing such a view to him.
Last night, when listening to the speech of my right hon. Friend the Member for Stepney (Mr. Shore) and his dissection of the difference between what the Solicitor-General had said in a previous debate and the truth—a dissection amply confirmed later by the Chancellor of the Duchy's accepting my right hon. Friend's view—I began to think that we were in a strange situation. We seemed to have with us a monster named Geoffrey with two heads, one answering in one voice in one debate and the other answering in another voice in the next debate.
In response to my remarks last night the Solicitor-General said that he would not answer my questions about the law of treaties because he wanted to do so when answering the points made on the Amendment now before the Committee. I trust, therefore, that he has prepared a good answer for this occasion.
I accept what the learned author Granville Williams once said that a good lawyer is not necessarily one who knows more about the law than another person but one who knows better where to find it. I trust that the hon. and learned Gentleman has found out all the answers to the points that were raised yesterday. I have a few additional questions to ask him and I trust that when replying he will not fob me off with promises of later answers.
Why is this subsection in the Bill? In other words, what at present is a treaty in British law, since I presume that the object of the subsection, the elimination of which we are discussing, is to change the definition of a treaty in British law, for it has no relation to international law or, as far as I understand it, to the law of the Communities.
583 The Convention on the Law of Treaties to which I referred yesterday—I did so because the Solicitor-General quoted it as evidential—defines a treaty as:An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".That would obviously include an exchange of letters. Equally obvious, however, is the fact that for some purposes Her Majesty's Government wish to extend the normal definition of a treaty to include items which do not fall within it. We can only assume that they wish to include, for example, matters not in written form or matters not governed by international law.
The main restrictions on the international definition are that it must be in written form and be governed by international law. Presumably, therefore, we are considering one of those two restrictions; and if the Government are thinking in terms of international law, then this subsection is designed to extricate them from some difficulty. Perhaps they are trying to define a treaty in more extensive terms in British law.
Nevertheless, there seems to be behind this subsection a desire to include oral agreements, and last night I mentioned the obvious and great one of the Heath-Pompidou agreement. Presumably, to enforce such an agreement one would need evidence of it. Heads of Government and State do not meet alone. Usually they require interpreters, and have many officials with them. They also normally require someone to take and transcribe a record of their conversations, because they are too important to be left to their recollection.
However, they met in secret in the sense that the public at large do not know what the agreement is about. We still do not know to this day what the Prime Minister agreed with the President of France in relation to the Community. I asked this question on two occasions yesterday of the Solicitor-General, but I have not yet had an answer. I want to know whether any part of that agreement related to the practices of the Community. The communiqué said that they reached "a complete identity of view on the working" of the institutions of the Community. Does that mean that we shall always take 584 the French dictatorial line rather than the line of, say, the Dutch or the Germans? I have no doubt that the Solicitor-General has been instructed not to answer this question for fear of explaining a portion of a secret agreement.
An important factor puzzles me. Under this Clause, and particularly under this subsection, the decision whether an item is a treaty is the Government's alone, and it seems that the effect of this provision is to give the Government the extraordinary power of acting illegally under the law of the Communities, which we may be about to join. Meanwhile, in Clause 3 the courts are instructed thatFor the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).They are to follow Community law, the principles laid down by, and the relevant decisions of, the European Court.
This means that in respect of any Community instrument—later this is defined as any instrument of any of the Community's institutions—they are to follow Community law. Presumably, therefore, it does not make any difference whether or not we declare something to be a treaty. Indeed, the hon. and learned Member for Solihull may be interested to learn that all our discussions are perhaps a waste of time in a sense greater than he meant because we are instructing the courts to follow Community law and, in effect, to obey any instruments and decisions of Community institutions—"Community institutions" are defined in extremely wide terms later. Presumably a Community treaty is such an instrument; a decision of the Council of Ministers must be such an instrument and, in the appropriate terms of Community law, any document of the Council of Ministers or of the Commission or Assembly are to be enforced in the law of this country.
One therefore wonders whether this part of the Bill has a purpose other than one, which is to leave the Government with complete power to decide all these matters for themselves. It is not even a question of the Government's having to come to the House of Commons for a mere Order in Council approval. They can simply 585 agree these matters with other States inside a Community institution, because it will then be a Community instrument which must be enforced in English law.
§ [Sir MYER GALPERNin the Chair]
§ 6.0 p.m.
§ So one wonders what the relationship is between all these matters. A very good example is that mentioned by my right hon. Friend the Member for Stepney—the Luxembourg agreement. What are the Government going to do if they conclude an agreement with, say, the President of France, saying that they have a complete identity of view on the working of the institutions? That includes the Luxembourg agreement, presumably. But I should have thought that there is no doubt that in Community law the interpretation of the other five members of the Community is the interpretation that would be upheld by the European Court. The European Court is bound to uphold in simple, straightforward terms what is decided in accordance with the treaties. Under them, things are decided by a certain majority. All this is specified, and there is a residual clause which says that if it is not otherwise specified matters are decided by a simple majority of States. So all possibilities, including the residual possibility, have been covered.
§ Mr. Deakins
Would my hon. Friend bear in mind that the Luxembourg Convention may not be a Community treaty or instrument, and therefore may not be susceptible of interpretation by the rest of the Community or the courts of justice? That would be a very serious situation.
§ Mr. English
I am aware that the Council of Ministers discussed something in secret—something that has never been totally published—because I am aware that at the time of that decision M. Harmel, the President of the Council of Ministers, came to the Assembly and gave his views, starting off with "personellement"—saying that personally he believed that there was a particular interpretation, the implication being that somebody else did not. But at the time there was no clear indication of the Council's views, because it could not reach unanimity on its views and had decided not to say. The nearest analogy would be for a Cabinet Minister to come before us and say, "Personally, I believe it is 586 so, but I am not telling you whether or not the Cabinet has agreed it".
Going back to the Luxembourg Agreement and the Heath-Pompidou Agreement—is the Solicitor-General going to tell us this time whether, as was stated, there is a complete identity of view on the working of the Community institutions? Does that mean that he accepts the French view of the Luxembourg Agreement, or does he accept the view of the other five? And if he accepts the French view, will he tell us whether he thinks that view is lawful under Community law?
§ Dr. John Gilbert (Dudley)
As everybody is making a few informal remarks at the start of an address to the Committee on this Amendment, I should like to welcome the representative of the Liberal Party. It is the same representative of the Liberal Party that we have had all along. He is the only one who seems to be taking a consistent interest in our proceedings. I am sure that he will bear in mind the remarks made at the weekend by Professor Dahrendorf, one of the leading liberal Europeans, or European Liberals. He said that when a liberal party gets larger, the larger it gets the less liberal it becomes.
I would have addresed a few remarks to the hon. and learned Gentleman the Member for Solihull (Mr. Grieve) which would have been some assistance to him with his constituency association, but as he is not here I shall have to deny myself that pleasure.
I want to make just one other reference to remarks made earlier today, including what was said by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith). He was discussing explicitly the importance of what is down in black and white in treaty form, because one never knows when one may need to rely upon the clauses of the contract. Of course, matters of this sort have been the stuff of our debates. The right hon. and learned Member did not cite a clear example in international law, as I recall; he just cited one out of his own vast legal experience. I put it to him and the Committee that we have a very clear and important example of the sort of thing that he was talking about, in international terms, in connection with the agreement this country 587 entered into for the manufacture of the Concorde aircraft, because at the time that that agreement was entered into there was no thought on the part of the British Government that it might be necesary to make provision for a cancellation clause.
It is not my purpose today to enter into the merits of the question whether we should have proceeded with the manufacture of the Concorde, but I submit that one thing is clear beyond peradventure: various British Governments have from time to time considered the desirability of not proceeding further with that project because the vast sums of money that we were having to pay for it were becoming cumulatively very burdensome on the national ecenomy, but every time they considered whether or not to withdraw from that contract they found that there was nothing in it that enabled them to do so. Even in the business of friends it is essential to get clear exactly what is in the agreement.
I turn briefly to the subject of Amendment No. 31, on the exchange of letters. I shall confine my remarks to the exchange of letters on monetary questions, beginning on page 107 of the document on the Treaty of Accession. This is a remarkable exchange of letters. If my secretary had been responsible for conducting my correspondence in the way in which the Chancellor of the Duchy of Lancaster and the Minister of Foreign Affairs of the Grand Duchy of Luxembourg exchanged theirs, I do not think that I should have got much work done. The Chancellor of the Duchy of Lancaster writes a long and detailed letter to the Minister of Foreign Affairs of Luxembourg and back comes the reply of M. Thorn to the Chancellor of the Duchy:Your Excellency,You were good enough to make the following communication to me in your letter of today's date:Then he merely repeats the whole of the letter. That seems to me an extraordinary way of doing business. The only thing that he does say is,Please accept, Your Excellency, the assurance of my highest consideration.If we are going to conduct our correspondence with Community Ministers in that way we shall have a deluge of paper and time-wasting bureaucracy hitherto unknown even in this country.
588 To come to a more serious and substantial point: the first paragraph of the letter of the Chancellor of the Duchy of Lancaster of 22nd January reads:At the Ministerial Meeting of the Conference on 7 June, 1971, it was agreed that the declaration on monetary questions which I made at the Meeting should form the subject of an exchange of letters…That is the letter's only reference to an agreement. The agreement in the mind of the Chancellor of the Duchy was, apparently, that there should be an exchange of letters. He goes on to say that the exchange of letters should be annexed to the Act concerning the conditions of accession. Nothing in the letter says that the declaration contained in his letter was itself agreed. The only agreement as far as the Chancellor was concerned was that letters should be exchanged.
M. Thorn's letter—going beyond the part which merely repeats the Chancellor's letter—contains the following substantive contribution:I have the honour to acknowledge receipt of this communication and to confirm the agreement of the Governments of the Member States…to the declaration contained in paragraph 1 of your letter.That is at the top of page 109. So now the agreement has been metamorphosed from one in the mind of the Chancellor of the Duchy as an exchange of letters into one on behalf of the member States and the Governments of the Kingdom of Denmark, Ireland and Norway to the declaration contained in paragraph 1. So be it. We appear to have two separate agreements.
The interesting thing is that at some stage in the game we clearly had only an oral agreement. That is why the provisions of Clause 1(4) are clearly in need of clarification. It is not specified whether an international agreement embraces both oral and written agreements. What we need to know is precisely the significance of this exchange of letters. That is why Amendment No. 31 is on the Order Paper. If this agreement is to be enforced in time, and if it is part of the consideration for our being admitted to the Community, why is it merely here in the form of an exchange of letters? Why is it not part of the Treaty of Accession, or one of the protocols? Why is it the only subject singled out in Cmnd. 4862, Parts I and II, under the heading "Exchange of 589 Letters"? It surely cannot be because the subject of this exchange of letters is unimportant.
It will be within the recollection of every member of the Committee that the Chancellor of the Duchy had to make a statement about this exchange of letters or the declaration of intent that falls within them. It is within the memory of everyone that the French Government have found the undertaking in the first two sub-paragraphs of paragraph 1 of the Chancellor's letter a matter of supreme importance, and though we have never had it absolutely clear that it is part of the consideration for our being admitted—at least in terms of a concession of that fact from the Government Front Bench—the fact that it is in this volume is clear enough indication that that is the way it should be regarded.
It takes very little knowledge of contemporary economic history to know that the French Government have always been jealous of the world status of the two reserve currencies—the dollar and the pound—and that they have engaged in a sustained and protracted campaign to reduce their status. I make no criticism of this activity, but just observe it as a fact. Therefore, we ought to draw our attention closely to exactly what is conceded—if that is the right word—in this exchange of letters. Sub-paragraph (a) reads:We are prepared to envisage an orderly and gradual run-down of official sterling balances after our accession.The word "envisaged" caused me similar difficulty to that which the right hon. Member for Wolverhampton, South-West (Mr. Powell) had with the word "ancillary" a few days ago. The word "envisage" can mean a great many things. The Government ought to make clear whether "envisage" really means "encourage", or means that the Government will sit back passively watching a rundown of our official sterling balances or even take deliberate steps to bring about such a rundown.
Mr. J. T. Price
May I suggest to my hon. Friend that the Government may merely wish to contemplate the rundown in a remote sort of way?
§ Dr. Gilbert
I am most grateful to my hon. Friend for that contribution. No doubt it will have been taken on board 590 by the Government and we shall have their views as to how we should interpret "envisage" before we end our discussion of the Amendment.
We have had no proper discussion in the House of Commons of this exchange of letters, except that which we are able to have on the Amendment. No one can suggest that this is not a matter of vast importance, because the official sterling balances, as could easily be submitted, are part of the very cement of the Commonwealth and, with the exception of Canada, those countries which hold official sterling balances are very largely co-terminous with the Commonwealth. It is understandable that a great deal of the trade connections that flow between Commonwealth countries and Britain are based not just upon the fact that they have Commonwealth preference but on the existence of a monetary system which is tied in with ours in the sterling area. To run down the official sterling balances as an act of policy would be more truly destructive of the existence of the Commonwealth even than the abandonment of Commonwealth preference in its present attenuated form. Yet we have no clear indication of the significance of this exchange of letters, and how binding it is on Britain with implications of that sort.
I briefly explore some of the further implications of winding up our official sterling balance position. Sterling balances have not been the great drag on our economic independence that has so often been put to us by hon. Members of different parties. The idea, sold to the House by the Chancellor as a great relief, was that we should be able to rid ourselves of some incubus if we managed to run down these balances. That view holds an echo on this side of the Committee. I am not persuaded of its force. I would not go so far as to be adamant to the contrary, but the case has by no means been made for so drastic a step as that.
The pattern of the movement of official sterling balances over the years has been remarkably steady. The title to them has fluctuated from time to time, as between different holders—one country's holding having risen as another's has dropped. But by and large the total of official sterling balances has been a remarkably 591 stable factor in our international balance of payments. Very few of the sterling crises from which this country has suffered have in any way been attributable to movements in the official balances. The difficulties that we have had have normally involved movement of capital rather than a basic weakness in our trading position, even with respect to movements of short-term, privately owned capital and usually capital that has been in the hands of holders outside the sterling area, and various other factors—the leads and lags of trade and short and forward selling by holders of sterling who anticipate movements in the rate; but the official balances—the subject of this exchange of letters—have been a very modest matter of concern to British Governments since the war. It has been held that we have been inhibited in certain of our policies because of the existence of these balances, even though they may not have contributed greatly—
§ Mr. Peter Rees (Dover)
On a point of order. In case I should be fortunate enough to catch your eye in the debate, Sir Myer, I should be grateful for some guidance. Is it in order, on the Amendment, to discuss the rôle of sterling as a reserve currency?
The Temporary Chairman
As long as it is just a passing reference—which I think the hon. Member for Dudley (Dr. Gilbert) is making. I hope that the hon. Member will then come to the Amendment proper.
§ Dr. Gilbert
I am grateful to you, Sir Myer. This matter is a consideration of the hon. and learned Member for Dover (Mr. Peter Rees). We are talking about a very important matter which, to all appearances, the Government are trying to smuggle through under the heading of an exchange of letters. The Committee has a right to know whether this constitutes a treaty binding on the Government. It is in the same volume as everything else—the declarations and protocols—and there is bound up in the middle an exchange of letters dealing with matters of the most profound importance.
It is fundamentally unsatisfactory that we should not know exactly the status of this exchange of letters.
§ Mr. Spearing
There is a declaration in the same volume where the words:recorded his agreement to this statementare used. Would my hon. Friend tell me whether the word "agreement" is used in the exchange of letters? If it is used in the right context, does that not imply that the exchange of letters amounted to an international agreement, and therefore came within the terms of subsection (4)?
§ Dr. Gilbert
I am most grateful to my hon. Friend the Member for Acton (Mr. Spearing), who is far more expert in these matters than I. The term "agreement" occurs twice in the exchange of letters. First, it is in the letter from the Chancellor to the Minister of Foreign Affairs in Luxembourg, where the agreement appears to relate merely to the fact of the exchange of letters rather than to the content of the declaration which is the subject of the exchange. The word is also used in the right hon. and learned Gentleman's letter and then it is repeated, because his wording is incorporated in the Foreign Minister's letter, which says:I have the honour to acknowledge receipt of this communication and to confirm the agreement of the Governments…to the declaration contained in paragraph 1 of your letter".I am trying to establish that this is a matter of the most profound importance, on which we have had no guidance from the Government. We do not know whether there is a binding obligation on the British Government to run down the sterling balances. If there is, we have been no indication of the way in which it will happen. We know that in paragraph 1(c) of the exchange of letters the Government have said, on page 107:In the meantime we shall manage our policies with a view to stabilising official sterling balances in a way which would be consistent with these longer term objectives".These are extremely anodyne phrases. They could cover a very great deal. It would be helpful to have an indication from the Government of what policy steps they consider themselves bound to in terms of the agreement—if it is an agreement—contained in paragraph 1 (c) of the exchange of letters. Together with the proposals for economic and monetary union, this has some of the most far reaching implications for this country under the Treaty of Accession. It is a 593 matter that has been given far less attention than it merits.
We have been given to understand that the possession of these sterling balances was a great incubus upon the country. We have found our freedom to manœuvre and our ability to change our exchange rate, when it was absolutely vital in the country's interest to do so, severely restricted. We were told that we could not do so because a great many of the sterling area countries, particularly the less-developed countries, held so much of their exchanges in sterling balances that if devalued they would suffer a grevious loss. The remedies that are now being suggested—
Mr. J. T. Price
I would very much like to hear my hon. Friend's views as to how this principle applied to the Persian Gulf Sheikhdoms, for example, who were very large holders of sterling balances for long periods. They were technically underdeveloped but economically they were some of the most powerful small States because they were the foundation of the power needed by the developed countries.
§ Dr. Gilbert
I am grateful for your guidance, Sir Myer, and for the point raised by my hon. Friend the Member for Westhoughton (Mr. J. T. Price), but I do not intend to follow him in it.
We need much more information about the proposed remedy that the sterling balances should be funded in some way. This is not in the exchange of letters, but we need more information because it is one of the least explored implications—for this country and the Commonwealth—of the Treaty of Rome. We have no idea to what extent the declaration embodied in the exchange of letters is binding upon this country. We have always heard that because of the existence of the sterling balances we should be unable to have the degree of international independence that we want in terms of being able to move our own exchange rate when it is vital. We are being asked to surrender that independence under the proposals contained later in the Bill for economic and monetary union.
The exchange of letters, taken with those proposals which are the inevitable 594 consequence of our intended entry into the Community, are matters of supreme importance, and it is totally unsatisfactory that they should be embodied in the document. We have not the faintest idea of its significance, and it is time that the Government made it clear whether they regard this as a treaty and an international agreement under the terms of Clause 1(4).
§ Mr. Powell
I should be happy, but on some other occasion, to explore with the hon. Member for Dudley (Dr. Gilbert) or with any other takers the past of the sterling balances and their ramifications; but I am more concerned now to do the two things which I think are the main objects of the Amendment. The first is to elucidate the precise meaning and extent of the definition in Clause 1(4), and the second is to throw up, as did my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith), the more profound matters that are involved in the definition and specification of a "treaty" for the purposes of the Bill.
I regret, but I am sure he has very good reasons, that my hon. and learned Friend the Solicitor-General did not seek to intervene at an earlier stage in the debate, because it would have been helpful—although we have the benefit of his statement on 8th March on the meaning of the term "international agreement"—to have heard his explanation of the subsection at greater length. In the absence of that explanation I can only put some of the difficulties which I feel in an interrogative form and as dilemmas rather than as positive observations.
Perhaps I can crystallise these difficulties most conveniently by referring to the appendix, already frequently mentioned in these debates, to the Treaty of Accession. In Cmd. 4862 vol. 1, there is a long list of instruments headed "Community Treaties and Related Instruments". What I find difficult to decide is whether all the instruments specified in that index are international agreements—I am sure that some are—in such a way as to bring them within the definition of "treaty" for the purposes of subsection (4).
§ Mr. Deakins
I think this point might have been answered by the Government 595 in publishing the 10 volumes which included all the instruments set out in the appendix to which the right hon. Member has referred under the general heading on each of these 10 volumes, "Community Treaties".
§ Mr. Powell
That may be so; but it is difficult for the Committee to rely upon the title of a Command Paper, or, indeed, the title of an appendix in interpreting the Bill, and I think we are justified in pursuing the matter in order to be absolutely sure. Certainly my hon. and learned Friend the Member for Solihull (Mr. Grieve) experienced some difficulty; for he ended his speech with a criticism of Amendment No. 31 on the grounds that it was intolerable, or at any rate objectionable, that a mere exchange of letters should be brought within the scope of the subsection.
§ Mr. Grieve
In saying that, I meant any exchange of letters, and the effect of Amendment No. 31 would be to make any exchange of letters, irrespective of their content, subject to subsection (4).
§ 6.30 p.m.
§ Mr. Powell
With great respect to my hon. and learned Friend, I do not think it would, because subsection (4) is subordinate to the definition of "Community treaties" in the rest of the Clause, and the exchange of letters would have to be related to the Community and its affairs in the manner specified in subsection (2).
But the point I was making was that we do find in this list of instruments at least two exchanges of letters. Admittedly, those exchanges of letters are between bodies which my hon. and learned Friend the Solicitor-General on 8th March thought—he was not sure—might be international persons capable of making a treaty, because he gave instances of legal persons and included:…I think, such bodies as the International Labour Organisation…"—[Official Report, 8th March, 1972; Vol. 832, c. 1531.]So it may well be that F.A.O. and the International Bureau of Weights and Measures—which is one of the parties to the exchanges of letters in the Appendix—are international persons for the purposes of the subsection. Nevertheless it is somewhat surprising that the exchange of letters there specified should be an 596 international agreement and thereby a treaty for the purposes of the Bill.
But when we look further into the list in the Appendix we find more surprising matters. We find, for example, on page 141, a final communiqué of a conference of Heads of State and government. I suppose it is arguable that the Heads of State can be contracting parties to a treaty, and that therefore a communiqué about their conference is an international agreement and thus a treaty.
The next item on the very same page is aresolution of the Council and of the representatives of the Governments of the member States concerning the attainment by stages of economic and monetary union".Again, it may be that the persons participating in that resolution were international persons and that the same consequences follow. I can only say that even these instruments would, I think, fall outside the normal concept of an international agreement.
Much more difficult and much more relevant in practice are other items which occur on the previous page, page 140, of the Treaty of Accession. I will read one of them only:Decision of 21 June 1971 of the representatives of the governments of the Member States meeting in the Council"—I select for special emphasis the words "meeting in the Council"—on tariff preferences for certain iron and steel products originating in developing countries.Here, surely, is the act of a Community institution. As a decision taken by the representatives of member States "meeting in the Council", it is a decision of the Council. It seems wildly difficult to envisage that acts and decisions of the Council, just because the representatives of the member States are "meeting in the Council", are international agreements and therefore treaties for the purposes of subsection (4).
Therefore we have this dilemma on the wording of the Bill, a dilemma which I hope my hon. and learned Friend the Solicitor-General will clearly resolve. It may be that some of these items are not international agreements and therefore not treaties. On that hypothesis, the question that follows is: suppose that some of them are to have effect in the law of this country—as, for example, tariff quotas and tariff preferences in the case 597 I have mentioned—and require law to be made which will govern the behaviour of the citizens of this country? How then, if they are not brought within the scope and action of treaties under the Clause, are those decisions to be made effective in the law of this country? There seems in that case to be a serious gap. Are they to be made effective by some other method outside the mechanics of the Bill? Are they to be made effective by ad hoclegislation or subordinate legislation? That seems to me to be the difficulty, unless we say that every one of those documents, so disparate in their character, so difficult in many cases to recognise as international agreements, is nevertheless an international agreement.
Then I take the other prong of the dilemma. Suppose that my hon. and learned Friend's answer is, "Yes, these are all international agreements. All these exchanges of letters that are mentioned are international agreements; so are those decisions of the Council; so are the communiqués of the conference; and so are the resolutions." He may say, "Everything that you find in that Appendix is an international agreement, is therefore a treaty and has all the effects of a treaty under the Clause". I must confess that in that case I still find myself in a great difficulty, one which I think my hon. and learned Friend the Member for Solihull will share to the full.
This is a list which relates to the past, a list of the agreements and instruments made before accession. If they are treaties, these are part of the definition of "pre-accession treaties". But the Clause does not only refer to the past; it refers also to the future. If these can be treaties for the purpose of the Bill, then so can any exchange of letters which the Government in future may choose to regard as international agreements, and so attain the full force and effect in the law of this country which attaches to Community treaties as defined in the Bill. The point made by my hon. and learned Friend the Member for Solihull was very apposite. He asked, "How are we to know what exchanges of letters will in future be elevated to this power and importance?"
So, on either view, we are in a great difficulty. On either view we are liable to find that the effect of the Clause is 598 to give a Government of this country in the future very wide discretionary and arbitrary power as to the way in which they use the Bill to change the law of this country and impose duties upon its citizens. I hope my hon. and learned Friend the Solicitor-General will address himself very seriously to that difficulty.
The matter goes further than mere definition. Here I return briefly to the point made by my right hon. and learned Friend the Member for Hertfordshire, East and other hon. Members. It goes to the fundamental sense of the term "treaty" as the basis of what we are doing in the Bill.
I suppose the two basic treaties for the purpose of this Bill are the Treaty of Rome and the Treaty of Accession. "Yes", says my right hon. and learned Friend, "but when you read the Treaty of Rome to which this Bill enables us to accede—for our accession to which this Bill is indispensable—and when you look at the various articles of that treaty, you must not take account of what you read: you must take account of something else." We must take account, for example, of what has been ironically, but I think not inaccurately, described in these debates as the Luxembourg disagreement. So in order to know what it is by which we as a nation are going to be bound and from which all these consequences will flow for the law of this country we are invited to look both at a treaty which is a treaty and is before us and also at a document or agreement which may or may not be a treaty but which certainly is not formally before us.
I believe that my right hon. and learned Friend, in posing that difficulty which really goes to the heart of our resistance to what is called for in this Bill, threw up a profound contrast between the acceptance of law in this country and the acceptance of law in the European Economic Community. Here I repeat what I said last night: in drawing attention to a difference one does not depreciate, and in what I am about to say I mean no atom of disrespect to the legal systems or the forms or manner of government of our neighbours on the mainland of Europe. But I say this, that not only the attitude of this House but the instinctive and habitual attitude of the people of this country towards law, towards the words of a statute, towards the context 599 of an obligation, is not shared on the other side of the Channel. The approach is different.
Recently M. Malraux published a little book in which he recorded some of the last sayings of the late President de Gaulle, and one of those sayings struck me very deeply. It was where President de Gaulle, in reflective mood, said:One of the great qualities of the Scandinavian and the Anglo-Saxon peoples is their respect for law.Now, in drawing that contrast with the Latin peoples, with the peoples, broadly speaking, of the European Economic Community, General de Gaulle was not, I am sure, depreciating them; he was simply taking account of what is a marked difference between ourselves and them. It is a difference which is very apposite to the powers, the procedure and the very life of this House. The attention of this House to the wording of statutes, the jealous care with which in these debates we are scrutinising every word of every Clause in this Bill, is not hair-splitting, still less is it time-wasting; it is due to the fact that in this country a law, an Act of Parliament, once made, is respected precisely as it is textually.
What a contrast, to be told of the very basic treaty to which we are to accede, "No, you will not need to worry about the wording; you will not be bound, you will find, by the terms of that treaty; you need take no notice of part of this article or that article, because there has been an agreement between certain Heads of State, which is not a treaty at all. It is that of which account will be taken." There is a fundamental incompatibility between that approach to law and obligation and the approach to law and obligation which is traditional in this country, bred into the bone of this country, and essential to the work of the House in legislation.
So I think it was right that my right hon. and learned Friend, while calling for an elucidation such as we have not yet had of the precise meaning and extent, not only now but for the future, of the definition in Clause 1(4), should also have pointed to the larger background and the contrast between the vague power of the Executive to modify law and agreements which is part of the case of the Government and those prin- 600 ciples on which it is the business of this House to insist.
§ 6.45 p.m.
§ Mr. Hugh Jenkins
In welcoming the return of the Chancellor of the Duchy of Lancaster, I should like to say that it is a pleasure to see both Tweedledum and Tweedledee on the Government Front Bench together. If at an earlier stage I seemed lacking in courtesy to the Solicitor-General, I should like to say that one of the results of the debates here has been that we have seen in some respects the Mr. Hyde element rather than the Dr. Jekyll element in the Solicitor-General's personality. During previous discussions here I have had some differences of opinion with him, but we have always been able to understand what the differences were about. It is only these debates that seem to have acted as a sort of poison phial upon the Solicitor-General. He either resorts to lengthy and discursive remarks in reply to hon. Members on both sides of the Committee or with scant courtesy quite frequently fails to reply to points which have been made. It was for this reason that I felt less than enthusiastic about the welcome given to him by my hon. Friend and I hope that in the future we shall have a chance to see more of the Dr. Jekyll we have known in the past, particularly in reply to this present debate.
To follow what the right hon. Member for Wolverhampton, South-West (Mr. Powell) was saying, what is indeed rather puzzling to those of us who feel that one of the conditions for the respect of law is that one shall know what the law is, is the imprecision of the situation with which we are now faced. The Solicitor-General told me in a previous debate that I had nothing to worry about on a particular article in the Treaty of Rome. He said it was no longer operative, it was in the past, and there was no need to bother about it any more. This is rather disturbing, and in order to try and discover exactly what the situation is, not only in regard to the large and broad and important matters which we have been discussing but also in relation to particular issues, I have been trying to follow through a single case. I have been rather alarmed to find that apparently something is occurring in this area of which, so far as I can see, most people are unaware, and if this is happening in one 601 case it may be happening in others. So I think it worth while to spend a few minutes looking through one piece of legislation to see what it is about and how it occurs.
In the Clause which we are trying to amend, a treaty includes any international agreement. If we refer to the document which is a translation of secondary legislation of the European Communities, Part 9, the English text, and turn to page 195 of that document, we find set out No. 68/369, Directive of the Council, "Right of Establishment", and this says:Having regard to the Treaty setting up the European Economic Community and in particular Article 54(2) and (3) thereof…Then, to make sure that we are on the right lines, we look at Article 54. Paragraph 2 says:In order to give effect to this general programme"—for the abolition of restrictions on freedom of establishment—or, in the absence of such a programme, in order to move a stage towards achieving freedom of establishment as regards a particular occupation, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the Assembly, issue directives, based on a unanimous decision during the first stage and thereafter on a qualified majority decision.Paragraph 3 of Article 54—imported into the Right of Establishment document—lays down thatThe Council and the Commission shall carry out the duties devolving upon them under the above provisions, in particular…and it then specifies the situations in which they do it. I return to the document itself, which saysHaving regard to the general programme for the abolition of restrictions on freedom of establishment and in particular Title IV thereof;There can be no doubt that what I have been talking about up to the moment is a treaty. The Treaty of Rome is a treaty. But the general programme is not a treaty. The general programme, which is the next stage by which we reach a final decision here, is not a treaty. The general programme says on page 5Between the time limit shown in paragraph D and the end of the transitional period for occupations listed in Annex IV hereto…".freedom of establishment shall be created. I do not have Annex IV. I have not been able to find it. We shall therefore 602 jump a stage. But I shall be able to show that Annex IV, although this is not a treaty, refers to another document which is a treaty. So we pass, as it were, through a non-treaty stage into a third stage, at which stage we are back in a treaty situation. We return to the directive of the Council, in which we find the wordsHaving regard to Council Directive of 15 October 1963, with a view to carrying out the provisions of the general programme for the abolition of restrictions on the free provision of services in the sphere of cinematography.We then come to what it is about—and that is an establishment in relation to cinematography. Here we have a general directive, and this is a treaty. The directive also says:Having regard to…the second Council Directive of 13 May 1965 with a view to carrying out provisions of the general programme for the abolition of restrictions on freedom of establishment and the free provision of services in the sphere of cinematography.So far, so good. We can at this point reaffirm what we suspected when we looked at a general programme. It sets out ways, in accordance with Title IVE by which the programme of abolition of freedom of establishment in the Common Market for cinematography must be achieved before the end of the transitional period.
So we are beginning to trace it through. There are a lot of "whereases" and so forth, and then we come to the Articles of the general directive. Article 1 says:Member States shall abolish, for the benefit of the neutral persons and companies or firms referred to in Title 1 of the general programme for the abolition of restrictions on freedom of establishment and the free provision of services, hereinafter called 'beneficiaries', the restrictions referred to in Title III of that programme in respect of access to and the exercise of the occupations referred to in Article 2.Then come Articles 2 to 8 and at the end it says:It has been agreed that when the European Communities are enlarged"—here we come back to the point of the Amendment—a technical adaptation will be made to the text of Article 4(1) of this Directive which will provide that a solemn declaration will be added to the documents which may replace documentary proof of good repute.At this stage, we may begin to feel a little lost but if we persevere we can find our way through the mess.
The Temporary Chairman
Order. I am inclined to agree with the hon. Gentleman that we are beginning to be a bit lost. Indeed, I am somewhat mesmerised. Would he care to indicate just when he is coming to the Amendments, and how far what he has been telling us is relevant to them? He and I have found ourselves in similar difficulty on another occasion.
§ Mr. Jenkins
The other encounter between us, Sir Myer, was on as mall occasion in a room in which we were able to establish a rather more informal relationship than would be appropriate in these wide open spaces. I accept your invitation to make clear the point in relation to the Amendments.
We are having difficulty in precisely defining what constitutes a treaty and what constitutes an international agreement. This is because, in order to discover the intention of the treaty and the Community, one has to follow through a series of documents. My argument is that in order that people should obey the law it is necessary to know what the law is. I am illustrating the great difficulty of knowing what the law is in this case—of knowing what we are taking on board here. But I am about to discover the end of the trail. It chances to be in the Treaty of Accession. On page 65 there is the heading:Council Directive No. 70/451/EEC of 29 September 1970".Under that heading, the following is inserted at the end of Article 3(a):(e) In the United Kingdom:—the rule that only a company registered in, and the central management and control of whose business is exercised in, the United Kingdom shall be eligible for a payment from the British Film Fund…What does that mean? One can only find out by referring back to the right of establishment document. On page 197 there are these words:Member States shall in particular abolish restrictions which…Among the restrictions to be abolished shall especially be those whose provisions prohibit or limit the establishment of beneficiaries in the following manner…7.0 p.m.
Does this prohibit in future in the United Kingdom the rule that only a company registered and whose central management and control is exercised in 604 the United Kingdom shall be eligible for a payment from the British Films Fund? I doubt whether the penny has dropped anywhere in the film industry, if it means that Government support for the industry is abolished or opened so wide as to be ineffective. This is not a piece of simple law which is easily understood, but the consequence, if we follow through what has been decided, is that it is possible to discover that Government support for the British film industry is prejudiced under this law—or is it opened up to such a wide degree that the benefit accruing to British film-makers will be very small indeed?
The Temporary Chairman
I am afraid that the hon. Member is entirely out of order in discussing the future of the British film industry as a result of our joining the E.E.C.
§ Mr. Jenkins
I was about to say that it would be improper for me to pursue this matter further at this stage.
The Temporary Chairman
Order. The hon. Member could have saved the Chair from intervening if, instead of saying that he was about to say that, he had said it in the first instance.
§ Mr. Jenkins
I thought that the illustration I gave was apposite to showing the problem of discovering what Community law is. This is one example of our difficulty. I do not intend to argue the case now, but when we come to Clause 8 I shall elucidate in great detail precisely the consequences of this change for the British film industry.
The only thing that I wish to say now is that the difficulty we had in ascertaining precisely what the intentions of the Community are in this respect, and discovering precisely what they are for the future, seems very frightening. If, as a result of very considerable research, one can discover a line of decision by the Community, leading to a final conclusion which is deleterious for a particular industry, it seems likely that the very imprecision that we complain about may be bringing about equally damaging decisions for other industries which are not yet fully comprehended. For all these reasons, I hope that this series of Amendments will not only be pressed to Divisions but will be carried.
§ [Sir ROBERT GRANT-FERRIS in the Chair]
§ Mr. Body
I have done my best to follow the path of the hon. Member for Putney (Mr. Hugh Jenkins) in and out and round about the labyrinth of these regulations. If the conclusion of the journey is the one which he invites us to believe, he has certainly raised a matter of considerable importance for the industry about which he has spoken so often and so knowledgably. I hope that, if not this evening, certainly at some stage before we reach Clause 8 he will have a fairly definite answer.
I am sorry that my hon. and learned Friend the Member for Solihull (Mr. Grieve) is no longer in his place because I wanted to apologise to him for having interrupted so severely when he was giving us what I hope he will not mind my calling a little homily. I was moved to do so because this is the first time that I have breathed a word about the European Communities Bill. Until now I have been wholly and utterly taciturn lest it should be said by anyone nearer to the Government Front Bench than my hon. and learned Friend that those of us who oppose the Bill are causing any undue delay.
When I first read through the Bill my reaction to Clause 1 was probably the same as that of most hon. Members. It did not seem to matter very much. There was no great substance there, so we should get on to Clause 2 and see what that was about. But, having listened to so much of the debate, I think no one can possibly say that Clause 1 is other than central and has terrifying importance for the future of the House. I suggest to my hon. and learned Friend the Member for Solihull and others who think like him that the House has not wasted any time in trying to highlight the grave importance of this Clause.
There is more than one reason why the definition in this Clause of a treaty is unsatisfactory. Of course we must link Clause 1 with Clause 2, and it is a platitude now to speak of that Clause as being far-reaching. It is so far-reaching that any definition of a treaty should be circumscribed precisely, and that should be done now before it is too late. It must not be left vague nor open-ended I say with respect to those 606 who drafted Clause 1 that this definition of a treaty debases the word. It opens up the description of a treaty to any kind of international agreement and permits to be called a treaty those things which the right hon. Member for Stepney (Mr. Shore) called "half-creatures". He spoke of the declarations, resolutions and exchanges of letters. The exchange of letters set out in the Treaty of Accession relating to the future of sterling must be an international agreement. There can be hardly any doubt about that. One letter was signed by my right hon. and learned Friend the Chancellor of the Duchy of Lancaster on behalf of this country. The other letter was signed by representatives accredited to the member countries of the Community.
I say with reluctance when my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) is sitting behind me and his experience of contract law goes back many years, that a contract can consist of letters. It can consist of a letter and an acceptance. If those two are married together—the intention to agree must be implied by the exchange of letters, particularly if they are adopted and included in a treaty of accession—obviously there has been as it were a contract between nations and, therefore, there is an international agreement. It seems idle to pursue the argument further although, if my hon. and learned Friend the Solicitor-General when he replies feels otherwise, certainly I for one will have learned a little about the law. I think it was he who said on 8th March that by the Vienna Convention on Treaties an exchange of letters could no doubt constitute a treaty.
I am glad that the right hon. Member for Stepney raised in this context the terms or arrangements, whatever we are to call them, now relating to sugar. What was set out in the White Paper published last summer constitutes a moral obligation in two senses. We in this House have a duty to make sure that those countries on whose behalf we have sought to reach an agreement should not be let down.
I refer anyone who doubts that we have a moral obligation to paragraph 112 of the White Paper and to the last paragraph of the communiqué. This is important on the question whether the 607 Sugar Agreement falls within the definition of a treaty and whether Clause 1 is apt to the agreement. That last paragraph gives us a clue about the obligation:There was a full discussion of the Community's offer made on sugar after 1974. The British Delegation assured other delegations that the Community's proposals constituted a specific and moral commitment by the enlarged Community, of which the United Kingdom would be a part. The British Government and other Commonwealth Governments participating regard this offer as a firm assurance of a secure and continuing market in the enlarged Community on fair terms for the quantities of sugar covered by the Commonwealth Sugar Agreement in respect of ail its existing developing member countries. The developing Commonwealth countries will continue to plan their future on this basis.Manifestly, there is a moral obligation to the developing Commonwealth countries which are dependent on sugar. As we were told throughout the negotiations that we would not contemplate entry unless we had satisfactory terms for sugar, clearly there is a moral obligation on the British people as well as on the developing countries to make sure that what is set out in that communiqué will be valid in the future.
Those of us who are lawyers, and, indeed, those of us who are not, know that a legal agreement consists of offer plus acceptance. Offer plus acceptance equals agreement. The word "offer" is included in that communiqué. What about the acceptance? What about the reaction in Brussels? Those of us who have been nervous about the future of sugar read with apprehension the Treaty of Accession. We read what was said in that document aboutsugar—or should I say what was not said about sugar?—and compared the protocol relating to the developing Commonwealth countries with the protocol for New Zealand. The terms for the future of New Zealand's dairy products have some guarantee because there is a protocol and, therefore, a treaty as defined by Clause 1. But the countries of the developing Commonwealth have no such protocol, no agreement, no acceptance of offer, to enable them to have any security for the future.
We know what the future development is likely to be. We know that the countries of the developing Commonwealth 608 listed in Annex V will have the offer of associated status given to them under Article 238 of the Treaty of Rome. It will be for them to accept that offer or reject it. Those of us who have heard the words from Washington know only too well that there will be an overture from Washington to prevent certainly the countries of the Caribbean becoming associated with the E.E.C. No doubt they will be enticed to come to terms with the dollar market. If we are to fulfil our obligations to those countries it is essential for the House to make sure that we safeguard their interests in the future and prevent them from being a pawn between a dollar bloc and a pro-European bloc.
What disturbs me about the Clause and the definition of a treaty is that under Article 238 we know that the Council of Ministers has power to conclude agreements on behalf of the Community with developing Commonwealth countries, and we know that the Council of Ministers must be unanimous. To that extent we have some veto. We know also that the European Parliament must be consulted; that is set out in the Treaty of Rome. But there is no requirement that this House should be consulted, and no requirement that this House should have the opportunity of making sure that those two moral obligations are fulfilled.
On earlier occasions individual member States of the Community have debated and approved agreements enabling other countries to have association. There have been at least four occasions when the legislature of the member States have agreed to association agreements. There were the Convention of Yaoundé in 1963 and the agreements with Greece in 1961, with Turkey in 1963 and with Nigeria in 1966.
As the Bill stands, if we enter the Community this House will not have the same right to explore the terms of the association agreements as has previously been given to all the individual member countries, even Luxembourg. This must be less than satisfactory. For that reason, I cannot support Clause 1 as now phrased, and still less agree to the definition of a treaty which on any grounds must be thoroughly unsatisfactory. I therefore ask my hon. and learned Friend the Solicitor-General this question. As the Bill is now drafted, on what side of 609 the fence falls the Lancaster House understanding? With respect to him, I say that to that question there must be a clear and definite answer.
§ The Solicitor-General(Sir Geoffrey Howe)rose—
§ Mr. Deakins
On a point of order. I respectfully draw your attention, Sir Robert, to three matters. First, Amendment No. 194, in my name and the names of two of my hon. Friends, is being discussed with Amendment No. 29 but it has not been referred to by any speaker in this debate, and I have not had an opportunity of speaking on it. Second, I have been sitting here ever since the start of the debate hoping to be called to speak on Amendment No. 194. Third, I respectfully suggest that, if the Solicitor-General speaks next, a few minutes might be given to the person in whose name Amendment No. 194 stands.
§ The Solicitor-General
I do not know whether. Sir Robert, you wanted to make a comment on the point of order which was raised.
§ The Solicitor-General
Yes. I will not respond to the varying degrees of welcome given to me with diminishing degrees of friendship—
§ Mr. Hugh Jenkins
Further to that point of order, Sir Robert. Would you be so kind as to give a ruling on the point of order raised by my hon. Friend the Member for Walthamstow, West (Mr. Deakins) on the question whether you will permit him to speak at a later stage?
§ The Chairman
I did not think the hon. Member for Walthamstow, West (Mr. Deakins) was seriously raising that matter as a point of order, although I am sure he was serious about what he meant. If the hon. Gentleman feels strongly on the matter, no doubt I will call him after the speech of the Solicitor-General.
§ The Solicitor-General
Nor will I reply to what was said by the hon. Member 610 for Putney (Mr. Hugh Jenkins) about what comes up on Clause 8.
I begin by seeking to spell out with greater clarity what is meant by the concept of a treaty. Subsection (4) must be read with subsection (2), which lays down what kind of treaty comes within the definition of the provision.
On the point raised by the right hon. Member for Battersea, North (Mr. Jay), I dealt with the matter on 8th March, as set out in the Official Report in c. 1533. It would be possible in circumstances there set out for an invalid inclusion of a treaty within a purported Order in Council to be challenged. Similarly in regard to the point raised by the hon. Member for Nottingham, West (Mr. English), an attempt to include something as a treaty, something which was manifestly not an international treaty or agreement within subsection (4), could be challenged in the same way.
§ The Solicitor-General
I do not wish to seem discourteous to the right hon. Gentleman, but if he will refer to the Official Report of 8th March he will see set out in column 1533 the answer to his question. I cannot go over the ground again.
On the other point raised by the right hon. Gentleman, on a previous occasion I acknowledged that international agreements are made between people having legal personality in international law. Normally they are written agreements between persons of that kind and are intended to operate in international law. That picks up the point which was raised by the hon. Member for Nottingham, West. Obviously, States have a legal personality in that sense. Some international organisations have such a personality, and I instanced some of them on the last occasion.
The series of questions put to me by the right hon. Gentleman about the capacity of State trading corporations and a whole range of other bodies would involve a close analysis of the effects of each organisation and a lecture on each 611 case, of a range and character which I am sure the right hon. Gentleman would not welcome.
I come back to the central proposition involving persons having legal personality in international law. This would involve States, certainly some international organisations, and thereafter we would have to lock at each case on its own facts. The justification in including subsection (4) is primarily for the avoidance of doubt. The term "treaty" can be used either in a general sense or in a particular sense. In other words, it can be a term of art applied to a treaty as opposed to a protocol or annex, or it can be a wider term involving that which is conveniently set out in the Vienna Convention and on page 4 of McNair—a written agreement between persons with an international personality.
Subsection (4) makes plain that it is intended to be used in that wider sense to avoid any confusion. It does not involve, as has been suggested, any undesirable extension beyond the normal meaning. It is desirable to make this clear on the face of the Bill so that we may see how each of the various categories of documents comes within the definition.
The hon. Member for Nottingham, West asked about the agreement between the Prime Minister and M. Pompidou. The answer is that it would not constitute a treaty unless it was in writing, and even if something is in writing it does not necessarily contain or comprise an international agreement, but it would have to be in writing. If it were written and constituted a treaty, there are obligations under Article 102 of the United Nations Charter to register all treaties and international agreements. In addition, within the provisions of the Bill again it would qualify as a treaty—if need be, specified in the procedure laid down.
§ Mr. English
I am grateful to the Solicitor-General for answering this question; but is he not saying that by importing the phrase "international agreement" into this Bill in a context where it might be brought before a court in this country or an international court, such as the European Court, that court might choose legitimately to follow the general principles of international law? It might take 612 the view that what was meant was an international agreement, something which is not a treaty and which is not necessarily in writing. In regard to the question of registration, he will recollect that under the old League of Nations a treaty was invalidated if it was not registered under the United Nations Charter. That was carefully left out because of the legal difficulties which it caused between the wars.
§ The Solicitor-General
I am indicating a number of different provisions which have operated alongside each other and which could qualify as an international agreement or treaty within the terms of the Clause. In the same way, any attempt to declare as an agreement something which was in the form of an exchange of letters and which did not constitute an agreement equally would not come within this provision.
The other half of the subsection makes it clear that any protocol or annex to a treaty is included in the reference to "a treaty", again to avoid a narrow construction being given to the word "treaty". Frequently the terms of a treaty will make clear that the protocols or annexes are included within it, but here that doubt is removed.
§ Mr. Powell
Did I understand my hon. and learned Friend to say that an agreement is not an international agreement for the purposes of this subsection unless it is registered with the United Nations?
§ The Solicitor-General
I did not say that. I said that under Article 102 of the United Nations Charter there is an obligation on States to register treaties with the United Nations. However, I did not go along with the second half of the proposition put to me by my right hon. Friend—in other words, as I understand it, it is not linked with an invalidating provision. There is the obligation to register. I asserted that as another indication why an agreement in writing would need to be published and could not be spelt out in a secret document.
I turn to deal with some of the particular kinds of documents which have been referred to. First, I should like to mention declarations and exchanges of letters. They may or may not constitute international agreements. We can exchange letters or make declarations which 613 do not involve an agreement, but in so far as either of those things constitutes an international agreement it qualifies as an international agreement. One can apply that proposition to some of the examples which have been raised. The exchange of letters which appears on pages 107 to 109, about which there has been some discussion, is referred to in Article 158 of the Treaty of Accession. It will be seen there that annexes I to XI, protocols 1 to 30 and the exchange of letters on monetary questions attached to the Act shall form an integral part thereof, and the exchange of letters is made an integral part and gives rise to obligations in that way. The same is true of the protocols and annexes there listed.
§ [Mr. BRYANT GODMAN IRVINE in the Chair]
§ 7.30 p.m.
§ The exchange itself has been discussed by a number of hon. Members in this debate. The nature of the declaration contained in the exchange of letters was the subject of statements in the House by my right hon. and learned Friend the Chancellor of the Duchy of Lancaster on 9th June last year and on the following day by my right hon. Friend the Prime Minister. Both of those statements made clear the conditions attaching to and which emerged from that exchange of letters.
§ As for future exchanges of letters, which was one of the points raised by my right hon. Friend the Member for Wolverhampton, South-West, if and so far as a future exchange of letters constitutes a matter which gives rise to obligations in international law and thereby constitutes an international agreement, subject to the provisions of subsection (3) if it is an exchange of letters to which this country is a party, that can be a treaty.
§ Mr. Spearing
When my hon. Friend the Member for Dudley (Dr. Gilbert) was inquiring about the exchange of letters on the sterling balances, I drew attention to page 124 of Command 4862(1) where there was a declaration by the Chancellor of the Duchy of Lancaster and Herr Scheel concerning the system of fixing Community farm prices in which the right hon. and learned Gentleman recorded his agreement to these statements.
614 Does the word "agreement" in that sense constitute an international agreement for the purposes of Clause 1(4)?
§ The Solicitor-General
If the hon. Gentleman will be patient, I will come to that in a moment.
I have explained the position on the exchanges of letters. I have explained the position arising from Article 158 on the protocols and annexes as they are set out. The protocols include Nos. 17 and 22 dealing with the important matter of sugar. Those are international agreements. They have been discussed in this House in the course of many debates since last summer, and they are the subject of the discussion in paragraph 112 of the White Paper of last July. The protocols themselves are international agreements as specified.
The statement set out in paragraph 112 is not a treaty. It is a statement of the way in which the people who took part in that conference understood the effect of the protocols. The protocols are subject to the safeguards that we have discussed earlier and that have been discussed in many other debates.
The declarations listed in Part I of the Treaty of Accession are of different kinds and have different status. Their status is set out on page 114 of the Treaty of Accession. The five joint declarations are there set out as adopted by the parties to the Final Act. The joint declarations do not form part of the Treaty of Accession, but they are annexed to the Final Act.
The declarations record in general the intent of the member States or of the institutions of the Community to take action in the future with respect to particular issues or to problems which may arise. They are not intended to constitute international agreements in the strict sense of the word. In addition, there are the two multilateral declarations and four bilateral declarations listed on page 114. These again have the same status as that which I have described already. They amount to statements of intent adopted, taken note of or annexed to the act of accession in the manner set out on page 114.
There are some other instruments about which right hon. and hon. Members have asked me. My right hon. Friend 615 the Member for Wolverhampton, South-West asked about the decisions of representatives of Governments sitting in the Council. They are the subject—
§ The Solicitor-General
I cannot give way to the hon. Gentleman again. I have to deal with a number of specific points.
The decisions are the subject of the first sentence of Article No. 3 of the Treaty of Accession, on page 9 of Command 4862, Part 1. The new members accede by this act to the decisions and agreements adopted by the representatives of the Governments of member States meeting in Council. They are referred to specifically in that way.
The matters to which my right hon. Friend referred on page 141—namely, the final communiqué and resolution of the Council—are probably not treaties but are no more than related instruments. The two on page 144 are agreements, and probably international agreements and, therefore, treaties, depending on the status of the organisations there listed.
The right hon. Member for Stepney (Mr. Shore) asked about the interim period procedure described on page 128. That again is referred to in the Final Act of the instrument of accession on page 114 as a matter of which the parties take note as an arrangement. It subsists and is applicable by definition during the period prior to accession. It would not therefore have been appropriate to include it in the Treaty of Accession itself.
The various points arising on Article 3(3) of the Treaty of Accession on page 10 really make plain the extent to which the new member States are bound or not bound by the previous declarations or resolutions. It makes plain that the new member States are in the same situation as the original member States in respect of declarations or resolutions of, or other statements taken up by, the Council. It is a form of saying that in so far as prior declarations or resolutions have an effect as, for example, indicated in Article 3(1), to that extent the joining member States are in the same position. It is a natural consequence of joining a Community with a history going back 15 or 20 years.
§ Mr. Shore
It is important to know the subjects with which we are dealing and, so far as they have a history within the Community, whether it is envisaged that there will be further stages in their development. Perhaps I might give two examples. One is the economic union. The other is the regulation in draft seeking to establish a common agricultural policy levy on imported lamb and mutton. That is within this area of future intention. I should like to know how far we are committed by this form of words.
§ The Solicitor-General
Regulations in draft have not yet achieved any status of being an instrument. Resolutions are also not one of the categories of formal instrument referred to in Article 189 of the E.E.C. Treaty. Whether a resolution constitutes an international agreement depends not on its designation as a resolution but on its substantive content. The status of the particular resolution—I think that it is the one of 22nd March—depends upon its content. Perhaps it may be more conveniently discussed when we come to Amendment No. 180.
§ Mr. Spearing
I wonder whether the hon. and learned Gentleman can help me. I may have misheard him. I thought he said that the declarations listed at The bottom of page 114 of Command 4862 were not international agreements for the purposes of subsection (4), despite the fact that in relation to the agreement on fixing community farm prices the word "agreement" is used. If that is so, can the hon. and learned Gentleman explain why it says in the Billand any protocol or annex to a treaty",whereas on page 114 it says:the following declarations have been made and are annexed to this Final Act"?I should have thought that as the word "annex" was in both they constituted international agreements. I thought I heard the hon. and learned Gentleman say that they were not.
§ The Solicitor-General
I am sorry if the hon. Gentleman has not followed. As I understand it, "annex" is a term of art. Article 158 specifically mentions Annexes I to XI.
Turning to page 114, all that is happening there is that declarations are identified as annexed to the Final Act, but they do not thereby cease to be declarations and 617 become annexes. Just as a wing may be annexed to my house, it is not an annex of my house; it is still a wing of my house—that is, if I had a house which had a wing, which I have not. Annexes are identified as annexes. Something does not become an annex by being annexed to something else when it is, in fact, a declaration.
The last and perhaps most important point raised by my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) and by other right hon. and hon. Members was on the status of the Luxembourg statement which has been the subject of a number of references during this and earlier debates. It was read by the right hon. Member for Stepney. I do not think that my right hon. and learned Friend read it again. The status of the Luxembourg document is clear on its face. It does not become an agreement when it is recording the differing views of the parties merely because it takes the form of a declaration. We have discussed it in our recent debates. I mentioned it in answer to an interjection by the right hon. Member for Battersea, North on 8th March, when I said:The position of the Luxembourg compromise, as the right hon. Gentleman calls it, has been explained many times in this House by my right hon. and learned Friend. The right hon. Gentleman knows that it is not to be found in the terms of the treaties, but is part of the way in which the Community works and is central to the continued survival of the Community."—[Official Report, 8th March, 1972; Vol. 832, c. 1547.]It is something—I think that I have had this argument with my right hon. and learned Friend on an earlier occasion—which is an undoubted fact and feature of international life and of life within the Communities.
My right hon. and learned Friend spoke about the undoubted power which was conferred on the institutions by the member States. However, we must have regard to the undoubted power that remains with the member States.
My right hon. and learned Friend reminded the House about this matter on 15th December last year by quoting what had been said by the Leader of the Opposition as long ago as 17th November, 1966. I will not re-weary the Committee by quoting those passages, which are long familiar, save to remind it that the Leader of the Opposition drew atten- 618 tion to the importance of the Luxembourg compromise and said that it was surely relevant to any assessment of how the constitution really works. I made that plain in c. 1547 the last time we discussed this matter.
I am sorry to come back to this familiar point, but it has been well known and seen for many years in our approach to the way in which the Communities work. I take note of the way that my right hon. and learned Friend advanced his argument, but surely this country, of all others, is not the one which should be insistently bound by the letter and rigid corners of the constitution of any organisation which we are joining. I say "this country, of all others" because we are almost unique in having no written constitution.
§ The Solicitor-General
Hon. Members are seeking to have the argument both ways. We, of all countries, are entitled to point to the conventions, customs and practices which underlie the way in which an institution works as matters of some substance in this context. That is and has been over the years the reality of the organisation which we are joining.
On that basis, I invite the Committee to say that Amendment No. 29, to leave out subsection (4), certainly would not improve the Bill, that Amendment No. 31, at end addincluding declarations and exchanges of letters",without regard to whether those exchanges or declarations do or do not amount to an international agreement, equally would not improve it, and, similarly, I cannot recommend Amendment No. 194.
§ 7.45 p.m.
§ Mr. Deakins
I am grateful at this late stage—because I know that the Committee wants to move on—to be given an opportunity of explaining the purpose of Amendment No. 194, which the Solicitor-General has so airily rejected, although on what grounds I know not, since he advanced none and no one has so far explained its purpose.
Briefly, the purpose of the Amendment is to ensure that the Lancaster House Sugar Agreement and the Luxembourg disagreement, both of which have been 619 mentioned, are defined as treaties under Clause 1(4) and that they thereupon become Community treaties and, even more important, pre-accession treaties to which not only this country but other members of the Community are bound. In the few minutes available to me I wish to advance reasons why the Amendment should be pressed and, indeed, supported by the Committee.
§ Mr. English
I realise that my hon. Friend is in a great hurry. However, may I ask him to bear in mind that the Solicitor-General did not answer my point—that the Luxembourg disagreement may be invalid in Community law, at least as far as its French interpretation is concerned, which appears to be his interpretation as well? Therefore, will my hon. Friend consider that he may be asking a great deal to include as a treaty a document which has two interpretations, one of which is possibly illegal?
§ Mr. Deakins
I am grateful to my hon. Friend, but I will not follow him along that path, as it will take me beyond the bounds of the time that I wish to spend on the Amendment. However, I am in favour of doing what is necessary for the law of this country regarding entry into the Community. If subsequently it happens to conflict with Community law, so be it. Let the lawyers fight it out.
I draw attention to the fact, which is probably well known, that neither Protocol 17 nor Protocol 22, in Volume 1 of the treaties—which have a bearing on the sugar issue—mention the Lancaster House Sugar Agreement, which is the rock on which our future relationship with the Commonwealth sugar countries depends. We have entered into not only a moral but a legal obligation—I stress that it is a legal obligation—to go on taking, after 1974, the same quantities of Commonwealth sugar. All that we have done, as the Chancellor of the Duchy of Lancaster has constantly told us since last July, is to write that into the record of the negotiating conference. On 21st July, 1971, the right hon. and learned Gentleman said:I have written into the record what we accept as the practial meaning of the agreement that we have reached."—[Official Report, 21st July, 1971; Vol. 821, c. 1590.]620 Nothing could be more vague from the point of view of ensuring that there is a Community obligation towards this country. After all, it is not all on one side. Obligations ought to be imposed the other way, as well as upon us. Yet the Community countries have not seen fit to accept that obligation. The purpose of the Amendment is to ensure that they accept that obligation by our defining in our law the Lancaster House Sugar Agreement as a Community treaty and, what is more important, as a pre-accession treaty.
I now turn to the Luxembourg "disagreement". First, the status of the so-called Luxembourg Convention is in grave doubt. The Solicitor-General has said nothing to allay our fears on this issue. It is not in the ten volumes of Community treaties. That, surely, is a significant omission. Several hours ago, when he was favouring us with his attendances in the debates, the hon. and learned Member for Solihull (Mr. Grieve) said that international friendship counted for a great deal—almost as much as international treaties.
He instanced a very bad example—the Entente Cordialeof 1904, which lasted only until 1918. Here we are entering a treaty which is presumed to have no end. So we cannot accept that international friendship and moral obligations should necessarily last beyond the lifetimes of those who enter into them, even assuming that those concerned—the Prime Minister and President Pompidou—do not change their minds, or that other people do not hold their offices. It is a poor state of affairs in international law that the future of this country in relation to one of the most important articles in one of the pre-accession treaties should be regulated by a disagreement which may not even last for the lifetime of hon. Members.
It is also significant that the Luxembourg disagreement is not listed in Part I of Schedule 1, which lists all the more important pre-accession treaties. If this one is not important enough for that I do not know what is. A future Government of this country or any of the other member countries may wish to change their mind about what was or was not agreed at Luxembourg on that famous occasion. A future Government of this country could then change their minds and adopt 621 the point of view of the majority at the Luxembourg disagreement and agree to the majority view in the Council of Ministers, regardless of what this Government may have told the House when this Bill was passed.
It is therefore essential that we do not give a future Government the right to change their minds on what is and what is not an important national interest—indeed, to abandon all concepts of the idea of important national interest outweighing the legal provisions of the Treaty of Rome. We should prevent any future Government saying, "We have changed our minds and you can do nothing about it because it is all there in the Treaty; the Luxembourg agreement was not a treaty and therefore cannot apply."
§ Mr. Ronald King Murray (Edinburgh, Leith)
The Solicitor-General, who I am afraid has departed again, replied very shortly to the many detailed questions pressed upon him from both sides of the House. It is important that we should press paricularly for specific answers, if not now then later. The hon. Member for Holland with Boston (Mr. Body) mentioned this with force when he repeated the important point of my right hon. Friend the Member for Stepney (Mr. Shore) about the sugar agreement, that this was one of those crucial agreements whose status we had to know about because it was a moral obligation.
The possibility is that this may in some sense be an agreement in international law as well as merely a moral obligation. Have the Government faced up to this? Its real status is first as a moral agreement but one cannot ignore the possibility that the loose phraseology in subsection (4) may lead to an international conflict. The Lancaster House Sugar Agreement may have international legal consequences.
It has become clear this evening that the Solicitor-General has been suffering from a cold. Perhaps that explains his absence from the Committee as much as any difficulty with his right hon. and learned Friend, although those difficulties are very real.
The second point which is vital is the status of this so-called Luxembourg compromise. It will not do for the Government when challenged point blank, as they are by Amendment No. 29, to say 622 what they have said; they must say what difference it would make if subsection (4) were omitted. So far, we have not had an answer on this. These are the two points on which the Opposition demand an answer.
The Solicitor-General has given us a very suave and interesting account of how, in international law, many instruments and ancillary documents would not have the full status of treaties, but would be ancillary and supplemental to treaties. Perhaps the word "ancillary" is not one which readily comes to his lips at the moment, but this is obviously what he was saying to the Committee, and there is considerable force in it.
I do not doubt the hon. and learned Gentleman's claim that the words of subsection (4) were meant to assist and clarify, but to see if they do it might be appropriate to refer first to a well-known textbook on international law, Starke, 5th Edition, which conveniently sets out on page 324 a number of documents which can be covered by the term "treaty". Starke does this on the basis of what is accepted in international law, not what is laid down in the Vienna Convention or any other agreement seeking to define terms. He includes the following titles—convention, protocol, agreement, arrangement, procès-verbal, statute, declaration, modus vivendi, exchange of notes or letters, final act, general act. This is a wide range. My right hon. Friend put his finger on the correct word when he said that subsection (4) contained a "rag-bag" of titles. This quotation from Starke confirms that.
There are one or two things which are not included in the list given by Starke and which could well be included—for example, "annex", which appears in subsection (4). Why, of many ancillary instruments which could be used to eke out the contents of an international agreement with the status of a treaty, have the words "protocol" and "annex" been picked out of all the candidates for selection?
Why, in particular, have these two been selected when the list of ancillary documents appended to Command 4862, Part I, contains a tremendous rag-bag, including annexes, internal agreements, decisions and, in the heading on page 137, "Community Treaties and Related Instruments"? So we add to the rag-bag of 623 Starke at least internal agreements, decisions and related instruments.
When we have so many terms as this—not invented for this debate but arising out of international law or the bundle of treaties with which we are dealing—surely we need more guidance than subsection (4). Or else would it perhaps be better not to have any guidance at all but to leave matters as they stand, so that one goes to the general rag-bag of international law and finds out as best one can? The Government have fallen between the two stools of neither assisting us by giving a relevant list of agreements and supplementary agreements nor referring us to the international legal position as it stands.
Are the Government really saying that the internal agreements so-called mentioned in Part I of Cmnd. 4862 are to have the status of international agreements or of documents or agreements supplementary to international agreements? On the face of it, they are excluded, but surely an internal agreement is an odd thing to regard as being supplemental to an international agreement, or perhaps even of the status of an international agreement by itself.
I could pursue this matter in detail, but I hope that the illustration I have given and the two pressing points I have made about the sugar agreement and the Luxembourg compromise and their status are sufficient for the time being.
My right hon. Friend the Member for Battersea, North (Mr. Jay) pressed in this and previous discussions the question whether the Government are satisfied that the position of oral agreements is adequately dealt with by subsection (4). This cannot be laughed off or brushed aside by a reference to Article 102 of the United Nations Charter, the terms of which are mandatory and require thatevery treaty, every international agreement entered into by any Member of the United Nations…shall as soon as possible be registered with the Secretariat and published by it.These terms are wide and mandatory, and we, as a member of the United Nations of good standing, are presumably under an obligation to fulfil this requirement.
624 presumably the Government have faced up to this. I will not embarrass them by asking if they have done so in relation to this Measure. Can they at least tell us the practice of the Community in this matter? How many of the Community's treaties and supplementary documents have been registered in accordance with that Article 102?
Oral agreements would obviously be difficult to register with the United Nations. Presumably that is why the Solicitor-General mentioned this aspect only in passing; but I must press him on it. He knows as well as I do that there have been famous oral international agreements which have had significant consequences. We think, for example, of the I hlen Declaration, which figured largely in the East Greenland case of 1933.
That arose out of an informal agreement—one might call it a triangular informal agreement—between Denmark, Norway and the United States, but none of it was committed to writing. The oral agreement arose at the time of the then peace conference. It was on the basis that Denmark would raise no objection to Norway's claim to Spitzbergen, on the understanding that the Danish West Indies would go to the United States and that, in turn, the United States would have no objection to Denmark claiming sovereignty over the whole of Greenland.
This triangular arrangement, which involved three parties, each transacting an oral agreement with one of the others, but not with the third, was, nevertheless, held to be a binding agreement. What have the Government done to ensure that subsection (4) will take cognisance of such a case? It is not beyond the bounds of possibility that secret oral agreements have been or could be reached, as my hon. Friends have made clear.
Are we to discover 10 years from now that agreements made before or after the Treaty of Accession have been held to constitute oral agreements, have been acted on and are, therefore, binding in international law? Will these come under subsection (4)? I see no words to exclude them and nothing to stop the procedure in subsection (3) from being used not merely for future treaties, as the right hon. Member for Wolverhampton, South-West (Mr. Powell) pointed out, but even to exhume past treaties.
625 The Government may seek to declare that an agreement thought to be an informal one not worth including at treaty level is worthy of inclusion at that level. They may then wish to exhume it and raise it to that level under subsection (3). There is no precision in this provision.
§ Mr. Peter Tapsell (Horncastle)
Would the hon. and learned Gentleman agree that it is unlikely that any secret verbal agreements between Heads of State and ourselves, if they existed, would have either increased or diminished validity because of this legislation?
§ Mr. Murray
Be that as it may, I am not greatly worried by that. I am concerned about the mechanism of this Bill which could be used to assist the setting up as an agreement of importance something which may have been treated as a matter of unimportance and made years ago.
Another oral agreement which I use as an illustration of what I have in mind was reached at the Geneva Conference in 1954 between Sir Humphrey Trevelyan, the British Chargé ďAffaires in Peking, and the Chinese delegation, though that delegation's presence was unconnected with British interests. As a result of an oral agreement that was reached on that occasion, a United Kingdom consular office was opened in Shanghai. These are examples of oral agreements which have been very much alive in the sphere of international law.
The Solicitor-General has given some guidance about the kind of parties who the Government contemplate will be parties to international agreements under subsection (4)—in other words, the international persons who will be involved. Nevertheless, he has not answered the question we really want answered, and that is the motivation behind this provision; we want to know what kinds of international person are in contemplation.
We are not asking for an exhaustive list of the bodies which enjoy legal international personality and might be involved in this subsection. We simply want to know the purpose of the type of treaty with which we are dealing in Clause 1. Is the international personality problem connected perhaps with the question of co-signatories under the notorious passage in subsection (2) to which many hon. Members have referred?
626 We still do not know what sort of arrangements will form the basis of Community treaties to which the United Kingdom will be a party and a cosignatory as distinct from treaties negotiated by the Commission and concluded by the Council.
I press the Government to say, either now or later in our proceedings, whether this problem of international legal personalities and the question of when member States of the Community sign as co-signatories has or has not a connection with the fact that members of the Warsaw Pact do not recognise the legal personality of the Communities or of their organs and institutions. This question has been posed many times, but we have not received a clear answer. That is the essence of the uncertainty which surrounds this aspect of the Clause.
Finally, looking at Clause 1, and considering how it is supposed to operate in the context of the Bill as a whole, many of us have been wondering whether subsection (4) is yet another Alice-in-Wonderland type of provision, meaning what the Government want it to mean, at least until they change their mind; meaning what they want it to mean for the purposes of one debate and meaning something quite different when one comes to another debate when other problems are before the Committee.
Is the Luxembourg compromise really to be the kind of model that we are to think of in this connection? The Government are, I think, in a dilemma here, because if the Luxembourg compromise is not part of this infinite portfolio of treaties which seems to be envisaged in Clause 1, then the Government have been misleading the House when they have referred repeatedly in the debates about the Economic Community to the importance of this practical arrangement. If it is a practical arrangement that has importance, there is no escaping the conclusion that it is supplementary to treaties within the meaning of subsection(4). If on the other hand it is a matter of no importance and does not belong to subsection (4), the Government must be convicted of misleading the House on this whole matter, a matter of very great importance.
It is important to remember, as my right hon. Friend the Member for Stepney 627 and the right hon. and learned Gentleman the Member for Hertfordshire, East (Sir D. Walker-Smith) both pointed out, that early in our deliberations on the Communities we were told time and again about this magic carpet, this conjuror's hat, the Luxembourg compromise under which the vital national interest of any member State could be protected. There is no escaping the reference in paragraph 29 of the White Paper of July, 1971, where these words appear:On a question where a Government considers that its vital national interests are involved, it is established that the decision should be unanimous".This is right at the heart of the propaganda which the House and the country were given on the basis of an attempt to convince the people of this country that it was in their interests to enter the Community.On a question where a Government considers that its vital national interests are involved, it is established that the decision should be unanimous".Let us see what is established. I think the right hon. and learned Gentleman the Member for Hertfordshire, East was quite right in saying that one has to find a consensus before there is complete agreement. Let us see what is the extent of agreement on the Luxembourg compromise. I think that whatever agreement there is must be contained in Section 1 of the recorded minutes, dealing with majority voting procedure, which reads:Where in case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the members of the Council will endeavour, within a
§ reasonable time, to reach solutions which can be adopted by all the members of the Council while respecting their mutual interests and those of the Community, in accordance with Article 2 of the Treaty."
§ Article 2 refers to the desire of members for harmonious development. It is tolerably clear that something can be spelled out, I should have thought, saying what the agreement is. It is a very limited agreement, that the members will endeavour within a reasonable time to reach solutions which can be adopted by all the members of the Council: but that is a very far cry from the conjuror's hat of paragraph 29 of the White Paper.
§ 8.15 p.m.
§ Of course, the Government are not talking very much nowadays about the Luxembourg compromise, perhaps because they have seen the force of the criticism pressed upon them in connection with Clause 1. They have now turned to a different conjuror's hat, that of the ad hoc committee. I suspect that we shall be with the ad hoc committee for a while, and then, suddenly, we shall discover that that magic carpet is not very adequate and we shall get another gimmick to prevent our discovering what is contained in this Bill by way of contraband in the containers coming to us from Brussels.
§ 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 211. Noes 185.631
|Division No. 93.]||AYES||[8.15 p.m.|
|Adley, Robert||Butler, Adam (Bosworth)||Edwards, Nicholas (Pembroke)|
|Alison, Michael (Barkston Ash)||Campbell, Rt.Hn.G.(Moray&Nairn)||Elliot, Capt. Walter (Carshalton)|
|Allason, James (Hemel Hempstead)||Carlisle, Mark||Elliott, R. W. (N'c'tle-upon-Tyne,N.)|
|Archer, Jeffrey (Louth)||Carr, Rt. Hn. Robert||Emery, Peter|
|Astor, John||Chapman, Sydney||Eyre, Reginald|
|Atkins, Humphrey||Churchill, W. S.||Fell, Anthony|
|Balniel, Rt. Hn. Lord||Clark, William (Surrey, E.)||Fenner, Mrs. Peggy|
|Batsford, Brian||Clarke, Kenneth (Rushcliffe)||Fidler, Michael|
|Finsberg, Geoffrey (Hampstead)|
|Beamish, Col. Sir Tufton||Clegg, Walter||Fisher, Nigel (Surbiton)|
|Bennett, Sir Frederic (Torquay)||Cockeram, Eric||Fletcher-Cooke, Charles|
|Benyon, W.||Cooke, Robert||Fookes, Miss Janet|
|Biggs-Davison, John||Corfield, Rt. Hn. Frederick||Fortescue, Tim|
|Blaker, Peter||Cormack, Patrick||Fox, Marcus|
|Body, Richard||Costain, A. P.||Fry, Peter|
|Boscawen, Robert||Critchley, Julian||Gibson-Watt, David|
|Bowden, Andrew||Crouch, David||Godber, Rt. Hn. J. B.|
|Braine, Sir Bernard||Crowder, F. P.||Goodhart, Philip|
|Brinton, Sir Tatton||Curran, Charles||Goodhew, Victor|
|Brown, Sir Edward (Bath)||d'Avigdor-Goldsmid,Maj.-Gen. James||Gorst, John|
|Bryan, Paul||Dodds-Parker, Douglas||Gower, Raymond|
|Buchanan-Smith, Alick(Angus,N&M)||Dykes, Hugh||Grant, Anthony (Harrow, C.)|
|Gray, Hamish||McMaster, Stanley||Rossi, Hugh (Hornsey)|
|Green, Alan||Macmillan,Rt.Hn.Maurice (Farnham)||Rost, Peter|
|Grieve, Percy||McNair-Wilson, Michael||St. John-Stevas, Norman|
|Griffiths, Eldon (Bury St. Edmunds)||Maddan, Martin||Sandys, Rt. Hn. D.|
|Grylls, Michael||Marten, Neil||Scott, Nicholas|
|Gummer, J. Selwyn||Mather, Carol||Sharples, Richard|
|Gurden, Harold||Mawby, Ray||Shaw, Michael(Sc'b'gh & Whitby)|
|Hall, Miss Joan (Keighley)||Maxwell-Hyslop, R. J.||Sinclair, Sir George|
|Hall-Davis, A. G. F.||Meyer, Sir Anthony||Skeet, T. H. H.|
|Hannam, John (Exeter)||Mills, Peter (Torrington)||Soref, Harold|
|Harrison, Brian (Maldon)||Mills, Stratton (Belfast, N.)||Speed, Keith|
|Haselhurst, Alan||Mitchell,Lt.-Col.C.(Aberdeenshire.W)||Spence, John|
|Hastings, Stephen||Moate, Roger||Sproat, Iain|
|Havers, Michael||Monks, Mrs. Connie||stainton, Keith|
|Hawkins, Paul||Montgomery, Fergus||Stanbrook, Ivor|
|Hiley, Joseph||More, Jasper||Stewart-Smith, Geoffrey (Belper)|
|Hill, James (Southampton, Test)||Morgan, Geraint (Denbigh)||Stodart, Anthony (Edinburgh, W.)|
|Hill, John E. B. (Norfolk, S.)||Morgan-Giles, Rear-Adm.||Stuttaford, Dr. Tom|
|Holt, Miss Mary||Morrison, Charles||Tapsell, Peter|
|Hordern, Peter||Murton, Oscar||Taylor,Edward M.(G'gow,Cathcart)|
|Hornby, Richard||Neave, Airey||Taylor, Frank (Moss Side)|
|Hornsby-Smith,Rt.Hn.Dame Patricia||Normanton, Tom||Taylor, Robert (Croydon, N.W.)|
|Howe, Hn. Sir Geoffrey (Reigate)||Nott, John||Tebbit, Norman|
|Howell, David (Guildford)||Onslow, Cranley||Temple, John M.|
|Howell, Ralph (Norfolk, N.)||Oppenheim, Mrs. Sally||Thatcher, Rt. Hn. Mrs. Margaret|
|James, David||Orr, Capt. L. P. S.||Thompson, Sir Richard (Croydon, S.)|
|Jenkin, Patrick (Woodford)||Osborn, John||Tilney, John|
|Jessel, Toby||Owen, Idris (Stockport, N.)||Trafford, Dr. Anthony|
|Kaberry, Sir Donald||Page, Graham (Crosby)||Turton, Rt. Hn. Sir Robin|
|Kershaw, Anthony||Page, John (Harrow, W.)||Waddington, David|
|Kilfedder, James||Parkinson, Cecil||Walder, David (Clitheroe)|
|Kimball, Marcus||Peel, John||Walker-Smith, Rt. Hn. Sir Derek|
|King, Evelyn (Dorset, S.)||Percival, Ian||Wall, Patrick|
|Kinsey, J. R.||Pike, Miss Mervyn||Walters, Dennis|
|Kirk, Peter||Pink, R. Bonner||Ward, Dame Irene|
|Knight, Mrs. Jill||Pounder, Rafton||Warren, Kenneth|
|Knox, David||Price, David (Eastleigh)||Weatherill, Bernard|
|Lane, David||Proudfoot, Wilfred||White, Roger (Gravesend)|
|Langford-Holt, Sir John||Pym, Rt. Hn. Francis||Wiggin, Jerry|
|Legge-Bourke, Sir Harry||Redmond, Robert||Wilkinson, John|
|Le Marchant, Spencer||Reed, Laurance (Bolton, E.)||Winterton, Nicholas|
|Lloyd, Ian (P'tsm'th, Langstone)||Rees, Peter (Dover)||Wolrige-Gordon, Patrick|
|Longden, Sir Gilbert||Renton, Rt. Hn. Sir David||Wood, Rt. Hn. Richard|
|Loveridge, John||Rhys Williams, Sir Brandon||Woodhouse, Hn. Christopher|
|Luce, R. N.||Ridley, Hn. Nicholas||Worsley, Marcus|
|McAdden, Sir Stephen||Ridsdale, Julian||Wylie, Rt. Hn. N. R.|
|MacArthur, Ian||Rippon, Rt. Hn. Geoffrey|
|McCrindle, R. A.||Roberts, Michael (Cardiff, N.)||TELLERS FOR THE AYES:|
|McLaren, Martin||Roberts, Wyn (Conway)||Mr. Michael Jopling and|
|Maclean, Sir Fitzroy||Rodgers, Sir John (Sevenoaks)||Mr. John Stradling Thomas.|
|Allaun, Frank (Salford, E.)||Cunningham, G. (Islington, S.W.)||Grant, John D. (Islington, E.)|
|Allen, Scholefield||Cunningham, Dr. J. A. (Whitehaven)||Griffiths, Will (Exchange)|
|Archer, Peter (Rowley Regis)||Dalyell, Tam||Hamilton, James (Bothwell)|
|Ashley, Jack||Davidson, Arthur||Hamilton, William (Fife, W.)|
|Atkinson, Norman||Davies, Denzil (Llanelly)||Hamling, William|
|Barnett, Joel (Heywood and Royton)||Davis, Clinton (Hackney, C.)||Harper, Joseph|
|Baxter, William||Davis, Terry (Bromsgrove)||Harrison, Walter (Wakefield)|
|Benn, Rt. Hn. Anthony Wedgwood||Deakins, Eric||Healey, Rt. Hn. Denis|
|Bidwell, Sydney||Delargy, H. J.||Heffer, Eric S.|
|Bishop, E. S.||Dell, Rt. Hn. Edmund||Hooson, Emlyn|
|Boardman, H. (Leigh)||Dempsey, James||Houghton, Rt. Hn. Douglas|
|Booth, Albert||Doig, Peter||Huckfield, Leslie|
|Brown, Bob (N'c'tle-upon-Tyne, W.)||Dormand, J. D.||Hughes, Rt. Hn. Cledwyn (Anglesey)|
|Brown, Hugh D. (G'gow, Provan)||Duffy, A. E. P.||Hughes, Mark (Durham)|
|Brown, Ronald (Shoreditch & F'bury)||Dunnett, Jack||Hughes, Robert (Aberdeen, N.)|
|Buchan, Norman||Edwards, Robert (Bilston)||Hughes, Roy (Newport)|
|English, Michael||Hunter, Adam|
|Butler, Mrs. Joyce (Wood Green)||Evans, Fred||Janner, Greville|
|Campbell, I. (Dunbartonshire, W.)||Ewing, Harry||Jay, Rt. Hn. Douglas|
|Carter, Ray (Birmingh'm, Northfield)||Faulds, Andrew||Jenkins, Hugh (Putney)|
|Carter-Jones, Lewis (Eccles)||Fernyhough, Rt. Hn. E.||Jenkins, Rt. Hn. Roy (Stechford)|
|Castle, Rt. Hn. Barbara||Fitch, Alan (Wigan)||John, Brynmor|
|Clark, David (Colne Valley)||Fletcher, Raymond (Ilkeston)||Johnson, James (K'ston-on-Hull, W.)|
|Cocks, Michael (Bristol, S.)||Fletcher, Ted (Darlington)||Johnston, Russell (Inverness)|
|Cohen, Stanley||Foot, Michael||Jones, Barry (Flint, E.)|
|Coleman, Donald||Garrett, W. E.||Jones, Dan (Burnley)|
|Concannon, J. D.||Gilbert, Dr. John||Jones,Rt.Hn. Sir Elwyn(W.Ham,S.)|
|Crawshaw, Richard||Ginsburg, David (Dewsbury)||Jones, T. Alec (Rhondda, W.)|
|Crosland, Rt. Hn. Anthony||Gourlay, Harry||Judd, Frank|
|Crossman, Rt. Hn. Richard||Grant, George (Morpeth)||Kaufman, Gerald|
|Kelley, Richard||Orbach, Maurice||Small, William|
|Kerr, Russell||Orme, Stanley||Smith, John (Lanarkshire, N.)|
|Kinnock, Neil||Oswald, Thomas||Spearing, Nigel|
|Lamond, James||Owen, Dr. David (Plymouth, Sutton)||Spriggs, Leslie|
|Lee, Rt. Hn. Frederick||Paget, R. T.||Steel, David|
|Lewis, Arthur (W. Ham, N.)||Palmer, Arthur||Stewart, Rt. Hn. Michael (Fulham)|
|Lewis, Ron (Carlisle)||Pannell, Rt. Hn. Charles||Stoddart, David (Swindon)|
|Lomas, Kenneth||Pardoe, John||Strang, Gavin|
|Lyon, Alexander W. (York)||Parker, John (Dagenham)||Summerskill, Hn. Dr. Shirley|
|Lyons, Edward (Bradford, E.)||Pavitt, Laurie||Swain, Thomas|
|Mabon, Dr. J. Dickson||Peart, Rt. Hn. Fred||Taverne, Dick|
|McBride, Neil||Pendry, Tom||Thomas,Rt.Hn.George (Cardiff,W.)|
|McCann, John||Pentland, Norman||Thomson, Rt. Hn. G. (Dundee, E.)|
|McCartney, Hugh||Prentice, Rt. Hn. Reg.||Thorpe, Rt. Hn. Jeremy|
|McElhone, Frank||Prescott, John||Tinn, James|
|Mackenzie, Gregor||Price, J. T. (Westhoughton)||Tomney, Frank|
|Mackie, John||Rankin, John||Urwin, T. W.|
|Maclennan, Robert||Rees, Merlyn (Leeds, S.)||Varley, Eric G.|
|McNamara, J. Kevin||Rhodes, Geoffrey||Wainwright, Edwin|
|Marks, Kenneth||Richard, Ivor||Walden, Brian (B'm'ham, All Saints)|
|Marshall, Dr. Edmund||Roberts,Rt.Hn.Goronwy(Caernarvon)||Wallace, George|
|Mason, Rt. Hn. Roy||Roderick, Caerwyn E.(Br'c'n&R'dnor)||Watkins, David|
|Meacher, Michael||Roper, John||Weitzman, David|
|Mellish, Rt. Hn. Robert||Rose, Paul B.||Wellbeloved, James|
|Mendelson, John||Ross, Rt. Hn. William (Kilmarnock)||Wells, William (Walsall, N.)|
|Millan, Bruce||Sandelson, Neville||White, James (Glasgow, Pollok)|
|Miller, Dr. M. S.||Sheldon, Robert (Ashton-under-Lyne)||Williams, Mrs. Shirley (Hitchin)|
|Milne, Edward||Shore, Rt. Hn. Peter (Stepney)||Wilson, Rt. Hn. Harold (Huyton)|
|Mitchell, R. C. (S'hampton, Itchen)||Short, Mrs. Renée (W'hampton.N.E.)||Woof, Robert|
|Morgan, Elystan (Cardiganshire)||Silkin, Rt. Hn. John (Deptford)|
|Morris, Charles R. (Openshaw)||Silkin, Hn. S. C. (Dulwich)||TELLERS FOR THE NOES:|
|Murray, Ronald King||Silverman, Julius||Mr. Ernest Armstrong and|
|O'Malley, Brian||Skinner, Dennis||Mr. John Golding.|
§ Question accordingly agreed to.
§ Question put accordingly, That the Amendment be made: —632
§ The Committee divided: Ayes 181, Noes 208.635
|Division No. 94.]||AYES||[8.26 p.m.|
|Allaun, Frank (Salford, E.)||Doig, Peter||John, Brynmor|
|Allen, Scholefield||Dormand, J. D.||Johnson, James (K'ston-on-Hull, W.)|
|Archer, Peter (Rowley Regis)||Duffy, A. E. P.||Jones, Barry (Flint, E.)|
|Ashley, Jack||Dunnett, Jack||Jones, Dan (Burnley)|
|Atkinson, Norman||Edwards, Robert (Bilston)||Jones,Rt.Hn.Sir Elwyn(W.Ham,S.)|
|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|
|Bidwell, Sydney||Faulds, Andrew||Kelley, Richard|
|Bishop, E. S.||Fernyhough, Rt. Hn. E.||Kerr, Russell|
|Boardman, H. (Leigh)||Fitch, Alan (Wigan)||Kinnock, Neil|
|Booth, Albert||Fletcher, Raymond (Ilkeston)||Lamond, James|
|Brown, Bob (N'c'tle-upon-Tyne,W.)||Fletcher, Ted (Darlington)||Lee, Rt. Hn. Frederick|
|Brown, Hugh D. (G'gow, Provan)||Foot, Michael||Lewis, Arthur (W. Ham, N.)|
|Brown, Ronald (Shoreditch & F'bury)||Garrett, W. E.||Lewis, Ron (Carlisle)|
|Buchan, Norman||Gilbert, Dr. John||Lomas, Kenneth|
|Butler, Mrs. Joyce (Wood Green)||Ginsburg, David (Dewsbury)||Lyon, Alexander W. (York)|
|Campbell, I. (Dunbartonshire, W.)||Gourlay, Harry||Lyons, Edward (Bradford, E.)|
|Carter, Ray (Birmingh'm, Northfield)||Grant, George (Morpeth)||Mabon, Dr. J. Dickson|
|Carter-Jones, Lewis (Eccles)||Grant, John D. (Islington, E.)||McBride, Neil|
|Castle, Rt. Hn. Barbara||Griffiths, Will (Exchange)||McCann, John|
|Clark, David (Colne Valley)||Hamilton, James (Bothwell)||McCartney, Hugh|
|Cocks, Michael (Bristol, S.)||Hamilton, William (Fife, W.)||McElhone, Frank|
|Cohen, Stanley||Hamling, William||Mackenzie, Gregor|
|Coleman, Donald||Harper, Joseph||Mackie, John|
|Concannon, J. D.||Harrison, Walter (Wakefield)||Maclennan, Robert|
|Crawshaw, Richard||Healey, Rt. Hn. Denis||McNamara, J. Kevin|
|Crosland, Rt. Hn. Anthony||Heffer, Eric S.||Marks, Kenneth|
|Crossman, Rt. Hn. Richard||Hooson, Emlyn||Marshall, Dr. Edmund|
|Cunningham, G. (Islington, S.W.)||Houghton, Rt. Hn. Douglas||Mason, Rt. Hn. Roy|
|Cunningham, Dr. J. A. (Whitehaven)||Huckfield, Leslie||Meacher, Michael|
|Dalyell, Tam||Hughes, Rt. Hn. Cledwyn (Anglesey)||Mellish. Rt. Hn. Robert|
|Davidson, Arthur||Hughes, Mark (Durham)||Mendelson, John|
|Davies, Denzil (Llanelly)||Hughes, Robert (Aberdeen, N.)||Millan, Bruce|
|Davis, Clinton (Hackney, C.)||Hughes, Roy (Newport)||Miller, Dr. M. S.|
|Davis, Terry (Bromsgrove)||Hunter, Adam||Milne, Edward|
|Deakins, Eric||Janner, Greville||Mitchell, R. C. (S'hampyton, Itchen)|
|Delargy, Hugh||Jay, Rt. Hn. Douglas||Morgan, Elystan (Cardiganshire)|
|Dell, Rt. Hn. Edmund||Jenkins, Hugh (Putney)||Morris, Charles R. (Openshaw)|
|Dempsey, James||Jenkins, Rt. Hn. Roy (Stechford)||Murray, Ronald King|
|O'Malley, Brian||Roderick, Caerwyn E.(Br'c'n&R'dnor)||Thomas, Rt. Hn.George (Cardiff, W.)|
|Oram, Bert||Roper, John||Thomson, Rt. Hn. G. (Dundee, E.)|
|Orbach, Maurice||Rose, Paul B.||Tinn, James|
|Orme, Stanley||Ross, Rt. Hn. William (Kilmarnock)||Tomney, Frank|
|Oswald, Thomas||Sandelson, Neville||Urwin, T. W.|
|Owen, Dr. David (Plymouth, Sutton)||Sheldon, Robert (Ashton-under-Lyne)||Varley, Eric G.|
|Paget, R. T.||Shore, Rt. Hn. Peter (Stepney)||Wainwright, Edwin|
|Palmer, Arthur||Short, Mrs. Renée (W'hampton.N.E.)||Walden, Brian (B'm'ham, All Saints)|
|Pannell, Rt. Hn. Charles||Silkin, Rt. Hn. John (Deptford)||Wallace, George|
|Parker, John (Dagenham)||Silkin, Hn. S. C. (Dulwich)||Watkins, David|
|Pavitt, Laurie||Silverman, Julius||Weitzman, David|
|Peart, Rt. Hn. Fred||Skinner, Dennis||Wellbeloved, James|
|Pendry, Tom||Small, William||Wells, William (Walsall, N.)|
|Pentland, Norman||Smith, John (Lanarkshire, N.)||White, James (Glasgow, Pollok)|
|Prentice, Rt. Hn. Reg.||Spearing, Nigel||Williams, Mrs. Shirley (Hitchin)|
|Prescott, John||Spriggs, Leslie||Wilson, Rt. Hn. Harold (Huyton)|
|Price, J. T. (Westhoughton)||Stewart, Rt. Hn. Michael (Fulham)||Woof, Robert|
|Rankin, John||Stoddart, David (Swindon)|
|Rees, Merlyn (Leeds, S.)||Strang, Gavin||TELLERS FOR THE AYES:|
|Rhodes, Geoffrey||Summerskill, Hn. Dr. Shirley||Mr. John Golding and|
|Richard, Ivor||Swain, Thomas||Mr. Ernest Armstrong|
|Roberts, Rt.Hn.Goronwy(Caernarvon)||Taverne, Dick|
|Adley, Robert||Goodhew, Victor||Mather, Carol|
|Alison, Michael (Barkston Ash)||Gorst, John||Mawby, Ray|
|Allason, James (Hemel Hempstead)||Gower, Raymond||Maxwell-Hyslop, R. J.|
|Archer, Jeffrey (Louth)||Grant, Anthony (Harrow, C.)||Meyer, Sir Anthony|
|Astor, John||Gray, Hamish||Mills, Peter (Torrington)|
|Atkins, Humphrey||Green, Alan||Mills, Stratton (Belfast, N.)|
|Balniel, Rt. Hn. Lord||Grieve, Percy||Mitchell,Lt.-Col.C.(Aberdeenshire,W)|
|Batsford, Brian||Griffiths, Eldon (Bury St. Edmunds)||Monks, Mrs. Connie|
|Beamish, Col. Sir Tufton||Grylls, Michael||Montgomery, Fergus|
|Bennett, Sir Frederic (Torquay)||Gummer, J. Selwyn||More, Jasper|
|Benyon, W.||Gurden, Harold||Morgan, Geraint (Denbigh)|
|Biggs-Davison, John||Hall, Miss Joan (Keighley)||Morgan-Giles, Rear-Adm.|
|Blaker, Peter||Hall-Davis, A. G. F.||Morrison, Charles|
|Body, Richard||Hannam, John (Exeter)||Murton, Oscar|
|Boscawen, Robert||Harrison, Brian (Maldon)||Neave, Airey|
|Bowden, Andrew||Haselhurst, Alan||Normanton, Tom|
|Braine, Sir Bernard||Hastings, Stephen||Nott, John|
|Brinton, Sir Tatton||Havers, Michael||Onslow, Cranley|
|Brown, Sir Edward (Bath)||Hawkins, Paul||Oppenheim, Mrs. Sally|
|Bryan, Paul||Hiley, Joseph||Orr, Capt. L. P. S.|
|Buchanan-Smith, Alick(Angus,N&M)||Hill, John E. B. (Norfolk, S.)||Osborn, John|
|Butler, Adam (Bosworth)||Hill, James (Southampton, Test)||Owen, Idris (Stockport, N.)|
|Campbell, Rt.Hn.G.(Moray&Nairn)||Holt, Miss Mary||Page, Graham (Crosby)|
|Carlisle, Mark||Hordern, Peter||Page, John (Harrow, W.)|
|Carr, Rt. Hn. Robert||Hornby, Richard||Pardoe, John|
|Chapman, Sydney||Hornsby-Smith,Rt.Hn. Dame Patricia||Parkinson, Cecil|
|Churchill, W. S.||Howe, Hn. Sir Geoffrey (Reigate)||Peel, John|
|Clark, William (Surrey, E.)||Howell, David (Guildford)||Percival, Ian|
|Clarke, Kenneth (Rushcliffe)||Howell, Ralph (Norfolk, N.)||Pike, Miss Mervyn|
|Clegg, Walter||James, David||Pink, R. Bonner|
|Cockeram, Eric||Jenkin, Patrick (Woodford)||Pounder, Rafton|
|Cooke, Robert||Jessel, Toby||Price, David (Eastleigh)|
|Corfield, Rt. Hn. Frederick||Johnston, Russell (Inverness)||Proudfoot, Wilfred|
|Cormack, Patrick||Kaberry, Sir Donald||Pym, Rt. Hn. Francis|
|Costain, A. P.||Kershaw, Anthony||Redmond, Robert|
|Critchley, Julian||Reed, Laurance (Bolton, E.)|
|Crouch, David||Kimbal, Marcus||Rees, peter (Dover)|
|Crowder, F. P.||King, Evelyn (Dorset, S.)||Renton, Rt. Hn. Sir David|
|Curran, Charles||Kinsey, J. R.||Rhys Williams, Sir Brandon|
|d'Avigdor-Goldsmid,Maj.-Gen.James||Kirk, Peter||Ridley, Hn. Nicholas|
|Dodds-Parker, Douglas||Knight, Mrs. Jill||Ridsdale, Julian|
|Dykes, Hugh||Knox, David||Rippon, Rt. Hn. Geoffrey|
|Edwards, Nicholas (Pembroke)||Lane, David||Roberts, Michael (Cardiff, N.)|
|Elliot, Capt. Walter (Carshalton)||Langford-Holt, Sir John||Roberts, Wyn (Conway)|
|Elliott, R. W. (N'c'tle-upon-Tyne,N.)||Legge-Bourke, Sir Harry||Rodgers, Sir John (Sevenoaks)|
|Emery, Peter||Le Marchant, Spencer||Rossi, Hugh (Hornsey)|
|Eyre, Reginald||Lloyd, Ian (P'tsm'th, Langstone)||Rost, Peter|
|Fenner, Mrs. Peggy||Longden, Sir Gilbert||Russell, Sir Ronald|
|Fidler, Michael||Loveridge, John||St. John-Stevas, Norman|
|Finsberg, Geoffrey (Hampstead)||Luce, R. N.||Sandys, Rt. Hn. D.|
|Fisher, Nigel (Surbiton)||McAdden, Sir Stephen||Scott, Nicholas|
|Fletcher-Cooke, Charles||MacArthur, Ian||Sharples, Richard|
|Fookes, Miss Janet||McCrindle, R. A.||Shaw, Michael (Sc'b'gh& Whitby)|
|Fortescue, Tim||McLaren, Martin||Sinclair, Sir George|
|Fox, Marcus||Maclean, Sir Fitzroy||Skeet, T H. H.|
|Fry, Peter||McMaster, Stanley||Soref, Harold|
|Gibson-Watt, David||Macmillan,Rt.Hn.Maurice (Farnham)||Speed, Keith|
|Godber, Rt. Hn. J. B.||McNair-Wilson, Michael||Spence, John|
|Goodhart, Philip||Maddan, Martin||Sproat, Iain|
|Stainton, Keith||Thompson, Sir Richard (Croydon, S.)||Wiggin, Jerry|
|Stanbrook, Ivor||Thorpe, Rt. Hn. Jeremy||Wilkinson, John|
|Steel, David||Tilney, John||Winterton, Nicholas|
|Stewart-Smith, Geoffrey (Belper)||Trafford, Dr. Anthony||Wolrige-Gordon, Patrick|
|Stodart, Anthony (Edinburgh, W.)||Waddington, David||Wood, Rt. Hn. Richard|
|Stuttaford, Dr. Tom||Walder, David (Clitheroe)||Woodhouse, Hn. Christopher|
|Tapsell, Peter||Wall, Patrick||Worsley, Marcus|
|Taylor, Frank (Moss Side)||Walters, Dennis||Wylie, Rt. Hn. N. R.|
|Taylor, Robert (Croydon, N.W.)||Ward, Dame Irene|
|Tebbit, Norman||Warren, Kenneth||TELLERS FOR THE NOES:|
|Temple, John M.||Weatherill, Bernard||Mr. Michael Jopling and|
|Thatcher, Rt. Hn. Mrs. Margaret||White, Roger (Gravesend)||Mr. John Stradling Thomas|
§ Question accordingly negatived.
§ [Miss HARVIE ANDERSON in the Chair]
§ Mr. Denis Healey (Leeds, East)
I beg to move, in page 2, line 22, leave out 'includes' and insert 'means'.
The First Deputy Chairman
It would be for the convenience of the Committee to take with Amendment No. 148 Amendment No. 149 in page 2, line 22, after 'agreement', insert'other than one relating to defence'.and Amendment No. 187, in line 22, after 'agreement', insert'other than one relating to economic or monetary union or defence".
§ Mr. Healey
I shall concentrate on Amendment No. 149. You will realise, Miss Harvie Anderson, the difficulties created by mixing defence with monetary union. I imagine that other hon. Members will be raising matters germane to the other Amendments later.
The effect of the Clause is to commit the House to a totally inadequate procedure for considering and approving any proposals to enlarge the Community to cover matters of defence. The purpose of Amendment No. 149 is to liberate the House and the Government from the restrictions imposed by the Clause.
There is no reference to defence in the Rome Treaty; the word does not appear in the 200-odd pages of the treaty, which sets up an Economic Community. There had been an earlier attempt to set up a defence community, but that collapsed four years before the Economic Community was set up, because the French Parliament exercised its right to defeat the proposal as put by the French Government. The French Parliament was able, on that occasion, to spend 2½ years in detailed debate and discussion of the proposals for a defence community before finally deciding to pass to other matters.
Our Amendment seeks to clarify a point that remains obscure after a fortnight's serious debate. The question on 636 which I should like the Chancellor of the Duchy of Lancaster to clarify our minds is this: suppose the Common Market decided to broaden its activities into military matters, as it has already in foreign policy by acceptance of the D'Avignon proposals; suppose, for example, it decided to assert a rôle in the formulation of defence policy, as the Council of Ministers is already asserting a rôle in the formulation of foreign policy; or suppose—even more important—that it decided, by amending or adding to the Rome Treaty, to set itself up as a defence community as well as an economic community, by a very extensive addition to the treaty, perhaps of 100 clauses or so, like the original treaty for a European defence community. Are we right in believing that the Bill as drafted would require the Government simply to seek the approval of the House to such a step by an affirmative Resolution to an Order in Council, so that a matter of this staggering importance would be decided by 1½ hours' debate at the end of a parliamentary day, or perhaps a few hours longer if the proposals which had been made in procedural committee were adopted, the debate being severely restricted by the rules of order?
Would it be the case, as our reading of the Bill makes us believe, that once such a procedure had been gone through—once the scope of the Community had been thus enlarged—it might well be possible for the Community collectively to make treaties with a third party on defence matters, or to extend the scope of its activities in defence matters, with no reference to this or any other Parliament, on the ground that that was a consequential development of a Community principle already accepted according to the rules laid down, and that the new developments thus carried through were carried through by the Community collectively without involving separate decision by the member Governments?
637 If that is the case—and nothing said by Ministers in the past week suggests that it is not—I cannot believe that the Government intend to compel the House to consent to changes in the whole scope and range of the Community's activity of such tremendous importance with so little discussion and consideration permitted. Whatever the Government intend, I cannot believe that the House as a whole could agree to such a procedure. There is no obligation on the Government as a result of the Rome Treaty, or any of the other treaties referred to in the Bill, to seek parliamentary approval of that type of development by this procedure.
I was very impressed by the words used by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) in the debate yesterday, and I will quote from yesterday's Hansard. He said: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, or 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.And he added: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?"—[Official Report, 14th March, 1972; Vol. 833, c. 416.]This point was put with force by the hon. and learned Member for Darwen and it received no reply whatever from the right hon. and learned Gentleman when he sought to reply in the early hours of this morning. I would ask the right hon. and learned Gentleman this question: is there anything whatever laid down in any of the treaties to which we are now asked to accede which requires Her Majesty's Government to bind Parliament in Britain to this specific procedure for accession to new treaties which are concluded by the Community after our accession? Indeed, is there any other Parliament in the Community which has this procedure of accepting Orders in Council by affirmative Resolution? I suggest that there is not. I suggest that if they wish to do so Her Majesty's Government are completely free, so far as 638 the Community is concerned, to enable Parliament to approve new treaties either by the passage of a Bill through the normal legislative procedure or, as has sometimes been the case, through a two- or three-day debate on a Motion to approve a treaty. Is there anything in the Community procedure as laid down for its members which compels the British Government to bind the British Parliament to this procedure in this field?
§ Mr. Rippon
I am very glad to welcome the right hon. Gentleman to our debates. If he had been here he would have heard that we have had quite exhaustive discussions about this. Of course the Government of the day are not bound to use the affirmative Resolution Order in Council procedure. They could proceed by Act of Parliament. There have been discussions as to whether we could have a formula whereby a distinction could be drawn between minor matters and major matters; the latter could possibly be dealt with by Act of Parliament, but this would not be appropriate for defence treaties. There could always be a three-day debate in the hypothetical circumstances of this essentially economic Community becoming a defence Community.
§ Mr. Healey
I am grateful to the right hon. and learned Gentleman, and I have read with care everything that he and other hon. Gentlemen opposite have said in these debates. But the point still remains that, as drafted, the Clause which we seek to amend says only that: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—this is mandatory, not permissive—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.The wording of the Clause that we seek to amend is quite specific. It lays down a procedure, and one procedure only, which is a condition for acceptance by this House of any post-accession treaties. It is perfectly true that the right hon. and learned Gentleman and, on occasion, the Solicitor-General and other hon. Gentlemen on the Government Front Bench, have sought to persuade the House that, for example, it would be open to the House to reject an Order in Council 639 which was submitted for affirmative Resolution and, by some machinery not so far explained, to compel the Government to put the same issue in terms of a Bill requiring legislative assent.
It was even stated by the right hon. and learned Gentleman himself last night that the ad hoc committee, whose composition and functions have not yet been determined, should itself decide that Parliament should approve a post-accession treaty by a legislative process rather than by the process laid down in this Bill. But the words of the Bill are explicit and it is only to them that I can address my remarks. If he is really serious about his suggestion, let him amend the Clause so that it lays down those procedures and makes them completely available to the House and the Government in such cases. He has not chosen to amend the Clause. But let him at least exclude the defence or military treaties relating to the Community from these procedures, because I cannot believe that if it fully studied the matter this House would agree to be bound in the way that it is bound by the Clause as drafted in the all-important matter of military affairs.
§ Mr. William Baxter (West Stirlingshire)
While I am diametrically opposed to going into Europe, I am most interested in the point that my right hon. Friend has raised about defence and military treaties. It is not my recollection that it has been the practice to put before the Housed fence treaties. I am mindful of the Nassau Agreement on the question of building nuclear submarines, and so forth. The Labour Party agreed as a policy statement that we would renegotiate that agreement, but as far as I recall it was never renegotiated or presented to the House. While, as I say, I am diametrically opposed to going into Europe, I should like my right hon. Friend to explain the difference between defence agreements which may have been entered into in the past and defence agreements which may be entered into by European Governments in future.
§ Mr. Healey
I make the distinction clear. Normal military treaties are not secret. The Polaris agreement was published in a Command Paper available to Parliament and the public, and it was 640 debated in the House on a Motion to approve it. The same was true of the S.E.A.T.O., Paris and N.A.T.O. treaties. It is possible that the E.E.C. might wish to develop a completely different type of military treaty, more along the lines of the European Defence Community Treaty, to which it was never agreed by Her Majesty's Government that Britain should be a party. In the case of such a treaty, which would require a total revolution in the organisation of the forces of the Crown—in their command structure and in the nature of their equipment and training, and so on—I suggest that it would be impossible to give effect to it without a prolonged legislative process, as was the case in all the Parliaments of the prospective members of the E.D.C. in the early 1950s.
As I pointed out earlier, the French Parliament continually discussed the E.D.C. Treaty from February, 1952, until it finally rejected it in August, 1954. But under the procedures laid down in this Clause by the Government, such consideration would be denied to the House if such a treaty were put to it as an annex to the Treaty of Rome. That is precisely the point that I am seeking to make.
§ Mr. Arthur Lewis (West Ham, North)
Would this mean, therefore, that conscription could be introduced on the basis of one-and-a-half hours' debate on an affirmative Resolution?
§ Mr. Healey
The Community might decide to constitute itself as having defence as well as economic responsibilities—and let us recall that it has already decided, in addition to the Rome Treaty, to give itself certain political responsibilities in foreign affairs, through the D'Avignon Committee and through the discussions in the Council of Ministers. It might well decide to operate a uniform system of military service amongst all its members, as, for example, it has decided to operate a uniform system of taxation in the value-added tax amongst its members.
As I understand the Bill as drafted, if the Council of Ministers had agreed to such a decision and it flowed from some amendment to the treaty which allowed the European Economic Community to have functions in the defence field, one 641 could well imagine a situation in which not only would this not get a full parliamentary debate in Britain but might not even be subjected to the procedure of approval by affirmative Resolution and Order in Council. I should like the right hon. and learned Gentleman to clarify this point. It might be possible for lawyers to regard such a decision as consequential on a decision in principle which had gone through the procedure laid down in Clause l(3)(b). In that case, we might find ourselves committed to a twelve-month period of military service with no discussion whatever in the House.
Any constitutional lawyer could draft a mock Bill which would enable the Government to give effect to such a decision without discussion in Parliament, provided that the earlier Bill—which had had only an hour-and-a-half or a five-hours' discussion under the affirmative Resolution procedure—was held to constitute the framework for such a decision, probably as a consequence of the powers given to the Council of Ministers.
I could be wrong about this. I must confess that the more I have read the debates the more confused I have become about the Government's confusion on these matters. I hope that the right hon. and learned Gentleman will answer this specific point. I am grateful to my hon. Friend the Member for West Stirlingshire (Mr. W. Baxter) for raising it.
I think that the whole Committee will agree that defence is a matter of unique importance. It concerns the very survival of the nation and, if improperly handled, can affect the survival of the human race. Of course there are a great variety of views about the nature of the defence problem and the right way to handle it, but I think that most hon. Members, and most of those in all but one of the Community Parliaments, believe that their security depends at present on a close alliance between Western Europe and North America which goes beyond a juridical commitment such as a conventional treaty of the past, and which is given credibility by the integration, under a single command, of American and European forces on the land, in the seas and in the skies of Europe. Anything that weakens this military link weakens our common security.
642 We on this side of the Committee—and, I hope, hon. Members opposite—look forward to a new system of security based on co-operation between N.A.T.O. and the Warsaw Pact in the control and reduction of forces in Europe. We still hope that negotiations on mutual and balanced force reductions between the alliances may start, and will be followed by a European security conference. I go further. I believe and have often argued, from the benches opposite, that closer co-operation in defence among the European members of N.A.T.O. is a good thing. That is why I started the so-called Eurogroup in 1968, which the present Government are continuing, and developed joint projects in aerospace and other fields with Germany, Italy, France and other European countries.
I have always believed that this type of defence co-operation among European countries must be within the framework of N.A.T.O. and must be carried out in ways which favour rather than discourage the chances of co-operation in the longer term with Eastern Europe on arms control and disarmament. Indeed, the Eurogroup, interestingly enough, far from being based on the E.E.C., consisted of a number of European members of N.A.T.O.—some of whom are not even applying for membership of the E.E.C.—but excluded one of the major present members of the E.E.C, namely, France. As I pointed out in an earlier debate, the French Government, by their own will, decided to sit behind the door of the room in which the other European members of N.A.T.O. were discussing defence co-operation.
Those who favour, as I do, closer co-operation among the European members of N.A.T.O. in defence are not thereby committed to saying that such co-operation must or can only be carried out through the E.E.C. I believe that there are some disadvantages and even dangers in seeking to enlarge the E.E.C. so as to assume military security functions.
Mr. J. T. Price
I hope that my right hon. Friend will not forget that the only point of contact we had with the Six prior to our application to enter the Community was through Western European Union. We have always been identified as a seventh partner within the original concept of Western European 643 Union. W.E.U. had a defence committee on which I served at one time as a humble member. To complete the picture, we should admit that we are identified to that extent, although I see the force of the arguments of my right hon. Friend.
§ Mr. Healey
I am grateful to my hon. Friend. I am well aware of the sterling work he did on the Western European Union Military Committee in considering these questions.
The point that I am seeking to make is that closer military co-operation between Britain and European countries does not depend upon giving the E.E.C. military functions. Indeed, as I shall seek to show, it might well be seriously endangered by any attempt to give it military functions, just as—if I may use an analogy—our relations with countries outside Europe would be seriously damaged if we attempted to give N.A.T.O. functions in international aid, which is a suggestion that has sometimes been made.
The reasons why the E.E.C. is not a suitable instrument for European defence co-operation are several. First, the agricultural and trading policies of the Community are already beginning to threaten the military link between America and Western Europe, as Senator Connally has pointed out and as has been pointed out by Mr. Peterson, the new American Secretary for Trade, and Mr. Eberle, the negotiator with the Community on behalf of the United States. We have already been given warning by the American Administration that unless there are radical changes in the common agricultural policy of the Community, America may be compelled to reduce her military commitment in Europe or, alternatively, to ask the European countries to make a far bigger financial contribution towards the cost of stationing American troops in Europe.
Secondly, to use the E.E.C. as the basis of European defence co-operation would mean excluding not only America and Canada but also some important European countries, members of N.A.T.O., which are not and may not become members of the Community. That applies already to the countries on the Mediterranean fringes of N.A.T.O.—Greece, 644 Turkey and Portugal. But nobody can be certain, given the development of opinion in Norway and Denmark, that Norway and Denmark in the end, after their referenda, will be able to join the E.E.C. even if their Governments so wish. In that case to seek to build European defence co-operation in the Community would mean excluding all the countries, except Italy, on the flanks of N.A.T.O. both North and South. I have some personal experience of the damage which can flow from any attempt to build the European defence community with anything less than the totality of the European members of the Alliance which are prepared to join in such co-operation.
I am well aware that the Chancellor of the Duchy, the Prime Minister, the Secretary of State for Defence and the Foreign Secretary have expressed a different view. They have committed themselves in many speeches to trying to develop the enlarged Community as a defence community no less than an economic and also, they say, a political community. The Chancellor of the Duchy shakes his head. Perhaps he will tell me why he disagrees and then perhaps I can swap quotations with him.
§ Mr. Rippon
What has been made clear throughout is that at no point have defence considerations come into the negotiations about joining the Community. The right hon. Gentleman can search right through the documents without finding any reference to defence.
§ Mr. Healey
The righ hon. and learned Gentleman is far too intelligent to have mistaken what I am saying. I am not saying that the Community treaties, as drafted, commit us to defence. I am saying that the right hon. and learned Gentleman, the Foreign Secretary, the Prime Minister and the Secretary of State for Defence have repeatedly stated that in their view the enlarged Community would and should in the longer run seek to develop defence functions. I am sure the Chancellor of the Duchy will not deny it. What we are discussing in this Amendment is nothing to do with the treaties pre-accession. We are discussing what might happen if it was decided by the Community, under urging from the British Government, to give the Community functions in defence.
645 The right hon. and learned Gentleman will be well aware that we are particularly concerned about the Prime Minister's view, which he has stated on many occasions, that in the enlarged Community at some stage the British and French nuclear forces should be combined "in trust for Europe"—to use the phrase the right hon. Gentleman used in his Godkin lectures—as the basis for what is often described as a European deterrent. The last statement of any length by the Prime Minister on this matter was in an article in the American journal Foreign Affairs in 1969, in which he wrote:It is now three years since I proposed the idea of a joint Anglo-French nuclear deterrent which could be held in trust for Europe.He went on:I have been glad to notice that similar suggestions have now bzen made by Herr Strauss"—this referred to a German Christian Socialist, a politician who is now in opposition—and hinted at by the new French Government.He was referring, of course, to the Government of President Pompidou.
Ever since the Prime Minister when in Opposition put forward the idea of an Anglo-French deterrent, I have repeatedly asked him whether he believes this deterrent should be inside or outside N.A.T.O. He has consistently refused to reply. I well recall an occasion six years ago when he was sitting on the Opposition side of this House, having returned from Harvard after giving the Godkin lectures. He then sat mum in the face of repeated requests to say something on this subject.
The Chancellor of the Duchy said in Paris in June, 1971, that once Britain joined the Common Market…the whole setting for defence co-operation and co-ordination between her and the Six will be transformed.He then said:…in the future as the unity of Europe spreads and deepens, defence will also have to be included in the same framework of unity.The right hon. and learned Gentleman affected to misunderstand me and pointed out that there was nothing in the treaties to commit us to defence. Did the right hon. and learned Gentleman shake his head? Does he deny that I am quoting him accurately?
§ Mr. Rippon
The fact that defence is a part of political unity is one which the right hon. Gentleman used to advocate passionately right across Europe. But it has nothing to do with the treaties that we are discussing. For these hypothetical considerations to arise, one would require major amendment of the treaties, and one would have to bring matters forward in a different way, as one does in regard to all defence treaties and agreements.
§ Mr. Healey
I am grateful for the right hon. and learned Gentleman's interjection. I do not know whether he has been awake for the last half-hour. If he has been, he will know that we are discussing precisely what may happen in the future and how the House will handle proposals that the Community should be extended or enlarged so as to cover defence, as the right hon. and learned Gentleman himself suggested it might do in the question to which I have referred.
When the Minister of State for Defence was asked the specific question whether nuclear deals with France are or will be contemplated outside the framework of N.A.T.O., he dodged the question. The nearest that we ever got to a reply was from the Foreign and Commonwealth Secretary who, when asked on 20th July, 1970, about Anglo-French nuclear co-operation, said that the French Government had not yet expressed their view and went on:There could be nuclear arrangements complementary to the N.A.T.O. Alliance, if necessary."—[Official Report, 20th July, 1970; Vol. 804, c. 23.]In other words, he looked forward to the possibility of a nuclear arrangement with France which was not inside N.A.T.O. but was "complementary" to N.A.T.O.
I know that some right hon. and hon. Members will disagree with me, but I suggest that it would be deeply dangerous to N.A.T.O. and to the defence relationship between Europe and the United States if two or three European countries were to seek to build a nuclear deterrent outside the integrated command structure of the North Atlantic Treaty Organisation. It would require us to ask the United States to revise the MacMahon Act, and I have not yet met any American congressman or 647 senator who believes that Congress would agree so to do.
What is certain is that even if the American Administration acceded to such a request it would mean the sudden and final end to the co-operation in nuclear weapons and intelligence between Britain and the United States which has been one of our major defence assets for the last quarter of a century.
It is also important to recognise that such a suggestion is quite unacceptable even to the other members of the European Economic Community. As we know from many experiences in the past, Italy would demand an equal rôle in such a force with Britain and France. But the really agonising pressures would be imposed on Germany. There are some important German politicians—among them Herr Franz Josef Strauss, whose support the Prime Minister welcomed so greatly—who have always supported a German military nuclear rôle and who would see an Anglo-French deterrent as opening the door to a German finger on the nuclear trigger. There are many more Germans who would say that the opening of this Pandora's Box, the reawakening of this sleeping giant, would impose political strains on the German system which would not only imperil its internal stability but wreck any chance of organising successful co-operation between Germany and her neighbours in Eastern Europe.
Those of us who have experience of talking with Soviet leaders know that one of the very few changes in the international situation which might lead them seriously to contemplate military action against Western Europe is the prospect of German access to nuclear weapons.
These facts are familiar to the Committee. Against the background of these facts the suggestion that we should try to build a military community into the existing Economic Community round an Anglo-French nuclear deterrent, which is held "in trust for Europe" to use the Prime Minister's words, is a prescription for disaster. Yet the Prime Minister continues to hawk his obsession round the capitals of Europe. He admitted in Le Monde recently that he raised this matter with President Pompidou at their meeting at the Elysée a year ago and dropped it 648 only because President Pompidou told him that the time was not yet ripe. President Pompidou is to meet the Prime Minister at Chequers in three days' time, I wonder whether the time will be any riper at this next meeting.
I hope I have shown that to attempt to give the European Economic Community a rôle in military affairs would at least raise new issues of immense importance to this country, to Europe, and, in my view, to the world. I do not ask the Committee to agree with my view on the issues themselves. I know that the right hon. and learned Gentleman and some of his right hon. and hon. Friends disagree with me. However, I hope that they agree on the importance of the issues, even if they disagree with me on their substance.
The purpose of Amendment No. 149 is not to commit us to a view on the issues themselves. It does not rule out greater European co-operation on defence—I strongly support this now, as I did in 1968 when I was a Minister. The Amendment does not rule out a military rôle for the European Economic Community—I personally strongly oppose such a rôle, but if the Government accept the Amendment they will not be excluding such a rôle; they will simply be changing the rules that they are laying down for parliamentary consideration of any proposals to change the rôle of the Commission. All that I and my right hon. and hon. Friends insist is that if it is, or if it were in future proposed, to give the European Economic Community a military rôle we should be completely free to choose the appropriate means for discussing it in detail, whether by a full legislative process, if that is appropriate to the particular proposal under consideration, or by a debate on a Motion to approve the treaty or other arrangement which may be made. However, we should not be committed, as we are in the Bill as drafted, hugger-mugger to approve matters of such immense importance simply by a truncated debate under restricted rules of procedure through an affirmative Resolution on an Order in Council.
I appeal very strongly to the right hon. and learned Gentleman to accept the Amendment. If what he says is true, if to give the Community a military rôle 649 would require an enormous new paraphernalia of treaty which required legislation in the House of Commons, that is all the more reason why he should accept the Amendment. It would not bind his hands. It would unbind his hands so that he and his right hon. and hon. Friends, if they happened to be in office at the time, could act as they thought fit. However, I must tell him that the protection offered by himself and other speakers from the Treasury Bench only last week against the procedures laid down in the Bill seem totally inadequate to many right hon. and hon. Members on both sides of the Committee.
The right hon. Member for Wolverhampton, South-West (Mr. Powell), in a scathing passage in his speech yesterday, said that it is the extreme of innocence to imagine that a Government seeking to push an Order in Council through the House in a short debate on a three-line Whip could be persuaded instead to allow a prolonged discussion through a legislative process after they had already committed themselves to seek approval according to the procedures laid down.
As for the ad hoc committee, its composition and function we do not know. They have not been decided, and we do not even know whether the committee will ever be set up. The Opposition have yet to declare their view on this. The committee will presumably be expressing general views with no precise proposals before it. The idea that this can substitute for the detailed consideration of a precise proposal, which is the essence of the function of the House of Commons, is equally ludicrous.
The suggestion that the Minister improvised in a panic in the early hours of last night, that the ad hoc committee should be empowered to decide that the procedure laid down in the Bill should be contradicted or ignored seems to me a very doubtful legal proposition, quite apart from its political reality.
I appeal to the Government to accept the Amendment. They have nothing whatever to lose if their intentions are honest and above board. If they insist on leaving their intentions arcane, I hope that hon. Members on both sides will act as eximiously as possible to preserve their rights on this issue, which is vital in the most literal sense of the word.
§ Mr. Powell
We are discussing with this Amendment and Amendment No. 149—to which the right hon. Gentleman exclusively spoke—Amendment No. 187, which brings economic and monetary development on the part of the E.E.C. into the discussion as well as defence development.
I do not think that in looking forward, even in imagination, to these developments, we can be accused of any unrealism or of conjuring up spectres in order to have something to talk about on Clause 1. These developments have been repeatedly and impressively held out to the House and the country as the real inducements to embark upon the first step which is represented by the Treaty of Accession to the Community. That is true of further stages of economic and monetary union; it is also, if possible, even more true of the development of the Community as a defence community.
I do not know whether the experience of other hon. Members has been the same as mine, but I have found that among members of the public, often belonging to the older generation, who on other grounds are strongly adverse to British membership of the Community, the one argument, the one appeal, which secured a hearing for it was that eventually this would lead to a strengthening of the defences of the United Kingdom.
Indeed, there has been a development in this matter in the arguments which have accompanied the debate on Britain and the European Community over the last 15 years. There has been a crescendo, not uninterrupted but unmistakable. When one remembers the early days in the late 'fifties and the decision taken by the Government of Harold Macmillan in the early 'sixties one recalls that the preponderant argument was not even economic and monetary union but opportunity for trade. The argument which appealed to many—I confess quite frankly that in those days it appealed to me—was that this was more of a free trade area than of an economic Community in the full sense of the term,and that the disadvantages of being excluded from it exceeded the disadvantages of being included in it.
As the years have gone by, not only on the Continent of Europe, in the aspirations and development of the Community itself, but also in the way in which it 651 has been viewed and commended from this side of the Channel, there has been a great change and development. It is for the sake of growing political unity—the right hon. Member for Leeds, East reminded the Committee of the words used by my right hon. Friend the Prime Minister after his meeting in Paris last year—that membership has been commended and on the ground not only of the economic gains and advantages but of the enhanced safety that political unity would bring. So we have been asked to envisage a great bloc, increasingly unified politically, which would not only be immensely strong economically but which would be so—I do not want to use harsh terms; I was about to say "as a military power"—I will say instead, immensely strong "for the purposes of defence".
I refer not so much to the strange, and rather unhistorical, argument that political unity in Western Europe would banish the spectre of what is called "civil war" in Western Europe—an expression which displays gross incomprehension of the nature of what Europe and its nations are. Political unity has been commended still more on the ground that the bulwark opposed by Western Europe towards the East would be stronger, if clothed in the form, and erected as the result, of political unification than any alliance could be.
I repeat that as I go about the country, speaking and arguing on this subject, I find that this is, for many people, the key argument, even the be-all and end-all. I notice, too, in the speeches of the occupants of the Treasury Bench, that as the months have gone by—perhaps as the economic arguments have been subjected to more and more searching examination—the emphasis on what is called the political aspect as opposed to the economic has constantly increased.
§ Mr. W. Baxter
I remind the right hon. Gentleman that the Treaty of Rome has not been altered since the time, to which he referred, when he supported its implications. There were at that time political as well as economic implications. At what stage and on what basis did he change his view and become anti-E.E.C.?
§ Sir D. Walker-Smith
Before my right hon. Friend answers that question and before he leaves the interesting historical 652 comparison on which he is engaged, may I ask him to recall that in the years 1957–60 Mr. Macmillan and other Conservative Ministers of the Government in which my right hon. Friend and I had the privilege to serve said that while they would favour a free trade area basis they rejected the supra-national implications of the Treaty of Rome?
§ Mr. Powell
I thank my right hon. and learned Friend for recalling that.
In answer to the hon. Member for West Stirlingshire (Mr. W. Baxter). I am perfectly prepared to say—I have never declined to say—that in retrospect one's hopes that, in the early stages of this new grouping, Britain might be able to make light of what then seemed to many of us political trappings and political idealism, and make the Community much more a free trade area than an economic unit, have been disproved by the passage of time.
§ Mr. Rippon
Does my right hon. Friend agree that he did not regard them as having been disproved as late as 1968?
§ Mr. Powell
I will not agree with that. Nor will I apologise for having taken the view, as a colleague of my right hon. and learned Friend and others in 1967, that if the Administration of the party opposite wanted to renew the experiment which had broken down in 1963, it did not lie in our mouths to object. I am quite prepared to agree that my right hon. and learned Friend the Member for Hertfordshire, East and others have been more consistent and more far-sighted. There is no dispute about that; and indeed nothing is to be gained in admissions or accusations about the past in examining the logical case for these Amendments—[Interruption.] If the hon. Member for West Stirlingshire is just going to thresh that straw again, I cannot give way. [Interruption.]
§ Mr. W. Baxter
I do not want to go over all that. I appreciate very much that there was a change in circumstances and I thank the right hon. Gentleman for being honest and open on the question, but I am quite naturally interested in the issue, as many in the country are Is it the defence aspect or the political aspect?
§ Mr. Powell
If the hon. Gentleman is interested, perhaps he will keep quiet and listen. I return immediately to the issue 653 of the development of the political unity of Europe in a defence sense, a defence context. There is no doubt that a politically unified Europe, if it could be conceived and realised, would present an advance upon the security afforded by a mere alliance. I do not dispute that a single military power comprising 250 million human beings, commanding all the resources in the area of Western Europe, would be militarily more powerful and effective than would be the co-operation of those nations in the form of an alliance; but the price of that enhancement of security, if it be an enhancement, which lies between alliance and unity is that there must be a single policy, effective and imposed upon all parts of that great unit in the same sense as the defence policy of the United Kingdom is accepted by and imposed upon the whole of the United Kingdom. No doubt, I repeat, more power and security is to be had thus, but only at the price—and my right hon. Friends cannot dispute this—of political unification in the genuine sense of the term. The reflections of my right hon. Friend the Prime Minister on nuclear deterrence, which the right hon. Member for Leeds, East recalled to the House, only go to confirm this. The notion of a European nuclear deterrent implies a degree of political unification in Europe, a degree of self-identification by all the parts of Europe owning the deterrent, which would go even beyond what is demanded by a defence capacity superior to that of an alliance; for the very essence of a nuclear deterrent is that the world believes, and the potential aggressor believes, that in certain circumstances one would be prepared to take the step which amounts to committing suicide. This is a threat which can only be uttered, a stance which can only be credible, if those on whose behalf it is uttered or taken up are, and are seen to be, a single political unit. Broadly speaking—I think I have used this phrase before in defence debates—it is: one nation, one nuclear deterrent. Therefore, an Anglo-French nuclear deterrent which had the effect of being a European deterrent—we are approaching the previous conclusion along this other line of argument—would imply full-scale, thorough-going political unification.
That is the justification for the right hon. Gentleman saying that the develop- 654 ment of political unity, the development of the Community into a defence community, would involve at least the same sort of self-implementing, automatically operative decisions and policies as this Bill does in the comparatively narrow sphere of trade and facilitation of commercial intercourse. It is axiomatic that a political unit which is a defence unit, which is not merely an alliance but the thing beyond an alliance, must be capable of acting directly through all its subordinate and component parts. Some such mechanism, therefore, as is comprised in embryo within the scope of this Bill, would be requisite for the development of the Community into a defence community. That is why the right hon. Gentleman is logically justified in saying that such an extension of what is being done here—indeed, the many stages towards it which would have to be taken—ought to be treated as new and decisive steps, to be considered de novo by the House of Commons and the country.
§ [Sir ROBERT GRANT-FERRIS in the Chair]
§ 9.30 p.m.
§ I turn from political unity in its ultimate defence aspect to political unity in aspects which are much nearer in terms of practicability—economic or monetary union. I see that the Amendment in the names of my right hon. Friends and myself says "economic or monetary union". I think, perhaps, on reflection, the disjunctive word "or" was not correct and the conjunction "and" would have been.
§ Sir D. Walker-Smith
I did not mean to intervene. I do not know whether discussions outside the Chamber should be reproduced here. I was only recalling to my righthon. Friend the Member for Thirsk and Malton (Sir Robin Turton) that my recollection was that he and I thought that the conjunctive was appropriate for our Amendment and we were overborne by my right hon. Friend who favoured the disjunctive.
§ Mr. Powell
I am amused to recall what my right hon. and learned Friend mentions; but there is a substantial point in this argument as between "and" and "or". The substantial point, which is of real importance, is that one cannot have economic union, if one means union in any genuine sense, without monetary union, while monetary union, in any 655 genuine sense, attracts all the other aspects of economic policy; for all the other aspects of economic policy influence the value of our domestic currency and are thus inconsistent with the automatic interconvertibility of domestic currencies, of which monetary union is the alternative expression.
I have in a sense already, by that definition of the proposition, stated the argument for the Amendment; for monetary union, like economic union—view them from whichever aspect one pleases—does imply that the whole range of policy on which separate nations can still go their own ways subject to the pressures and facts of the outside world, would require to be not merelyco-ordinated—it needs much more than co-ordination—but identified to the point at which no disharmony could arise between the different parts of the economy. They would have to be identical in the same sense as economic policy is identical throughout the United Kingdom.
Here again, a political unity which has got to the point of bringing about monetary and economic unification implies a single centre of decision making—a centre which is not consultative, which does not exercise its influence by fits and starts or in separate decisions, but which interfuses the whole and is constantly operating upon the economy of the entire political unit, just as the decisions that my right hon. Friends are taking in the Government of this country are continuously affecting the economy of the United Kingdom.
Such a union would be unthinkable without at least those powers of self-execution for the decisions of the central authority which are, again in embryo, embodied in the Bill. We come to the conclusion therefore that the pattern of the Bill is apt for extension through the subsequent stages which are envisaged by some for the development of the Community. The machinery of this Bill is perfectly apt for monetary union, economic union, defence union. But we should not permit, and nor should we be content, that this machinery should be harnessed to these further and greater purposes. If these are to be envisaged at any time, it must be as a result of new departures of policy, taking the form of 656 new legislation and of a new phase in our relations with Europe. That is the justification for the demand in the two Amendments that in no circumstances should the mechanism of the Bill automatically, or by the simple procedures of the Clause as at present drafted, be harnessed to these further developments of the Community.
Having argued that, I almost wonder whether it was not superfluous to put the Amendments down, because, unless I am mistaken, this is the view of my right hon. and learned Friend, the Chancellor of the Duchy of Lancaster. It is certainly the view of my hon. and learned Friend the Solicitor-General. However, the views of my two right hon. and hon. Friends do not always seem precisely to coincide. Yesterday my hon. and learned Friend the Solicitor-General actually rebuked me and corrected me for having assumed that these further developments would necessarily take place by the making of treaties which fall within the scope of Clause 1. He clearly distinguished "could" from "would". He said it was quite true that one could use treaties falling within Clause 1 to proceed to subsequent stages of development of the Community. But he cast doubt upon the proposition that it would be so. And this was in line with what he said last week. For last week my hon. and learned Friend, who feels as we do that it would be an abuse to proceed to these major additional steps without further legislation, had sought to argue that, if we did not like a resolution, we could throw it out and so get legislation instead.
Yesterday I think he went, in a way, further than that. He saidI suggested that, to certain limits at least, it could be done…that is to say Clause 1 could be usedprovided that each treaty was properly regarded as ancillary in that way. I certainly do not suggest it would be done because obviously one of the alternatives would remain—the opportunity of using legislation rather than an Order in Council…Then come the important words, which show there is no real disagreement between us…as being more appropriate in any significant or substantial cases".—[Official Report, 14th March, 1972; Vol. 833, c. 349–350.]657 I presume that the extension of the treaties and development of the Community for economic, monetary and defence union must fall under the description of a "significant or substantial case."
We therefore have it on the authority of my hon. and learned Friend that he regards de novo legislation as the appropriate method if those subsequent stages were ever to be entered upon. Consequently, my right hon. and learned Friend in accepting the sense of the Amendments—he can tinker around with the drafting, and no doubt would need to—is giving away nothing. He is only putting in the Bill what his hon. and learned Friend has said. He is not throwing away any power which he believes any future Government should wish to use. All he would be doing would be to remove an element of anxiety or doubt by which hon. Members on both sides have been much exercised.
Should he say, "Well, yes, but it is an unreasonable anxiety. Surely a declaration such as I have just quoted is sufficient to ease the anxieties of hon. Members?", my answer is simply that the House in this Bill is legislating as it has never legislated before. It is not only fair but it is our duty when we do so that we should demand that the limits upon what we are doing should be clearly seen on the face of the legislation. That will be the result of the acceptance of the Amendments. They will not stand in the way of any purpose of my right hon. Friends. They cannot be in any way objectionable or offensive to the most ardent enthusiast for British membership of the European Community. What I say is that it is a simple act of decency and duty on the part of the House to see that these things are in the Bill.
§ 9.45 p.m.
§ Mr. Raymond Fletcher (Ilkeston)
I have been thoroughly enjoying the crash course in law which I have been undertaking in the past few days in the Committee. I have understood about one-third of the terms used, but one term new to me has now entered by own vocabulary. That is "a legal personality". It is very useful and attractive, and I shall use it repeatedly. A legal personality is something that exists, that has rights and obligations in law. I want to carry the terms a little further and deal with the 658 European Economic Community and the two other communities fused together with it, the European Communities, as a social organism subject to certain laws of development, the precise nature of which have not yet been discerned. It will evolve, and is already beginning to evolve in ways never expected by its founders, in ways to which many existing statesmen in the Six definitely objected when the processes began.
There was a time when the late President de Gaulle of blessed and happy memory—if he were alive we should not be going through this ridiculous exercise—engaged in periodic unofficial strikes against the Community and many of its institutions. The one institution of the Community that he detested above all others was the Commission, because it was a supranational organisation, and the late President had no time for supranational organisations, unless he had 90 per cent., control of any one, such as the French Union. That is not an entirely uncivilised attitude to take.
We have seen a conversion recently on the part of President Pompidou, which cannot entirely be ascribed to the persuasive charms of our Prime Minister. We have seen the French President accepting propositions, even the Commission and many of its works, which his predecessor would cross himself before even mentioning. Why is this? What has produced this change? If we accept the conspiratorial theory of politics we must assume that some sort of—
§ 9.45 p.m.
§ Mr. Arthur Lewis
On a point of order, Mr. Godman Irvine. Is it not customary to have at least one Minister here to reply to the points raised? We have a situation now in which we have not got a Minister present to deal with any points that may be raised.
§ The Temporary Chairman (Mr. Bryant Godman Irvine)
The hon. Gentleman has been in the House long enough to know that the Chair has no control over the movement of Ministers. Might I just take this opportunity of suggesting that the hon. Gentleman relate his arguments to the Amendment.
§ The Temporary Chairman
The right hon. Gentleman must know that this is not a matter for the Chair.
§ Mr. Fletcher
I do not give a damn really whether Ministers are present or not. I am addressing myself to intelligent backbenchers whom I trust—
§ Mr. Fletcher
I was about to do so but I was recruiting for my lobby, as is my right.
This quasi-automatic process of evolution within the Community from a purely customs union in the beginning to a legal and political personality has already been noted in the European Press, and I quote from journals which are in the Library in translation.
In the Stuttgarter Zeitung of 4th February we read:Defence is Nato's pigeon, the argument runs. Yet of late there have been signs that the EEC is assuming greater importance in the defence sector than the countries concerned are willing to admit.It proceeds with the kind of argument which I briefly outline, that it is inevitable, given the process of fusion and union that is now going on, that at some point an international organisation with its own personality shall be fully armed with all the attributes of a real federation and that defence must feature on the agenda.
A rather less important journal, the Kölnische Anzeiger of 12th February, talks about relations with other countries determining developments on the home front. It goes on:There must be both a supranational body and supranational authority on foreign and defence policy matters.I regard this process as being almost automatic, as being beyond the will of any Minister in this or any other Parliament or even in a European Parliament. As this Community—and it is already three in one, the holy trinity is already with us—evolves, its supranational institutions by and of themselves will proceed to the creation of supranational political 660 institutions, for the reasons so eloquently given by the right hon. Gentleman the Member for Wolverhampton, South-West (Mr. Powell), and as a natural corollary of that there will have to be a defence organisation related to that political organisation.
In actual fact there is very little going on in Europe at this moment that makes any kind of sense unless it is related to the development of a federal authority in Europe, and a federal authority will have to have a defence apparatus. What form will that defence apparatus take? Very often in order to go forward statesmen go backwards, and I do not regard it as beyond the bounds of possibility that the European defence community idea will be resurrected. It was killed in the French Assembly by 319 votes to 264, but we got something out of the wreckage—Western European Union—and the idea has been canvassed by many defence correspondents in both articles and books that that Western European Union could become the nucleus of a purely European defence force with a very strong nuclear element in it. But the argument proceeded even further, until it reached the Godkin lectures, and it is now before us in the House of Commons. It is the idea that in some strange way the French nuclear force and our own nuclear force should be combined into a unified nuclear deterrent to be held in trust for some future political organisation in Europe.
Technically, this is a load of nonsense, because it is almost as impossible to fuse the nuclear components of our armoury and the French nuclear components of their armoury. It would be like trying to join apples and oranges and produce another type of fruit. What the French have got does not fit in very well with what we have got, and although the French have spent about three times as much as we have done up to the end of 1971 on developing the force de frappe—which has now acquired a newname—its military value will decrease rather than increase as more and more money is spent on it, because the Polaris-type weapons system is about to be superseded; even the system which carries the Poseidon warhead is also about to be superseded.
Therefore, we are dealing not with a fully-fledged nuclear force which can 661 have any meaningful effect upon diplomacy, because only a deterrent force which can in certain circumstances be used can exert any such influence; we are dealing with something which, as far as the French are concerned, is obsolescent. But what kind of doctrine, when we move from the nuts and bolts to the doctrine which guides the deployment of those nuts and bolts would have to be accepted if France and Britain were to form the nucleus of a nuclear force?
The French idea was once eloquently expressed at the Institute of Strategic Studies by a French general whose name escapes me—it is nice to welcome people to the more expensive seats in this theatre—and this was that, whereas the American nuclear force was designed to point roughly in all directions, the apparatus of N.A.T.O. was directed almost entirely towards the east. If we are to enter into a deal with the French and they still adhere to that philosophy—and they have slowed down the process of changing their philosophies in recent years—we are subscribing to something that is very dangerous and that would severely imbalance the present rough balance of terror which we have in the world.
The second thing that has to be emphasised is that if the French doctrine were to be carried to its logical conclusion, we would have insuperable difficulties in producing a suitable command and control structure. It is true that Mr. Franz Josef Strauss, who is my least favourite German, has made suggestions as to what such a command and control structure should be. In his book he suggested that it should be passed to the president of a European federation. Then, with uncharacteristic modesty, he said that such a president would not in any circumstances be a German, that the Germans would impose a self-denying ordinance upon themselves. I do not doubt that he meant what he said and believed it when he said it, but the imbalance in the balance of terror comes from the fact that the Russians will not believe that. They will believe that someone like him at some future time may assume control of the Federal Republic of Germany and may even begin progress towards the presidency of a European federation.
662 It is perfectly justifiable for hon. Members to say that these are fantasies, but they are based on fears, and fears happen to be facts in international relations. I suggest that this idea—and I do not care who propounds it—would be so severely an imbalancing factor in international relations that it would undo such good work as has been done by the deterrent over the last 15 years.
I do not believe that if a third nuclear centre were established it would be in any position to handle crises, to indulge in what the Americans call crisis management. I happen to believe that nuclear weapons can play a rôle only in that type of crisis management. The last occasion when they played such a rôle was during the Cuban crisis. The essential fact about the Cuban crisis was that two identifiable persons were in charge of authentic nuclear systems that were not threatened. I want to read to the House some very wise words written in 1963 about that situation. This was dealing with Skybolt. The quotation is:Neither the multinational nor the multilateral nuclear force is really necessary from the standpoint of a coherent nuclear strategy. Such a strategy, involving the development of weapon systems to frighten rather than fight with, bears a close resemblance to chess. And only two can play chess. This was demonstrated duringthe Cuban crisis.Mr. Kennedy did not consult his allies when he made his delicate and dangerous moves in the Caribbean in October 1962. Nor did Mr. Krushchev consult his…Both menunderstood that just as there could be only one finger on the nuclear trigger there could be only one on the safety catch.That was written by a certain Raymond Fletcher in 1963. I often wonder what happened to him.
This Amendment is not presented because it is assumed that the Chancellor of the Duchy of Lancaster is a villainous militaristic gentleman, but we do not leglislate for amiable gentlemen in amiable circumstances in the House. In this case, we are legislating for our grandchildren and great-grandchilden. What we are trying to do—so far as I am concerned it is the only thing I am trying to do—is to remove a very dangerous temptation from the hands of any future Government because, given this type of Bill as an Act of Parliament with this Clause unamended, I would not even trust my hon. Friend 663 the Member for Ebbw Vale (Mr. Michael Foot) to act in a rational way confronted with this kind of temptation. It is the business of the House as a legislative assembly to remove temptation, from the paths not of virtuous gentlemen like the Chancellor of the Duchy of Lancaster, but of such of his successors as may acquire very bad habits indeed.
If we go into this Community in such a way as would augment rather than slow down the processes towards supra-nationalism which must inevitably produce a resurrection of the European Defence Community which took four years to kill, inevitably there will be other fingers on nuclear triggers. I am not talking about any specific nationality at the moment, but the more fingers there are on nuclear triggers the more difficult the handling of any crisis is going to be. If just to gain some hypothetical commercial advantages we are to do this thing in the field of weaponry, in the field of diplomacy and in the field of defence, we
§ are bigger damned fools than I thought we were when first I was elected to the House.
§ Captain Walter Elliot (Carshalton)
Like you, Mr. Godman Irvine, I have to spend a good many hours in Standing Committee. It is extremely difficult to pick up the threads of a debate, but I hope I shall not go over ground—
§ It being Ten o'clock, The Chairman leftthe Chair to report Progress and ask leave to sit again.
§ Committee report Progress.