HC Deb 24 July 1973 vol 860 cc1549-73
Mr. English

I do not suggest that the drafting was done in the hon. Lady's Department. It could have been undertaken by Treasury draftsmen. Somebody somewhere in the Government, or Civil Service, is not referring to the official text. These documents, in so far as they are directly applicable in member States, are the law of the land under the Economic Communities Act. The text is contained in the special edition of the regulations in force in December 1972, just prior to the United Kingdom's entry into the Common Market.

There are several volumes of these regulations and that with which we are concerned is contained in volume II It is dear that another translation may have been used, thus rendering the whole document a monstrous legal mess, and that we have a definition that does not exist in the official translation, the legal text, of the European Communities.

The hon. Lady may say that even the official text of the European Communities may not be the one upon which Community law might be based, because the documents were originally passed in French, German and Italian, the languages of the original Community. If the case were ever brought before a European or even an English court—because it has to operate under European law in matters relating to Community law—the court might say that it does not have to look at an English text. It is impossible not only for a layman but for a lawyer to determine from these regulations what is the law contained in them.

There is a supposed definition of "whole milk", but Regulation 1411/71 contains no definition of whole milk. I think I may understand what the regulations are intended to achieve because of preparing for this debate, but in law they achieve nothing.

Therefore, I ask the hon. Lady to withdraw them on technical grounds. I am making a serious request. I hope that she will withdraw them, if not tonight then during the recess, and replace them by regulations that in principle do the same things, but do them effectively in law, too.

It would be wrong of me to rest merely upon that technical point. I have proved conclusively, I believe, that the regulations should be withdrawn but it is of some importance to the whole country for us to understand and consider what they are trying to achieve, though they do not achieve it. As I said, we do not have to do this. These regulations are the first stage of the standardisation of milk in the United Kingdom on Continental lines.

One question I should like to ask the Minister—this is her direct responsibility —is when is it proposed that we should standardise milk fully under Regulation 1411/71? The derogation that I mentioned earlier is that the Treaty of Accession allows us not to enforce Regulation 1411/71 until December 1975. However, I understand that since that is purely permissive, if the Government wish the standardisation could be introduced and completed much earlier.

These regulations are the first stage on the wLy towards such standardisation, so it is obvious that the Department is getting on with the job. What target date has the Minister in mind—presumably we are not to wait until the last minute when it would become illegal not to enforce the European Community law—for standardisation in the United Kingdom? These regulations imply that the target date will be fairly soon, although in order to standardise milk, capital investment in dairies has to take place and so on.

Why do we need standardised milk'? The history of this matter in the Common Market is of some interest. Milk is of importance to us all. Everybody in the Community drinks milk in some form. We in this country drink a large amount of liquid milk—admittedly pooled at dairies, heated, pasteurised and so forth, but basically in the form that it comes from the cow.

It is important not only to the consumer, but to our farmers, because it is 20 per cent. to 25 per cent. of farm output in the United Kingdom. We happen to have more efficient dairy farming in the United Kingdom. We have herds which average 30 as compared with the Continental average of nine. We have a yield of over 4,000 kilograms per cow, which is higher than the average in the Common Market, and higher than anywhere outside the Netherlands and Denmark. We are efficient dairy farmers.

These regulations are objected to by the National Farmers' Union and the Milk Marketing Board. I consulted both organisations this morning, so I am quoting from conversations which took place with their officers. They are objected to by the Dairy Trade Federation representing retailers of milk. I am sure that if the people of the United Kingdom knew what these regulations were supposed to be doing, they would be generally objected to.

What the regulations say is that milk —in the sense we normally understand, for example, when it is not skimmed or semi-skimmed—should have a butterfat content of 31 per cent. According to a Press statement of the Ministry of Agriculture, on 28th June the hon. Member for Banbury (Mr. Marten) asked the Minister of State for Agriculture, Fisheries and Food a Question on the butterfat content of milk. We were strike-bound at the time, but even the Library is unable to trace any such Question on that day. Whether the Library has lost the answer to the Question, or whether the Ministry of Agriculture did not send it over, I do not know. It is untraceable except for the Press notice. It may not have been on the date in question, but that is a difficulty caused by the strike.

However, according to the Minister of State, our overall average is about 3.8 per cent. The Milk Marketing Board informed me this morning that the average butterfat content is 3.72 per cent. It is above the Common Market's 3.5 per cent. The Common Market regulation imposes by law a minimum and it is of some importance when the Ministry talks of "whole milk". Presumably it means what the European Communities call "full cream milk", which should be in the regulations. It is milk that has been subjected to at least one heat treatment or an authorised process of equivalent effect by a milk processor and whose fat content is at least 3.50 per cent. or has been brought to 3.50 per cent. "Brought to" in this case means brought up or brought down. That is absolutely clear, because if one looks at the definition of skimmed milk, it is similar except that its fat content has been brought to not more than 0–30 per cent. The butterfat content of English milk, which comes substantially naturally from cows, varies partly seasonally and partly by region. It varies between 3.4 and 4.1 per cent. It must be at least 3 per cent. by law under the pre-war regulations. For about two months in the year it is a little below the 3–5 that is required under the Common Market regulations.

Hence the standardisation of milk. One would have to bring it up by topping it up with cream or milk with a higher butterfat content, to bring the average butterfat content up to 3.5 per cent. It is also likely to lead to standardisation from the opposite point of view. Whatever the price of milk may be in the Common Market in future, it is undoubtedly true—even if it were entirely the same as it has been in the past—that the Common Market price structure considerably increases the price of milk products such as butter and cheese over the prices to which we have been accustomed.

Britain has catered for liquid milk. To a substantial extent the Common Market has not catered for liquid milk. Indeed, most liquid milk in the Common Market is sold well below the 3–5 per cent. butterfat content; it is the skimmed or semi-skimmed variety. That is partly a matter of taste. It is also, presumably, cheaper. With a high food price economy such as the Common Market has, not everybody can afford to buy everything, and they tend to go for cheaper products.

It would pay someone, when we are in the Common Market economy fully, to reduce a higher than 3.5 per cent. butterfat content by skimming off the cream and selling it at a higher price to make dairy products. That will mean standardised milk of a lower quality.

There is another reason for my saying, "of a lower quality". Under the present English law and the regulations of the Milk Marketing Board and its subsidiaries throughout the United Kingdom, the compositional quality schemes are regulated in much more detail than under this Common Market regulation. This regulation refers only to butterfat content.

Our requirements also specify the total solid content and the content that is solid, not fat. By law there must be a minimum of 3 per cent. butterfat content. In fact, it is 3.72 per cent—11.5 per cent. total solids, so that 8.5 per cent. are solids, not fats, which are equally nutritious in most cases.

The Common Market does not deal with this. At present we pay farmers for milk on the basis, primarily, of the total solid content. The higher it is, the more money the farmer gets. The Milk Marketing Board and its subsidiaries regard the milk as more valuable for its total solid, not just its butterfat content, because the solid content is the nutritious part of the milk. The rest is water.

The nutritious part of milk is primarily its solid content and that is why farmers are paid for that. In future, they will not need to bother about that: they may re-breed their herds; they may do what they like. But they will not have to bother about the quality content of milk as we have hitherto defined quality; they have to define only the butterfat content.

It is therefore interesting to wonder why the Common Market has this regulation, and I decided to trace it. I discovered that in the Common Market this regulation in 1971 was an attempt to raise the minimum butterfat content of full-cream milk—as they call it, and what the Ministry inaccurately calls whole milk—from about 3 per cent. to 3.5 per cent. Since the war, all countries of Europe have steadily attempted to raise the standards. I discovered that the idea of standardised milk did not exist in Europe before the war, any more than it exists in this country now. As with the horticultural policy, I tracked back its origins to the Netherlands under the Gauleiter Seyss-Inquart, the Nazi Gauleiter of the Netherlands during the war.

I believe, Mr. Speaker, that the relevance will be clear with a short quotation. It is in the judgment given against him—he was a war criminal—at Nuremberg. After saying that he participated in the Nazi intrigue which preceded the occupation of Austria"— he was a friend of Schuschnigg and betrayed him— he was made Chancellor of Austria under the German threat of invasion. He instituted a programme of confiscating Jewish property. Under his regime Jews were forced to emigrate, were sent to concentration camps and subjected to pogroms.

Mr. Speaker

Order. The hon. Member said I would see the relevance. I do not see the relevance of this part of his comments.

Mr. English

I was merely trying to describe the man, Mr. Speaker.

It continues with various items and then states: As Reichs-Commissioner for the Netherlands he was ruthless in applying terrorism to suppress all opposition to the German occupation. He carried out the administration of the Netherlands without regard to the Geneva Convention, which he declared to be obsolete. One of the things he did was to reduce the butterfat content of milk. He sold to the people of the Netherlands milk without the cream. The object of the exercise was that the slave population of Europe—everybody who was not a German was a slave—was fed the milk, the cream was skimmed off and turned into butter for the Germans, particularly the German army.

That is how this scheme originated. I quote the last words of Seyss-Inquart, the last person to be hanged at Nüremburg. He said: I hope that this —his execution— is the last act of … the second world war. He should have remembered Shakespeare's words which were more relevant: The evil that men do lives after them". I fail to understand why the Minister should present us with mistaken regulations in effect, to allow a Nazi gauleiter to rule us from his grave. This is monstrous. It introduces standardisation. Dahrendorf, the German Common Market Commissioner, said that the Common Market was messing about trying to standardise bottle tops. I had not realised until now that they were also messing about trying to standardise milk merely because of what was done during the war by a Nazi.

I therefore ask the Minister to withdraw the regulations. Let us have our milk. We cannot standardise cows. Let us not try standardising their products. Let us have the milk as it is, with safeguards for health.

10.20 p.m.

Mr. Albert Booth (Barrow-in-Furness)

My hon. Friend the Member for Nottingham, West (Mr. English) has adversely criticised the Joint Committee on Statutory Instruments and its counsel. May I say in defence of that committee, of which I am chairman, that but for the adverse report which it made of the Scottish regulations we might not be debating the matter tonight.

Mr. English

I accept what my hon. Friend says. What I meant was that, had I not had a conversation with him, as presumably is the case with 629 other Members, and if I had relied on the third report I would not have known about them, and I would naturally have been more interested in the earlier English regulations than in the Scottish ones.

Mr. Booth

I accept what my hon. Friend says, but in defence of the learned gentleman who is your counsel, Mr. Speaker, and who is also counsel to the Joint Committee on Statutory Instruments, and the Statutory Instruments Committee of the Commons, I would say that his job is made immensely more difficult, if not impossible, by the additional task imposed upon those who in this House, have to deal with the scrutiny of such instruments, because of the complications added to our task by instruments which are introduced to put into effect EEC regulations and directives. I believe that this is directly applicable to the two instruments that we are debating tonight.

When one carries out technical scrutiny of a normal statutory instrument, one has as a first concern to ensure that in making the instrument the Minister is properly exercising powers given to him by Parliament. This is not the case with any EEC instruments, because the Minister who is answerable to this Parliament quotes as the authority or power some Community regulation or some aspect of the EEC Act, which immediately gives him the right to do anything, by delegated legislation, providing that he does it to put into effect the Treaty of Rome in this country or some directive made in Brussels. To call on any officer serving a Committee of the House to check whether such power is being exercised in the manner which is technically correct, and to advise the Committee, is to call upon him to undertake an immense task. I think the whole House should be indebted to the officer for the extent to which we are able, by his assistance to our Committee, to carry out a far wider measure of scrutiny than would be possible without his assistance.

I turn now to one of the two major criticisms which the Joint Committee made of the Scottish Instrument, and one which I believe is of absolute crucial and fundamental importance to Parliament. I draw attention to Regulation 2(3)(b) in either the Scottish or the English instrument which says that the effect of the instrument shall be that any Community decision which replaces or amends Regulation 1411/71 of the Community shall be held to be the law of this country by virtue of this instrument.

This is an amazing proposition. It is asking this Parliament to accept that the instrument before us can have any one of a number of legal effects. Its effect now purports to be to put into the law of this country a Community regulation.

But if the Council of Ministers or the Commissioners in Brussels decide to amend that, it is their amended version which has effect. Or if they do anything else which can be construed as a reference to that regulation, that shall also have effect on this instrument. Therefore, we do not know what the meaning of this will be next year, the year after, or the year after that. All we can be certain of is that if the Commission decides to do anything by way of amendment to this by a directly applicable Community instrument, the words of this instrument will give effect to that.

As far as I know, this has never happened before in the whole history of British law. Whenever the law has been changed, at least there has had to be some amendment to an Act or a new set of regulations laid before Parliament. Tonight history is being made. Tonight we are being asked to accept that a document before us can have any one of a whole series of effects. I submit that this is something that this House should never accept.

Will the Minister tell us how anyone who has to operate legally in future in the delivery of semi-skimmed milk or skimmed milk in this country can know whether he is doing so legally? It must be admitted that this instrument does not give any guide. People cannot even be guided by reference to the Community regulation which this puts into effect, because that may be amended.

My hon. Friend the Member for Nottingham, West said that the terms used in the instrument and those used in the regulation are not the same, which makes the matter even more difficult. I say that without any special knowledge of the delivery of skimmed milk. I claim to have some knowledge of statutory instruments and the way in which they change our law. Never before, in my experience, have we had the proposition put to us that we should have our law changed outside this country without any indication being given in our primary or delegated legislation that a change of that law has taken place.

It is proper to ask how this will be administered in this country. Is it seriously contended that all those engaged in the delivery of milk will be expected assiduously to study every regulation and directive issued in Brussels and to decide for themselves which provisions amend the legal effect of the statutory instrument and act accordingly? Is that what they are expected to do? If so. we should be told. How is the instrument to be policed?

Can the Minister tell us how anybody can be prosecuted for a breach of the instrument after its legal effect has been changed by some new directly applicable regulation in Brussels? Is he to be held to be in breach of domestic law? If so, how can he be prosecuted in the courts? Can he be prosecuted for not complying with a regulation from Brussels—on the basis of this statutory instrument, for failing to comply with a meaning which it did not possess at the time he was held to be in breach of it? This is the ludicrous situation that could arise if the meaning of the regulation is changed by some future regulation made by the EEC in connection with delivery of milk.

Has the Minister already decided that there shall be some way of informing those involved? In any case, where would such a prosecution take place? It would not be in this country and surely it would not be proposed that a person should be hauled off to the EEC court for a breach of regulations?

I suggest in all seriousness that we should totally oppose the proposition that any body in this country should be held to be in breach of domestic law when there is nothing on the statute book or in any regulations made under any of the Acts of this Parliament to indicate which law he has breached. This is a terrible proposition. It is most noticeable that no announcement was made to the House that this new legal principle was to be introduced by the Government. There is no indication in the explanatory note attached to either of the instruments that this was to be the case, and we have been given no reason to believe that this is workable.

If this idea is extended, then the idea that we have a law of the land, in our statutes and regulations, which is properly interpreted in the courts and held to be binding upon our citizens, is no longer valid, because it will be possible to make decisions on the basis of regulations from outside this country which change the legal effect of our law, without the citizen knowing about it. This is an intolerable position and I would never support it.

10.32 p.m.

Mr. James Scott-Hopkins (Derbyshire, West)

The hon. Member for Barrow-in-Furness (Mr. Booth) is going a little far in his criticism of paragraph 3(b). I cannot help in the legal argument and I do not pretend to be able to do so. I am sure that my hon. Friend will be able to do so when she replies.

Mr. English

The hon. Member mentions paragraph 3(b). I do not understand. There is a Regulation 3 but no (a) or (b).

Mr. Scott-Hopkins

I am talking about Regulation 2(3)(b). The hon. Member was worried about the position whereby the Commission or the Council of Ministers can impose instruments and regulations on the dairymen of this country under this regulation, without those people knowing anything about it. My hon. Friend will undoubtedly answer this point, but there is another matter to which I would draw the hon. Member's attention.

None of these regulations or instruments will come through the Council of Ministers or the Commission without being duly publicised in draft form. It is here that the European Assembly has a useful role to play. These draft documents come before the Assembly in plenary session and are discussed. If the Council wished to make any change, our officials in Brussels would be notified.

Basically the safeguard the hon. Member requires is that hon. Members from this House would be over there and would know of what was going on. They would see the draft regulations and. should anything arise, would be aware of the situation and thus able to inform the House.

This House, through the Joint Committee, would be able to look at such documents, check them and come to the House to tell it what was happening. These draft regulations cannot have the force of law unless they go through this process.

Mr. Norman Buchan (Renfrew, West)

What the hon. Gentleman says cannot happen has already happened. This matter came before a first-class Committee of this House but it was not until the tenth sitting that it picked this point up. The dairy farmers of England and Wales could have been breaking the law.

Mr. Scott-Hopkins

The hon. Gentleman is not quite right to say that this has happened without our being aware of it. We knew that this regulation was in force. There is some confusion between the hon. Member and myself, but I am sure that the Minister will be able to deal with it. What comes forward from the Commission has to be examined by parliamentarians from this House and elsewhere. Even under the present regulations, which relate to regulation No. 1411/71, it can be known and publicised.

We are dealing with a fairly small point. The hon. Member for Nottingham, West made a tremendous speech about the standardisation of milk and so on. He exaggerated, because we are dealing not with skimmed or semi-skimmed milk but with milk which is separated. The type that is rightly being prohibited for sale to human beings is not sold in this country but is used for pig feed. Skimmed and semi-skimmed milk is sold legitimately and will continue to be sold.

The hon. Gentleman concentrated on the butterfat content, saying that the average butterfat content of milk handled by the Milk Marketing Board over the past year was 3.72 per cent. and that the regulation says that the Community can go down to 3.5 per cent. He envisages that the whole milk will be sold liquid to the consumer at that lower level because of the regulation. That is not true. The hon. Gentleman went in for great histrionics about how we should have to suffer milk of lower quality. That is nonsense. That will not happen because of the regulation.

The Milk Marketing Board has been doing everything it can not only to increase the butterfat content to over 3–75 per cent. but—which is much more important—to increase the total solids content. Our own regulations provide a total solids content of 11.5 per cent., but we are up to 12–3 per cent. because of the price incentives, which will continue to be given. Nothing in the regulations will persuade the board to lower its standards.

Mr. English

I take the hon. Gentleman's point, but when I had my discussion this morning with the officers of the Milk Marketing Board they specifically mentioned the matter of lower quality. They also said that, as the figures imply, the lowering of quality will be small. There is no doubt that those engaged in marketing milk in this country believe that there will be a modest lowering of quality.

Mr. Scott-Hopkins

The hon. Gentleman has that opinion.

Mr. English

It is not mine.

Mr. Scott-Hopkins

With my knowledge of the industry, which may be greater than the hon. Gentleman's, I do not believe that it is justified. What we have achieved will not be thrown away, and there is no reason why it should be. There is nothing in the regulation which says that it will be.

The Community has succeeded in raising its butterfat content over the past five years and although it has not mentioned total solids, that percentage has been rising over the years and will continue to rise. The regulation does not deal with butterfat or total solids but with whether separated milk shall be sold for human consumption. The answer is that it must not be and never will be.

The point made by the hon. Member for Barrow-in-Furness (Mr. Booth) is important, but there are safeguards in the way we do business in the House. We have a delegation at the European Parliament and our own Ministers and delegation in Brussels spend a great deal of time looking into such matters. We should have ample warning of any question of the Commission's considering changing any of the regulations by instrument under regulation No. 1411/71. We shall have ample warning. We shall have ample time to debate it and to take action to deal with it.

I welcome these regulations. They are a move in the right direction. I am sure that my hon. Friend the Parliamentary Secretary will be able to answer the points hon. Gentlemen have raised and to confirm what I have said.

10.40 p.m.

Mr. Ronald King Murray (Edinburgh, Leith)

I am sure that we are all grateful to my hon. Friends the Members for Nottingham, West (Mr. English) and Barrow-in-Furness (Mr. Booth) and to the Joint Committee on Statutory Instruments for raising this important matter and bringing it to our attention.

I want to ask the Parliamentary Secretary about two short matters. The first is more a layman's point. The second is a more technical, legal one.

First, I should like the Minister to tell us whether there is any difference between "full cream milk" as it is referred to in the Common Market regulation No. 1411/7 and "whole milk" as it is referred to in these United Kingdom regulations. If dairymen and milk producers talk indiscriminately about "full clear milk" and: "whole milk", much of the substance of the argument of my hon. Friend the Member for Nottingham, West, disappears. But I do not know whether that is the case, and I should be grateful for some guidance.

My second and more technical point concerns the legality of the formulation of regulation 2(3)(b). I have some sympathy with the Report of the Joint Committee on Satutory Instruments and with what my hon. Friend the Member for Barrow-in-Furness said. However, when I first read sub-paragraph (b) I thought that it was meant to do something rather different from what the Joint Committee appeared to have thought. I thought that it meant something done quite innocently in legislation. For example, under the Factories Acts we have woodworking regulations in operation which came into force under an Act which has long since been repealed. The regulations are still operative because each succeeding Factories Act re-enacts and reinforces the original legal basis from which the regulations sprang. In other words, although the parent Act is dead, the legitimacy of the children is continued.

I was seriously shaken when I referred to the Tenth Report of the Joint Committee, because I found that that was not what the official reply indicated. It said that the provision … corresponds to a provision frequently used in subordinate legislation which refers to other enactments to avoid the necessity of consequential alterations in such legislation each time there is an amendment of such enactment … That is wholly ambiguous. It can apply to the innocent use that I have mentioned, or it can apply to the sinister use which my hon. Friend the Member for Barrow-in-Furness puts upon it. For that reason, my hon. Friend's argument is well founded.

The only escape from the force of that argument would be if there were added to the end of subparagraph (b) a proviso to this effect: (b) as replaced or amended by any subsequent directly applicable Community instrument —and then the addition of these words: …provided that the content of these regulations is not affected thereby. That would make it the innocent use to which we are accustomed.

The Minister has to reply specifically to that detailed criticism before we can be satisfied that the regulations are properly worded and should be allowed to continue as the law of the land.

10.44 p.m.

Mr. Norman Buchan (Renfrew, West)

I hope to be brief, and I may ask leave of Mr. Deputy Speaker to speak again following the Parliamentary Secretary's reply.

Despite the emptiness of the House and the lateness of the hour and of the Session, the House has hit upon an extremely difficult situation for the Government. I regret that, not for the first time this Session, it has been left to the hon. Lady the Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food to reply to this debate. Although she has been extremely competent and good in her job, in view of the implications of these regulations, the Minister should have been sent for the moment that the case was deployed so effectively by my hon. Friend the Member for Nottingham, West (Mr. English).

The withdrawal of these regulations is the only way out of the impasse that we have reached. I do not want to redeploy the arguments. Apart from the historic colour and interest which my hon. Friend added, the case that he deployed was extremely impressive, as was the case deployed by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray), the Shadow Lord Advocate, and by my hon. Friend the Member for Barrow-in-Furness (Mr. Booth), who is, after all, the Chairman of the Committee which is investigating these statutory affairs.

I want to stress two points. My hon. Friend the Member for Nottingham, West referred to defects in the regulations. This is very serious. The defect which my hon. Friend particularly pointed out was the failure to be able to define that which the regulations purport to define. We cannot allow these regulations to go through the House of Commons.

The appropriate Community regulation, No. 1411/71, is at variance with these regulations, and does not define what it purports to define. In addition, it contains penal sanctions so that a failure to carry out that which has not been defined is subject to a penalty not exceeding £100 or to imprisonment for a term not exceeding three months.

Apart from the aspect raised by my hon. Friend the Member for Barrow-in-Furness about legislation made in one area years before we became a partner being used to prosecute in this country, there is a very serious implication in prosecution when the liberty of the individual is also involved in the alternative of imprisonment. For that reason also the regulations must be withdrawn.

I do not agree with the hon. Member for Derbyshire, West (Mr. Scott-Hopkins) who said that these regulations were, after all, not so important and that they merely deal with skimmed milk and separated milk—

Mr. English

That is the first step on the way.

Mr. Buchan

—used in animal feed-stuffs and the question of fat content, and so on. That is precisely not the point. The precise point that we are raising is the whole constitutional position—it goes as far as that raised by these regulations.

The regulations go very much further than questions of milk. They happen to be concerned with milk, but their content could have been more serious. It is Wrong to say that this matter would have been picked up in any case, as the hon. Member for Derbyshire, West said. It is not so long ago that the European Parliament, which the hon. Gentleman praised, attempted to question the Commissioner for Agriculture, M. Lardinois. He was not there. Therefore, it cannot necessarily be subject to this kind of scrutiny.

The hon. Member for Derbyshire, West says that these matters are subject to the scrutiny of an appropriate Committee of this House, but the chairman of that appropriate Committee has been present tonight to say that that is not good enough. We also have the evidence in the Third Report of the Joint Committee that the identical thing went through—I do not know how long before. It was the accident that this regulation referred to a matter which had to have separate English, Welsh and Scottish legislation that enabled us to cope with it. Were it not for that accident, this would have been law—wrong law, bad law, in some ways impossible law.

Without going into the definitions in the regulations—perhaps I may speak again when we have heard the Parliamentary Secretary—I would urge the hon. Lady with all the force that 1 can command, after the impressive case that we have heard and, even more, the impressive authority of those who delivered it, that the regulations should be withdrawn.

10.51 p.m.

The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mrs. Peggy Fenner)

The basis of the complaint of hon. Members opposite, especially the hon. Member for Nottingham, West (Mr. English), is that the English text of the EEC regulation referred to in our statutory instruments, as published in the Official Journal of the Community, does not contain any definition of "whole milk", although our instrument says that it does.

The words "lait entier" in the French appear in English as "full cream milk" This is a mistranslation, as the hon. Gentleman said it might be, which was detected in my Ministry when the draft English text of the EEC regulation was circulated for comment in September 1972. The Council was asked to correct the error and did so in a corrigendum to the EEC regulation dated 1st March 1973. A copy of this corrigendum was in our possession before the Separated Milk Regulations 1973 were laid before Parliament. There is thus no question of anyone acting under a misunderstanding of, or contrary to, the true intention of the EEC regulation.

The hon. Member for Nottingham, West also queried the legal position. My advice is that, irrespective of the corrigendum—the hon. Gentleman conceded this also—in so far as there could have been any doubt as to the meaning of "whole milk" in our regulations, this could have been resolved by reference to one or more of the texts of the EEC regulation in the other official languages, all of which are of equal status in interpreting it. There is no doubt as to the true meaning. The French text is lait entier, the Italian lane Micro and the German, perhaps even more forcefully, vollmilch.

Mr. English

I entirely accept what the hon. Lady said, but she surely realises that her explanation shows how difficult it is for an English solicitor advising a client to determine what the law is. He has to notice the original regulation, the fact that it was corrected, the fact that, if there is some doubt, it might be advisable to look up the French, German, Italian and Dutch texts, for example, employing the services of someone who understands those languages. How on earth a milkman does this I do not know, but even an English solicitor would find this difficult.

Mrs. Fenner

I was coming to the question of communications. The hon. Member said that an ordinary Englishman should not be asked to refer to texts in another language when he has difficulty in interpreting the law. I entirely agree. But in the particular case with which we are now dealing I find it hard to imagine why an ordinary Englishman should be in such trouble. "Whole milk", as my hon. Friend the Member for Derbyshire, West (Mr. Scott-Hopkins) said, is a term that has been in general use within the dairy industry for many years. Similarly, anyone dealing with milk knows very well what is meant by "separated milk" and would seem to have no need to refer to any regulation, English or European, for a definition.

I also agree with the hon. Gentleman in the matter of "communication". The corrigendum of the Council, which put the mistranslation right, was dated 1st March 1973, but its publication in the English language version of the Official Journal of the Community had still not taken place when the hon. Gentleman raised this matter under Standing Order No. 9 on 9th July. This is attributable to the fact that the editors of the Journal do not publish every time they receive amending material, but prefer to wait until they have a reasonable amount. I can understand their point of view, but delays of the kind experienced with this particular regulation are too long and we must try to have them reduced.

I trust that I have now dealt firmly with the definition and that there can be no doubt about the legal position.

The hon. Member for Nottingham, West asked why the regulation was needed. It is necessary, for skimmed and semi-skimmed milk, to provide the enforcement of Article 6(1) which provides that only milk that reaches the standards laid down for drinking milk may be delivered for direct consumption in the Community. For the time being the regulation does not have to be enforced in respect of whole or raw milk.

The hon. Gentleman referred to the unknown amendment which bothered him. The amendment to Regulation 1411/71 relates to the provision of an additional category of whole milk with a fixed fat content of not less than 3.80 per cent. That is to be found in Annex 1, Part II, Paragraph 1(2) of the Act of Accession and is referred to in Regulation 2(3)(a) of the statutory instrument. It was placed there at our request to protect the position of Channel Island milk, to which the hon. Gentleman referred.

The hon. Gentleman gave us a long dissertation with some extraordinary comments about Nazi gauleiters, which have no place in this instrument or in this House, on the subject of standardisation. The regulation makes standardisation of whole milk mandatory by the end of 1975.

My right hon. Friend refered to butterfat content. The hon. Gentleman knows that there is a derogation to 31st December 1975. Indeed, he mentioned that the Community regulation is for a minimum fat content of 3.5 per cent., and he fairly referred to the fact that our milk is often very much above that. But the intention of standardising has nothing to do with a Nazi gauleiter or any ephemeral reason like that. It is to ensure a consistent and high quality of milk to the consumer all the year round.

Dairies must bring their milk up to the EEC minimum standard of 3.5 per cent. butterfat content, but they are not compelled to reduce milk which is naturally above that standard. At some times of the year in some areas of this country the butterfat content of milk is below the minimum standard of 3.5 per cent. For the consumer, therefore, this is an improvement.

I should like now to go on to what 1 see as the other main basis of the hon. Gentleman's arguments. I confess myself surprised that the Joint Committee should have chosen to comment on the point firmly made by the hon. Member for Barrow-in-Furness (Mr. Booth), especially as the earlier England and Wales regulations are in almost every respect identical and caused no anxiety at all.

The writing of a statutory instrument in such a form which allows it to be adapted automatically for minor non controversial changes, to which the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) referred, has long been an accepted practice in this country. It is a sensible and practical arrangement. Otherwise, fresh legislation would be necessary every time minor noncontroversial changes were made.

This regulation, by cross-reference, incorporates another part of the law now operating in the United Kingdom, and that is the relevant Community law. If that other part of the law were changed, it would be a waste of parliamentary time always to change specifically the Milk Regulations. The formula used in the Milk Regulations simply ensures that the change operates for the Milk Regulations purposes as well.

The hon. Member for Barrow-in-Furness referred to penalties. The EEC regulation does not itself specifically contain provisions for enforcement. The purpose of that is to allow national Governments complete freedom to continue their own enforcement practices which the Community accepts will differ from State to State. There is no criminal jurisdiction within the Community Court. I hope that I have answered that point.

I trust that the hon. Gentleman will see, on the legal point which relates to the definition, that there was a corrigendum issued about the mistranslation, and it has now corrected it, although it has not yet been published in the OFFICIAL JOURNAL. We are talking about a practice, to which the right hon. and learned Member for Edinburgh, Leith, referred, of minor non-controversial changes, and I trust therefore that hon. Members will not wish to press—

Mr. Booth

The hon. Lady is suggesting that she is answering these points by saying that paragraph 2(3)(b) relates only to minor and non-controversial changes. That is a misreading of the paragraph. That paragraph alludes to any subsequently directly applicable Community instrument. It is not related to minor or non-controversial changes.

Mrs. Fenner

Any amendment of a directly applicable Community provision is automatically part of the law of this country. That effect is not brought about by these regulations. This is part of Community law which operates in this country.

Mr. English

I think that through inadvertence the hon. Lady did not answer one point which I raised. The hon. Lady and I are aware that the standardisation of whole milk under Regulation 1411/71 need not take place in law until 1st January 1976, but I asked her for obviously this is a matter which involves capital investment in dairying institutions and so forth—what was her target date for it. The period up to that date is the maximum length of derogation under Community law. Presumably the Ministry has in mind some sort of target date before that very last possible date for actually conforming to the regulation and bringing it into force in this country. I wanted to know what it was.

Mrs. Fenner

There is no target date, and although the hon. Gentleman says that the derogation ends in December 1975, the Minister may bring it in earlier to allow a running-in period for the trade to accustom itself to the new procedures before the final deadline. Standardisation and our present arrangements could, therefore, run in parallel for a time. But the time for this introductory period is a matter of negotiation between the interests concerned and the Government—I trust that the hon. Gentleman will note particularly "between the interests concerned and the Government", in the light of his reference to investment and so on.

11.4 p.m.

Mr. Buchan

With the leave of the House, may I say that we remain convinced that the regulations should be withdrawn. The Minister has put up a noble case for her Department, as she always does, and I congratulate her on that. But that does not strengthen her case. Her argument was based on the fact that the translation was subject to a corrigendum which was not published and, even worse, was not published on the ground that publication should wait until there was sufficient of them to justify publication. That is an intolerable position, especially as we are here dealing with offences and penalties involving imprisonment. I am not exaggerating.

What would we say if the HANSARD editors decided that nothing exciting had happened this week and that they would therefore not publish for a month or two? There was a strike but we were able to read what happened one way or another. It required a strike to stop the printing of HANSARD in this country. On the Continent it is stopped by law, by officialdom. That is not good enough. We cannot tolerate a situation in which definitions can swing back and forth like that. It is not sufficient that somewhere in the rafters is a corrigendum which deals with the problem.

The right way to deal with it is the way which has been suggested by the Committee, and I refer the Minister to appendix 1 on Report No. 10: The Committee at their meeting on 12th June invited the Scottish Office to submit a memorandum to help the Committee. We understand that the corrigendum was prepared in March, but there is no mention of this being brought before the Committee. All that the Committee and, indeed, the milk producers of this country have to operate on—and it comes into operation on 1st April 1973, and thank heaven for derogation—are the existing regulations which only serve to confuse the situation.

We also come back to the even more serious point which surprised the Minister. In report No. 10 the Committee picked out Regulation 2(3)(b) which states that any regulation is— as replaced or amended by any subsequent directly applicable Community instrument. The defence which she put up was also put up to the Committee. She said that this always happens. It avoids us having to go through the process of legislation. But when that argument was made to the Committee it was rejected. That Committee, representing this House, carries, and certainly should carry, more weight than the executive. That Committee, representing all parties, is extremely important. The Government by their attitude are now challenging the principle of parliamentary scrutiny. They are rejecting the rejection by the Committee of the arguments that have been put forward. The Government have rejected the Committee's view with no further explanation.

A further point put forward by the Committee is that any change that takes place is not subject to the direct consideration of this House in the normal way. Presumably a change in the regulations may not be published until there are enough to make it worth publishing them. That is intolerable. The changing European regulations will not be available in the same way that amendments to United Kingdom legislation are made known.

The seriousness of this is also that statutory instruments giving effect to EEC regulations have been made before the regulations have been published. Here, we are safeguarded by delegation, but it can happen without the safeguard of delegation that they can be made and become law before being published, and long before we get corrigenda published.

Mrs. Fenner

Is the hon. Gentleman referring only to the Scottish regulations, because, of course, the Joint Committee made none of these comments with regard to the English regulation, which is precisely the same?

Mr. English

I would add that the tenth report, on the Scottish regulations—I realise that there were printing difficulties at the time—came out on 26th June, by which time the regulations had been in force for 12 days.

Mr. Buchan

We have the Chairman of the Committee here, and I would give way if he wished to interrupt me and make this point, but the third report was printed by order of the House of Commons on 20th March and the second was printed by order of the House on 26th June, and it was significant that they were already legislation before they were printed. How can the hon. Lady rest on this, when we had the report on legislation which was identical, word for word, and which referred only by accident to separate Scottish legislation? The Committee now picks it up and corrects the earlier omission.

The argument is precisely that point, and the fact that the Committee did not pick it up the first time but did so the second time reinforces the argument. The hon. Lady must see this. The Committee missed it the first time. If the Committee had picked it up the first time and missed it the second, we would have assumed that mature consideration had prevailed, but when it picks it up the second time and then discusses it, that reinforces the argument. The hon. Lady cannot rest on her argument.

There are two points on the order itself. The first is one which the hon. Lady made, that there was no offence in the EEC but that it was left to each separate country. But there is much offence in this lady, as Hamlet said to Ophelia. If the regulation is tolerated in Europe and we find it foisted upon us, there is much offence in it. That is no excuse but a demerit.

The other point is on standardisation. My hon. Friend the Member for Nottingham, West (Mr. English) is perfectly correct. "Brought to" can mean "brought down to". It is no use arguing that there is no proposal to bring down the butterfat content. The argument is different.

The argument by my hon. Friend the Member for Nottingham, West is that, because of the pricing policy of the EEC particularly on butter and milk products, once regulations—and we know that regulations tend to create a norm—exist, the tendency will be to use them to reduce the figure to 3.5 so as to produce milk products at the high price at which butter will be. That is the argument, and it seems a perfectly correct one.

Mr. Booth

Will my hon. Friend consider that the hon. Lady is chiding the Joint Committee for not having drawn attention to the first report but that she has not told the House that the Government did not set up the Joint Committee until we had such a backlog of statutory instruments that it was impossible to consider all, and in the circumstances it is hardly reprehensible for the Committee to take the view that it was not possible to consider every statutory instrument this Session?

Mr. English

My hon. Friend the Member for Renfrew, West (Mr. Buchan) has got my point on relative pricing correctly. In addition, there is the reason that in two months of the year some milk must have its butter content reduced to bring it up to the 3–5 per cent. level. But in order to do that, it means that one has to add some cream to it and one can do so only by taking cream from some other milk, presumably at other times of the year.

Mr. Buchan

That is an interesting point. This is a Daniel come to judgment in the whole argument on the need for standardisation throughout the year. If milk sometimes drops below the 3.5 level, it has to be added to from milk in the other nine months of the year. That is the significance of the argument. We reject these regulations. We ask the Government to do the right thing by an all-party Committee of the House. They should act regardless of whether there is to be a corrigendum which we may see one day when there are enough others to publish them all.

The regulations will affect our producers, and we ask the Government to withdraw them because they introduce an extremely bad precedent in the relationship between the EEC and ourselves. Tonight it is milk. Next it could be an even more serious matter—tea, a subject that can move mountains in this country. There could be incredible trouble for the Government. I advise them as deeply and strongly as I can to avoid that trouble by withdrawing the regulations. If there is a derogation until 1975, we can exist without it throughout the summer. Let the Government take the regulations back, study them and listen to the advice given by the Committee. If they do, they will save themselves and the country a great deal of trouble.

Question put and negatived.