HC Deb 13 February 1973 vol 850 cc1201-16

6.24 p.m.

Mr. Ronald King Murray (Edinburgh, Leith)

I beg to move, That this House takes note of the Criminal Appeal (References to the European Court) Rules 1972 (S.I., 1972, No. 1786), dated 21st November 1972, a copy of which was laid before this House on 1st December. It might be for the convenience of the House, Mr. Speaker, to consider at the same time the following two motions on the Order Paper, also standing in my name and the names of my right hon. and hon. Friends: That this House takes note of the Crown Court (References to the European Court) Rules 1972 (S.I., 1972, No. 1787), dated 21st November 1972, a copy of which was laid before this House on 1st December. and That an humble Address be presented to Her Majesty, praying that the Rules of the Supreme Court (Amendment No. 3) 1972 (S.I., 1972, No. 1898), dated 27th November 1972, a copy of which was laid before this House on 8th December, be annulled.

Mr. Speaker

I assume that that is the wish of the House.

Mr. Murray

It would have been my wish to have taken with these three motions the corresponding order for Northern Ireland, which is 1972 No. 5, and the corresponding Acts of Sederunt for Scotland, because it appears to me that they do for Northern Ireland and Scotland what these instruments do for England and Wales.

With one exception—the general amendment part of the Supreme Court of Judicature Order No. 1898, dealing with the rules of the Supreme Court, which have nothing to do with the Community—these orders can be summarised as providing and creating the structure for dealing with references from the courts of this country to the European Court, on the one hand, and, on the other, for dealing with and giving effect to enforceable Community judgments in this country.

I should, perhaps, express disquiet at the fact that there does not seem to be any effective parliamentary way in which one can bring these three aspects of the law together under one heading, as it were, because it seems to me that the Scottish Acts of Sederunt are not subject to any parliamentary procedure, and it may be that the same applies to Northern Ireland at the present time. I should be interested to learn what procedure is available for them.

The Attorney-General (Sir Peter Rawlinson)

The Northern Ireland orders are laid before Parliament. The hon. and learned Gentleman is right about the Acts of Sederunt in Scotland. It is different there.

Mr. Murray

At any rate, there seems to be no satisfactory way in which we can bring together the courts of the three parts of the United Kingdom which comprise the courts of the country in order to get an overall picture. I do not know whether there is a parliamentary avenue by which this can be done, but I have not found it.

It seems unsatisfactory that as we enter the EEC there is not some mechanism for doing this, because it is important to make assessments and forward projections of the kind of effects that orders of this kind will have upon the people of this country as a whole and not just simply the people of England and Wales on the one hand, or Scotland on the other, or, again, the people of Northern Ireland, so that we could achieve a balanced picture for the United Kingdom as a whole.

The argument in support of that is powerful, because in making forward projections of that kind there is no real reason to suppose that the picture in Scotland or Northern Ireland will be very different from what it will be in England and Wales. In the light of this argument I press the Government to tell us what forward projections they have made as to the effects of these orders and, of course, the effects of the Community arrangements under which they are to operate upon litigants in this country.

What investigations have the Government made, for example, of the probable additional workload on the European Court itself? Can we have some indication of the sort of delay that we are to expect from references to that court? These are matters upon which there is a certain amount of material to draw, because the original six members of the Community must have had similar difficulties at the time of their accession, when, for the first time their courts became subject to the overriding jurisdiction of the European Court.

So this is not a matter on which we tread a path which has not been trodden before. It must be possible to make some assessment, however approximate, of the kind of workload which will fall upon the European Court as a result of the accession of this country, the Republic of Ireland and Denmark, although it is obvious that the assessment for this country is what is material to our people.

What estimates have the Government made of the probable number of references from this country to the European Court? That, of course, will consist again of looking at previous European experience and also of looking at existing litigation in this country to see, having regard to the European Communities Act 1972, to what extent existing cases are already raising problems which would imply a reference to the European Court unless agreement is reached by the parties concerned about the interpretation of some particular piece of Common Market law.

There must already be some information—whether it is available to the House I do not know, but I would like to know—by which the people of this country can be guided as to the impact of these orders upon their lives. What estimate have the Government made of the likely average delay resulting to litigants from references to the European Court? That is a matter of particular concern, because the law is not notorious for the speed with which it operates in every case. It is very speedy in some cases, but there are cases in which its delays are somewhat notorious, and it would be a very unsatisfactory state if, for example, a simple industrial accident case were to be delayed for years because of a reference to the European Court.

I hope that the kind of doubt that I have expressed can be resolved by the learned Attorney-General, but it seems to me that the public are entitled to know, first, what forward thinking the Government have done in this respect and, secondly, the probable impact of these rules.

6.30 p.m.

The Attorney-General (Sir Peter Rawlinson)

As the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) said, we are considering three sets of rules. The corresponding Northern Ireland Statutory Instrument has been laid but it is not being considered today, and I understand that the Acts of Sederunt do not have to be laid before the House. All that I can do is to assist the House on the matters before it.

The principal Statutory Instrument of the three before the House is that dealing with the rules of the Supreme Court. As the hon. and learned Gentleman said, all these Statutory Instruments lay down rules of procedure to give effect to references to the European Court from United Kingdom superior courts and to provide for the enforcement of Community judgments in accordance with the order approved by Parliament in November.

I shall answer the questions posed by the hon. and learned Gentleman. Two separate matters are dealt with here. There is, first, the enforcement of judgments, which is dealt with in Rule 8 on page 3 of Statutory Instrument No. 1898, and, secondly, references to the European Court, which is dealt with on page 7. That provides a model of procedural machinery which is followed in the other two sets of rules, namely, the Criminal Appeal rules and the Crown Court rules.

The Supreme Court Statutory Instrument—the principal one—also deals with certain matters with which the House is not so concerned—certainly the hon. and learned Gentleman is not—namely, amendments to various rules relating to proceedings for taxation, wardship, claims for exemplary damages, and so on. They are all recited, and I shall deal with them if the House wishes, but I do not believe that that is the purpose of this debate.

What we are concerned with here is, first, the powers on page 3 of the Supreme Court rules relating to the amendment of Order 71. It is necessary to provide for the procedure relating to the enforcement of Community judgments. Provisions of the three Community Treaties give a direct right of enforcement. These rules that we are debating provide the necessary machinery for enforcing such judgments.

I should tell the House that in the 15 years since the inception of the Community there has been only one case in which it has been found necessary compulsorily to enforce a Community judgment, and that was in August 1972. It is necessary to understand the area in which these matters will arise. The cases in which this procedure will be necessary—and they will be rare—will probably be concerned with restrictive practices and monopolies involving penalties or fines for failure to end an infringement, or with discrimination in transport charges involving transport operators who fail to provide the requisite information or end discriminatory practices. The ordinary sort of cases which come before the High Court in civil actions in this country and, I presume, in the Court of Session in Scotland, will not in the least be affected by any of the matters that we are dealing with in these Statutory Instruments.

It is difficult to conjure up the kind of case in respect of which a criminal court would have to make a reference to the European Court. I find it difficult to think of such circumstances, but we have to make provision for the necessary procedure because, as every lawyer and every Member of the House knows, circumstances can arise which are beyond the contemplation of parliamentary draftsmen, Ministers or Members, and it is necessary to provide the machinery for dealing with such situations should they arise.

It is difficult to think of the kind of case which a criminal court would refer to the European Court. The only example that comes to mind is when an action is brought against a person for an infringement of Customs duties and he puts forward the defence that no duty ought to be chargeable because it would be contrary to the provisions of Community law. It is difficult to contemplate any criminal cases being referred to the European Court, but there will be references arising in civil actions, for example, in such matters as restrictive practices and commercial undertakings in transport.

Mr. Clinton Davis (Hackney, Central)

Is the right hon. and learned Attorney-General saying that there is no experience within the Community of criminal cases being referred to the European Court?

The Attorney-General

I have managed to find only one such case, which is indicative of the rarity of such references. It arose under an Italian law of 1938 which authorised officially-approved and controlled milk depots, and a breach of the exclusive rights was a criminal offence punishable by a fine. A dairy company was prosecuted under the 1938 law and raised the defence that that law was contrary to the Community rules about State monopolies. The European Court held that the exclusive concession provisions of the 1938 law were contrary to Community law. That is the kind of case with which we are dealing. European Court orders have to be enforced, and what we are debating now is the machinery whereby that can be done. The most likely area for references is that of restrictive practices and monopolies, discrimination in transport charges and conditions, and the rules of competition for transport by road, rail and inland waterways. Any order made by the Commission to impose fines or penalties is subject to appeal to the European Court. If the European Court upholds the Commission's decision, the judgment of the European Court becomes enforceable and the order implementing that finding has to be enforced in this country. The designated national authority, whose function it will be to verify the formal authenticity of the incoming Community judgment in the United Kingdom, will be the Foreign Secretary. He or one of his officials will append it to an order of enforcement. He will state that the authenticity of the judgment has been verified and will order that it be registered for enforcement in the United Kingdom. Upon registration it will become fully enforceable.

There is also power to enforce Euratom inspection orders. It must be said that none has ever been made, and it is not likely that one will be made, but a procedure for enforcing them must be provided in the Supreme Court rules. This relates to inspection orders under which the Commission may send inspectors, for example, to ensure that nuclear materials are not diverted from their declared and intended uses.

Community judgments and Euratom inspection orders will have validity in the United Kingdom under the treaties, and the implementing machinery provided by the Order in Council approved in November 1972 will make them effective. The general practice will be similar to that under the Foreign Judgments (Reciprocal Enforcement) Act 1933, though there will have to be certain modifications.

There are nine new rules, and they speak for themselves. Rule 15 incorporates the definitions used in the Order in Council. Rule 16 provides for functions of the High Court to be exercised by a judge in Chambers or a Master of the Queen's Bench Division. Rule 17 provides for applications for registrations to be made ex parte. Rule 18 preserves the matters to be stated in affidavits in support of applications. Rule 19 deals with the maintenance of a register of Community judgments. Rule 20 provides for notice of registration to be sent to those against whom judgment is enforceable. Rule 20 also provides for variation or cancellation of registration within 28 days. Therefore, the Supreme Court will be given all the proper machinery.

The second part of the rules of the Supreme Court deals with references to the European Court and this is covered by a new Order 114. The effect of Article 177 of the treaty, and similar provisions in the other treaties, is to confer on British courts and tribunals a power to refer to the European Court questions of validity and interpretation arising under the EEC and Euratom treaties. There is a duty to refer such questions when there is no judicial remedy under national law, namely when the question arises in a final court. It might be thought that in civil suits the House of Lords is the only final court, even though the Court of Appeal may refuse to grant leave to appeal to the House of Lords—and indeed the House of Lords may reject the petition for leave to appeal—but in criminal cases the Court of Appeal might be held to be the final court, because a certificate would have to be issued for there to be any further appeal to the House of Lords. The British courts also have a duty to refer questions governing the validity of Acts by the Commission under the European Coal and Steel Community Treaty.

All these powers and duties are directly applicable and the jurisdiction which is conferred on English courts derives from the treaties. The process of obtaining a preliminary ruling from the European court is in the nature of a preliminary determination of a point of law. The European Court does not and cannot purport to decide particular cases; it merely gives a preliminary ruling on the general law. The national court retains unimpaired its jurisdiction to decide the case, although it must do so in the light of the ruling by the European Court on the point of law.

Thus, the procedure will fall into the following stages. There will be a stay of proceedings in the national court when it decides to exercise its power to refer a question to the European Court. That court would then prepare a formal statement of the question of Community law for transmission to the European Court. The European Court would then be notified of what had happened and the procedure in the European Court on such a reference would be governed by the statute and rules of procedure applying to the European Court. When the matter is determined by the European Court, that court would notify the decision to the national court which has made the reference and the case would then proceed in the national court.

The hon. and learned Gentleman asked about the delay which might arise on a reference. The delay would probably be about the same as now occurs in this country in civil actions between the court of first instance and the Court of Appeal—in other words, of the order of five months. This matter must be looked at in the context of the kind of issue which would have to be considered by the European Court. It would involve matters of restrictive practice, monopolies or unfair competition, and would have to be a specific matter requiring reference to the European Court.

The procedure is set out on page 7 of the Rules of the Supreme Court (Amendment No. 3) 1972 Statutory Instrument. The first rule deals with definition. The second rule provides that an order may be made by the court of its own motion or on application by a party to the trial, and there is a provision that no order shall be made except by a judge in person. Rule 3 provides that the order shall set out in a schedule the request for the preliminary ruling of the European Court, and the Court may give directions as to the manner and form in which the schedule is to be prepared". References will be made by the national court in much the same way as the procedure for a case stated is now presented by parties in the High Court. It is expected that the parties would draft the questions for reference, so that they could be settled by the national court.

Mr. Ronald King Murray

In dealing with Order 114 the Attorney-General also mentioned tribunals, and I wonder whether he did so inadvertently, since I notice in the rules no reference to tribunals. Do the Government have in mind any procedure for tribunals that is not embodied in these rules?

The Attorney-General

I am sorry if I introduced the subject of tribunals. Any reference governed by these rules would be made by the High Court or Court of Appeal. In principle, there is no reason why a reference could not be made by a magistrates' court, but this is extremely improbable because of the subject matter and the issues involved. If it was the final court in civil matters it might well be the House of Lords which would make the reference, in order that it should receive the law from the European Court on that issue and on that point of law.

Rule 4 provides for the stay of proceedings unless the court otherwise orders. Rule 5 provides the machinery of transmission to the European Court. Rule 6 provides for appeals from orders made by the High Court. It provides that an order shall not be deemed to be a final decision and that appeal shall lie to the Court of Appeal without leave so that if the High Court proposed to make a reference there would be an appeal without leave against that decision to the Court of Appeal. The reference would normally be stayed until the Court of Appeal had heard the argument and made its own decision as to whether there should be a reference.

Mr. Clinton Davis

Would that apply equally to the Crown Courts dealing with criminal cases?

The Attorney-General

There would be a stay, or there could be a stay. It is difficult to contemplate the kind of case in which a criminal court or a Crown Court with a jury would need to stay proceedings. The hon. Gentleman will see in the provisions of the rules that any such steps can be taken to provide and to give instructions on the form and manner in which the schedule is to be prepared, and that the court can on an application grant bail or do whatever is necessary pending the ruling of the European Court. It may be that a court may decide not so to do and may proceed to complete the issues which are before it and not to make the reference. The only example I can find is the Italian criminal case. I find it difficult to see how a Crown Court will ever be in a position to contemplate making a reference. Nevertheless, we have to provide the rules and the machinery in case such an unlikely situation should arise.

Over the page there is the draft Form No. 109 which sets out the model form of order for reference to the European Court. It begins with the general indication of the Treaty provision or Community act or instrument with which the reference is concerned, and then orders the proceedings to be stayed until the European Court gives its ruling or until further ordered. The schedule indicates very generally the form in which it is envisaged that the court will couch its request to the European court—namely, a brief statement of the case from which the request arises, followed by the question or questions for the ruling of the European court. These should be set out as briefly and succinctly as possible.

That is the order which establishes this machinery for the procedure to be followed when the Supreme Court makes a reference. The other two orders which are discussed with this order are the Crown Court rules and the criminal appeal rules which make provision should it ever arise that there needs to be a reference. Nevertheless, the House must bear in mind the nature and area of the law which would be under consideration when there is the necessity to make a reference. It is obviously a limited and a particularly specialised field. The rules of the Supreme Court have to be made to deal with that and that is what these rules do.

6.55 p.m.

Sir Arthur Irvine (Liverpool, Edge Hill)

I intervene because of the anxiety that I and many others feel that entering into the Community may involve a greater surrender than we realised. I mean the powers of Parliament but I refer also to our judiciary and our system of law. That being so, on occasions like this when rules of this kind are under discussion, the right hon. and learned Gentleman will find hon. Members on this side of the House often seeking assurances of one kind or another.

The rules which we are dealing with seem to be, I must confess, open to little objection in the context to which I have referred. As I understand it—and I should be grateful if the right hon. and learned Gentleman will confirm this or point to any respect in which I am mistaken—the amendment to Order 71 of the Rules of the Supreme Court places the European Community judgments, so far as execution and enforcement are concerned, on the same footing as judgments obtained outside the jurisdiction under the existing law.

The right hon. and learned Gentleman referred to certain modifications which were necessary in dealing with Community judgments. I take it that these are not modifications that in any way go to the substance of the matter and that Community judgments can be broadly dealt with as being like any other foreign judgment which it is sought to be enforced in this country. The Foreign Judgments (Reciprocal Enforcement) Act provides that once registered, subject to certain safeguards, a foreign judgment can be treated as if it were the judgment of an English court. My understanding is that that is the machinery which is operated in the present statutory instrument.

I turn to the matter of reference to the European Court for a preliminary ruling. The right hon. and learned Gentleman dealt with this matter and it is clear that the ruling given by the European court on a reference cannot have the character of a judgment so as to be enforceable under Order 71 as amended by this instrument. He made that clear, I think, but I should be grateful for reassurance on the point. I should think that the preliminary ruling would not have the character of an enforceable judgment. Of course, the preliminary ruling on a point referred by the English court may often be conclusive on the substance of the issue of litigation. Even so, I take it that the procedure will be for the European Court, in such a case, to send back to the English court its decision on the preliminary point and, the action having been stayed in this country, the English court would then make an order and enforcement and execution would follow our own procedure thereafter. I should be grateful to know whether that is what is anticipated.

I ask for assurances on the points that I have mentioned. Certainly the Opposition will watch the statutory instruments on these subjects with vigilant care, because the feeling is growing that in joining the EEC in the way that we have we may have given away more than we knew.

6.59 p.m.

Mr. Clinton Davis (Hackney, Central)

I, too, feel that we are sailing here in uncharted waters. I sympathise with the Attorney-General, who will find it very difficult to answer the points raised by my right hon. and learned Friend the Member for Liverpool, Edge Hill (Sir A. Irvine).

While I understand the point that the Attorney-General made that it was unlikely that a reference to the European Court would arise with any great frequency, I think that the House expected from the right. hon. and learned Gentleman a speech which gave clearer indications of the kind of delay which could be anticipated when a reference was made. I understand that the right hon. and learned Gentleman cannot cite any authorities because very few are available, but surely it was possible for his Department or that of the Lord Chancellor to make some inquiries from the European Court to elicit some information on this point—

The Attorney-General

The hon. Gentleman could not have heard me. I said that the delay was five months.

Mr. Davis

I apologise to the Attorney-General. However, that seems to be an inordinately long period to wait for a reference from the European Court when we are told that it has so little to do in this connection. Has the right. hon. and learned Gentleman's Department made any representations to the European Court to determine why it should take this length of time? Is not it possible to expedite the proceedings?

References are likely to arise with greater frequency in commercial cases, in cases where perhaps injunction proceedings are contemplated or are undertaken, and a delay of five months where normally speaking there would be a stay on the proceedings would be an inordinate period to wait. I do not say that that would always be a prejudicial situation, but, in a situation where one party has applied for an injunction and the other party is seeking to resist it, it is conceivable that a delay of that kind would be quite wrong.

I appreciate that the rules say that normal proceedings will be adjourned pending the European Court's ruling. It is not a mandatory provision. Clearly for the most part courts will want to adjourn proceedings to obtain confirmation of the European Court's point of view on any matter to which reference is made. I ask the Attorney-General to indicate whether it is possible to persuade those administering the European Court to cut down this excessive period of five months.

There is one other matter that I wish to raise. Perhaps it was in another passage of the right hon. and learned Gentleman's speech that I missed. If it was, I apolo- gise. Unfortunately, my attention was diverted for a moment. Within the compass of time of which the right hon. and learned Gentleman has spoken, is there any possibility of the period being diminished, or will this be the minimum period within which a reference can be obtained?

Where a reference is made under the aegis, so to speak, of one of the litigants will the legal aid system extend to it? I assume that the answer is that it will, because I also assume that the reference would be part of the litigation in question. Perhaps the Attorney-General can help on that point as well.

I hope that the right hon. and learned Gentleman's feelings about the infrequency of references in criminal proceedings will be borne out by events. If we are to anticipate delays of five months and the right hon. and learned Gentleman is wrong about the frequency of these references, we may have a situation where a man is held in custody, possibly pending an appeal, already for an inordinate length of time, and he will have to experience a further delay of some five months. I think that most references will be made in civil rather than in criminal litigation, although the right hon. and learned Gentleman has referred to the possibility of references being required in connection with the legality of customs duties and so on. But I hope that the right hon. and learned Gentleman will be able to clear up these specific points. One of the difficulties which may arise is that practitioners who are asked to advise on these matters, however infrequently the situation may arise, will be asked the delay and the effect of delay of the litigation.

7.7 p.m.

The Attorney-General

With the leave of the House, perhaps I might reply to the points raised by the right hon. and learned Member for Liverpool, Edge Hill (Sir A. Irvine) and the hon. Member for Hackney, Central (Mr. Clinton Davis).

The hon. Member for Hackney, Central asked about the delay. The five months is an average. In certain cases it may be much less. In a heavier case it may be longer. This is the average, and it is similar to the delay which occurs here between a case in first instance and the appellate procedure between the High Court and the Court of Appeal.

We have a Scottish judge and an English advocate-general who have joined the European Court of Justice. I am sure that their skill, expertise and talent will have a great effect upon that court. Both are men of outstanding ability. I have no doubt that with their influence all these procedures will be considered, and I hope that the least delay possible will occur.

In a criminal case resulting in an adjournment for that length of time, it is inconceivable that bail would not be granted.

Turning to the point raised by the right hon. and learned Member for Liverpool, Edge Hill, the rules of the Supreme Court put Community judgments in substantially the same position as foreign judgments under the 1933 Act. There are certain differences because a Community judgment is automatically registrable once it has the certificate of the Foreign Secretary, and enforcement can be stayed only by the European Court.

Mr. Ronald King Murray

Will the right hon. and learned Gentleman confirm, either now or later, that the procedure contemplated by the Supreme Court of Judicature Rules with which we are dealing applies to a decision of the Council or Commission imposing a pecuniary obligation under Article 192 of the Treaty which is enforceable as a court order?

The Attorney-General

Yes, I can so confirm that to the hon. and learned Member.

I can give the second assurance which the right hon. and learned Member for Liverpool, Edge Hill sought. As would be anticipated, as a former Law Officer he interpreted the provisions in the rules perfectly correctly. The ruling of the European Court on this particular point would be a ruling of law which would be binding on the United Kingdom court, but it would refer only to that particular point. It remains with the United Kingdom court to make a substantive decision on the whole issue.

With those comments in respect of the questions which have been posed, I invite the House to accept this machinery proposed for the Supreme Court in these matters of judgment and reference.

Mr. Ronald King Murray

The House is indebted to the Attorney-General for the clarification he has given to these matters. I cannot say that all the doubts of the Opposition have been resolved, but certainly the right hon. and learned Gentleman has contributed to the resolution of some of them.

My right hon. and learned Friend the Member for Liverpool, Edge Hill (Sir A. Irvine) raised the interesting question of the likeness of these provisions to the enforcement of judgments reciprocal provisions legislation. I think it appropriate to point out, having intervened during the last contribution by the Attorney-General, that Article 192, imposing pecuniary obligations on persons, is of course quite different from the judgment of a court. In that sense we are breaking entirely new ground and using enforcement machinery normally stemming from a judicial authority of some kind for matters which are not judicial, but are administrative decisions. This is a considerable departure from the administration of justice in this country.

There are still doubts on this side of the House and I echo the words of my right hon. and learned Friend the Member for Liverpool, Edge Hill who said that we shall continue to watch these matters with every vigilance and care. But in the circumstances I do not recommend my hon. Friends to vote against these statutory instruments.

Question put and agreed to.

Resolved, That this House takes note of the Criminal Appeal (References to the European Court) Rules 1972(S.I., 1972, No. 1786), dated 21st November 1972, a copy of which was laid before this House on 1st December.