§ 4.0 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. James Prior)
I beg to move,That this House takes note of the Second Report from the Select Committee on European Community Secondary Legislation in the last Session of Parliament.This is a take-note debate and I hope that the House will agree with my approach of wishing generally to hear hon. Members' views on all aspects of this report. It would be rare if there were not some differences of approach or emphasis between Parliament and the executive, but I begin with the intention of wishing to help the House in every possible way in dealing with the report.
I wish to begin by paying a warm tribute on behalf of the whole House to the Select Committee under the chairmanship of my hon. and learned Friend the Member for Northwich (Sir J. Foster). The committee has made a thorough study of a most complex subject and has made recommendations of great importance and value—and not least is its achievement of having been able to make its report unanimous. On seeing the names of the Members who served on the committee it might have been thought that it would be impossible to get such unanimity from them. However, the chairman succeeded in doing so. That reflects enormous credit on his chairmanship.
The report is about providing new facilities to enable the House to express its views on community proposals for subordinate legislation before they go to the Council of Ministers for decision. The scale of the problem is sometimes overestimated. The volume of proposals going forward from the Commission to the Council of Ministers is comparatively large but many of them are routine or of minor significance. It would be undesirable, even if it were possible, for each and every Community proposal to be examined with an equal degree of parliamentary scrutiny or to occupy time on the Floor of the House. The House will therefore need to have some means whereby the more important proposals can be singled out and brought to its attention.
1907 The Select Committee recommends that sifting functions should be exercised by a committee. Its task, in the Select Committee's words,would not be lo debate the reasons for or against a proposal but to give the House the fullest information as to why it considered the particular proposal of importance and to point out the matter of principle or policy which it affects and the changes in U.K. law involved.The Government accept the need and the desirability of a House sifting committee, and agree generally with the function and powers which have been recommended. It would, I am sure, be right in House of Commons terms that it should have all the powers accorded to a Select Committee. We have one small reservation. The Select Committee recommended that there should be a parliamentary sift by a committee of departmental officials who would report both to Ministers and to the House sifting committee, and would advise the House committee as to which proposals might be regarded as unimportant.
I do not think that the idea of an official committee is a good one. I doubt whether it would be possible for a body of departmental officials to be formally linked with a House committee in the way proposed by the Select Committee. To do so would cause problems of divided loyalties and could cut across the accepted principle of ministerial responsibility.
I suggest to the House that a better approach would be for the committee to call upon Ministers and their officials to give evidence to it. Ministers would take responsibility for the Government's view as to the importance of the instrument and the committee would then make up its own mind. That would give the Select Committee what it requires in a slightly different way.
The committee clearly needs authoritative advice on the legal implications of Community proposals. The Select Committee proposed that the primary Government source for such advice should be the Law Officers. It thought that an additional Law Officer should be specifically appointed for that purpose. It also recommended that a senior House legal official should be appointed as an independent adviser to the Committee.
These proposals arise, I believe, because the House has been dissatisfied with the present form of departmental memoranda 1908 on Community proposals and because hon. Members need to be assured that when the Government give their views to the House on the legal implications of Community proposals they will do so at a ministerial and not an official level. They also arise because the committee needs to be able to question Government Departments and Ministers on the basis of independent and highly qualified legal advice.
The committee is right to make all those points. My only doubt is whether the solution proposed by the Committee or some other solution would best meet them. No one would argue with the proposal to appoint a new senior official of the House to advise the sifting committee. Such an officer, should the House approve the necessary resolution, would have the responsibility of advising and assisting the committee on which proposals would effect or require changes in United Kingdom law, what such changes should be and whether any question of vires arose.
My doubt arises over the best way of getting ministerial advice on the legal implications of Community proposals. It seems that there is a strong case for saying that the first source of such advice should be a responsible departmental Minister. The time and resources available to the Law Officers mean that they will inevitably have to rely heavily on the expert advice of departmental legal advisers. In so doing, the lines of ministerial responsibility could become blurred. If the committee agrees to rely on the evidence of the departmental Minister and his legal advisers, it could always send for a Law Officer to give further evidence when necessary. That is the usual practice in a Standing Committee.
Another way of bringing in the Law Officers would be for the present departmental explanatory memoranda on Community proposals to be referred to them in the more important cases. The memoranda would then state that the Law Officers concurred in the legal advice given. In other cases the committee could itself ask for the Law Officers' view to be obtained if it thought it necessary. Yet another possibility would be to have a legally qualified Minister, but not necessarily a Law Officer, specialising in these matters. If there is widespread support for that within the House, and amongst those with differing views on EEC matters, 1909 we would consider it further. I should like to hear the views of right hon. and hon. Members.
§ Mr. Michael English (Nottingham, West)
I do not think that it is mentioned in the report, but there was once a third Law Officer of the Crown who was qualified in Roman law, which is the basis of the law of the Common Market. Will the right hon. Gentleman consider reinstituting that office, which was abolished towards the end of the nineteenth century?
§ Mr. Prior
That is mentioned in the report. Is is a matter for consideration. In some respects what is required more than a third Law Officer is an independent legal adviser. It is the constitutional point regarding the Law Officer which hon. Members will wish to discuss and to consider further. In any event, that is a matter which I and my colleagues would like to hear discussed by the House.
I am suggesting that the committee would be well served first, by better explanatory statements on Community proposals ; second, by legal advice provided by the departmental Minister concerned, with the Law Officers' concurrence, when appropriate ; thirdly, by the availability of the Law Officers in specially important and difficult cases ; and finally, by the committee's own senior legal adviser. But we have not closed our minds to other arrangements.
I should like to see the sifting committee set up as soon as possible. I thought of tabling a motion for that purpose for today's debate. I thought on reflection that it would be better to have the views of the House before doing so. I would welcome advice on whether the House would be willing to accept the proposal which the report makes—namely, that appointment to the sifting committee should be the responsibility of the Committee of Selection. The House will appreciate that it would then not be possible for a representative of the Liberal Party to serve on the committee, although the hon. Member for Inverness (Mr. Russell Johnston) was a Member of the Select Committee. I can assure the House that, following today's debate, the necessary resolution 1910 will be tabled without delay. I hope that we shall start work very soon.
I now turn to the time available for debate. The Government willingly accept the Select Committee's view that important Community proposals should be debated only on the Floor of the House and that further time for these proposals must accordingly be found. Therefore, provided that the Opposition are prepared to contribute two days, we propose to recommend to the House that, as recommended by the Select Committee, six additional full days should in future be allocated to the consideration of Community matters. This would fit in with the proposal of the Committee that on two of those days the subject for debate should be chosen by the Opposition and on the other days by the Government.
The Government accept that there should in future be a report to Parliament every six months on Community matters generally and, if the House so wished, two of those days might be devoted to the consideration of those reports. In addition, there will be other opportunities for a debate in the normal way and under the Standing Order No. 9 procedure. I accept that, provided the sifting committee made its views clear in sufficient time, debates on matters of extreme urgency and importance would always take place before the Council of Ministers takes any final decision on the proposal concerned.
If this meant that debates were more than two weeks removed from the report I cannot see that that would matter. The House would be safeguarded by the Standing Order No. 9 procedure and the half Supply Days—four at the moment—which are available at short notice for the Opposition. This is a point brought out in the report. We could consider, if the House wished, increasing the number of those half Supply Days if necessary.
§ Mr. Michael Foot (Ebbw Vale)
Will the right hon. Gentleman make one thing clear? Is he accepting in their entirety the recommendations about access to this House made by the committee in paragraphs 72 and 73? Is he saying that the whole of those recommendations are to be approved by the Government?
§ Mr. Prior
I have accepted that when the sifting committee reports to the House, the House will need to debate those matters which it considers to be of great importance and extreme urgency. We shall make every effort to have those debated within two weeks. There will be many cases when there will be no necessity for the debate to be held as quickly as that. If the House wants additional safeguards on that point it has them under Standing Order No. 9 and through the half Supply Days for emergency debates. If I have not quite got this right I should like to consider it and perhaps deal with it later in the debate.
Instances where important Community proposals are dealt with to a very tight timetable are comparatively rare. I remember last year the problem of my hon. Friend the Member for Banbury (Mr. Marten) over the regulation on driving licences. This was a matter of "urgent importance" which we put off from week to week and then month to month. I am by no means certain that any decision has been taken on this even now. Quite often what appears to be an important and urgent matter does not have the degree of urgency which at one time it was thought to have.
We should certainly have considerably more time on the Floor of the House for debates on Community matters, and I do not think we need extend the existing Standing Order No. 9 procedure as proposed in paragraph 88 of the Select Committee's report.
The Government propose to discuss through the usual channels the provision of a specific position on the Question rota for Questions on Community matters addressed to the Foreign and Commonwealth Secretary.
The Select Committee repeats its earlier proposal in paragraph 88 that oral ministerial statements should be made to Parliament before meetings of the Council of Ministers. The arguments in favour of such statements are clear enough. The Government understand and appreciate that many hon. and right hon. Members attach much importance to them.
There are, however, arguments the other way. The agendas for those meetings are seldom fixed until shortly before the meetings take place. Then too, my right hon. Friend the Chancellor of the 1912 Duchy would often find himself speaking on behalf of other Ministers. I appreciate that that is the position in which I sometimes find myself on Thursdays but my statement is, at least formally, confined to the week's business whereas my right hon. Friend might be expected to discuss the substance as well as the timing of the business with which he was dealing. I often hear, when I am answering questions on Thursday afternoons about the business for the ensuing week, the Patronage Secretary shouting out behind me, "Do not get involved in the merits." That is not the job of the Leader of the House when answering questions about next week's business. Nor would it be the task of my right hon. Friend, dealing with the suggestion that the monthly statement of the business should be made orally in the House. There is also a further difficulty in that he would inevitably on occasions have to be a little circumspect in what he said having regard to our negotiating position in the Council of Ministers.
§ Mr. Neil Marten (Banbury)
How can we cope with a situation such as this, when my right hon. Friend has said that the agenda is often drawn up only a day or two before the Council of Ministers meet yet our Ministers at that meeting can take a decision which might bind this country irrevocably? This will be the sort of occasion on which we must have frequent and possibly urgent Standing Order No. 9 type debates.
§ Mr. Prior
That is a rather different point from the secondary legislation issue. It is a question involving decisions on policy which perhaps do not involve legislation or secondary legislation, which the House will wish to discuss before a meeting of the Council of Ministers. That would be one of the purposes of continuing with the Standing Order No. 9 arrangement which makes this possible. This can happen at any moment. There is no change from present practice.
§ Mr. Eric Deakins (Walthamstow, West)
The right hon. Gentleman appeared to be saying that we could not accept the recommendation of the committee, which is a reiteration of the recommendation made in our first report last year, that monthly statements should be made by the Chancellor of the Duchy about the Council's agenda. One of the 1913 grounds for his opposition was that his right hon. Friend could not be expected to make a statement about a vast number of subjects which would be coming up and which could cover a fair number of Departments in this country. If he is of that opinion will he ensure in future that his right hon. Friend does not seek to make a statement after the Council meeting covering several departmental matters? Is he aware that this has been a source of anguish to many of us because we feel that the right hon. Gentleman, however well-intentioned, has not always had the expertise to be able to answer detailed questions on matters not pertaining to his Department?
§ Mr. Prior
There has to be a bit of give and take on this. When, for example, the Minister of Agriculture has taken part in important meetings at Brussels, he is obviously the right Minister to make a report to the House. It may be that there are a number of comparatively minor issues involving more than one Department. In that event it is much more suitable for the Chancellor of the Duchy to make a statement. This has happened in the past.
I cannot think of anything more irritating to the House than to have statement after statement on comparatively minor matters by different Ministers. We have to play this as fairly and as reasonably as we can. The Government will seek—and I will see that they do—to meet the wishes of the House as far as is humanly possible. To go to the extent of having departmental Ministers coming along frequently to make statements on fairly trivial matters is not what the House would require and would not, I think, be widely welcomed.
The hon. Gentleman suggested that I was in the process of turning down this idea. I wanted to end on this point by saying that I am worried that these occasions might not give the House quite what the committee had in mind. If, despite the difficulties to which I have referred, it was the general wish of the House to have these monthly statements, then the Government would obviously wish to take careful account of the views expressed.
I again express the thanks of the House to the Committee. I hope that I have 1914 made it clear that the Government think that most of the Committee's judgments are right. Our doubts are on points of detail and not on essential substance.
I sum up. We accept the proposed establishment of a sifting committee, and agree generally with the functions and powers recommended for it. We accept that there must be close and effective working relationships between the Government and that committee, and are ready to give it the fullest possible co-operation.
We accept the advice that proposals identified by the sifting committee as important should be considered on the Floor of the House, and are ready to make more time available to ensure that those debates can take place when they are needed. We hope that the Opposition will now also be ready to contribute time for those debates. We have made proposals which are somewhat different in detail from those of the Committee but which we are confident will ensure that Community proposals of importance and urgency can be debated in good time.
We accept that some changes should be made in the arrangements for parliamentary Questions on EEC matters addressed to my right hon. Friend the Foreign and Commonwealth Secretary. We also accept that the explanatory statements on EEC proposals need to be improved, and steps have already been taken to bring about that improvement.
We accept the commitment to a twice-yearly report to Parliament about Britain's membership of the EEC.
We have some reservations about the Committee's proposal with regard to ministerial responsibility for the legal aspects of the EEC proposals, but we should like to hear the views of the House about it in today's debate. We accept the need for the committee to have its own legal adviser.
We still have reservations about the making of monthly oral statements by my right hon. Friend the Chancellor of the Duchy of Lancaster on the agenda of forthcoming meetings, but again we should like to hear the views of the House.
I hope that the proposals I have outlined will, together with the procedures 1915 adopted after the Committee's First Report, achieve the aim of both the Committee and the Government of enabling the House to play a full and effective part in the consideration of Community proposals in their formative stage. No doubt we shall wish to adapt our procedure still further in the light of experience, but I am sure that the report, like its predecessor, will always be regarded as a document of outstanding importance in the development of our parliamentary procedures, to meet the needs created by our membership of the Community.
I hope that the House will accept from me, as its Leader, that the Government are doing all they can to accept the recommendations of the Committee and to give the House the fullest possible opportunity for debate and consideration of matters which are of great importance, about which I think the House feels restive, and which it wishes to see put right at the earliest possible moment.
§ 4.23 p.m.
§ Mr. Peter Shore (Stepney)
As the Leader of the House has reminded us, the debate is on a motion to take note, and there will be no Division at the end of the day. However, I must make it clear that the Opposition attach the utmost importance to the report and its recommendations, which we regard as the very minimum required to enable the House to assert some control over Ministers in the conduct of Common Market affairs, and thus begin the arduous process of restoring to the British people those democratic powers which, in the view of many of us, were so wrongly transferred just over a year ago.
Nevertheless, in spite of our feelings, we wanted the House to debate the report, and the great subject with which it deals, in a serious and relaxed way, without the threat of a Division, and to give from both sides, as I know it will, its best and considered advice to the Government. We also wanted the Government to have the opportunity of responding to the Select Committee's report and recommendations and the substantial body of evidence that has now been published.
We all recall the statements made during the passage of the European Communities Act, beginning with that made I believe on the first day of the Second Reading debate, 15th February 1972, by the then Chancellor of the Duchy of 1916 Lancaster, now Secretary of State for the Environment, who proposed that an ad hoc committee be set up to consider the whole effect of the EEC on Parliament. We also recall his opinion, frequently reiterated by himself and his ministerial colleagues, that it was both possible and desirable for the House to assert itself and to preserve its democratic rights within the context of EEC membership.
More recently, we had the relatively forthcoming response of the present Chancellor of the Duchy of Lancaster in his evidence to the committee, which we considered before our First Report. Then we had the evidence of the Leader of the House, accompanied by the Government Chief Whip, in their submission to the Select Committee as recently as 23rd July last year.
Further, we were able to agree unanimously in the Select Committee on the recommendations made in the report. As a member of the Committee, I join the Leader of the House in paying a well-deserved tribute to our chairman, the hon. and learned Member for Northwich (Sir J. Foster) for his excellent work and most helpful guidance.
I agree that a unanimous report is no mean achievement, especially as the Committee contained not only members of different political parties and of parties deeply divided against each other on so many EEC questions but on both sides of the Committee members had been appointed covering the wide spectrum of views held on the whole question of membership of the EEC. We expected the Government to take careful note of the report of a committee that had reached unanimous agreement, and to give that weight to its findings that I think our unanimity merited.
Just as the Leader of the House will no doubt study not only my opening words but the speeches of right hon. and hon. Members on both sides of the House before he comes to a conclusion, so I will do him the courtesy, and more, of studying his remarks carefully when I have the full text. My initial response to what he said is favourable. I think that he has gone a considerable way in accepting our major recommendations.
I note the right hon. Gentleman's reserve on two points, and I should like 1917 to make one or two comments on them, because he has invited our comments on those points where he has his own reservations.
Others will speak to the question of an additional Law Officer with greater authority than I, but I think that one of the matters that weighed considerably with the Committee was our knowledge of the great flow of Euro-law emanating from Brussels all the time and the requirement made of the Select Committee in general that it should meet every fortnight, as we think the flow of work would require, not merely during the period when Parliament ordinarily sits but in the Recesses. Certainly, one of the important factors is the volume of extra work being generated by the processes of Euro-law and the rather special expertise required in the different concepts that underlie EEC law.
The Leader of the House also asked for our comment on his reservation about the oral statement that might be made by the Chancellor of the Duchy of Lancaster, whom we have always thought was the appropriate Minister, before meetings of the Council of Ministers.
I understand the difficulties that could arise for a Minister faced with searching questions from all across the board, because it is a large area that the Minister has to embrace. But as against that—this is where I think the analogy of the Leader of the House in dealing with business questions and the Chancellor of the Duchy in dealing with Euro-business does not stand up—the Chancellor of the Duchy, in his rôle as the main co-ordinating Minister on European affairs, attends virtually all the Council of Ministers meetings, or at least has access to them. That is his major preoccupation and concern and he would not therefore be in the same position as the Leader of the House in dealing with a particularly fast, or googly, ball from the Opposition on a matter on which it would not be reasonable to expect him to have any close or direct knowledge. There is a big difference between the two rôles.
The Chancellor of the Duchy and the House would not find this too difficult a task. We certainly expect that there would be matters where he would have to say, "I cannot myself go into the 1918 details ; it would be more appropriate if the questions were put at a later stage to the Minister with the more direct responsibility." But it would help us to focus our minds on what is taking place.
I know that the agenda changes from time to time. That is something with which we shall have to live. Indeed, from time to time the business of the House changes and it would not be reasonable to expect the Minister to make statements whenever the Council's agenda changed. However, it would help us enormously—we are dealing here with a great flow of policies which interact from one Department to another—if we could have the monthly statement for which we argued in our First Report.
The third matter on which the Leader of the House gave us a hint of some reservation—I may have misunderstood him—was on the Parliamentary Questions addressed separately to the Chancellor of the Duchy, the Minister for European affairs. I hope that no ideas about a 3.10 spot are flooding through the Leader of the House's mind. I should like a separate, definite and regular No. 1 spot in Question Time when we could put to him Questions, as we do to other Departmental Ministers, on those matters which are of concern to us and our constituents.
Having commented on the reservations of the Leader of the House, I shall move on to say something about the importance of the report. It is necessary to give our interpretation, as it is important that the House should understand the implications of the Select Committee's proposals. I said at the beginning that it was a report of great importance. If anything, that is an under-statement because I think that what the Select Committee is considering—I do not wish to be grandiose in my use of words—is, very nearly, the future of Britain's parliamentary democracy. That is the wider subject matter which the report has covered.
What I find extraordinary, at a time when the Press and various commentators in the media generally are so concerned about the alleged shortcomings of Parliament and in discussing the threats which they see to Parliament, is how little time has been given to what must be judged as the most far-reaching 1919 and conspicuous threat of all—the dismantling of parliamentary power involved in the European Communities Act 1972, and in the Treaty of Accession to which that Act gave force.
Just how great a challenge the European system poses to our parliamentary democracy is made clear in the Select Committee's report. That is not a view simply of any single Member but a view which is unanimously held. What we now have is a whole new input of law into the United Kingdom—law not made by this House of Commons and not even made in this country. I draw the attention of the House to what I think is an important passage. Paragraph 33 of the report says:What is under consideration is a part of the making and amending of the law of the United Kingdom, no less. As the inevitable consequence of the entry of the UK into the Community substantial and important parts of that law are now and will be made in new and different ways and with new and different consequences".It goes on:The outstanding difference between these and the existing processes for making or amending the law are … that … the Executive itself … has assumed the constitutional function and power of Parliament.Paragraph 35 states:It is further to be observed that so long as unanimity is required in the Council such laws can be either rescinded or amended by, but only by, a further unanimous decision of all member Governments.That is a major change indeed. The law, made by the executive itself, cannot be repealed.
I draw attention of the House to the section on page 38 of the report saying:For the United Kingdom this poses a constitutional and legal paradox. For legislation by the executive is expressly prohibited by law and constitutional practice in the United Kingdom. This power was rejected under the guise of prerogative legislation in the Case of Proclamations (1610) … and in the Bill of Rights (1688).Here we have a resurrection of executive legislation which a large part of the constitutional history of this country was taken up in ridding ourselves of several centuries ago. Therefore we cannot for a moment take this matter lightly or treat it with other than the utmost concern which it deserves. Having put the seriousness of the matter, the report puts the other side in paragraph 36: 1920Nevertheless it remains central to the United Kingdom concept and structure of Parliamentary Democracy that control of the law making processes lies with Parliament.That is a great paradox and one which is difficult to reconcile, too. It goes on to say—and this is where we question the whole procedure:It follows therefore that new and special procedures are necessary to make good so far as may be done the inroads made into that concept and structure by these new methods of making law.Probably all of us in the Select Committee came to accept that there could be no offset to the loss of parliamentary democracy in Britain by any gain of democratic control in the Common Market. It became clear that there was a vast democratic deficit in the institutions, of the EEC.
The reason for this was brought out clearly by Lord Diplock in his evidence to the Lords' Committee quoted in their First Report, when he described how the Community makes its laws:The institutional structure of the Community, though unique, is more like that of the United States than that of the United Kingdom.He went on:The Council's rôle in the EEC is analogous to that of the legislature. The European Assembly, apart from a power by way of last resort to enforce the resignation of the Commission, has at present no more than consultative functions. It can advise upon proposed Community laws, but its consent is unnecessary and its advice need not be followed.If anyone has any doubt about that, those who read the interesting article by the present leader of the Conservative group in Strasbourg, an article which appears in a publication called, I believe, "Three Views of Europe", published by the Conservative Political Centre, will have noted his words, that, of the four main Community institutions, the weakest and least efficient is the European Parliament.
I think that it is a misnomer to call it a parliament, because it is not—and this is not a small point. We here understand something of what a parliament means, and this is not a parliament ; it is a consultative body. Some people hope that in time it will become more. We can none of us be sure of the future, and it is not wholly to be ruled out that that might happen, but we as serious 1921 parliamentarians in Westminster can derive no comfort from the possibility that a consultative body might eventually become a legislative body. Therefore, we must take seriously the dilemma that I have outlined.
The Select Committee's main proposals were, of course, aimed at restoring as far as possible the authority of the House of Commons over Community so-called secondary legislation. No one should have any confusion about this "secondary" legislation. It is primary legislation in our sense. It simply means legislation other than the major treaties, which are to be looked on as the underlying and foundation documents from which that legislation stems.
Our proposals stem from our study of the legislative procedures of the EEC. The main regulations and directives, the laws of Europe, originate as draft proposals in the Commission. They are then sent to the Council of Ministers and sometimes, but not always, to Strasbourg for the opinion of that assembly. After an interval for consideration, they are either approved or rejected by the Council of Ministers. It is this time lag between the Commission's proposals and the Council's assent or rejection that makes it possible for an alert House of Commons to intercept and to interpose its interest, its view point, its authority into the legislative process.
Essential to this end, if we are to use this possibility, is an adequate flow of information. We must have information, we must have it early and we must have it interpreted for us—its relevance, legal implications and the possible changes which may be required in any draft proposal. The report that we have produced—I apologise for sometimes saying "we": I am speaking for the Opposition, but I was also a member of the Select Committee—the proposals that the Select Committee puts forward are many, and I will not run over them all. I want just to emphasise one or two which seem to me of the utmost importance.
First, this committee has unusual powers. It is not just a Select Committee and it is certainly not a Standing Committee. It is something for which we cannot easily find a label. But if we consider its powers and the obligations 1922 for its sittings and staffing that we have suggested, and above all if we consider the access to Ministers which is asked for—which, if I understood the Leader of the House correctly, is accepted—we see something exceptional. It will meet and have with it in all normal circumstances the Minister and perhaps even the third Law Officer, if such an officer is appointed.
The second crucially important thing is, as paragraph 72 puts it,A proposal reported by the Committee to be of extreme urgency and importance—that is, a proposal from Brussels—should be debated by the House within two weeks of the report.If it is not important or urgent in that sense, then I understand what the right hon. Gentleman said: as long as it is discussed in good time in the House, that is all right. But the essence of the matter is timing. What this provision insists on is that we get the debate at the right time—that is, before any decision is made in the Council of Ministers.
Then there is the possibility that, even when the proposed committee whose authority it is to sift does not itself recommend a legislative draft proposal as being important, nevertheless hon. Members on either side will have the possibility of obtaining a debate under an amended Standing Order No. 9 procedure. That again is important.
§ Sir Robin Turton (Thirsk and Malton)
What does the right hon. Gentleman mean by an amended Standing Order No. 9 procedure? That is not clear in the report.
§ Mr. Shore
The main point is that the normal requirement of a successful Standing Order No. 9 application—that it is urgent in point of time—would be waived. We normally have to argue that the matter is upon us straight away in order to get a debate. Once that requirement is waived, a submission could then be made to the Chair.
We can debate some of these proposals further when precise resolutions are put before the House, as would no doubt have to be done to carry out the recommendations of the report.
§ Sir Derek Walker-Smith (Hertfordshire, East)
Would not the right hon. Gentleman agree—this will also help my right 1923 hon. Friend the Member for Thirsk and Malton (Sir Robin Turton)—that the matter is more fully spelled out in paragraph 88, which makes the points that he has in mind?
§ Mr. English
Since he was on the committee, my right hon. Friend will no doubt remember that, when we amended the Standing Order No. 9 procedure, we virtually gave Mr. Speaker, as he has said several times, an exact number of Standing Order No. 9 debates which he was to average over the year. Obviously, that would not be appropriate to these circumstances.
§ Mr. Shore
I shall bear my hon. Friend's point in mind and I thank him for it. If we are to be able to bring important matters on to the Floor of the House before they are decided, it follows that the House of Commons has the right to bind a Minister and, through binding a Minister, it will have the right in effect to say "No" to a draft Euro-law or policy. That is what the report is all about. It is very candid about it. Paragraph 37 says that some of the present freedom of the executive in EEC matters has to be forgone. Indeed it does.
Perhaps I may emphasise the point by recalling one or two experiences of the last year. I refer in particular to exchanges between myself and the Chancellor of the Duchy and to the supplementary Community budget that was presented just before the Recess. When the Opposition put down a motion on prices before the new price for CAP products had been agreed the Chancellor of the Duchy's first reaction was hostile. The right hon. Gentleman said that we were trying to prick the Ministeron a pin so that he cannot move, and his wings are clipped"—[OFFICIAL REPORT, 3rd April 1973; Vol. 854, c. 291.]I plead guilty to that. I thought that the frame of our motion was sufficiently broad as not to make it quite as difficult for him as that. We said at the time that it was not a question of objecting in advance to individual price movements up and down but of supporting the general principle of not accepting an across-the-board increase in prices. That was what the motion sought to deal with, 1924 Of course I understand the Government's difficulties in being caged in on discussions, but if the right hon. Gentleman and his colleagues take that view they will be in serious difficulty. I cannot see how the arrangements would work at all. If the Government start from the point that they must not be "pricked on a pin" or must not let the House express its view before it is too late, what is the point of the procedure we have outlined here? That is something that must be faced.
The Chancellor later, under pressure from one or two of my right hon. Friends, somewhat shaded his original response. He said that what mattered was the stage that negotiations had reached. He said that if a binding resolution were imposed too soon, the Government could not negotiate successfully in Brussels. However, he then gave us to understand that, provided that the timing was right and provided that it did not happen too soon, the arrangements might be acceptable to him.
However, we then had the unhappy experience of the suplementary budget. We had only got a wind of it and then it was published in Agence Europe. We do our best to keep abreast of these things, and not without success. We attempted on this occasion to get a statement from the right hon. Gentleman and he said he could not make one because there was no precise proposal. A fortnight later he made a statement to the effect that everything had been decided and agreed. I felt angry about that, because I felt that an opportunity had been missed.
I am not harping on this incident in order to fight a return round with the right hon. Gentleman. I am trying only to show that there is a real problem. He does not want the House to express its view too soon because it deprives him of reasonable flexibility in negotiation. He must be prepared to let the House express its view however. The difficulty is that it will happen either too soon or too late and thus rob Parliament of an effective voice. That we cannot accept.
§ Mr. Marten
Surely for the Minister, in this case the Chancellor of the Duchy of Lancaster, to be "pinioned"—that was his word—or "pricked on a pin", he must have been so pinioned at some stage by a Cabinet decision where the negotiating limits were settled. The 1925 Minister would accept being pinioned by a Cabinet decision—a decision of his own executive—but not by Parliament. Again, therefore, is this not a struggle between the executive and Parliament?
§ Mr. Shore
That is another way of putting the dilemma and I shall be interested to hear from the Chancellor whether it is accurate.
Another factor is the importance of the Government playing fair in practice, whatever we may agree in terms of formal resolutions and whatever is agreed in the Select Committee's Report. It is important for them to play fair, particularly on information and statements. An awful lot goes on in Europe and it is extremely important that the Government should tell the House what is happening and tell it at the right moment. It is not good enough for important events to occur and for the House simply to be a spectator and, when it tries to get a statement, to be refused for one reason or another.
There has been an important event in Europe in this last fortnight as we have watched the collapse of monetary union. I am enormously relieved as, I suspect, is everyone in the House, that this absurd enterprise has foundered on the rocks. However it has important implications and not least for the proposed European Monetary Fund, and whether or not it is linked with the regional fund. The second stage of economic and monetary union was previously linked with it and so was the whole question of agricultural prices. The whole business is in total confusion. These are important events and I would have hoped that responsible Ministers who were sensitive to the feelings of the House and the country would volunteer a statement on them and would not leave it to the Opposition to try unsuccessfully to get a statement.
The whole procedure proposed in the report rests on two foundations. The first is the doctrine of ministerial responsibility, which is the only way we can effectively intercept the flow of draft Community legislation. The second is the de facto right of veto within the Council of Ministers. That is an essential point. If there were not a de facto right of veto, interception by Parliament, however effective and well timed, and however well it might satisfy the objections of the 1926 Chancellor of the Duchy about not being too early or too late would collapse in tiie face of a majority vote in the Council of Ministers.
This method of parliamentary control is contingent upon the practice of the veto and its continued use in the years ahead. It follows from that—I speak for myself and I feel that, in logic, I must be speaking for other hon. Members of the Select Committee—that we rule out the entire majority rule provisions of the Treaty of Rome for as far ahead as we can see.
The Select Committee's recommendations are, to our minds, the bare minimum of what is required. There are still considerable problems which we have not yet overcome—to begin with the ability of Parliament to intercept a draft law on a major matter and to have a day's debate on it is a very inadequate way of making a law. For major matters I can find no substitute for a full legislative process. We should not abandon this possibility.
I have been trying to explore the distinction between a regulation and a directive. At present a directive is a form of Community legislation and is so construed as to be virtually identical with a regulation. Therefore, even if a matter can be brought before the Parliament of a member country, it is hardly worth a candle because the margin for manoeuvre is so circumscribed. But I do not believe that that was necessarily the intention of the authors of the Treaty, or that it has to be so for all time.
If a directive is what it was originally meant to be—a means whereby the national Parliaments are left to carry out with broad discretion the generally agreed aims of the member Governments of the Community—it is possible to envisage a serious legislative process that could be used instead of a one-day debate, which is virtually all that we can envisage under the present arrangements.
The second gap in the report—the report is frank about it and acknowledges it—is in paragraph 12, dealing with the Commission and its power. It is in the penultimate sentence, which states:Your Committee believe that the powers of the Commission to make secondary legislation without reference to the Council, which takes immediate effect under Article 191 of 1927 the EEC Treaty, are a matter of such importance that further study by Parliament is essential.That sentence is a little limited. It is not just the power of the Commission to make secondary legislation ; it is also the power of the Commission to do all manner of things, such as selling butter to the Russians at knock-down prices.
The Commission is also the policeman of the Treaty. Great powers under Articles 92 and 94 affect the whole industrial, micro-industrial and micro-economic policies of Governments. They are very important matters but they are substantially outside the control not merely of the Council of Ministers but also of the House. The further study to which the report refers is essential. I hope that the Leader of the House will give serious thought to the prosecution of a further and serious study of this important institution of the Common Market.
Perhaps the conclusion of such a study would be that new parliamentary procedures for dealing with the Commission could not be found and that a fundamental amendment would be needed in the Treaty of Rome. That is my personal view, but not one which I need advance further, because we have not yet had the kind of study which I think is essential.
Considering what is involved, and how the report deals with the issues which came before us, I am even more convinced than I previously was that it is impossible for this country to go further into the EEC, to submit itself to further EEC processes, until the very business of being in the Community has been legitimised. In the view of many of us, our membership of the Community is illegitimate. We take this view because we want to bring Parliament into the lawmaking processes, which are discussed in the report, and because consent is needed if the law is to have any authority and respect. The great act of illegitimacy was to take this country into the Community when the Government, and all of us, knew that it was against the consent of the British people. Until that great evil is put right there is no remedy before us.
§ 5.6 p.m.
§ Sir John Foster (Northwich)
I do not accept the tributes paid to me about the unanimity of the Committee. Those members of the Committee who are now 1928 present will agree that we were unanimous throughout in the sense that we discussed matters on which some members through one way and some another, but at the end of the discussion the Committee was unanimous. This resulted because all members of the Committee were good parliamentarians. It was a paradox that those members of the Committee who I might describe in shorthand as anti-marketeers came to the same conclusion as myself—and I am a federalist. We all wanted Parliament to be involved.
The view of the right hon. Member for Stepney (Mr. Shore) that we are in an unsatisfactory situation regarding legislation is well taken, but his remedy is to alter the Treaty of Rome and to examine the whole premise, while mine is to proceed to form a federation. He would agree, I am sure, that theoretically his anxiety about parliamentary democracy would be met if the future of Europe were developed in the form of a federation. I agree that at present it is no wonder that monetary union proposals have broken down, because monetary and financial proposals cannot be agreed between nine independent States. Some form of political unanimity is needed. I appreciate that the great majority of people in this country, and probably the majority of hon. Members, would entirely disagree with my point of view.
§ Sir J. Foster
My right hon. Friend says that the logic is probably unexceptional. I am glad that the Government have accepted that there should be a sifting committee and that there should be more parliamentary time allocated to Community matters. That is why the right hon. Member for Stepney had generally a favourable reaction to the speech of the Lord President of the Council.
I am guessing but I do not think there would be great opposition to the sifting committee relying on officials to tell it what is important and what is not. It would be too great a burden for the sifting committee to go through proposals for secondary legislation emanating from the Commission. That would be done by officials but the responsibility, as my right hon. Friend the Lord President says, would be rightly with the committee.
1929 With regard to the sifting committee itself, I am of the opinion that the Lord President perhaps saw the Tightness of our argument that it was better to have a sifting committee which passed on to this House proposals for secondary legislation where they were important than to have a second debating chamber, as was proposed at one stage. We do not think that a second chamber would be at all satisfactory because we thought that the House of Commons would want to discuss these matters.
As for judging the importance of secondary legislation, in my view the work of the committee will not be all that arduous. It will be clear to experienced parliamentarians which matters are important.
The legal effect will be a little more complicated. This House will discuss matters which are important, and right hon. and hon. Members will have the advantage of the original memorandum covering the proposals for legislation to indicate which changes in the legislation are necessary. In the very rare cases where the matters themselves are not intrinsically important but where the changes in the law may be, more detailed examination on the part of the sifting committee will be necessary.
That brings me to a consideration of what the advice to the committee should be about the changes in legislation. The Select Committee recommended what we called a third Law Officer. However, I do not think that we attach any importance to his designation as a third Law Officer or as an independent Minister. The Lord President felt that he would like the views of the committee.
If the Government felt that perhaps it was unnecessary to have a Minister with the sole task of performing this task, there are two avenues of compromise. The Select Committee felt that the advice as to what changes in legislation were necessary should be the responsibility of a Minister, and of a legal Minister rather than of a departmental Minister. We felt, in other words, that it would not be sufficient, for example, for the Minister of Agriculture to say that he was of the opinion that the changes in law necessarily involved two regulations and an amendment to Section X of the Agriculture Act 1947. That would be merely 1930 reproducing, probably by a non-lawyer, the views of the departmental legal staff.
If it is felt that the creation of a new legal officer is setting up someone who perhaps will not have enough to do, who will be unnecessary and whose relationship with the Law Officers may be difficult, it is worth looking at two other suggestions. The first is that the Law Officers should themselves take on this burden. It may not be as great as some people think. It will mean the Law Officers making themselves responsible for that section of the covering memorandum dealing with the legal changes that are necessary.
The other suggestion which will need some detailed working out concerns the two other Law Officers who deal with Scotland. It may be that some rearrangement of the work of the Law Officers dealing with England and Scotland can be done in order to merge it at this point so that if, as I believe, the Law Officers as a whole have a little spare time they can advise on these matters.
§ Mr. English
I am very glad that the hon. and learned Gentleman has referred to that last suggestion, because it is clear that the Lord President misunderstood the purport of my intervention in his speech. I did not mean that the Select Committee's report did not refer to a third Law Officer. I meant that it made no mention of the fact that there was once a third Law Officer, additional to the Scottish ones, called the Advocate-General who was trained in Roman law which, as hon. Members know, is of great relevance since it is the legal system of the Treaty of Rome and all the documents issued under it.
§ Sir J. Foster
There is the possibility of a compromise on those lines. There are a number of proponents of the Queen's Advocate on rather the same lines, but of course that involves a separate legal Minister.
However it may be solved, I hope that the Government will look with great care at the proposition that the statement of the legal alterations necessary should be the responsibility of a legal Minister. I appreciate that if one puts this responsibility in the Law Officers' Department a change will be required in the constitutional position of the Law Officers, 1931 whose job is to advise the Government and not this House. We all know how Members sometimes call, "Send for the Law Officers", how they arrive and how, if their advice does not agree with the Minister's, they sit very quiet and go away again. The practice is that they advise the Government. In the case of the Campbell letter, the Attorney-General advised the Government. His advice had no direct relation to this House.
As this is a new form of legislation, perhaps the Law Officers might change their stand as regards purely giving advice to the Government by being willing to advise this House first through the memorandum and secondly through the committee if a question arises on the correctness of the memorandum about the changes involved. It is probably worth looking at that possibility.
Like all committees worth their salt, the Select Committee departed from its strict terms of reference which related to the scrutiny that should be applied by this House to proposals for secondary legislation. In Part III of our report we went into the general question, which the right hon. Member for Stepney dealt with so forcibly and in many ways so logically, of how much the House of Commons should consider and debate matters of general importance arising from the activities of the Commission and the Council. It was in that connection that we recommended the extra days' debate. I am not sure that we intended the extra days' debate to be taken up, if at all, by considering the recommendations of the Committee about proposals of importance. They may fuse on certain occasions, obviously, but we had in mind that there were matters such as monetary reform and the future of the European Parliament which would not be secondary legislation but which should be debated by this House.
I agree with the right hon. Member for Stepney that the European Parliament is the weakest of the institutions of the Common Market. If the powers of the European Parliament were strengthened, that would go some way to helping this House to consider secondary legislation. One can only welcome the attempts being made by the European Parliament and the various studies which are being made to enhance its status.
1932 As one who believes in federation, I do not think that a European Parliament which has to face nine independent and often mutually disputing Governments will ever get beyond a certain point. Even with universal suffrage and a general electorate for the European Parliament, the point is bound to be reached where proposals from it go to the Council and there is a veto. Therefore, I welcome an increase in the powers of the European Parliament, but I do not think that that would solve the dilemma which, I agree with the right hon. Member for Stepney, exists. But my method of solving it is different.
I am very much in favour of the present stage because I regard it as a stage towards something better. The right hon. Member for Stepney, unfortunately, would put us back again into the separate sovereignty in Europe, with very much less co-operation than even that which they have now when they do not agree about certain matters.
I should like to comment in conclusion on the subject of Questions and monthly statements. Regarding Questions, I hope that the Government will be able to give a slot to a Minister. It would not matter whether the Minister were theoretically under the Secretary of State for Foreign and Commonwealth Affairs. It might be an advantage, as it is to do with foreign affairs, if the Secretary of State said that every so often his European Minister would be at the top of the list to answer Questions. I hope that the House would regard it as being too metaphysical to mind whether he was a separate Minister or a Minister under the Secretary of State for Foreign and Commonwealth Affairs.
The solution regarding the monthly statement lies in flexibility. The right hon. Member for Stepney pointed out that certain statements were very necessary, and I expect that the Government will accept that. I should have thought, too, that there is something in what the Lord President said—that sometimes the statements would not be important enough and that there are the various meetings of the Council of Ministers, of Transport Ministers, Science Ministers, and so on. That problem can be solved by the Government recognising when a statement needs to be made and by making it in 1933 good time, in time for the House to consider whether the matter should be debated or whether information should be sought by question and answer when the statement is made.
I end as I began by saying that I, too, am gratified that the Government have gone very far in accepting the recommendations of the Committee. I recognise that from the Government's point of view there are certain problems which they have to solve, which the Committee did not have to set out in detail and did not have to solve. The two main problems, perhaps, for the Government to consider very carefully are, as the Lord President said, the attitude towards who should be, if at all, a Minister responsible for expressing views as to what legal changes are necessary, and the monthly statement, and Questions.
I hope that we are not far from agreement. As the Committee achieved agreement, perhaps the Government and the Opposition can reach agreement. I thought for one moment that the right hon. Member for Stepney was about to pay a tribute to the Government because we were discussing this matter at a time in which many serious matters are arising I thought that he was about to say that one thing about parliamentary democracy which he liked was that we could discuss matters such as this at such a time. However, the right hon. Gentleman went off on a verbal tangent in saying that parliamentary democracy had been very much hurt by the creation of the European Community and the Treaty of Rome. As he knows, I do not agree with that. But I agree that there are problems which have to be solved. That is the reason why the Committee was unanimous.
The members of the Committee, both federalists and anti-marketeers, thought that if we brought the matter before the House at this stage that would be one way, perhaps, of reassuring the British people that the matter was fully discussed in the House, and they could decide later what system of international relations in Europe they wanted.
§ 5.24 p.m.
§ Mr. George Darling (Sheffield, Hillsborough)
I agree with my right hon. Friend the Member for Stepney (Mr. Shore) that this is a very useful report 1934 and one which we must accept. But it is the very minimum of what is required.
I should like to comment on the remarks of the hon. and learned Member for Northwich (Sir J. Foster) about trying to get more parliamentary democracy into the Community by strengthening the European Parliament. I do not think that it can be done in that way. In constitution, membership and everything else, the European Parliament has proved itself to be a quite inadequate instrument to exercise any form of democratic control. But we cannot leave the matter there. I should like to offer one or two suggestions for the study which my right hon. Friend has suggested, which suggestion I fully support.
I think that we have to start with the quite obvious point, which I shall proceed to labour, that in any discussion of parliamentary supervision of the Community's actions we have to face the fact that as the ultimate authority for decisions on legislation, and policies, is vested in the Council of Ministers, the Community must be considered as an association of national governments. In fact, the supranational ideal is becoming weaker as events go on. Recent events have shown very clearly that national interests will prevail. Even the most dedicated supporters of the Community ideal among the national statesmen of the Nine have been compelled by the economic circumstances in which they find themselves to promote and defend, each of them, their country's interests. That is inevitable and we should recognise that.
We must recognise that collective, democratic parliamentary power over the Commission and Ministers must develop now from some form of association of national Parliaments, and that in practical terms each Parliament must somehow be involved in the formulation of Community policies and decisions, and not left merely to put a rubber stamp on them or, if the veto is to be retained in the Council of Ministers, must be able to instruct its Minister or Ministers concerned to use the veto when propositions come forward which are unacceptable to that Parliament.
If the point that we should be considering in the development of the Community, this collective purpose, is to try 1935 to reconcile national interests—that is what we must now pursue—rather than go through what have recently proved to be abortive attempts to override those interests, it is surely better to seek the largest measure of agreement on policies through representatives of national Parliaments working together on specific issues.
The consultative assembly cannot have much place in that. It was created to be a consultative assembly, without any powers or any executive authority. More important than any abstract discussion about that is the fact that not all of the Nine's political leaders are willing to give increased authority to this consultative assembly. That point was made clear in the speeches made by the Prime Ministers and by President Pompidou at the Summit conference in Paris some 15 months ago.
It is probably worth while quoting what President Pompidou said then. After expressing some rather pragmatic views on the possible development of a European parliamentary democracy, he said:The French position is open so long as one does not fail to recognise the fact that political control must remain in the hands of national parliaments, which I doubt anyone is planning to relinquish.Unless we can get agreement among the Nine to relinquish that control by national parliaments, it cannot be done. We must face these facts.
I want to achieve what I am sure is the wish of hon. Members, whether pro- or anti-Marketeers, and that is the widest possible unity of purpose of the Nine over all the issues with which they have to deal. We are concerned about the means by which that unity of purpose is to be achieved. If we accept President Pompidou's approach—I do not think that he speaks alone among the national statesmen—we must try to achieve some way of getting national Parliaments to work together.
This is where I offer some suggestions not in detail, of course—to my right hon. Friend the Member for Stepney (Mr. Shore) if the study that he has proposed can be promoted. The way to do it is for each Parliament to have several committees—not just this sifting committee which brings to the House matters to be discussed here—which 1936 project themselves into the Community: for example, one for agriculture, another for fiscal policies, and so on. The constitution of the Community provides for 12 committees. I do not think that we necessarily need twelve. Some of the subjects can be doubled up in one committee.
If each Parliament had this committee arrangement, the members of the agriculture committees, for example, could send their representatives to meet the Commissioner and his staff responsible for agricultural policy and work out, before any directives and regulations come forward, what the changes or the new initiatives in policy should be. In that way the views of each of the parties in the various Parliaments would be represented.
This is not a new idea. Hon. Members will know that it was put forward by Andrew Shonfield in the Reith Lectures In view of the new circumstances, I think that it deserves to be looked at again.
§ Mr. Deakins
My right hon. Friend may or may not be aware that in the past 18 months of our membership a number of Select Committees of this House have sought to project themselves into Europe in the way that he suggests At least two of them have had rather dusty replies from the Commission in Brussels which, in its own view, feels that if it starts discussing intended legislation with members of national Parliaments it will, so to speak, be recognising the authority of national Parliaments. Since the Commission is basically federalist at heart, it does not want to do that. Although I agree with my right hon. Friend's suggestion, I fear that it may come to nought because of the Commission's attitude.
§ Mr. Darling
I was coming to the point about the Select Committees that we already have. With my hon. Friend's help I can now make it very briefly One important point relating to Select Committees is germane in this respect.
We know from our discussions in this House on subjects with which the Select Committees have dealt how extremely useful are the reports for the purpose of our debates. But, in addition, members of the committee who have been involved in producing the reports can give even 1937 greater help than the mere discussion of a report could possibly achieve.
This idea of our Select Committees going to meet their opposite numbers in Brussels has been opposed by the Commission. But it can go on opposing that idea only so long as the national Governments concerned allow it to do so. If we believe that some development of this kind is worth while, obviously we must get the Parliaments of the other eight countries to agree to it.
I think that if the representatives of these committees meet the Commission and assist with the formulation of policy, it will lead to fewer regulations. I should like that to happen anyhow. The directives clearly should be matters of principle to be accepted and put into operation in whatever way the Parliament of each individual country considered desirable. No more regulations would be a welcome development.
I do not know whether my proposals would require any amendment to the Treaty of Rome. If the idea of parliamentary committees were accepted and put into operation it would, in effect, supersede the consultative assembly. If, to keep within the terms of the Treaty, amendment on these lines is likely to be difficult, we might consider the representatives of the parliamentary committees meeting in plenary session now and again and, in effect, becoming the consultative assembly. It would not be proper in this debate to go into detail about the development of this idea.
Hon. Members will see in the Select Committee's report the complicated procedures for consultation which now exist between the Commission and committees of the so-called European Parliament set out in ten long paragraphs. I am sure that my suggestions would not produce anything more complicated than what we have already.
I am not convinced that the responsibility for keeping Parliament informed of all the Community's proposals should devolve on only one Minister, whether a Law Officer, the Chancellor of the Duchy, or whoever it may be. We must accept that on all these issues we are dealing with Ministers concerned with policies. We must devise a better system of questioning Ministers—not just the one representative, the Chancellor of the Duchy— 1938 concerned with the policies being developed within the Community.
Frankly, I do not think that one session a month in the rota of Questions will be sufficient for that purpose. This is a complicated business. However much Mr. Speaker may try to help us by cutting off supplementaries, I doubt whether we would get through more than a dozen or 15 Questions in the 55 minutes allowed for Question Time. Once a month is nearly as futile as the suggestion that has been floating about in the Consultative Assembly at Strasbourg. A copy of our system of Question Time will not make any difference to the procedures there. The European Parliament's Question Time is indeed futile. We must do a much better job here. However, I do not think that we would get the opportunity to ask all the Questions that we might like if we adopted the proposal that has been put forward in the Select Committee's Report.
§ Mr. Shore
I should like to be sure that my right hon. Friend and I understand this matter. My understanding was that this separate Question Time would be in addition to the other opportunities for questioning Ministers on Common Market affairs that come within their responsibilities. I understand that, for example, Questions to the Minister for Agriculture and to the Secretary of State for Trade and Industry would still continue and that this would be an additional and separate session.
§ Mr. Darling
Yes. But, with respect to my right hon. Friend, we are becoming increasingly handicapped in putting Questions to Ministers by the proliferation of these enormous Ministries or Departments. For example, the Department of Trade and Industry covers an extremely wide sphere of activity. I do not know what the present situation is. I suppose we usually put down about 80 Questions for oral answers, but that only about 20 get answered at Question Time. If we add to that list Questions about Ministers' European activities we would be lucky to get perhaps two such Questions in in the session allowed for Ministerial answers. It is not good enough. We must have a better method of questioning Ministers and expressing our views on their European activities.
I want to see greater involvement of hon. Members in the activities of the 1939 Community. We must find some way to get more hon. Members involved not only so that we are better informed of the Community's activities affecting our constituents, but to lighten the load of examination that is proposed now to be put on this sifting committee.
We shall be considering 300 or 400 instruments a year of varying degrees of importance all of which require scrutiny and, if need be, detailed questioning. We also need a means of referring back instruments that are not generally acceptable. What is proposed is inadequate for that purpose.
The report is well considered and constructive, but, because there is no effective democratic control of the Community and because power is and will continue to be vested in national Parliaments, I hope that the question of how to develop parliamentary democracy within the Community will be further studied. I recommend to the House the study proposed by my right hon. Friend.
§ 5.40 p.m.
§ Sir Robin Turton (Thirsk and Malton)
There is a great deal in what the right hon. Member for Sheffield, Hillsborough (Mr. Darling) said on the recommendations about Question Time. What has not been considered is the power of Ministers to transfer Questions. If we had a European slot for the Chancellor of the Duchy and he was asked an inconvenient Question, it might be slotted away to another responsible Minister. The proposal should be reconsidered. As it stands it is a well-intentioned but not a reasonable proposition because it would not be possible to have a Chancellor of the Duchy slot once a month.
I want to say how valuable I consider the report to be, and to congratulate my hon. and learned Friend the Member for Northwich (Sir J. Foster) on getting agreement among all sides and. even more surprising, the agreement of the Lord President of the Council. I am so surprised by that that I wonder whether he knows what he has agreed to.
It is vital to have proper parliamentary control over the proposals that will be coming forward. We know that there are about 400 proposals a year. The right hon. Member for Hillsborough regarded 1940 the proposed committee, rather unfairly, as inadequate. I thought that it would be a wonderful body that would sit at least fortnightly through the Session and once or twice during the Summer Recess. I thought that it would be a popular body on which to serve. Presumably, the committee, which is a scrutiny and not a debating body, will make recommendations at every meeting and, after every meeting we shall be told what important proposals require discussion by the House. Presumably the committee will meet on at least 19 days in the year, which will mean that on 19 occasions there will be a demand for a parliamentary debate. That is in addition to the six parliamentary days. It is clear from the report that those six days are completely distinct, so there will be a demand for 25 extra parliamentary days.
I apologise for having intervened in the speech of the right hon. Member for Stepney (Mr. Shore), but I wanted to make clear what the committee was recommending. Where I quarrel with the report is in the dangerous suggestion that we can rely on the Standing Order No. 9 procedure, or a new Standing Order No. 9 procedure, to get us out of all our difficulties. T was a member of the Select Committee on Procedure that established the new Standing Order No. 9 procedure. The procedure was in an unholy mess when we examined it because Speakers had so relied on precedent that it was even harder than for a rich man to go through the eye of a needle for a Standing Order No. 9 application to succeed. We now have it reasonably right.
§ Sir Robin Turton
I think that we now have it right. It is not the Standing Order No. 9 applications that succeed that take up the time but those that fail, and that is where the danger lies. If we say—as I gather the right hon. Member for Stepney interprets paragraph 88—that private Members but not Members of the Opposition have a right to claim an early debate, even although the matter is not urgent, I envisage the House at half-past three every day being occupied for some time in discussing a European matter which is not urgent but which 1941 affects an hon. Member's constituency. I sympathise with Mr. Speaker——
§ Mr. John Mackintosh (Berwick and East Lothian)
I should like to know whether the Government Front Bench agree that the Lord President has accepted the possibility of 19 days plus six. I may have misheard the Lord President but I understood that he was taking six possible occasions recommended by the Committee when such a debate might be granted.
§ Sir Robin Turton
We shall have to wait for the publication of HANSARD The hon. Member for Berwick and East Lothian (Mr. Mackintosh) probably had a different hearing from me of what the Lord President said. I am aged and no doubt partly deaf whereas he is young and vigorous with acute hearing. I understood the Lord President to say that he accepted paragraph 72 of the report. If he did so and the committee did its work within the Session and in the Summer Recess that might well be the position.
I am slightly in disagreement with the Committee on one matter. Paragraph 36 of the Report reads:it remains central to the United Kingdom concept and structure of parliamentary democracy that control of the law-making process lies with Parliament. … It follows therefore that new and special procedures are necessary to make good"—the damage that has been done by accession. The Committee goes on to rely on the old procedures that our forefathers invented for the House of Commons. That is where I part company with the report. For a long time I have been concerned with the procedures of the House, which are archaic and result in a deserted Chamber, as those who are present here tonight can see.
The recommendations of the report cannot be fitted in to the present parliamentary timetable without radical changes of procedure. That is the main reason for my intervention in the debate.
The recommendations of the report right hon. Friend give way?
§ Sir Robin Turton
Knowing my hon. Friend, I expect that I shall be mentioning 1942 some of the questions that he will raise in his intervention.
I have been a member of the Select Committee on Procedure for a fairly long time and many of our recommendations have been implemented by the House—but always the minor ones. The major important recommendations that would save parliamentary time have been disregarded. Before I come to my main theme, I shall seek to please my hon. Friend the Member for Windsor (Dr. Glyn) by mentioning a few of our recommendations which have been disregarded.
In our first report of 1966–67 and in our second report of 1970–71 we recommended a time limit on speeches. I know that the hon. Member for Ebbw Vale (Mr. Michael Foot) has a passion for the non-observance of that recommendation for a very good reason, but that recommendation has never even been debated in the House. Is it not time we looked at that matter again?
In our second report of 1970–71 we also recommended the use of Standing Order No. 10. This would provide that the House should adjourn after Questions and then go into Committee so that all the Committees would sit at that time. The only difficulty in that suggestion is that there may not be enough rooms for the number of Select and Standing Committees we now appoint. But we are building more accommodation and no doubt could use some of the new rooms for the purpose. In a report in 1966–67 we recommended timetabling by a steering or business committee. All those suggestions would help Parliament, although I am not suggesting that they would be sufficient.
The time has now come to have a much more radical reform of our procedures. So far this Session no Select Committee on Procedure has been appointed. The House seems perfectly happy with its procedure. Most of the previous Select Committees on Procedure have spent most of their time dealing with the process of legislation—except at times when they have inquired into minor procedural matters which have been instigated and handed over to them by successive Leaders of the House and, on occasion, by Mr. Speaker.
There is need for the House to look at the whole parliamentary timetable to 1943 examine how the House spends its time in dealing not only with public business but also with private business. The Select Committee on Procedure cannot look at private business which at the moment falls outside its terms of reference.
I believe that the report which is now before the House is a good one and that we should take a close look at its recommendations to see how they can be fitted into our procedures without doing too much damage to the traditions of the House. We should try to get rid of some of the weaknesses, as I see them, in Parliament.
After a fairly long time in the House, I have come to the conclusion that we waste a considerable amount of parliamentary time. I believe that it will be possible for the House to cope with the extra load of work suggested by the Select Committee on European Community Secondary Legislation and at the same time possibly to reduce our hours of sitting.
The present tendency is for more and more Members to sit on more and more committees. This is rendering the effectiveness of the Chamber as the place of debate less and less important. I believe that the rôle of a committee should be to provide information which may be of use to the House in its debates. But the fact is that hon. Members spend all their time fulfilling their duties most diligently in committees and then are absent from the Chamber when the decisions are being taken on information provided by those committees. This is not good for parliamentary business because committee work is becoming more important than what happens in the Chamber. Therefore, I believe that the use of Standing Order No. 10 would assist the situation.
There is another consideration which we have to face which may be distasteful to both Government and Opposition. I believe that it is time, in the 1970s, that we disarmed ourselves to the extent of no longer using time as a weapon. I think back to the days of Joe Biggar and Geoffrey Byng, and also when I was a very young Member of Parliament I remember Dr. Salter who spoke on the Wheat Bill for 2¾ hours—and he represented Bermondsey. I believe that those days are past, and sitting late at night is 1944 no longer an efficient way of conducting parliamentary business.
Standing Order No. 1(3), lays down the time of 10 p.m. as the time for closing down Parliament, but successive Governments persuade us to exempt some part of our proceedings from those provisions. Filibustering by an Opposition can happen only when the Government are relying on exemption from the Standing Order and are trying to cram too much business into the parliamentary day. Therefore, any committee looking into this matter should consider whether Standing Order 3 should now be revised and the whole parliamentary day made rather shorter. I believe that such an alteration would do much to make the debating Chamber more effective and also restore Parliament's reputation in the eyes of the nation.
§ 5.57 p.m.
§ Mr. John P. Mackintosh (Berwick and East Lothian)
It is always a great pleasure to be called to speak following a contribution by the right hon. Member for Thirsk and Malton (Sir Robin Turton), under whose chairmanship I served for four years in the Select Committee on Procedure. I am sorry that that Committee, whose progress he guided so well in examining parliamentary procedure, was barred from examining the adaptation of parliamentary procedure to cope with the problems of British membership of the Common Market.
It is ironical to think that we were told that the Select Committee on Procedure could not undertake this work because our membership lacked the anti-Market fervour and that a special committee of more orthodox people would be set up. I should explain that the Select Committee lacked anti-Market fervour on the Opposition side and contained too much fervour on the Government side. Therefore, a special committee was set up and began its work—only to discover that this consideration did not arise but that the main consideration related to the wellbeing of this House in adjusting its procedure to meet the new situation. I was surprised that the Select Committee on Procedure, which had worked for so many years on its subject with such expertise, should have been cashiered in such an unceremonious way and not allowed to take on that job. 1945 I turn to the specific proposals put forward by the Select Committee, and I should like to mention the extensive and interesting comments made by my right hon. Friend the Member for Stepney (Mr. Shore). I am puzzled by a certain paradox in his speech. He began by saying that the future of the British Parliament is being laid at the stake in the context of our relationship with Europe yet there is the paradox that we have been able to carry on in this Parliament, much as before, for 13 months after entry to the EEC without anyone noticing any very great difference. There has been no great change, and Parliament has continued in much the same way. I have the impression that the proposals are a secondary matter which must follow lots of other important public business concerning the House and the country.
Second, my right hon. Friend said that we are facing a vital or dangerous threat to parliamentary government and that we have to meet that threat. The unanimous proposal contained in the report does not constitute a powerful antidote to such a measure if it had to be so faced. The answer to the paradox is that the House has been losing power to the executive—I say this with great regret—for many years. The loss of power to a European executive, in which the British executive takes a part, has shuffled into the general loss of power and it is not being noticed as clearly as it should be. Even if it is noticed, it is a minor loss compared with the major loss which has been going on.
If I were asked to describe in a few words what I regard as the major threat to our parliamentary democracy, I should not say that it was British entry to the Common Market, although that is a threat. A far greater threat is the tendency of modern Governments to hold weekend meetings with, for example, the CBI and the TUC, and to offer to take large chunks of legislation and put them on ice, or offer to raise pensions, change taxation and do all sorts of things which should be the prerogative of this House. Yet complaints are not being made in the House about such matters because it is done in Britain. We sit here and wait for a Minister to come to tell us what has been decided.
In the present context matters are coming to us in a legislative form from an 1946 alien body to which we are unaccustomed. That is why we are more conscious of it. Even though I regard it as not such a serious threat as some believe it to be, there is an element of hyperbole. None the less, I take it seriously, and this Parliament should enable itself to cope with the situation.
I venture to suggest that the equipment with which we have been provided, or with which we propose to provide ourselves is inadequate. I was a little worried by one point which was made by the right hon. Member for Thirsk and Malton and I am still waiting for a reply from the Government. The right hon. Gentleman suggested that the proposal was that the sifting committee could and might get 25 parliamentary days a year to debate European matters. It is my distinct impression, having listened to the right hon. Gentleman the Leader of the House when he accepted the majority recommendations of the report, that he was saying that the sifting committee would take out what it regarded as crucial political matters coming from Europe and that he anticipated that approximately six days would be granted to debate those matters.
It seems that there are two possibilities, If the right hon. Member for Thirsk and Malton is right there will be 19 meetings plus six days. That number of days will not be able to be accommodated within the parliamentary Session as it now stands. Alternatively, there will be six days. If there are to be six days including two general debates, that will not provide very much time to consider matters coming from Europe when we consider that there are between 300 and 400 regulations of some importance affecting this country.
§ Mr. Marten
This is obviously a key point. Should we not invite my right hon. Friend the Leader of the House to come back to clear it up during the course of the debate rather than at the end?
§ Mr. Mackintosh
I am obliged to the hon. Gentleman. It is a key point in my argument, and it must be one way or the other. I should have thought that the hon. and learned Gentleman the Solicitor-General might have been able to answer the matter and help the debate proceed. There has not been a flutter or a twitch from the Government Front Bench.
§ The Solicitor-General (Sir Michael Havers)
I am willing and happy to twitch, but it would be better for the real twitch to come from the Leader of the House, who will be back within the next hour.
§ Mr. Mackintosh
That is not very satisfactory. I do not wish to make this a difficult debate, but this is a central issue. I shall proceed and assume that we are being offered six days. I hope that I am wrong and that we are being offered 25 days. If that is so, I do not understand how that number of days can be fitted in.
My major point is that it is unsatisfactory that all matters coming from the European Community should be placed into two categories, namely, those which are of major political importance and which must come on to the Floor and those which are of lesser importance, which will not be debated or considered at all. Many regulations and directives coming from Europe are not of an immediate combustible character. That means that they will not come on to the Floor of the House because they do not relate to juggernauts or rises in beef prices. Nevertheless, they are of considerable importance to the sector of British life which they affect. It is that type of important but not crucial political matter which is going by default under the procedure set out in the report. It is that which is so unfortunate.
There are other reasons which make the procedure unsatisfactory. If we adopt this procedure we will pick up items from Europe that seem to one side or the other to be embarrassing or upsetting and we shall have a thrash about. That will not provide for a deep understanding by the House of the regular output of legislation, regulations and directives from Europe to which we should direct our minds. It is an important function to inform the electorate and to help those groups of people involved, for example, in farming, fishing industry and trade who must work with the regulations. Such groups must understand such legislation, and often they pick it up only as it is described in trade journals and magazines following a specialised debate in the House.
The way in which we would tackle such matters if they came on to the Floor of the House would be in the same way as we tackle major conflicts between Government and Opposition—namely. 1948 there would basically be an attacking position by the Opposition. That would place the Government in a peculiar position which is not analagous to their position inside British domestic politics. The Government might not always seek to defend something coming up in a few months' time. As has been said, the Government may be in favour of changing or altering such matters. The procedure is not exactly satisfactory, in that an assault would be launched by the Opposition and the Government would be saying, "We can only half agree. We do not know whether we agree. We want room to negotiate." At that stage the time factor referred to by my right hon. Friend the Member for Stepney is introduced.
The great difficulty facing procedure in the House is that the House can make only negative attacks on what comes out of Europe. One of the great problems of the Common Market is not what it does but some of the things which it does not do. The procedure is to wait for things to happen and then to complain about them. That does not allow the House to inform itself and to play the rôle of a pressure group demanding action. I believe that we should demand action in some situations.
I shall take and build upon the interesting point made by my right hon. Friend when he said that in the European situation the British executive becomes a Parliament. What will be the rôle of Parliament in that situation? In such circumstances Parliament's rôle will become that of a pressure group, in that it will urge legislation to take a certain course. However, that type of pressure cannot arise. If we are to have six, eight or 10 days on the Floor of the House there will be the opportunity only for a quasi-clash between an Opposition attacking and a Government not knowing how far to say they agree or disagree.
We come to the critical question of the way in which we should equip the House, on looking around the continental legislatures to see how they are equipped, to be able to scrutinise those important items that are not sufficiently vital to reach the Floor of the House but which do matter. Secondly, how do we inform the House and those Members who take a specialised interest in the regular activities of the Common Market, so that they 1949 can make positive as well as negative proposals to the Government?
How do we get over the problem of pressing the Government continuously but not necessarily pinning them in the middle of negotiations? I suggest that the only method—and here I am afraid I disagree with the right hon. Member for Thirsk and Malton—is through an adequate committee system. It is only if we have a series of committees of this House, to which are referred regulations and directives not sufficiently important to come to the Floor of the House, that we can get adequate debate, understandable questioning and a continuous back pressure on the Government on behalf of those directly affected by such matters.
I do not suggest anything elaborate. If we had a Select Committee on agriculture and fisheries, one on industrial problems, including the regions, and one on trade and commerce, it would be quite adequate at the moment. These committees would take matters which were not controversial in a major sense but were vital to sectors of British life.
§ Miss J. M. Quennell (Petersfield)
I accept the hon. Member's point about wanting more committees. When they have completed their work what do they do? Report to the country or to this House?
§ Mr. Mackintosh
I am grateful to the hon. Lady for that intervention. These committees would do several things. The old idea of a Select Committee on a special subject is not what I have in mind. These bodies would be in continuous existence, creating a climate of opinion in the House and in the country in reaction to what is coming out of the Commission. I would expect such committees to have several functions. One would be, by debating in public, and before the Press interested in such matters, the creation of knowledge among the community affected by what is happening. One of the great complaints today is that people do not know what is going on because, apart from matters which come to the Floor of the House, the rest are not debated. They go by default. There would then be a reaction from the interested parties and the pressure groups.
Such committees would be able to call the British Minister going to Brussels 1950 before them and give their views when the House as a whole had not the time to do so. From time to time they might well unearth a regulation or directive which, if not properly considered, might slip by the sifting committee. It might well be something which in its long-term implications was so important that it ought to come to the Floor of the House for consideration. What I am proposing is a supplement to the recommendations of the committee. It is a valuable supplement because without it there is a serious deficiency in the procedures the House is proposing to adopt.
I hope that the Government will consider this because I believe that their proposal is based on the unity of the Committee, which I understand, on a view of this House which I do not accept. I know that this view is shared by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) and the right hon. Member for Wolverhampton, South-West (Mr. Powell). They regard this House preponderantly as a chamber House. I accept the "preponderantly" but there are 630 Members who can do other useful jobs. The Community is operating on all sorts of levels touching this country. We have to build up our capacity to react at different levels in different ways or else we will miss and lose a large portion of the power which this House could well retain.
§ 6.14 p.m.
Mr. Neil Martin (Banbury)
In opening the debate the Leader of the House said that he wanted to hear the views of hon. Members on both sides. This debate is bound to be repetitive, because some of us think the same on certain points. If only one or two of us made a point and the others did not the Leader of the House could say that there were not many people who raised that point.
I see that my hon. and learned Friend the Member for Northwich (Sir J. Foster) looks as if he is about to leave the Chamber. Before he does so I should like, as so many others have done earlier, to congratulate him and his Committee on its magnificent report, upon its recommendations and the excellent analysis made in the report of our constitutional position. That was a most valuable item which I will use for many years to come in my fights in defence of this country's constitution.
1951 It might also be said for the record, in case people reading this debate outside are not aware of it, that my hon. and learned Friend is recognised in this country as a great constitutional and international lawyer. That should be recorded because it carries a lot of weight when considering what is said in the report.
This debate takes place at a time when some people are not perhaps so confident that the Common Market is running as smoothly as it might through rough waters. I do not think it is very becoming for us to mention these matters in this short debate, except to say that some of us take a little comfort from what the Foreign Secretary said recently at Question Time. He said:I hope that we can work towards a situation … under which … Europe will be a free trading area"—[OFFICIAL REPORT, 19th December 1973 ; Vol. 866, c. 1366–7.]I thought that those were encouraging words, because that is what some of us have been saying for a long time. That being so, the Conservative Party—if the Foreign Secretary meant what he said, and he always does—will have to take a more flexible approach to the Common Market. If it does become a free trade area this may be a slightly academic debate because we would not lose sovereignty in such an area.
I hope that subsequent debates on any orders or motions arising from this matter will not be occasions for a three-line Whip. These are essentially House of Commons matters. I accept this report. I wish it had gone a little further in some respects but I am very satisfied that it has gone as far as it has. I did not think that it would do so for one moment.
The Leader of the House has said that he is prepared to set up a sifting committee. We ought perhaps to sort this out. As I read the report, the sifting committee appears to be a committee of civil servants. The word "sifting" in paragraph 63 of the report is used in connection with the sifting done by the civil servants. I do not think a committee of Members of Parliament should be called a sifting committee.
We would be a scrutinising committee. We are not like a salt cellar to be turned upside down and shaken, or a sugar sifter. We are scrutinising, because we 1952 are politicians. I hope that the Leader of the House will change the name, if not to "scrutiny" then to something slightly better which describes more accurately——
§ Mr. Marten
My right hon. and learned Friend is described by the Economist as the most intelligent anti-Marketeer in the Conservative Party and I bow to that. [Interruption.] I said that I bowed to it, not that I agreed with it.
I am sure the House agrees that we should never place upon a committee of civil servants responsibility for sifting what this House should talk about. I am sure that the Committee will agree that that was a slightly off-beat recommendation.
Before this scrutinising committee is set up I would like to know how it is to work. The report says that it will make up its own rules of procedure but we ought to know a little about how it will work. For example, will a decision by that committee about whether to recommend that something should go forward be taken by majority vote? How will it be made up? What will the balance be between the parties? There is a system of division based on the majority in the House but on this subject the parties are divided, as is the country. I hope that whoever appoints this committee will have sufficient political sense so to adjust it that it contains the correct proportion of Government and Opposition representatives, and Liberals—providing it is the right Liberal—and the right balance of pro- and anti-Common Market views. That sort of thing is most important.
Secondly, will the committee sit in public, so that the Press will know what is happening? Will other hon. Members be able to state their case to the committee if, for example, they have a strong constituency point on a draft regulation which the committee is likely to decide is not worthy of coming before the House? Can the Member plead the case if he feels strongly about that draft regulation? That is all I want to say about what I hope will be the called the Scrutiny Committee.
1953 In the oral monthly statements that we now have from my right hon. Friend the Chancellor of the Duchy of Lancaster he has been giving virtually the accounts of six ministerial meetings in one statement. The Government must think again, because that is not good enough. With the best will in the world, Mr. Speaker—I know that you have the best will in the world towards many of us, particularly me, and I thank you very much for your kindness in calling me now and on other occasions—we do not have time to interrogate my right hon. Friend on six different ministerial meetings. To do so would take perhaps an hour.
My right hon. Friend, or whoever is the Common Market Minister, should have a good run at Question Time. He should not start answering Questions at 3.10 p.m. or 3.20 p.m.
We want to watch the proposed new Standing Order procedure very carefully, and to see that you, Mr. Speaker, are given precedents or guidelines on when you can accept matters for debate. I tried once to initiate a debate under the Standing Order No. 9 procedure, I think about a forthcoming price review in the Common Market, and you turned me down. All that I was trying to establish was that the House could debate urgently decisions to be taken by the Council of Ministers before they were taken. My request was turned down because you were following a precedent. If we are to have an amended Standing Order No. 9 procedure, we must have a system whereby urgent matters can be accepted for debate rather more often than they are now.
The part of the report that I found most valuable, apart from paragraph 72, accepted by the Government in toto, is paragraph 37, which sets out what the Committee wanted to achieve:to restore to Parliament"—in other words, something must have been taken away—responsibilities for, and opportunities to exercise its constitutional rights in respect of, the making of these laws—involving as that must acceptance:(a) by the Government that it necessarily follows that that must be at the expense of some of the freedom of action enjoyed by the Executive since U.K. entry into the E.E.C.".That is one of the most important paragraphs in the report, because it illustrates 1954 that power has been taken away, and that the object is to restore as much of it as possible.
Paragraph 35 concerns decision making in the Council of Ministers. There are two kinds of decisions—the present unanimous decision and the majority decision. I fear that the Council of Ministers might move over to majority voting, and I am keen that the situation should be protected by the House. We should say so clearly very early on, if possible in this debate, and in the motions and orders that stem from it.
I am very conscious that majority decisions in the Council will come. If the Common Market is to make any sense, they must come in the end. It is not possible to go on with national Governments blocking everything. If that continues, the Common Market will prove what many of us have always thought, that it will never work. If the Common Market is to continue, it will have to move over to much more of the logic of the federal system, which is operated on majority rule, in the voting in the Council of Ministers.
What has worried me is that Ministers in the Council could represent countries whose political complexion we did not like. For example—I give it only as an example, and hope that nobody will take offence—the French Government could become at the next election Socialist with a strong Communist influence, and the same thing could happen in Italy. Both are possibilities. It would then need only one other major country, or two of the minor countries, to go the same way for the Council of Ministers to be represented by some very unfortunate people from our political point of view, whether we are Socialist or Conservative. We might not like what the Council decides. Our laws could be made by a majority of such people ; even if we did not like their whole political philosophy, those laws would apply to this country.
That is the great danger that we should consider now. We should prepare the lines of our procedure to deal with such a situation, because such things can happen more quickly than might be imagined.
The point is the extent to which the House can bind or pinion the Minister before he negotiates. I should like the Government to say that they will accept 1955 the vote of the House on a draft regulation which has been scrutinised and sent to it, that they will be pinioned by the vote, and that the Minister will go no further in any negotiations in the Council of Ministers than the House has decided. If he wants to go further, I hope that he will return and ask for further instructions or for an extension of his powers, and that the House can debate the matter and vote on it again. That is a crucial point. I shall be grateful if the Government will make the position absolutely clear at the end of the debate.
The logic of the Common Market is that to succeed it must become federal. I am opposed to its becoming federal, but the implication of its being federal is that Europe speaks with one voice, an expression we have often heard. If Europe speaks with one voice in foreign affairs, it will be possible to make considerable savings. For example, there will be no point in having a British embassy in Washington, Moscow, Cairo or any of the other agreeable large cities in many countries throughout the world. We can scrap the British embassies, because we shall have only one Common Market embassy, which can speak with one voice and deal with all our little problems as tourists and so on. Therefore, we can expect a massive cut in the staff of the Foreign Office. As a member of the Expenditure Committee, I assure my right hon. Friend the Foreign Secretary that if that happens—if there is one step towards federalism, the Expenditure Committee will look most carefully at it, and if we ever do go federal and Europe ever does speak with one voice, the axe will come down on the Foreign Office staff and there will be a cut, I should say, of at least 75 per cent. I hope that my hon. and learned Friend will pass that on to his right hon. Friend the Foreign Secretary.
I am glad that the Government have accepted the report. I look forward to seeing how they will implement paragraph 72, which was so clearly accepted by the Leader of the House.
§ 6.30 p.m.
§ Mr. Ronald King Murray (Edinburgh, Leith)
Hon. Members on both sides, and especially those who served on the Select Committee, have emphasised that the report represents the irreducible minimum of what the Committee feels should be 1956 embodied in the proper procedure for scrutiny for European secondary legislation. I emphasise that, and in a moment or two I shall come back to the central part of that unanimity and the importance which it has as a starting point for progress towards satisfactory scrutiny of this new legislation.
In this connection it may be convenient if I refer to the amendment which appears on page xxxvii of the report, to which my right hon. Friend the Member for Stepney (Mr. Shore) directed attention. I do not wish to detract from the point about unanimity, but it is right to draw attention to this amendment if only because it offers a constitutional peg on which to hang a much more stringent type of provision for parliamentary scrutiny of and participation in European secondary legislation. The important passage is to be found halfway through the amendment, on page xxxviii:For the United Kingdom this poses a constitutional and legal paradox. For legislation by the executive is expressly prohibited by law and constitutional practice in the United Kingdom"—and reference is then made to the well known Case of Proclamations, the Bill of Rights and the Scottish Claim of Right.
This is the field which was aptly christened "prerogative legislation" by the right hon. Member for Wolverhampton, South-West (Mr. Powell). The importance of it is that if Ministers do not have a power and there is still a constitutional block of some kind in terms of our law prohibiting them from taking part in this kind of legislation, that could be used, if, for example, an enabling Act was passed to give them the powers, in order to attach various safeguards to that enabling Act to ensure adequate scrutiny of the measures to which the deliberations of the Council of Ministers gave rise.
It is said—I think that it was said in the debate on the amendment in the Select Committee—that Section 2 of the European Communities Act 1972 confers such a power. Plainly, that is not said expressly, though it may be by implication. Section 2(1) provides—I select only the relevant words—All such rights, powers … as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law".1957 Obviously, no express power is given to our Ministers to legislate by prerogative methods in Brussels if they cannot do it here. Perhaps the matter could be presented in this way: Section 2 of the European Communities Act provides for the direct application of Brussels legislation in our law, but it does not touch directly or expressly on the question of the actual making of that which is to be applied here. I illustrate the point by analogy. The bus is authorised—indeed, commanded—to proceed direct from Brussels to Westminster, but nothing is said about the driver. Naturally, the bus must have a driver, but not only is he not given a licence to drive but, by the constitution of this country, the driver is disqualified from driving, that being the effect of the Case of Proclamations and our other constitutional laws and conventions against prerogative legislation. Thus, although the bus can be driven, our Ministers are at present prohibited from driving it.
That difficulty, if it be genuine, could give rise to two types of solution. It is important that it should be faced, and the Government have not faced it so far. First, there could be express provision for an enabling power. The Opposition would certainly not contemplate any enabling power which did not have the most stringent parliamentary safeguards attached to it for scrutiny of this legislation. The other alternative, which, perhaps, would attract the Government rather more, is that when this legislation is being reviewed care should be taken to see that our ancient constitutional liberties enshrined in statutes and documents of great importance should be continued and have their importance recognised by an appropriate amendment in a future Act of Parliament. It is wrong to disregard these important constitutional conventions in the way the Government have so far done.
For reasons of that nature, I regard the core of unanimity and the recommendation made by the Select Committee as so important. As far as I can tell, that unanimity is supported by all those who have spoken so far today. The core of it is that we must, as soon as possible, have the type of practical scrutiny which is recommended. Admittedly, it will be deficient—one would want more, and so on—but we must have at least that.
1958 In a way, when one speaks of prerogative legislation in this context one is conceding too much, for what comes out of Brussels is not legislation in the sense in which this House legislates. It is legislation by barter. It is not the result of a rational process, with people sitting down and thinking about what should be done for the benefit of a particular community. It is legislation which emerges from bargaining in the market place, legislation by barter, so all the more must it be scrutinised with the maximum care by the House of Commons.
In at least one legal journal—in fact, this has been said in more than one, I think—there has appeared an implied criticism of the work of the Select Committee. The writer says that domestic subordinate legislation which implements the provisions of directives was given little attention in the report. I regard that as unfair to the Committee, for in paragraphs 33 and 41 of the report directives are expressly included as among the important proposals for legislation which members of the Committee think a scrutinising committee ought to see and about which it should have the maximum possible information.
Admittedly, domestic subordinate legislation implementing directives was on the margin of the Committee's terms of reference, but we went beyond the literal limits, as the hon. and learned Member for Northwich (Sir J. Foster), who so ably chaired our proceedings, pointed out. The Committee also had some evidence about the difficulties to which domestic subordinate legislation stemming directly or indirectly from the European Community would give rise, and that matter is touched on in paragraph 57.
It would be wrong to give the impression that members of the Select Committee did not fully realise that, were the full implications of all these difficulties to be spelled out, not only would our report be intolerably long but we should, in effect, be usurping to ourselves a function which the House as a whole ought to take up in due course as it goes along.
If one starts with the core of recommendations which we put forward—I believe that members of the Committee will agree with me here—one can see how the procedure goes and see in an empirical and practical way what effects 1959 it has on the ordinary procedure of the House. One would be very sanguine to suppose that quite drastic changes in the procedure of the House are not implied. I think that my hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh)—he is not in his place at the moment—underestimates the significance of the core of unanimity presented in the report of the Select Committee. If he reads it again in the light of what has been and will be said today he may take a more generous and favourable view of the Commitee's work.
I turn now to one or two other topics and hope that in doing so I shall be responding to the invitation of the Leader of the House to hon. Members to express views about the proposals to which he has given a degree of consent. I shall not touch upon the issues of Parliamentary Questions because there was a degree of criticism in that direction by one or two other hon. Members.
The vital thing is that the Select Committee recommended that there should be a full slot—not an after-thought slot—for the Minister who is responsible for Common Market affairs. I felt a certain amount of disquiet when the Leader of the House dealt with that aspect of the report. He laid some emphasis on the fact that it would mean additional Questions for the Foreign and Commonwealth Office. I do not think that is the way I regarded it in the Select Committee's deliberations. It will be interesting to hear what other hon. Members thought. My impression was clearly that we were saying that a slot should be available for general Common Market questions, and that these should not be answered under the overpowering aegis of the Foreign and Commonwealth Office because most Questions might not be of a Foreign and Commonwealth type. What we are anxious for was a slot in its own right for Questions of that type.
As a corollary, I should raise the question of the title of the Minister who is responsible for European Community affairs. He is, of course, the Chancellor of the Duchy of Lancaster. As someone who lived part of his life in Lancashire, I look with favour on that Duchy, but it would be wrong to suggest that that is an appropriate title for all time for a Minister who has to answer to this House for European activities. It is anomalous 1960 that the Department of Foreign and Commonwealth Affairs should be dealing with Community matters, because the Community is a special species. It is not exactly a foreign country in terms of the Community Treaty, and it is not a Commonwealth country, so, strictly speaking, the Department of Foreign and Commonwealth Affairs does not describe the new functions of the Chancellor of the Duchy.
I make a minor plea for a change, or addition, to the Minister's title. There is no reason why he should cease to be the Chancellor of the Duchy of Lancaster, but let us recognise his important function by making a change. The important plea which I press on the Leader of the House is that we want a specific full slot for Common Market Questions in general.
§ Mr. English
I hope that my hon. and learned Friend does not muck about too much with the Chancellor of the Duchy. As a Lancastrian, I assure him that we even call the Queen the Duke of Lancaster when we give Loyal toasts. My hon. and learned Friend will remember a perfect example in the case of the butter subsidy and the confusion generated by the present system. When I asked the Minister of Agriculture, Fisheries and Food about it neither he nor the Secretary of State for Social Services who was also concerned, had been told about it, because of the nature of the way in which these things are done at the moment—so much so that I believe the Lord President had a Lobby conference to say that it did not happen here. At least, every newspaper said it did not apply to Britain. It was only when Jack Lynch said that it did apply to the new members that it was introduced here. The present situation is confusing because of the Foreign and Commonwealth Office dealing with the matter without liaising properly with other Departments.
§ Mr. Ronald King Murray
I am glad that my hon. Friend underlines my point.
There are two other points which I wish to make about the broad recommendations of the Committee, particularly regarding the Leader of the House's response to them. The emphasis in the First Report of the Select Committee on monthly statements must be reiterated. It is vital that we have at least monthly statements on general Common Market matters. There is a case for making a 1961 statement more frequently, and I hope that any responsible Minister holding the office will make statements more often.
The principle of regular monthly statements, at least on general Community affairs, is vital. I feel that the Government temporised on that matter in regard to the First Report of the Select Committee. I hope that they will not be so mealy-mouthed about the second full report.
Again, in parenthesis, I should point out that the strong plea I make is that nothing should stand in the way of the establishment of the scrutiny committee which the Select Committee recommends. I hope that no criticisms which other hon. Members may make will have that result. It seems to me—I am sure that it seems to those hon. Members who have criticised the recommendations—that this is a crucial first step. I should be unhappy if the recommendation about a parliamentary scrutiny or sifting by officials of the Departments were to stand in the way of our recommendation. I got the impression that no one would make that a serious obstacle, but I want it understood that I regard it as a relatively unimportant matter.
I turn lastly to a matter which I think is serious and which may not receive the attention it deserves—the recommendation that the legal implications of the various matters would be more appropriate to legally qualified persons rather than ordinary departmental Ministers and that such matters should be handled by an independent Minister. The hon. and learned Member for Southport (Mr. Percival) was eloquent and persuasive in Committee about the idea that there should be an independent officer of the quality and status of a Law Officer, that perhaps the old office of Queen's Advocate could be restored. My hon. Friend the Member for Nottingham, West (Mr. English) had this in mind when he made an earlier intervention. He thought that this office might be revived with value for such a purpose.
I should feel unhappy if criticism based upon the special features of Law Officers were to interfere with the crux of the idea. Before dealing with the value of the idea I would point out that the hon. 1962 and learned Gentleman who chaired the Committee has already mentioned that in the United Kingdom we have normally at least four officers and that when Northern Ireland was in full flight we had five. Obviously, if five Law Officers were the correct answer to the problem, we should have to reorganise our thinking about the Law Officers, each of whom has a duty to advise the House on his sphere of responsibility, and thus to make use of all five.
It might be that even were such an appointment made, an additional Law Officer would be needed. I do not want to lay stress on that solution, because the importance of the suggestion has been recognised by the Leader of the House. He put his finger on it in pointing out that it is not the office that matters so much as the nature of the function which this new parliamentary personality would have to fulfil. Therefore, I stress most strongly the fact that such a Minister should have a direct duty to the House over and above his ordinary ministerial duties.
So far as I know—I am a new Member and I do not know a great deal about it—there are only two species of Minister in the Commons with this special sort of obligation. On the one hand, there are the Law Officers, who are full Ministers like any others but who at the same time have an obligation to the whole House, irrespective of their Government or party obligations, to give advice on certain matters when asked to do so. The other Minister who has a rôle even more exalted is the Leader of the House himself, because he too is in that position. His rôle is in many ways much more important than that of the Law Officers.
It is an analogy of that kind that we wish to follow. The kind of Minister that the Select Committee had in mind, I understand, was a Minister who would embody in himself that particular attribute ; not only would he have various duties which would no doubt have to take the form of departmental, ministerial tasks—at first at any rate until the job acquired a status of its own—but his primary obligation would be to the whole House, to inform it about matters in connection with the Common Market which should be drawn to its attention. It is on these matters that I should like to dwell.
1963 I would pay my tribute to the Chairman of the Committee for the excellent work that he did.
§ 6.51 p.m.
§ Mr. J. Enoch Powell (Wolverhampton, South-West)
I join, and I gladly join, in the chorus of approval and praise for the work of the Select Committee which has run right through this debate. Its report is one which, the more one studies it, becomes the more remarkable for two intersecting characteristics: its unanimity and the candour of its constitutional analysis. It was, as the House knows, a Committee the composition of which represented to the utmost possible almost the whole range of opinion and prejudice on the basic subject of Britain and the European Community. Yet when its members in their work came face to face with the analysis of constitutional principles, which they eventually presented clearly and unsparingly to the House, they found themselves unanimous in their conclusion.
They found that, whatever were their views on the subject of Britain and Europe, they were before all things parliamentarians: they were before all things devoted and dedicated to the sovereignty of this House over the law of this country. That, I think, is encouraging evidence of the underlying vitality and corporate character which the House of Commons still has.
The trenchant character of the constitutional analysis in paragraph 32 and the paragraphs which follow is the more remarkable because, since October 1972, the Government of this country, although perhaps not this House, for this House has never debated it, have been committed to economic and monetary union of the EEC by 1980. There is no possible doubt that the attainment of that object would be totally inconsistent not merely with the carrying out of the recommendations of this Committee but with the principles which this Committee unhesitatingly and unanimously accepted as those to which no alternative was for them tolerable.
For of course, although political unity is represented as a stage beyond economic and monetary union, the fact is that the very nature of economic policy is such that economic and monetary union could not be envisaged if the respective Parliaments of the Community countries 1964 had an independent voice over the economic policy common to the whole. I thought that that point was clearly made in the speech of the right hon. Member for Sheffield, Hillsborough (Mr. Darling)
This report was presented towards the end of October last year, less than three months ago. It might have appeared, even so recently that, because of that conflict between this country's officially adopted policy and intentions and the underlying assumptions of the report, the utility and indeed the applicability of its recommendations, whatever we might do about them, was doomed to be short-lived. But there has been a very big change in the background in those three months since the report was printed.
Economic and monetary union by 1980 comes almost daily to appear as increasingly chimerical not only to more and more hon. Members but to the public outside. The proposition that, within the lifetime of another Parliament, economic and monetary policy will be unified and that political decision will therefore be totally pooled on all that range of subjects within the EEC may, for the time being, until they can find a way to escape from it, remain firmly inscribed upon the commitments of Her Majesty's Government, but it is rapidly ceasing to have any real content, in the sense of being regarded as probable or even imaginable ; and that, as I say, applies almost as much inside this House as outside.
Therefore, the recommendations of this report are not recommendations which have a temporary validity, soon to be swept away by the majority rule and economic and monetary union. They have perhaps a very long time to serve this House and it is therefore right that we should treat them not as a transitional phenomenon but maybe as one of the means whereby that transformation in the relations between Britain and the rest of the European Economic Community may be brought about, which more and more people inside and outside the House recognise will have to come.
The title of the Committee's subject was "Secondary Legislation". It has often been pointed out that it is an exceedingly misleading term. When we in this House speak of secondary legislation, we are thinking of instruments made by Ministers 1965 under the powers of a statute, albeit often of considerable importance and massive detail. We do not think of it in terms of major statutes. But of course the whole administration and work of the Community and the power of decision of the Council of Ministers, its central body, are essentially legislative.
This is the reverse of the relationship to which we in this country are accustomed. We all too easily mistake the Council of Ministers for an executive and somehow equate the Assembly with Parliament. That is not so. The Council of Ministers rules by legislating. Indeed, its sole effective function is that it makes law. It is therefore to establish parliamentary control over the legislative power exercised by the Council of Ministers that is the objective on which, judging from my right hon. Friend's statement and the contributions to this debate, both sides of the House are agreed.
As a legislative body, the Council of Ministers is, at any rate from a British point of view, exceedingly remarkable. It lacks almost all the characteristics which we instinctively assume a legislative body must have. For example, it does not legislate by public debate. It legislates in private and the information about its deliberations is obtained either by way of leakage or by subsequent announcement, whereas it would be an understatement to say that in this country for two centuries—certainly long before Stockdale v Hansard—the process of legislation has essentially been a process of public debate. So we are inquiring how this House is to control legislation carried out in private, in a manner which to us, until recently, was almost unthinkable.
Moreover, it is not legislation by the kind of successive process of debate—first debate in general, then debate in detail, then re-examination in detail, then reconsideration of the principle, all open to public scrutiny and to question and answer in this House—to which we are accustomed. It is legislation by the acceptance or rejection by the Council of Ministers of a document in toto—take it or leave it.
Perhaps the most remarkable thing of all is that it is legislation by Ministers. It is legislation not by an elected, representative legislature but an assemblage 1966 of emissaries from the respective Governments. It is upon that characteristic of EEC legislation—so misleadingly called secondary—that the recommendations of my hon. and learned Friend's Committee hinge. They have seized upon the fact that the link between this House and this country and the supreme legislative authority of the Community is the presence in the Council of Ministers and the assent or dissent there of one of Her Majesty's Ministers, a person who is there because he shares collective responsibility with a body needing a majority in this House and responsible to it.
It was that hinge which made possible the recommendations of the Select Committee, and which give those recommendations their fulcrum and their force.
§ Mr. Douglas Jay (Battersea, North)
Does the right hon. Gentleman agree that legislation by the Commission, which consists of several thousand instruments each year, is even more remarkable and undemocratic?
§ Mr. Powell
Yes ; but I do not want to be sidetracked into examining that curious animal, which is a mixture of executive and legislature—which is a subordinate legislature, a police force and an executive. Indeed, even our Select Committee found itself helpless to propose methods of control over Commission legislation—though I agree with the right hon. Member for Stepney (Mr. Shore) that we should not let the matter rest—just because that hinge to which I have just referred was there lacking.
In the debate most of the attention has been devoted to the machinery proposed by the Committee, and I mean no criticism by saying so. It has been devoted to the arrangements for scrutiny or sifting and for consideration in this House of whatever might be the results of that scrutiny—time to be found in this House, debates, Questions and a new form of SO 9. All that was necessary to be considered ; but I submit that it is not the nub of the matter, it is not the heart and centre of the recommendations of the report. Both the committee system proposed and the opportunities for debate are subservient and subordinate to the central proposition—I might almost say, demand—of the Select Committee.
I was struck when my hon. Friend the Member for Banbury (Mr. Marten), 1967 musing with himself in the absence of my right hon. Friend the Lord President, allowed himself to wonder whether in accepting the report, subject to the qualifications which he stated, my right hon. Friend the Lord President fully understood what he was accepting. I hope, therefore, that I may put to him a series of questions derived from the report, which arise from its central affirmation.
In paragraph 80 the Committee assumes that the Governmentas any Government must … will not cause or permit the law of the U.K. to be changed contrary to a resolution of the House.I ask my right hon. Friend the Lord President whether or not the Government do accept that. If the answer to that statement is in the affirmative—and I assume that it is, since my right hon. Friend has accepted the report—we need not bother about economic and monetary union and the Government will have to consider very carefully any instance where majority decision is to be substituted for unanimous decision, because they will be "permitting"—I take it, that means suffering themselves to be made to accept—a change of the law contrary to a resolution of this House. My first question, therefore, is to ask whether the Government accept what the Committee thinks any Government must accept, that theywill not cause or permit a law of the U.K. to be changed contrary to a resolution of the House.I proceed from there to the circumstances in which this House might come to such a resolution. Those circumstances are set out in paragraph 72, which explains what will happen when the important proposals before the Council of Ministers have been separated from those which are not important. I do not wish to concern myself with the merits of the methods by which that discrimination is to be made, crucial though that question is. However, when a proposal is found to be of major importance, it must, according to the Committee,be referred to the House for consideration and debate well before the expected decision of the Council of Ministers uponit.
When my right hon. Friend accepts this report, is he accepting that Her Majesty's Government, that is the United Kingdom 1968 Minister in the Council of Ministers, will not assent to any act of the Council which makes law if it is an act which has been designated as important by whatever machinery this House sets up and if this House has not previously debated that proposal and therefore had the opportunity on a motion, if the Chair in its discretion puts it, to come to a decision one way or the other? That is what that sentence must mean: nothing is to be agreed to on behalf of the United Kingdom in the Council of Ministers if it is, first, in the view of this House of major importance and, secondly, has not previously been debated and, in the case of disagreement, assented to. Does my right hon. Friend mean that or not when he accepts the report?
I had great sympathy and went along with him in his critique of the "fortnight recommendation" in that paragraph—and that, because of the difficulty to which the right hon. Member for Stepney drew attention. Of course, a proposal may come before the Council of Ministers and then be put into cold storage for six months, a year, or perhaps two years before it pops up again. When it does pop up, it may be in the same form or a different one. It would not do to rely upon the House having debated and approved or otherwise either the same proposal two years earlier or a proposal which, in the meantime, had been altered—perhaps in important respects—by the Commission before being resubmitted to the Council of Ministers.
In other words, I find myself more in agreement on this matter of time with my right hon. Friend the Lord President than with the Select Committee. It is essential that this House shall have the opportunity to approve or disapprove that form of a law in which it is ultimately to be made by the Council of Ministers. If we start from the position—as indeed I think we must, for we cannot be content for it to be said to us: "Two or three years ago you had a debate on the subject, and that will be quite enough to cover this law which the Council of Ministers has just made"—then it must be as the last act before assent in the Council of Ministers that the Government secure the authority of this House. It follows that the Government will be obliged to bring the House, and opinion outside, along with them throughout the 1969 process of gestation of any important proposal which may eventually reach legislative form.
The Father of the House, my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton), had a very strong point regarding the number of days available in the parliamentary year. However, I do not think that the dispute about the number of days goes to the heart of the matter, which is, that if the recommendations are broadly adopted the Government, in order to secure whatever they wish to secure or accept in Europe, will have to find whatever time is necessary to carry the House with them. Therefore, if the essence of the report is accepted, it is not necessary for us to lay down, for instance, two general days of debate a year, four days on reports of Committees, and all the rest: the key lies in the necessity of debate and approval before assent in the Council of Ministers to the final act of legislation. This matter is so important, vital and central that I trust that we shall tonight hear from my right hon. Friend whether what I have read out from the report without any dissent is or is not accepted by the Government ; for if we do not hear this, the debate will have been incomplete.
If however it is accepted by the Government, it would be unsatisfactory if so fundamental a principle were not enshrined in a resolution of the House, which would be a kind of Magna Carta of the relationship between this Parliament and the European Economic Community. My right hon. Friend is to prepare a series of resolutions which he will bring before the House. We shall then consider separately the different parts of the machinery ; but it would not be equal to the importance of the occasion or the dignity of the House if the first of these resolutions did not assert the principle which unanimously the Select Committee, which was as representative of the House on this subject as it possibly could have been, has placed before us.
§ 7.14 p.m.
§ Mr. George Lawson (Motherwell)
I felt that in the early part of his speech the right hon. Member for Wolverhampton, South-West (Mr. Powell) gave approval to what my right hon. Friend 1970 the Member for Sheffield, Hillsborough (Mr. Darling) said, but the right hon. Gentleman's interpretation of what my right hon. Friend said was rather different from mine. As I understood it my right hon. Friend was trying to bring out the great difficulties of achieving what he considered to be desirable, namely the maximum unification of Europe. He referred to the variety of difficulties involved and spoke of the examination of the matter made by Andrew Shonfield in the Reith Lectures. My understanding of what Andrew Shonfield said was that, first, there must be unification of Europe. I am not talking of complete unification, but maximising the approach to achievement, under difficult circumstances, of the greatest measure of unification.
My understanding of Andrew Shonfield's lectures was that he was talking about the difficulties of setting up a European Parliament that could find itself out of touch with, and often at variance with, separate national Parliaments. As I understood it, Andrew Shonfield was suggesting that we set up a European Assembly or Parliament which would be closely in touch with, and heavily involved with, the separate national Parliaments. It would probably be a European Parliament—if I may use that term at this stage—made up of members from separate national Parliaments, who would return to their own Parliaments to argue European matters, much as the Council of Europe now does, but as a more effective body, instead of a separate assembly of Parliament which might clash with a separate national Parliament. My right hon. Friend the Member for Hillsborough said that we should get the maximum involvement of this Parliament and presumably other Parliaments of members of the Community, in the European set-up, whatever it was.
My right hon. Friend's emphasis was on the difficulties of overcoming many of the questions with which the right hon. Member for Wolverhampton, South-West is so concerned. These are difficulties which stem from our national viewpoint and our determination to insist upon sovereignty of the patch of ground over which, to a point, we happen to exercise that sovereignty. I am as much concerned as others with the exercising of sovereignty, but I take a different view, which I shall try to develop.
1971 I refer to what hon. Members will agree is for me a delicate subject. It involves Scotland, which is part of Great Britain, and yet not long ago, so far as the histories of nations are concerned, a substantial part of Scotland was very tribal. It was divided into respective tribes. It was exceedingly difficult to have law in any land which was ruled by tribes. Some people may even think that the tribes still exist. I saw a television programme recently, based on Australia. There was one family called McDonald and one called Campbell, and they spent most of the time in trying to shoot or kill each other. The tribal problem was partly overcome by roads being constructed through the areas and by getting rid of the kilt and partly by the growth of employment opportunities elsewhere. It was overcome partly by the evidence that the mode of living in those areas would always be very impoverished compared with the possibilities opening up elsewhere.
We managed to reach towards something called Scotland with a fair measure of unification, though we never quite got complete control over the whole area. Later we had the union of the parliaments in 1707, and I dare to say in public that in my judgment that was excellent for Scotland. I have no doubt that a great deal was lost, but in my judgment the Union was excellent then and is still excellent.
In much the same way, I think that it would be excellent for what we call Great Britain or the United Kingdom to move towards the greatest possible unity with the countries of Western Europe. If we could get that unity with some of the countries of Eastern Europe, it would be even better. I have no doubt that Czechoslovakia would be delighted if she were permitted to join the EEC, as would East Germany and Hungary. But all the time we should strive for the maximum unification among the countries of Western Europe, striving always to outgrow rather than to prohibit the nationalistic sentiment which says, "This is our patch of territory." We should be seeking to move towards the solving of the problems which arise out of these nationalisms on the basis of the maximum common interest that we can generate.
I turn now to the report of the Select Committee. The hon. Member for 1972 Banbury (Mr. Marten) is well known for his opposition to any such unification. However, his concentration on paragraph 37 seems to be fruitful viewed even from the very opposite standpoint from his own.
Paragraph 37 says:The objective must be to restore to Parliament responsibilities for, and opportunities to exercise its constitutional rights in respect of, the making of these laws—involving as that must acceptance:—(a) by the Government that it necessarily follows that that must be at the expense of some of the freedom of action enjoyed by the Executive since UK entry into the EEC…".I accept that——
§ Mr. Lawson
Yes. I shall be coming to that in a moment.
This is necessarily entailed in any extension of rules which are considered advisable for a larger interest. We cannot move without it. Living with others, we are obliged to adjust our practices in order to fit in with other people's practices, and that makes for larger wholes and greater goods. This is the mode of development which society has pursued over the years. We should never have had nations had it not been possible to overcome the barons in their castles and to overcome the tribes and to merge them into larger wholes. The same applies to Europe.
It may be that one of the greatest unifying factors in circumstances of this kind is common threats. In my judgment, Western Europe exists continuously under a real threat. It is the threat to its continued independence. Confronted as it is at present with the enormous power which can be exercised from the Soviet Union, it could not exist independently if the Americans were to pull out. One has only to look at a map to see how small is this area of Western Europe. If it were divided or Balkanised it could not possibly exercise this sovereignty about which the hon. Member for Wolverhampton, South-West is so concerned.
Just as Czechoslovakia and other Eastern European countries cannot exercise any sovereignty in their areas, nor could Germany, France or Italy if Western Europe were divided and 1973 Balkanised and on this basis we were unable to exercise any power on our own behalf. I am not discussing military measures at the moment. I am trying merely to describe a simple fact of our very existence.
This fact has to be recognised as having been one of the prime reasons forcing us towards the effort to achieve a unified Europe. If it means a federal Europe or some other kind of Europe, that is fair enough. But the facts are that the pressures are there driving us. They are political pressures, quite apart from the economic arguments which have been so well presented in the past by various of my right hon. and hon. Friends.
In addition, there is growing pressure among younger people who increasingly think of themselves as Europeans. I like to think of myself as a Britisher as well as a Scot. I hope that some of my English colleagues think of themselves as Britishers as well as English. But that is by the way.
Therefore I take the first point as a valid one that our Government, having entered into this larger unity and what we hope will become a real unity, must be prepared to give up certain things and to recognise that we shall be circumscribed in certain ways by the fact of having entered this larger unity. Our freedom of action will be reduced although in certain other ways it will be greatly augmented because of the greater power and influence which will flow from being part of a larger whole.
Paragraph 37 goes on:(b) by Parliament that the scope, means and degree of scrutiny and control must all be attuned to the fact that it is dealing with a new way of making laws which is very different from that to which it is accustomed".That is not saying that the status of Parliament should be reduced. It is saying that it should be attuned to a new way. That is a very significant statement of a set of circumstances about which we often talk but which we have not really begun to appreciate. As the right hon. Member for Wolverhampton, South-West might put it, we have not got to the heart or the nub of the matter.
A large part of our present trouble in this Parliament stems from the fact that changes have been taking place so rapidly 1974 in the very function and extent of government and the extent to which it is involved in every aspect of life. From before birth to after death, government touches upon life in some way or another. Recently we have had the Kilbrandon Report which takes as its justification for arguing for the setting up of an Assembly in Scotland the enormous concentration of government at the centre and the increase in government functions.
We still argue here about practices which grew up with government in the nineteenth century which had very little function other than a policing or military one. A large part of our trouble here is that we have not sufficiently adapted our parliamentary institutions to meet new problems. We have not brought these parliamentary institutions into being attuned to the kind of problems with which we are confronted.
With regard to what was called the sifting committee—what the hon. Member for Banbury insisted should be called a scrutinising committee—as recommended in paragraph 64, it seems that there are great possibilities in not only the type of committee, which will be very different, or its rôle in respect of Europe, but, perhaps, in the same kind of practices being adopted here.
It is very well known that back-bench Members have complained for years that usually they are the very last people to be consulted or even to be informed about what they are supposed to decide. Usually we are presented with the fait accompli of a Bill. Sometimes we get a White Paper. Recently we have had an occasional Green Paper. But in many cases we do not get even a White Paper. On the Scottish side of our affairs at present we have a Bill relating to crofting on which there has been no White Paper. Some of my colleagues are incensed about that.
Members of Parliament are called upon, apart from minor details, to rubber-stamp legislation. That applies to both sides of the House. It would apply to my party if we were in Government. The situation usually is that Parliament is expected to endorse or to rubber-stamp the business brought forward to it by the Government. The set-up is that a Government will continue as the Government so long as they can get Parliament to do that. 1975 Occasionally the Government are not able to get their business. On one occasion the right hon. Member for Wolverhampton, South-West, together with my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot), successfully defeated a previous Government on a Bill relating to the House of Lords. There are odd occasions when a section of Parliament unites against the Government and prevents the Government from achieving their aims. But in the great majority of instances, we must ask where the sovereignty of Parliament is. On issue after issue we merely act as a rubber-stamp on what has been put to us, apart from minor details.
I spent about five hours yesterday with two lads who run piggeries. That may not be an elevating experience. However, these two lads run piggeries on the swill feed basis, picking up the swill in their neighbourhood. They spoke on behalf of about 4,000 people who run piggeries on the same basis. They complained to me that regulations have been passed which will virtually eliminate them, yet they have had no chance to put forward their views and have not been consulted on the matter.
This is a fairly well-run country, but this sort of situation will increase. More and more legislation will take the form of delegated legislation. We try to find ways of permitting the House to scrutinise delegated legislation. We have recently tried to improve the means whereby we can scrutinise it, but its volume keeps increasing. We cannot say that a Member of Parliament has his eye upon things all the time and is scrutinising what has happened and is an effective voice in controlling what is happening. We do not have that control and cannot have it as we stand with the type of organisation and machinery at our disposal.
It seems that we may find in the new committee that is set up to operate on our behald vis-à-vis Europe something which might be adopted here, in the sense that, as I understand it, the committee will be in action before proposals, Bills and other things have gone very far. The committee will be able to scrutinise legislation before it is even proposed. It will be able to bring in experts.
§ Mr. Ian Percival (Southport)
The scrutiny is of proposals, "proposals" being used as a term of art, meaning a proposal emanating from the Commission to the Council, which is, as near as makes no difference, the equivalent of the publication of a Bill in this country. That is the kind of "proposal" to which the Committee is referring.
§ Mr. Lawson
I listened to the previous Leader of the House when he came to a committee of which I was a member. The committee was dealing with delegated legislation. Before that stage was reached, when we had legislation comparable with a Bill, I understood that the committee would be in a position to scrutinise and to give its views on that kind of thing. If I am wrong on that, no doubt I shall be corrected.
The committee would not be going as far as I would want it to go, if it were dealing with the equivalent of a Bill. There is a stage when the House is normally presented with a Bill. I want to see means whereby, prior to that stage being reached, it is possible to carry out a considerable measure of scrutiny, and, possibly, to bring about substantial changes.
§ Mr. Powell
The proposal is not so much the equivalent of the House being confronted with a Bill as the House at any rate looking at its Third Reading before it leaves the House. That is the nearest analogy.
§ Mr. Lawson
I see that the Leader of the House is shaking his head, and I shall take that shaking as indicative of that not being so. The committee would serve a very poor purpose indeed if that were so.
My view, which I hope will be examined more fully, is that this would be a committee which would be able, prior to what we call a Bill, to exercise very substantial influence in having the legislation modified before that stage was reached.
§ Mr. English
Is my hon. Friend suggesting that the Treaty of Rome should be altered so that the Commission, the body of civil servants, ceases to prepare these proposals, or at least publishes them before they finalise them?
§ Mr. Lawson
If necessary, yes. I see nothing sacrosanct in the Treaty of Rome. I have taken it that the British Parliament is supposed to be supreme, and I take it that the same kind of view would be taken of what we are trying to do in Europe. We are trying to bring into being a combination of the best that we have had here and the best that the Europeans have. If the Treaty of Rome is seen as something which can never be modified and if the practices can never be modified, if the present European Assembly is for all time to be merely a consultative Assembly, we are defeated before we start.
But over the years in this House we have constantly modified our practices. I expect that we shall bring the same attitude to bear on the European practices. It may be that to modify those practices would be a little more difficult. But some of us are engaged in that effort now, in trying to extend the power of the European Assembly. That can be done in a variety of ways. As it is done, so we are moving in desirable directions.
We talk of power of the bureaucracy, but I should have thought that the great problem was to ensure that the bureaucracy of Europe, like our bureaucracy, is made effectively answerable to Parliament. It may be that Parliament is losing effective control because of the multiplicity of functions and the great centralisation of power. But that is our problem. The way out of our difficulty, both here and in Europe, is not to break up into smaller and smaller units but to increase the effectiveness of the representative institutions in this country, and of Parliament, and of the parliamentary institutions in Europe, whether they be directly elected, or parliamentary institutions that stem from the separate Governments. That is a point which is worth considering, as Andrew Shonfield said.
As I have understood the draft of the functions of the committee there is a basis which should be closely examined in terms of domestic practice as well as our practices abroad. If I am fairly near in my judgment of what this committee will do, it seems that it is an excellent recommendation and one which could take us—if we want to go that way, as I want—towards very much more unification of Europe than we have had. 1978 Though difficult, this might seem to be a tremendously worthwhile objective.
The arguments produced by the right hon. Member for Wolverhampton, Southwest, though excellent and clear, are of the nineteenth, not the middle of the twentieth century. It is the middle of the twentieth century with which we are concerned. The problems confronting us are not to be found in the last century.
§ 7.41 p.m.
§ Mr. Ian Percival (Southport)
I am glad to be able to follow the hon. Member for Motherwell (Mr. Lawson) on the point on which he allowed me to intervene. The trouble is that nothing in the law-making processes of the EEC is quite like anything in the law-making processes to which we are accustomed here. Therefore, when one tries to draw an analogy, as I did, one is liable to be shot to pieces straight away because there is nothing comparable in the two institutions.
It is not practicable to talk about scrutinising proposals, using that word in the widest sense, that is if one simply means proposals which are being kicked about between the Council and the Commission. We must allow them to get to the stage of being committed to writing as formal proposals from the Council to the Commission which, if accepted by the Commission, will become law. When a matter reaches the stage of a proposal in that form, it is a public document. Everyone can see what is being proposed. It is, therefore, a document to which this House can give its attention, knowing that if that document is assented to by the Council it will become directly applicable as the law here or have implications to which we shall have to give effect in our law.
§ Mr. Lawson
Does the hon. and learned Gentleman agree that such a document could be very different from what we know as a Bill to which the Government are already committed, knowing, as we do, that the Government will virtually always get their legislation through? Is not the situation very different from that to which we are accustomed?
§ Mr. Percival
I agree. It is totally different. It was silly of me to try to find an analogy, because there is not 1979 one. The situation is different in many ways. Every Bill that comes before the House emanates from a Department which has responsibility for it from the word go. These are proposals emanating from the Commission to the Council for which departmental responsibility here will presumably have to be allotted. It is quite a different set-up.
The processes through which such a document or proposal has to go are totally different. The powers of amendment and the consequences of assent to the document are totally different. I do not want to get drawn into that argument. I merely wanted to clarify what I said earlier.
§ Mr. Percival
My views and those of the committee on these difficulties are set out in the report. It was because of these difficulties that we first analysed the problem in some detail and then proceeded to try to resolve it.
I should like to thank my right hon. Friend the Lord President of the Council for his kind observations on the work of the committee and for coming so far along the road that we mapped out. I propose to urge him to go a little further but I do want to thank him for coming so far already despite the difficulties there are. Many hon. Members have said kind things about the committee. I want to spend my time on the criticisms that have been made.
I was sorry to hear the Father of the House, my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton), suggest that we had gone for antiquated procedures. We may have used some terms which suggest well-known procedures, but in at least four respects we have recommended something totally new and unlike anything that I have seen in this House during my 15 years as a Member.
My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) was right when he said that we had latched on to the doctrine or convention of ministerial responsibility and we have used it for a different purpose. As was pointed out in a leading article in The Times, we have used it as the only leverage that we have. That is something quite, new.
1980 We have also introduced a totally new form of ministerial responsibility—responsibility for information. There is none in our constitutional set-up. It used to be that information about laws that were coming up was confidential and that we learned about the contents of a Bill only when it was put before the House. Happily, that is not the situation now. We have White Papers, Green Papers, and other shades of papers to inform us about various matters at various stages.
But we are going further than that here. We are saying that the Government should be responsible for informing the House about the legal effect and implications which a document emanating from the Commission to the Council would have in the United Kingdom if it were assented to in Brussels. That is absolutely fundamental. Neither the committee nor the House can begin to decide which "proposals" it should debate and pass an opinion upon unless it has been fully informed of their effects.
The form of the committee is new. It is not a Standing Committee. We do not want anybody to call it a Standing Committee, we do not want confrontation across party lines and all the formalities that apply to a Standing Committee. We want it to have the powers of a Select Committee, but not to be so called, because Select Committees are hidebound by certain rules and we do not want that. We could not have made it clearer that, whatever it is called, it is a new creature. We do not want it to mould its procedures on other bodies, save in so far as it finds those procedures useful in its new task. That is new and quite different.
Another essential difference is directly connected with an observation which fell from my right hon. Friend the Member for Wolverhampton, South-West. I do not know of any other committee that does what this committee will do—not debating the merits of a matter, but considering what is and what is not important and knowing, when it recommends that something should be debated in this House, that, on the undertakings that we have already received, it will be debated. I should be surprised if any right hon. or hon. Member could tell me of any other committee that has a similar right or 1981 purpose. I do not believe that there is one.
Another difference which passed unnoticed and which we have set out in some little detail, though our report is quite short, is how we visualise the committee working. It is, as it were, a cameo of this House. It will in its own way participate in the legislative processes of this House. That is quite a difference. Of course, to a certain extent, Standing Committees have a similar function, but this committee will carry it out in a different way.
We shall have in cameo form a confrontation between the Government and the House of Commons at each meeting. We have recommended that a Minister with overall responsibility and a Law Officer be present every time. They will be there to discharge the new ministerial responsibility devolving on the Government if our recommendations are accepted. It is not a question of sending for various people and questioning them but of having them there, just as Ministers come to the House to explain the contents of a Bill. They are available for cross-examination on the spot.
That is all part of the working of this new committee. It is a streamlined process. It will be a small but strong committee armed with its own high-powered lawyer getting on with the limited business of finding out what each proposal means and deciding which proposals shall come before the House. My right hon. Friend the Father of the House may feel on reflection that at least in those four respects we are recommending something that is new and different.
We are talking about law making and advice, and information on the legal effect and implications of proposals is essential. That advice is required at two stages. It is required first in the form of an explanatory memorandum, which is advice given to the whole House. In our first report we stressed the importance of accurate, adequate and timely information, and my right hon. Friend the Lord President of the Council stressed in his memorandum that the provision of information goes to the heart of the matter. In our first report we said that this was so important that we wanted an explanatory memorandum which con 1982 tained a paragraph explaining the effect and implications in law of a proposal. We said that the responsibility for that should lie with the Law Officers. No suggestion was made that that was in any way inconvenient or not possible, and I for one thought that it had been accepted at the time.
The committee is not I think wedded to the words "Law Officer". We are saying that we want advice on the law to be given by a Minister on his personal and governmental responsibility and not by an official. That reference to officials, and others that I may make, may suggest that I am anti-official. In some respects I think of our civil servants as I think of my children. They are the finest in the world, but I do not want any more and I am not yet ready to surrender any further authority to them.
Not long ago the Leader of the Opposition in another place, who has great ministerial experience, said that even the best civil servants never really understand Parliament. And perhaps that is not surprising. One has to be in Parliament before one can understand it. Then there is the matter of language. Any hon. Member who has sat on the Select Committee on Statutory Instruments knows how a word can have different meanings attributed to it by departmental lawyers.
After much discussion the committee arrived at the unanimous view that we wanted this legal explanation and conformation to be given to us by a Minister who knew what he was talking about, who took personal responsibility for what he was talking about, who took personal responsibility for what he was saying and for whom the Government were responsible as they are for all Ministers. Whether that is done by an existing Law Officer, a new Law Officer or a legally qualified Minister is not the essential matter. What is fundamental is that the job should be done by a legally qualified Minister with personal responsibility.
In paragraph 57(c) of the report we said that we did not want the Law Officers merely to be "brought in upon request", as the Lord President of the Council informed us was the practice when giving evidence to us. Paragraph 57(c) went on to say:and the Law Officer responsible for this paragraph in each statement should sign it".1983 I am sure the members of the committee would agree with what I have said about it not being essential whether it is done by an existing Law Officer, within any of the existing Law Officer's Departments, by a new Law Officer or by a legally qualified Minister, but that what is vital is that we want to be told what is the effect of the law by a lawyer Minister, not by a departmental Minister who could only repeat what his officials told him. We might just as well have the officials. Indeed, that might be better, because as these are matters of law the departmental Minister might even not have understood what his legal officers have told him.
The second stage at which this same requirement applies is at the meetings of the committee. We ask for the Minister with overall responsibility to be there each time so that he can deal with political questions. We likewise ask for a Law Officer to be there to deal with questions of law—and what I have already said about the use of the term "Law Officers" applies here as well. It goes to the question of the balance of the committee. One the one hand we arm the committee with a sort of Speaker's Counsel to assist it in questioning Ministers and, on the other hand, we want the two Ministers there so that they can be questioned. We suggest that as the proper balance for practical reasons. The nearer we can get to that balance the more likely are we to have the element of confidence and trust that is necessary to secure the smooth working of the committee.
The Lord President of the Council has come near to meeting the wishes of the committee. I know what I think to be the best way of going that bit further, but I merely wanted to explain a little further what we had in mind, and to make clear that whilst we are not wedded to antiquated machinery or any particular terminology we do want the assistance of an independent Minister speaking for the Government, to advise on the legal effects and implications of the proposals, carrying personal and Ministerial responsibility for that advice.
§ 8.0 p.m.
§ Mr. Michael English (Nottingham, West)
My hon. Friend the Member for Motherwell (Mr. Lawson) did not perhaps understand that this is not a debate 1984 on the merits of British entry into the EEC or about the merits of the EEC as an institution. It is much more a debate about parliamentary democracy. It was probably for this reason that the Select Committee on European Community Secondary Legislation arrived at such a degree of unanimity. We have today embarked on a discussion of how to implement our parliamentary democracy in relation to the EEC, which is a rather different thing.
I found myself at the beginning of the debate in agreement with both my right hon. Friend the Member for Stepney (Mr. Shore) and the hon. and learned Member for Northwich (Sir J. Foster). I know that they do not agree on the merits of British entry into the Community, but obviously they both share a belief in democracy. The hon. and learned Member for Northwich said quite openly that he was a federalist. He made it clear that he believed in a European Community which was democratic and which contained a democratic legislature—elected, I assume—but certainly a body that was a real legislature and not some small committee sitting in private, as the right hon. Member for Wolverhampton, South-West (Mr. Powell) aptly described the Council of Ministers.
I quite understand the point of view expressed by the hon. and learned Member for Northwich, as, indeed, I can understand the point of view of my right hon. Friend the Member for Stepney, because he, too, is a democrat who did not want us to go into the European Community while it had so undemocratic a structure. My right hon. Friend has pointed out these matters many times in debates in the House. However, I cannot understand the sort of attitude expressed in this House by my right hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins). He once told the House that he wanted to go into Europe and would like to see some reform of Europe. Among those reforms he mentioned making the European Community more democratic, but then he went on to say that that could come at a much later period than other things. He would, for example, prefer to pursue monetary union than seek to make the Community more democratic. He said this in a debate in the House some months ago.
1985 I can never understand that attitude, because I believe that the European Communities Act has taken away power from this House and given it to the executive and, through the executive, to the Council of Ministers and the Commission. I do not say this as a matter of amour propre. I do not object merely because this power is taken away from the House of Commons. I object because, since we are the representatives of the people, this power is being taken away from the people who put us here. They vote in elections for us to come here and represent them and, if power is taken away from us, then it is being taken away from the people of this country. That is one essential consideration.
I am pleased with this report because it returns some power to the House of Commons—power which was taken away from us in the European Communities Act. I am equally pleased with the right hon. Gentleman the Lord President of the Council. Because of the subject of his ministerial duties and my interest in that subject we have sometimes come into conflict, but on this occasion he deserves a measure of praise for the way in which he has accepted the bulk of the report. It would be pure carping to suggest that he has reservations on the details, since he has accepted the overwhelming body of the report. I am grateful to him. I rather suspect—though I do not know—that he probably had, on the way, to deal with a few dinosaurs in the executive, who possibly took an alternative view. Certainly the Lord President's attitude is very different from that adopted by the former Solicitor-General, now the Minister for Trade and Consumer Affairs, who in the debates on the European Communities Bill turned down our suggestions on these lines. We quoted to him the experience of the German Bundestag, but he firmly resisted any such proposal. He believed that it was not only necessary to go into Europe but to do so in a way that would be even more restrictive of the power of the House of Commons than the system under which the Germans operated. The Germans, who have been in the Common Market far longer than we have, have a law giving the Bundestag far more powers than has the United Kingdom at this moment, before this report is approved 1986 and implemented. We could have done the same thing at an earlier stage.
Let me express one slight regret. The right hon. Member for Wolverhampton, South-West said he hoped that these recommendations would soon be embodied in resolutions of the House or Commons, and I am sure we all agree, but I would rather have seen the basic principle enshrined in the European Communities Bill. Resolutions of the House of Commons are not the law of the land and can be changed overnight, whereas pieces of legislation such as the European Communities Act and other statutes are very much the law of the land. I wish that we had followed the system laid down by the Germans and embodied those matters in the European Communities Act.
§ Mr. Ronald King Murray
Has my hon. Friend applied his mind to an amendment debated in the Select Committee, the logic of which would have been to have a Bill embodying structural arrangements for the scrutiny of legislation by Parliament before it becomes the law of this country?
§ Mr. English
I am grateful to my hon. and learned Friend for his helpful comment. I agree with him that this view was considered, but I am now dealing with the Government's views, faced as they are with this report. I am also dealing with the view taken by the Government when the House passed the European Communities Bill in a restrictive and undemocratic form.
I want now to deal with a few points of detail. I hope that the Lord President of the Council will—as his predecessors have often done—lay any regulations on this subject at least a week or so before they are due to be debated so that hon. Members can think up amendments. He will sometimes find it possible to mop up certain matters in a revised version of a resolution. I hope he will consider this course as a normal practice.
There is a much more important consideration that I mentioned earlier in interventions to the speeches of the Lord President and the hon. and learned Member for Northwich and that I wish now to put before the House in more detail. This suggestion relates to the third English Law Officer. The third English 1987 Law Officer is not just a bit of anti-quarianism. The English, as distinct from the Scots, have an Attorney-General and a Solicitor-General and, in a sense, they are one Law Officer because the latter is the deputy of the former and is a junior Minister. There is also the Scottish Lord Advocate, who is trained not in English law but in Roman law. Roman law is not the system of law used in England, except that we have taken into English law some matters such as the law on divorce as it once was, testamentary law and a few other matters. Roman law was the basis of the law of Scotland and is still used there. The Scottish Law Officers are trained in Roman law traditions.
It was unfortunate that in the nineteenth century we lost our Roman Law Officer. His duties, amongst others, were to advise the Government and the House on matters that came within his sphere. One of the most important matters on which he gave advice, because of his Roman law training, was international law. I have thought on many occasions since that the Foreign Office has been badly advised on international law. It seems even more important now that we should revive such a Law Officer because he would be knowledgeable and trained in what is basically the law of the Common Market. That is illustrated by the fact that the Government have not appointed to the European Court as a judge a person trained in English law but a person trained in the alternative system. Indeed, it would be difficult to see how a person trained in a different system of law could be effective.
§ Sir D. Walker-Smith
I know that the hon. Gentleman does not want to give a misleading impression. He will appreciate that the constitution of the European Court at Luxembourg consists not only of judges but of advocates general. They are fewer in number than the judges but, on balance, more important. The Advocate General is an eminent former member of the London Chancery Bar whom, on occasions, I used to have the pleasure of leading.
§ Mr. English
I am glad to have the right hon. and learned Gentleman leaping to the defence of English lawyers. The fact that he says that the advocates general are more important than the judges illustrates how different the Roman law 1988 system is from the English system. The average Member who does not know Roman law would not understand a court where another body of people were more important than the judges.
I must add that a Law Officer trained in Roman law would have to be in another place. The principal reason for abolishing his office was that there was a shortage in the House not of English lawyers, or persons trained in English law but of persons trained in Roman law. My hon. and learned Friend the Member for Edinburgh, Leith is a conspicuous and knowledgeable example. There has for many years been a shortage of such persons. That is the real reason for the abolition of the third Law Officer. In 1945 there became so great a shortage that even the Lord Advocate ceased to sit in the House, which traditionally he had done since 1707. It may be possible to find people who are trained in Roman law and to put them into Parliament but it might not be possible to find them in the House of Commons on every occasion.
I suggest that it would be possible to revive the third Law Officer. I was glad to follow the speech of the hon. and learned Member for Southport (Mr. Percival) because I have not done so before during the 10 years I have been in the House, and he is the Member for the constituency in which I was born. The hon. and learned Gentleman said that he did not mind whether there was a Law Officer or another Minister. I think that he referred to a legally qualified Minister. I am glad that he did not go so far as to say that he did not mind whether it was a Minister. That is where I part company with the Lord President's introductory remarks.
I suggest to the hon. and learned Member for Southport that there is a distinction between a legally qualified Minister and a Law Officer in the accepted sense. First, the House of Commons has a right, as have its Committees, to summon the Law Officers. In that respect Committees are quite straightforwardly following an ancient principle, although it is sometimes forgotten, that the House and, equally, Committees, have a right to the Law Officers' advice. They have no right to ask a Law Officer what advice he gave to a Minister, but they have every right, and an institutional right, 1989 to ask a Law Officer to advise them in Parliament. In that respect a Law Officer is part of the parliamentary system.
It seems that when such an ancient principle is grafted on to a particular type of Minister we may be endangering our principles by changing the words "Law Officer" to "legally qualified Minister". Even if he is a third Minister, he should be regarded as a Law Officer for all the ancient and traditional reasons, some of which my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) is well aware, and some of which have a great deal of use. I suggest that it is desirable that the Committee should stick to the words "Law Officer". The Lord President said that he wanted advice on this matter. I hope that I have been able to add to the advice which he has received.
I know that my hon. Friend the Member for Ebbw Vale is a passionate disbeliever in committees, and no doubt some of the members of the Committee took that view. My hon. Friend believes that the centre of Parliament is this Chamber. I believe that it is the centre of Parliament, but I do not believe that it should be the sole institution of Parliament. The Committee would have armed us better if it had said that there are items of major importance which should go on the Floor of the House and items of secondary importance that should go to a committee, such as a sort of Standing Committee which the Lord President suggested. I think that the right hon. Gentleman suggested that as the sole course of action, but I should like to combine the two. There are also items of such cursory importance that they should not go to either.
To have some matters going on to the Floor of the House and some going to Committees would fit in with the pattern which Parliament has arrived at, where there are Second Reading Committees and Statutory Instrument Standing Committees for minor items of business. The House should be protected, in that it should be able to vote on the issue. That might save the time of the House and might be a possible solution to what are obviously the Government's problems.
§ Mr. Prior
I agree with much of what the hon. Gentleman has been saying about 1990 the need to take important matters on the Floor of the House. There may be a good deal of merit in his argument that matters of secondary importance should not take up the time of the Floor of the House. We shall have to see how we get on, how many matters are of major importance and the time which they take. We shall have to see whether there is time as well for all the other business.
§ Mr. English
I agree with that view. Further, I agree in part with the view of my hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh), who wanted, in effect, specialist committees dealing with such matters as agriculture and transport. My hon. Friend wanted the sort of committees which European Parliaments have and which we have not. As the House develops towards that, if it does, then is the time for us to encourage such provisions in our pattern.
It may be, as the Lord President has said, that we shall have to adapt the report. The essential issue within the report, and the one which the Government have accepted, is its central recommendation for a committee. With all respect to the hon. and learned Member for Southport, he makes a bit too much of a meal of matters when he says that its proposed committee is not like any other committee that there has ever been. In terms of power it is exactly like a Standing Committee before 1946. At that time Standing Committees, under Standing Orders, had all the powers of Select Committees but never happened to exercise them.
I cannot see any difference in terms of Standing Orders between Standing Committees as they were between 1882 and 1946 and the present committee. The fact that at the beginning of that period the Standing Committees chose to operate in a particular way may have concealed from the hon. and learned Member for Southport the fact that they always had all the powers which the report gives to the new committee. Those powers are basically the powers of a Select Committee set up by the Selection Committee, plus any other power it cares to add to them by a majority decision. That was the position of a Standing Committee as originally set up.
But your predecessors, Mr. Deputy Speaker, as Chairmen of Ways and 1991 Means—who were not perhaps as loyal as yourself—decided that they did not like using the powers of Select Committees and did not propose to do so.
The details will have to be worked out. For example, is the chairman supposed to have a substantive vote, as does the chairman of a Standing Committee, although he never exercises it, or is he supposed to have no substantive vote, like the chairman of a Select Committee?
There are several details which will have to be worked out, because even when we say that the committee can decide its own procedure by a majority we have to decide what constitutes a majority and that can only be written in before the committee is set up. These are points of detail. They are a reason for the Lord President giving us plenty of time to consider his motion. No one would wish to object to the matter on those grounds.
What has most interested me during this debate is that it has been entirely about democracy, but it has been about democracy in our sense of the word. I shall illustrate the difference between English and Roman law—and this time I mean constitutional law—by using two tags which lawyer Members of the House will know.
The English tag is that "the King" who was of course the executiveis under God and the Law, for the Law makes the king and without the Law there is no king.The executive is subject to the law. This is something we have long struggled over, in part, in English history. The theory has never been lost. It has prevailed. Even in the Middle Ages an Anglo-Saxon king legislated with the advice of his counsellors. Eventually, in the days of Edward II, those counsellors came to include this House of Commons. Eventually the monarch ceased to have any practical power to refuse his consent to legislation. This took place in Queen Anne's day. The House of Commons got a democratic electorate in the mid-18808. The House of Lords was for all practical purposes excluded from legislation in 1911.
Bit by bit the ancient principle that the executive is subject to the law has become in this country to be the principle that the executive is subject to the House of Commons, which is elected by a popular democratic electorate. We have 1992 a democratic Parliament in complete control of the law and therefore of the executive, which must obey the law unless it can persuade Parliament to change it.
The Roman law principle has always been completely different. There the ancient tag, going back for centuries to the days when Rome was still in existence as an authoritarian empire, was, "The laws are in the mouth of the prince." Now we have a Roman law institution. I am sorry that the hon. Member for Banbury (Mr. Marten) described it as not being federal, because it is federal. It is not a federal state but it is federal in the legal definition of federalism, in that its central and local institutions can act directly upon individuals, which is the definition of federalism normally accepted by most lawyers.
Here we have this strange legislature, almost like a committee of princes, meeting in private, as the right hon. Member for Wolverhampton, South-West so correctly said. This is the ancient Roman law tradition, which is a much more authoritarian tradition. There is no tradition that the executive cannot legislate. Quite the contrary. It was the monarch who did legislate originally in the Roman law system. Only much later were parliamentary institutions partly imported from Britain but not properly assimilated or grafted on to the ancient monarchical and autocratic principle.
This is what we have been arguing about. The right hon. Member for Wolverhampton, South-West put it well, and no doubt the Lord President will answer us later. We are arguing for a principle. A person can be pro-European or anti-European and still accept the principle. The principle is that ancient one of English law, that an elected legislature, a democracy as it is now, shall decide the law and the executive may only have such powers and such delegated legislative powers, if it has any at all, as the elected legislature gives it. That is not a European or Roman law tradition. Even a pro-European can believe that it is desirable that the British tradition should become a European one.
It would not satisfy me if it did not become the European tradition because the alternative is one of autocratic law making which is what we have now. I could be persuaded to accept a federal Europe with an elected legislature. I 1993 could imagine myself doing so, if I were forced into it, although I am not advocating it now. I certainly would if we were forced into the Common Market and forced to remain in it. I could not see myself accepting completely autocratic legislation for ever.
While we have such a system we must ask this Parliament and this House of Commons to see these proposals and approve or disapprove them before our extension, the Minister concerned, goes to Brussels and says that he approves them. That is the essence of this report. It provides a procedure to do that. That is the only way we can put our parliamentary democracy into the autocratic situation we have been led into over the past 12 months or more.
§ 8.27 p.m.
§ Sir Derek Walker-Smith (Hertfordshire, East)
It is always a pleasure to listen to the hon. Member for Nottingham, West (Mr. English) and to enjoy the variety of his learning and the persuasiveness and ingenuity of his arguments. Tonight has been no exception. He devoted a considerable part of the earlier portion of his speech to the question of what has been called the third Law Officer. I do not intend to do so. Maybe I have enough law in the daytime to make me want a change when addressing this House.
I would just say this on his argument. I do not think that the nuances of nomenclature matter very much in this context. I find very convicing the argument of paragraph 57 of the Report and the suggestion there that there should be clear information as to the effect in law and that it should bear a ministerial imprimatur. A knowledge of Roman law, on which the hon. Member insisted, is not as important as he thinks. After all, what is required is to be able to measure the effects of these matters on English law—on British law.
I have now served for 12 months on the Legal Committee of the European Parliament, and I take part in discussions on a large number of regulations and directives emanating therefrom. I have not so far found it a very material disadvantage that my acquaintance with Roman law, since I passed the Bar examinations in it 40 years ago, has been rather limited.
§ Mr. English
I accept the right hon. Gentleman's argument. I am not suggesting that it is impossible to understand another system of law. Of course it is, just as the Privy Council used to deal with cases in Hindu law when it was dealing with India. But I trust that the right hon. and learned Gentleman will accept that the ultimate body to decide the effect of a European regulation is the European Court, which determines its judgments by Roman law principles. Therefore, I am saying that a committee of the character we are considering needs advice both upon the meaning of a Roman law document and upon its consequent effects in English law. It may well be, when we talk of the Law Officers, that they should be operating in the plural. My worry is that at present neither of the English Law Officers is a Roman lawyer.
§ Sir D. Walker-Smith
The hon. Gentleman's argument would have made it difficult for this Parliament to legislate in the days of colonial rule for Ceylon or the Union of South Africa, in both of which Roman or Roman-Dutch law was the prevailing law. I see the hon. Gentleman's argument, but it should not be pushed too far. He must appreciate that, interesting though it is, it is perhaps peripheral. The main thing is to take the substance of the matter as it is expounded by my hon. and learned Friend the Member for Northwich (Sir J. Foster), and as it is in particular in paragraph 57 of the Report on that aspect.
I wanted to direct my observations mainly to other, perhaps wider, matters within the context of the debate. The problem with which we are concerned, and the problem which has evoked the interesting and instructive report of the Select Committee, is one of great practical and constitutional importance. It is also one which comes rather disagreeably to parliamentarians and others who are bred in the tradition of Dicey's twin principles of the sovereignty of Parliament and the rule of law. It is disagreeable, because the sovereignty of Parliament is no longer axiomatic, as it was when we first entered the House. It ceased to be so on Britain's accession to the Community, a consequence which I spelt out—I fear perhaps tediously, but certainly amply and with great particularity—over more than a decade.
1995 The constitutional aspect, the erosion of the sovereignty of Parliament and the diminution of the decision-making powers of the elected representatives of the British people, was the dominant consideration in my resolve to oppose entry on the terms of the Treaty of Rome, a resolve to which I adhered consistently in my opposition to each of the three attempts to assume a position involving the surrender of that sovereignty—the unsuccessful attempts in 1961 and 1967, and the successful attempt in 1972.
There was, therefore, full warning that the problem would arise and clear notice that adherence to the Community, involving as it does acceptance of the provisions of the Treaty, would necessitate, is an automatic and ineluctable consequence, the transference over a wide range of the country's economic and social life of the power of decision away from the British Parliament to other institutions operating under procedures devised by those for whom the constitutional doctrines of Dicey did not have the same strength of appeal and the same extent of acceptance as here.
But the thing was done. It was done in the teeth of the opposition of some of us, but done it was, and the doing of it had the following consequence, as I have stated many times over the years. It resulted not only in an Act of Parliament, a national Act reversible by our Parliament in accordance with our constitutional practices and procedures, but in an international Act, an Act of accession which bound this country in perpetuity.
As a result of that, we can amend the Treaty by the invocation of the constitutional procedures therein prescribed, but we cannot, without a breach of faith and a breach of contract unilaterally repudiate it. It is, therefore, in that position that we find ourselves today, and it is in that context that the problem arises.
We must look at the problem in the framework of things as they are. We must look at it in particular in the light of Article 189 of the Treaty, to which I first drew the attention of a surprised but perhaps insufficiently perceptive House in 1961. Over the wide range of matters covered by the Treaty, the Community law now prevails.
1996 We now have the situation in which the regulations of the Community are incorporated ipsissimis verbis into our law, and in which the pith and substance of the directives are also incorporated into our law, and the British Parliament is left only with a voice in the form and means in which that content is to be expressed. That is better than nothing, but not all that much better. What Parliament seeks in the name of those whom it represents is a voice not just in the outer garb in which the laws are dressed but in the body of the law itself.
The problem, therefore, is to what extent and by what means we can restore to Parliament something at any rate of its traditional function in this wide range of national life, where the legislative function is now transferred to the Community under procedures which do not provide for a specific parliamentary rôle. We cannot hope to give to our Parliament here a rôle in the making of Community legislation which is an exact replica of its traditional rôle here, but we can hope to give it a rôle which is constructive and corrective, useful and helpful, and to secure as wide and firm, a democratic base for Community legislation as can be achieved.
We start from this paradoxical position. In the Community, legislation is not a parliamentary function. The main legislative function is discharged by the Council of Ministers, with a minor legislative function invested in the Commission. The European Parliament has no direct legislative function. Its function under the Treaty is advisory and supervisory. National Parliaments are not accorded specific functions under the Treaty, with the important exception of their powers where amendments are made under Article 236.
I do not go so far as to say that this constitutes legislation by the executive. The Commission is an executive body but, as I said a moment ago, its legislative function is only a minor one. The Council cannot properly be described as an executive body. It is a hybrid body, described by some as a cabinet, by others as a senate, and by other less respectful people as a coterie of horse traders. I do not think that any of those descriptions is wholly accurate, but the fact remains that each member of the Council is, in his own country, part of 1997 the executive machinery of government, and the committee of permanent representatives is composed of eminent civil servants. To that extent, therefore, there is law making by the executive, a situation which, ever since the seventeenth century at least, has traditionally aroused the anxiety and commanded the vigilance of this Parliament.
What control can Parliament exercise, and what correctives can it apply in such a situation? We are here concerned with two Parliaments, though in a sense I suppose with ten—nine national Parliaments and the European Parliament. I do not see in this matter the rôle of the European Parliament and of the national Parliaments as conflicting, or their contributions as being contradictory. We have to see that the classic function of Parliament is exercised in both contexts. I should not for a moment want, or permit if I could help it, the European Parliament to usurp the function of the national Parliament. That is the federalist concept which is supported by my hon. and learned Friend the Member for Northwich—and I join in paying tribute to him for his leadership of the Committee—but it is a concept which, as the House knows, I by no means share.
There is, however, a complementary rôle, but in the face of the peculiar constitution of the EEC—and I use that word in no pejorative sense—it is difficult for national Parliaments and the European Parliament alike to work out precisely the way in which they can best serve the interests of parliamentary control in a democratic society.
It is because that is the situation that I accepted the invitation to become a member of the European Parliament and to work as best as I can towards these democratic and parliamentary objectives. I am obliged to the hon. Member for Motherwell (Mr. Lawson) for his kind reference in this context.
It is not, and in the nature of things it cannot be, an easy task. We are all familiar with the classic concept of imposing democratic control on Ministers—that is, by making them in their decision-making procedures directly responsible to Parliament.
1998 This simple solution is not open to us in the case of the Community. The Council is not directly responsible to national Parliaments although its individual members may be. It is not directly responsible to the European Parliament either, because the Treaty does not so provide, at any rate with sufficient precision or appropriate force.
But solution there must be, and this involves an advance on both fronts, improving the processes of democratic control both in national Parliaments and in the European Parliament. I set this out when I gave evidence to the Select Committee. I was able, as it happened, to cite a passage from a speech which I made in the European Parliament the previous day, and it is quoted at column 249 of the Minutes of Evidence. It expresses this thought, and stresses the essential rôle of the national Parliament. I shall not weary the House with it, but it has the virtue of showing that I say the same things in the House of Commons and in the European Parliament.
I would certainly wish in a modest way to assist the work of both Parliaments, believing them to be complementary in this context if properly assessed and approached, and in the particular context of the Select Committee's Report I would certainly personally be glad to help in the way suggested in paragraph 70 of the Report while I am still a Member of the European Parliament and of this House.
In the European Parliament I am, along with my hon. Friend the Member for Saffron Walden (Mr. Kirk), a member of the Schuit Study Group and was responsible for the paper in the Group on the relations of that Parliament with the Council of Ministers, again with the object of increasing parliamentary control and ministerial accountability.
At this juncture I would express the apologies of my hon. Friend who is not able to be here for this debate owing to the visit of the President of that Parliament.
I hope that, as a result of the work of the Schuit Study Group, we shall see the European Parliament brought more clearly and constructively into the legislative pattern. I hope, too, that the Council of Ministers will be led to accept a more democratic and less cabalistic approach to the discharge of its legislative 1999 function. In that advance in the European Parliament the legislative function of the Council of Ministers should, wherever possible, be conducted in public.
That advance in the European Parliament must proceed pari passu with the advance of our British Parliament to extend its democratic control over the law-making function of the Council of Ministers. These have to be exercised in advance of the decisions of the Council of Ministers, since at any rate in the case of the regulations, and, in substance, the directives, they close the door. To achieve this end full information, speed of scrutiny and prompt and informative debate are of the essence, and it is to these requisites that the Select Committee's Report rightly turns its attention and directs its recommendations.
The time factor for scrutiny of the Community's legislative proposals may not be so tight in practice as is sometimes thought, and that is because of the time during which the Commission's proposals are under scrutiny in the committees of the European Parliament on their way to the Council of Ministers. This may involve a very long time indeed. The length of time the European Company Statute has been before the European Parliament is very long indeed. It is on its second round. It had been through once before we joined the committee, and now it is receiving what I am glad to see is accepted as being a very thorough investigation on the second round with new members present. It is the non-legislative decisions of the Council of Ministers that are very apt to take this Parliament by surprise and to evade its scrutiny, because they do not need these detailed procedures.
I believe that the suggestions made by the committee are sensible and helpful and I welcome my right hon. Friend's acceptance of them. My only reservation is that I have certain doubts about the efficacy of some of the mechanics which are specified, for example, to the criteria set out in paragraph 62. The first is to identify and isolate proposals of political importance. The second criterion is whether the proposals effect a change in the law of the United Kingdom.
I feel that the first criterion may be difficult to interpret and to apply, particularly 2000 if the idea of parliamentary scrutiny by the committee of officials were accepted. It is part of the teaching and discipline of civil servants to eschew things political and I do not think, therefore, that the criterion would turn out to be appropriate or efficacious. I gather from my right hon. Friend's observation that he was of a like mind. But the second criterion concerning the change in the law of this country is vital and it is one that can be interpreted and applied. If what is sought is an economic criterion in addition to the constitutional criterion, I think it could and should be spelt out with more precision.
There may also—inevitably in any matter concerned with the legislation of the Community—be doubts as to the logistics. The bulk of the legislative matter is vast and its output continues. The task of screening and scrutiny and of informed discussion is therefore formidable and time is limited.
We shall see in due course whether these measures can be effectively applied without detriment to the other work of Parliament. Certainly it may not be possible without requiring changes and modifications in other parts of Parliament's practices, procedures and its timetable of work. I mention that, but any discussion of it, important as it is, would take me beyond the limits of the time I have tonight.
I end with one specific matter which has not been mentioned—a matter of great importance about which I feel the Committee should be on notice and should be concerned. I refer to Article 235 of the Treaty. Article 235, as the House may recall, says,Where action by the Community appears necessary to achieve, in the course of operations of the common market, one of the objectives of the Community, and where this Treaty has not provided for the necessary powers of action, the Council shall, by unanimous decision, on a proposal from the Commission and after the Assembly has been consulted, take the appropriate steps.My experience, after 12 months of European Parliament, is that there is a considerable tendency to use Article 235 to produce regulations and directives going beyond the scope of the Treaty.
At present I am engaged in some controversy in the European Parliament on that precise point. I have indicated to it that it is not appropriate nor, in my 2001 view, is it legally valid, to use Article 235 as a back door to the amendment of the Treaty and to the extension of the powers given by it.
The important point, of course, from the aspect of national Parliaments is this. The article dealing with amendments of the Treaty is Article 236. Those amendments require ratification by the member States in accordance with their constitutional procedures. In other words, amendments of the Treaty require the assent of national Parliaments and are subject to their scrutiny. Article 235 does not. So when the Committee is set up, it should pay special attention to any regulations and directives which come from the Parliaments. There is one under discussion now, the Concentration of Undertakings Regulations, in which Article 235 is put forward as the basis of the matter. The proposed committee should be vigilant to detect instances of this and to see that the rights of this House are not eroded beyond the contemplation of the Treaty.
May I associate myself with the expressions so fittingly made in this debate of appreciation of the work of the Committee and my hopes for the success of the procedures to be applied?
§ 8.51 p.m.
§ Mr. Eric Deakins (Walthamstow, West)
The right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) has spoken, as he always does in our debates, with that eloquence which many of us who are fairly new Members came to know and appreciate in the great series of debates on the European Communities Bill. He ended his remarks by raising a most important point of which a number of us on the Opposition side were not aware—we were aware of the possibilities, but not that things were actually happening—in connection with Article 235 of the Treaty of Rome. I share his hope that the sifting committee will take note of these points.
There is a relevant passage in our report. The latter part of paragraph 68 says:In addition to examining legislative proposals, the Committee should be on the look out for proposals which embody matters of importance even before the stage where such proposals have been formally transmitted from the Commission to the Council. It is 2002 essential that the Committee (and through it the House) should receive as much early warning as possible of major proposals so that appropriate action can be taken to consider their probable impact on the constitutional law and practice of the U.K.I am sure that one of the committee's first tasks will be to consider what the right hon. and learned Gentleman has said.
I wish to direct my remarks to four paragraphs in the report—one dealing with the provision of parliamentary time, another dealing with the sifting committee, the third with the proposal for a new Standing Order and the fourth with Question Time.
Paragraph 72 is one of the most important paragraphs, if not the most important, in the whole report. Before I can give three cheers for the Lord President, I await with interest his reply. It is still not clear exactly what the Government have accepted or, indeed, what they understand by the recommendations in that paragraph.
The right hon. Member for Thirsk and Malton (Sir Robin Turton) suggested that the committee, meeting on perhaps 19 weeks in the parliamentary year—once a fortnight—each time would find at least one important matter to refer to the House, and that we could therefore be stuck with 19 days of debates in addition to the six days suggested under Part III of the report. That is perhaps exaggerating, for a number of reasons.
First, merely because the sifting committee decided that a recommendation should be made to the House that a particular proposal was important would not necessarily mean that a whole day of parliamentary time would be given to it. In the past few years we have become increasingly used to half-day debates, which have served a useful purpose not only in securing shorter and more concise and to-the-point speeches, from both backbenchers and Front Bench speakers—an important consideration—but in doubling the number of subjects that the House has considered. Therefore I do not necessarily think that many extra days will be devoted to the recomendations of the sifting committee.
However, one thing must be clear, and I hope that the Lord President will attend to it in his reply. The paragraph 72 2003 recommendations must relate to Government and not Opposition time. The six days, of course, are partly Opposition and partly Government, but the paragraph 72 recommendations relate to proposals for legislation which will otherwise have been introduced in this House in Government time. I suggest therefore that it would be unfair and inappropriate to ask the Opposition to give up any of their time for paragraph 72 purposes.
I apologise to hon. Members whose speeches I missed during the 40 minutes I was unavoidably absent until 7.30 if I mention points they dealt with. My second point concerns the form of resolutions which come to the House under the recommendations of paragraph 72. They could be take-note resolutions, but there would be little point in that. We could have a useful debate but we should be unable to reach a conclusion. We could not give guidance to the Minister who was going to the Council meeting. The best debates in this House take place on specific motions on specific subjects. The best way to empty the Chamber is to have a take-note resolution, and we certainly would not want that on the important matters we shall have to debate in connection with Common Market membership.
Surely it is essential that when a recommendation is made under paragraph 72 there must be a substantive motion on the Order Paper in one form or another about which the House can express a collective view. This is imperative if the House is to exert control and not influence.
§ Mr. Powell
The hon. Member will probably have noted that that is actually a recommendation of the Committee. Paragraph 53(b) refers to the provision of facilities for the House to express a conclusion.
§ Mr. Deakins
I am grateful to the right hon. Gentleman for that. Even though I was a member of the Committee I had forgotten that recommendation. It adds force to what I am asking, and I hope that the Lord President will be able to assure me on the point when he replies.
My third point refers to the timing of debates. This was alluded to in the latter part of the speech of the right hon. Member for Wolverhampton, South-West (Mr. Powell). Urgent matters are no problem ; it is the less urgent matters 2004 which are likely to cause the difficulty. For example, do we wait until the last minute until the legislation is in its final form before expressing our views, or do we try to express our view at an earlier stage, particularly if the proposal is to take six months or a year before the Council gets round to deciding on it?
Ought we not to express the collective view of the House of Commons on the general principle at an earlier stage? I would prefer this course of action, simply because under the European Communities Act we have no powers to amend the secondary legislation, and therefore we must express a view on the principle. Even if minor changes were made they surely would not be such as to cause us to come to a different decision on the principle. If a different principle were to be invoked it would mean a new piece of draft secondary legislation coming from the Commission.
However, there is undoubtedly the problem of timing. I refer to the time between a draft proposal being considered by the sifting committee and the Council meeting to make a final decision on it. We have been assured, particularly by the right hon. and learned Member for Hertfordshire, East, that there is plenty of time, and we know from experience that this is so. But how do we avoid the fiasco that took place last year over the supplementary budget, when our own Minister was not officially informed until 24 hours before the decision required to be taken. Surely, in such peculiar and particular circumstances, the only way is for the Government to keep matters off the agenda of the Council meeting until Parliament has made its decision, especially if the Government know that it will be an important matter. Certainly a supplementary budget of about £30 million was of vital importance to our control of expenditure.
I turn to the question of the sifting committee. I wonder whether those hon. Members who may wish to serve on this committee are yet aware that its first task will not be easy. Surely it will have to sift through all the outstanding proposals, and not merely concentrate on the current proposals. There is a backlog of proposals for secondary legislation, some of which were prepared before British entry to the Common Market, and these will 2005 need to be sifted. The committee's task will be much easier once it gets rid of the backlog of proposals.
What would happen if the sifting committee, meeting during one of our recesses, decided that a matter was urgent or important, or both? It would be absurd to suggest that Parliament should be recalled. In such circumstances, would it not be better for the Government to accept responsibility for keeping the matter in question off the agenda of the Council of Ministers? Every national State has a right of veto—I know the Government do not like using that word—regarding items which are to appear on the Council's agenda. Our Government are reluctant to be seen exercising that veto publicly, for one reason or other, but the matter could be dealt with easily, because no one knows what are to be the items on the agenda until it is published. Our permanent representative in Brussels could say that Britain did not want a particular item to be brought up yet because our Parliament had not had time to consider it and make a decision.
What is to happen to less important matters which do not go to the Floor of the House? I am pleased to note, from an interjection, that the Lord President has an open mind on this point.
§ Mr. Prior
It would depend on matters of major importance, which would have to be debated. If these were to take up too much time it would be necessary to look at alternative methods. I accept that time will have to be made for these debates on the Floor of the House. I hope that some of the time will come from the four Government days I have allocated, but that will not be the only time which we shall have for debate. There will be other occasions, but my right hon. Friend the Chancellor of the Duchy of Lancaster who will be concluding the debate, will deal with this matter in great detail.
§ Mr. Deakins
Paragraph 88 of the report refers to a new Sessional or Standing Order which the Committee recomends should be made. This could involve a time-consuming procedure once a week, or even more, but however time-consuming it may be—I do not necessarily accept that it would be—it is a necessary safeguard for the minority rights of hon. 2006 Members who may feel that the sifting committee has overlooked a matter of regional importance, or of importance to their constituencies.
Surely Mr. Speaker will not grant all applications made under the new Standing Order. One hopes that he would grant more applications than are granted under our existing Standing Order No. 9, because if no debate were allowed under the new Standing Order the matter could not be debated at all, whereas under Standing Order No. 9 there is usually a subsequent opportunity to debate a matter, even though it cannot be debated within the 24 hours following the application.
§ Mr. Ronald King Murray
Will my hon. Friend reconsider what he said a moment ago? Does he rule out the possibility of the scrutiny committee considering, during a recess, that Parliament should be recalled for an important matter?
§ Mr. Deakins
No, I do not, but I do not at this stage know what sort of matter the scrutiny committee may have to deal with. The sifting committee may have to adopt a similar attitude to that adopted by the Expenditure Committee in the past few years. It may have to develop its way of working, flex its muscles and improve its procedures. What would happen if an important matter arose during a recess is a significant point to which the Select Committee did not give too much time. Nevertheless, the sifting committee would have to consider the point.
I turn to the subject of Parliamentary Questions, and I ask the Leader of the House what changes, if any, are intended by the Government. It was not clear from what he said in his speech. I imagine that we all agree that there should be a separate slot for the Chancellor of the Duchy of Lancaster when Questions to him are taken first, in addition to ordinary Questions to the Foreign and Commonwealth Secretary. But I refer to the Select Committee's recommendation in paragraph 92, because we realise that the extra volume of EEC business will mean that we shall require more time for Questions in the House. For that reason we reiterate the recommendation of the Select Committee on Parliamentary Questions without going into detail.
2007 I hope that the Chancellor of the Duchy of Lancaster will take up this point. It is becoming increasingly difficult, with existing arrangements for Parliamentary Questions, to cope with the vast volume of Questions on Common Market matters.
I turn finally to the more general issues in the report and the way in which it deals with a problem which Parliament has faced since 1st January 1973. When we entered the Common Market we lost democratic control, and there was no democratic control in the Community. We lost power to our own executive and also to the Common Market executive. We are faced with this dilemma. I hope that the House will decide that regardless of the issue of federalism—and the majority of hon. Members appear to be against any federal solution, as I am myself—we have to restore to Parliament, consistent with our present Common Market obligations, as many as possible of the powers that it has lost. I believe that we have to do this even if, as I suspect and hope, our membership of the Common Market is not as long term as many people feel.
In his evidence to the Select Committee, the right hon. Member for Wolverhampton South-West proposed interposing Parliament between the proposal stage and the legislation in a way which would show clearly that nothing could become law unless Parliament had discussed and made a decision upon it. Unfortunately, the Select Committee did not go all the way with the right hon. Gentleman. Instead, in the report we have suggested the minimum. Many of us who served on the Committee did not altogether swallow our principles but we bit down many comments that we could have made in the interests of working with others whose views we did not share in an effort to produce an agreed report, knowing that such a report would be more acceptable to the Government and to this House if it was apparent that although we had differences we had gone into matters in detail and reached agreement.
It is not for the Government to choose which recommendations to accept and which to reject. Major constitutional changes should be agreed by all parties. I regret that this principle was not adhered to in the debates on the European Economic Community Bill. However, I hope that on this occasion, these 2008 proposals having been agreed unanimously by the Select Committee, the Government will accept them in toto.
§ 9.8 p.m.
§ Dr. Alan Glyn (Windsor)
I wish to deal with one major point of interest. I do not think that we shall find, with this tremendous number of regulations, that Parliament will have time to deal with them all as it is constituted at the moment. Already we have a very full legislative programme, and we find it very difficult to deal with it all. With the possibility of 20 debates a year, Parliamentary Questions, and Ministerial statements, have we really the time to do it all? These are matters to which we have to give serious consideration. My right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) touched on this point. It is a matter which will concern us all very much.
With 300 proposals and a complete change, Parliament's attitude will have to be quite different. Even if the proposed sifting committee deals with most of them, with the result that we shall need to debate only so many of them, we shall still face a very congested parliamentary programme. I would be the first to congratulate my hon. and learned Friend the Member for Northwich (Sir J. Foster) on the report, but we have to accept it against the background that it was made on the assumption that parliamentary procedure would remain exactly as it is for always. The report is excellent, being concise and easy to read.
We must take this matter in two stages. Accepting the report and the recommendations, we must then sit back quietly and see how much time it takes, and then go into the much wider problem of the way in which we can modernise our parliamentary procedure in general. I have a motion on the Order Paper restricting speeches to 15 minutes, but that is only a tiny aspect of the reform which we shall have to conduct in the House.
I am particularly grateful to the hon. Member for Ebbw Vale (Mr. Michael Foot) for allowing me these few minutes to speak. I ask my right hon. Friend the Chancellor of the Duchy whether, in the immediate future, he envisages that this 2009 will entail having an additional day's Sitting in Parliament in the next six months.
§ 9.11 p.m.
§ Mr. Michael Foot (Ebbw Vale)
Without any patronage or anything of that sort, I should like to tell the Leader of the House that we think it was right that the debate should have been conducted on the take-note basis that he proposed. It has the disadvantages that have been suggested, in that it has diminished the number of Members who have been present to learn from the debate. We considered the possibility of tabling a motion approving the report as one way of proceeding.
But anyone who has listened to the debate will agree that it has been wiser to proceed on this basis because, as members of the Committee will agree—indeed, some of them have learned more about their report than they might have known originally—it has been a great service all round, and certainly a service to the Government. We have the bones of the report, and now we have added flesh to them in the debate.
One of the advantages of the House of Commons is that in debates of this character, even when we do not have a vote—it is even better when we have a vote—there is some cross-fertilisation between the recommendations of a committee and the views of hon. Members who have not been members of the committee, and even, occasionally, contributions from the Government as to the wisdom of the final decision. That is what has occurred in this debate.
I am certainly not saying that it was necessary for the Government to accept in toto everything that the Committee recommends, any more than it is required for the House of Commons to accept it. The House of Commons must always maintain the right to judge what is put before it by its various subordinate Committees. We must retain that position always, in this instance as in others.
I turn now to the speeches of the hon. Member for Windsor (Dr. Glyn), the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) and the Father of the House, the right hon. Member for Thirsk and Malton (Sir Robin 2010 Turton). In one sense this is the wrong end of the debate. I say that in no offensive manner. They gave genera], but not uncritical, support to what the committee proposed. The Father of the House probably knows more about the procedure of the House of Commons than anyone else in the place. Therefore, it is right that we should listen to him carefully.
However, he said that, even if the House accepted what is now proposed, there were many residual problems which we have not faced and tackled. The hon. Member for Windsor suggested that one of the matters to be dealt with was that of restricting speeches to 10 minutes, or whatever may be the regulation figure that is proposed. I am sorry to hear that doctrine preached by the Father of the House. The real objection and the reason why some of us will bitterly oppose any such proposal—indeed, on occasion Mr. Speaker seems almost to introduce this principle without having the connivance or the incitement of the House to do so—is not any view about Front Bench speakers ; it is that restricting speeches to 10 minutes is at the discretion of back-bench Members. Front Bench speakers will always have 20 minutes, half an hour, or whatever the time may be. If anybody tried to rewrite the history of the House to see whether Winston Churchill could have stood up to his Front Bench in the 1930s with 10-minute speeches, he would see just how ludicrous that proposition is.
The proposal to try to limit speeches and to make the procedures of the House tidy to conform to strict timetables, whether relating to individual speeches or debates, would play into the hands of the executive. If the House of Commons accepts such a proposal, it will have taken a further step towards its own destruction.
I am not suggesting that there should not be changes in the timetables and procedures to accommodate new circumstances. If the House is to deal properly with the Common Market legislation that is now deluging us, there will have to be changes in the timetable of the House. But it is for the Government, bearing in mind the Select Committee's proposals, to solve that problem. The Government must find the time to get these major matters through.
2011 I understand that is the proposal that is accepted by the Leader of the House. I will say more on how I think it should be operated, but there cannot be any doubt about the central proposition that the right hon. Gentleman is accepting when he says that in general principle he approves the report. It means that he is accepting the propositions in paragraphs 53(b), 72 and 80 combined which ensure that the Government must secure authority in one form or another from the House of Commons before going to the Council of Ministers and exercising their influence there. It is not a matter of having four, six or 19 days. The Government must find the time, and they must find it in circumstances that are original.
The hon. and learned Member for Southport (Mr. Percival) explained the matter extremely clearly. He pointed out how, when the Committee was confronted with a novel problem, it had to invent a novel solution. There are novel features in this proposal. Indeed, there had to be novel features if we were to have an opportunity of performing our function properly. Therefore, I am sure that the Leader of the House is fully aware of all the implications in what he has said. Oliver Cromwell once said:Nobody goes so far as he who does not know where he is going.I am sure that does not apply to the Leader of the House in his acceptance of this report. I believe that he has accepted it in the terms in which it has been unanimously described and defined by members of the Committee and in the way in which it has been defined by the right hon. Member for Wolverhampton, South-West (Mr. Powell), by his hon. and learned Friend the Member for Southport, and by my hon. and learned Friends, including the features underlined by my hon. Friend the Member for Walthamstow, West (Mr. Deakins) which emphasise what is in the report.
I do not think there can be any possibility of doubt about the importance of the conclusion of the Committee's recommendation and of the Leader of the House saying that he accepts in general principle what has been proposed.
How are we to deal with it? I agree that a scrutiny committee should be set up. It should not be called a 2012 sifting committee. It should be given a proper and reasonable title. As it is a different kind of committee from any committee that the House has previously established, to call it by a different name would assist.
For nominations to the committee to be made by the Selection Committee would be an absurdity. The Select Committee has won great commendation from all quarters, so perhaps the new committee should be appointed by the same method as was the Select Committee. I am not saying that the same people should be appointed but that the same method should be used. A committee of this significance must be established with the concurrence of the main parties through the usual channels, with the sanction that before nomination takes place the matter should be debated in the House. Everything should be done to ensure that the importance of this scrutiny committee is underlined.
How are we to proceed from this agreeable harmonious debate to the achievement in practice of what everyone, including the Leader of the House at the beginning of our proceedings, has declared he wishes? Before anyone had a chance of speaking the Leader of the House accepted the report almost in its entirety.
§ Mr. Foot
I am not trying to do so. What the right hon. Gentleman said at the beginning is sufficient for my purpose. I am not trying to put words into his mouth. I understand that he does not dissent from what I have said about his accepting paragraph 72. He made a qualification about the fortnight, but that is not a material matter, and it does not affect the principle. The right hon. Gentleman accepts the proposition in paragraph 80:and by accepting as any Government must, that it will not cause or permit the law of the United Kingdom to be changed contrary to a resolution of the House.The right hon. Gentleman also accepts the proposition in paragraph 53(b), which we discussed, in the Committee. It is not for me to reveal which matters we discussed at length in the Committee, although I do not think that anyone will 2013 complain if I underline this. The paragraph reads:provide for itself special facilities for reaching and expressing a conclusion on proposals before they are brought to decision in the Council of Ministers.That proposition was not put into the report as an afterthought. We discussed it at considerable length, and it goes to the root of the matter. I am not trying to interpret the right hon. Gentleman's words. I am merely underlining that if he says he accepts the principles of the report, those are the matters he is accepting roughly in the terms in which they are stated.
How are these matters to be incorporated into House of Commons procedure? It is right that this should have been discussed. One purpose of a debate of this nature is to allow the House of Commons to bring to bear its general experience. From the way in which the debate has proceeded there is not the slightest doubt that the proper way for this to be done would be by way of a resolution in which the Government set out the general powers, undertakings and purposes of the committee, which should be debated and be subject to amendment. From today's debate it seems unlikely that there will be a desire for amendment, but on a matter of this significance I ask the right hon. Gentleman to take that into account—he need not accept my wording.
I ask the right hon. Gentleman, before he brings that resolution to the House, to read again the speech made by his hon. and learned Friend the Member for Southport and to realise that the resolution must incorporate the novel ideas that the hon. and learned Gentleman underlined. I hope that the Leader of the House will proceed properly and give the committee the authority it requires. If he does, we shall soon see the practical results in debates in the House of Commons.
Let me give the Leader of the House an example of what I mean. I hope that I shall not scare him too much, but we are discussing momentous matters on which people with great knowledge of the Common Market and its affairs have had quite the wrong idea. Let us take the speech made by Sir Christopher Soames at the last Conservative Party Conference when dealing with the ques 2014 tion of economic and monetary union. I quote from a report in The Times of Saturday, 13th October 1973. Referring to Sir Christopher, the report says:He said that economic and monetary union was essential for the further effective development of the Community. When asked whether Britain's entry into such a union would come up for approval in Parliament, Sir Christopher said that was a matter Conservatives should take up with the Government.I do not know whether any Conservatives have followed Sir Christopher's advice on this matter. The report continues:Asked whether economic and monetary union could be proceeded with without formal approval of Parliament, Sir Christopher said: 'Yes, because the approval of Parliament was sought and obtained for British entry into the Community. The British Parliament voted in favour with a considerable majority'.Sir Christopher Soames is not a trivial witness and he thinks it quite proper that Parliament was already committed to a matter of this major significance. He is under a misapprehension. I am sure the Leader of the House would not dissent from the view that if the effective parts of the Select Committee's report had been in operation, Sir Christopher would not have been able to make such a speech as that. He would have known that it was contrary to what we are recommending. Economic and monetary union, however one interprets paragraph 72, comes in as a matter of a major significance. Therefore, under our procedure any step towards economic and monetary union would have had to be brought before the House of Commons. I hope that I do not scare the right hon. Gentleman from his previous commitment, but that is the fact of the matter and everybody knows it. Sir Christopher Soames must also understand it—and many people who do not appear to understand these matters at present must come to understand it.
I am glad that the right hon. and learned Member for Hertfordshire, East goes to Strasbourg to educate people there. It is highly necessary for, since they have a quite different view of the matter, they do not understand how our procedures work. This has occurred partly because of the nature of the Common Market institutions. I read in The Times the other day that when they had discussions in Brussels on the question of keeping an eye on Brussels, they were following reports of committees in the 2015 House of Lords and the House of Commons. Dr. Horst Ferdinand, an expert on the subject, said in a letter to The Times on 18th October 1973:It is important to remember that the authors of the Rome Treaties did not include this procedure of 'national' control in the text of the Treaties.They did not foresee these matters. In so far as they foresaw any kind of democratic control, they foresaw direct election to a European Assembly eventually. Dr. Ferdinand went on in that letter:This problem can only be solved by conferring adequate powers of control on the body intended to exercise control, the European Parliament.That is not the view of the House of Commons. We have not had a single voice in this debate today raised against the Select Committee proposals to deal with these measures.
Some of my hon. Friends have said that matters must go further. My hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh) says that we must go further. He seems to have gone so far that he has not come back for the end of the debate. In any event, he says that we must go further and have methods of looking after subsidiary forms of legislation. I agree. As my right hon. Friend the Member for Stepney (Mr. Shore) said at the beginning of the debate, we must have a new committee, which will be separate from the Merits Committee, to look into the flow of legislation from the Commission. We must have all those things, but the purpose of the debate, as the Leader of the House has arranged it, is to test the feeling of the House. I say to the right hon. Gentleman that there is not one Member who has engaged in the debate who has dissented from the assertion of parliamentary rights over the actions of the Council of Ministers.
The right hon. and learned Member for Hertfordshire, East seems to be slightly infected by his travels. I think that the right hon. and learned Gentleman can be rescued. Indeed, that is the purpose of my remarks. Apparently he is suggesting that these duties can be discharged by the European Assembly.
§ Mr. Foot
In my opinion it is misleading to suggest that any form of 2016 democratic control can be exercised by a body not democratically elected. Moreover, I gather that many of the Conservative Members who have been going to Europe from the House take the view that it is impossible to discharge their functions there and their functions here. I note that Lord Bessborough takes that view. As somebody said the other day, even the peers are wilting. Of course, the peers do not have to attend to constituency duties. Lord Bessborough said that it was a full-time job for him. I dare say that it is a full-time job for many hon. Members.
I note that a remedy for the situation was proposed on 18th October in The Times in a communication to The Times correspondent. George Clark, who is on the political staff of The Times, writing from Strasbourg, says:The proposal, as I heard it today, is for Mr. Heath to announce that, in view of the equal importance of European politics, the British Conservative delegation will be excused from obedience to three-line whips in the Commons ; and if the Government is defeated, this will not be accepted in the strict constitutional sense as being ground for the resignation of the Government.I can understand why those suggestions are made. Some of us have always said that it is impossible for a Member of Parliament to discharge his duties properly in this House and also to discharge them in the European Assembly. Some of us have always said that the question should have been settled by the House taking these matters into full account before we committed ourselves to send Members of Parliament to the European Assembly.
The general opinion of those Members who have been sent to Europe is that there are grave difficulties in combining such activities. The relevance of that is that we have made the mistake before. We made the mistake seriously during the passage of the European Economic Communities Bill. I hope that I shall not raise temperatures too much by referring to the way in which the Bill was pushed through. Many of the matters which we are now seeking to discuss were matters which we had to debate in about an hour and a half when the Bill was pushed through under the guillotine. Many of the rights which we lost, and which hon. Members now say we must recover, were matters which we could 2017 have kept in our hands by the amendments which were tabled at the time.
Many of the matters about which there are complaints would not have occurred if some of our amendments had been accepted. As I understand it, important decisions may be made at Brussels this week—although I am not sure of the stage which has been reached—on food prices. Decisions are to be made whether the price of beef should go up 7 per cent. or 10 per cent., whether milk prices should go up 4 per cent., and whether the Germans are to have their way on cereal prices or whether we are. I am not certain whether such decisions are to be reached this week or next week. [interruption.] The right hon. Member may laugh but the question whether price agreements have been made is a matter on which the Government should be reporting to this House.
§ Mr. Foot
The right hon. Gentleman misunderstands the situation. He is saying that because, before a Price Review was announced, he did not have to make an announcement here, therefore the procedure followed now is perfectly correct. The difference is that when he was Minister of Agriculture and when he came to this House the House could throw him out and reverse his propositions if it wanted. That is not the case now.
It can still throw him out, but decisions would have been made which would be binding on this House. It is wrong for the right hon. Gentleman to pretend that the two instances are on all fours. I am not even arguing the issue whether it is right or wrong to make these price increases. What I am saying is that the Government, by accepting our previous report, had committed themselves to giving regular reports to this House so that we should be able to examine them. I say that so far that system, merely of giving us information, is not operating to anything near the degree that it should be operating. That is why we included a whole series of other measures in our 2018 recommendations. There should be much more regular reporting to the House, much more accounting and much more direct responsibility, either upon Ministers or this new legal authority we suggest.
I hope that that suggestion will not be thrown out as readily as some right hon. Gentlemen seem to suggest. The responsibility should be pinned on the Government to make these reports to the House in a much better way than that which has existed during the year or so we have been in the Community.
However, that issue is subsidiary to the central issue of our report and I hope there will be no qualification about the way in which the Government accept that central issue. I refer to the passages I have mentioned already, in particular recommendations 72, 53 and 80. I hope that the Government will incorporate these in the motion to be presented to the House and that it will be made clear to us, to the country and to our colleagues in Europe, what are the rights which this House, on the unanimous recommendation of the Select Committee, is determined to retain whatever the difficulties.
§ 9.38 p.m.
§ The Chancellor of the Duchy of Lancaster (Mr. John Davies)
I can certainly join the hon. Member for Ebbw Vale (Mr. Michael Foot) in saying that I found this an interesting and valuable debate, the more so in that those who have taken part are those who from the beginning have taken the deepest interest in the subject, and have participated in the Committee whose report we are discussing. They therefore bring a remarkable degree of knowledge and interest to the subject.
In opening the debate my right hon. Friend the Leader of the House took, as all hon. Members have recognised, an exceedingly forthcoming line in response to the report. This was a faithful reflection of the Government's view as a whole, and their desire, expressed by many of my right hon. Friends, and certainly by me, to increase the exposure—if that is the right word—of the Government to the House in all these matters.
As my right hon. Friend said in an intervention, it would be going a little too far to characterise that forthcoming approach to the report as one of total 2019 acceptance, if by that is meant total acceptance of all the argumentation, implications, allusions and assumptions in the report. The object has been to take the views of the House, to feel the pulse of the House on the matter and to respond positively in the way my right hon. Friend suggested, by tabling motions to deal with specific recommendations. To think of acceptance in the sense of the derivation of a series of principles from specific statements or assumptions in the report would take us too far at this stage.
I join the many right hon. and hon. Members who have spoken warmly of the work of the Committee, and particularly its chairman, my hon. and learned Friend the Member for Northwich (Sir J. Foster). Those of us who had the privilege of appearing before the Committee were able to express our points of view to people who were obviously so well aware of the subject as to make it exceedingly easy to report to them. The result of the work faithfully mirrors their knowledgeable and deeply interested approach.
The committee which is now the central proposal, and to which my hon. and learned Friend the Member for South-port (Mr. Percival) referred as a committee of novelty, is an issue of the greatest importance, irrespective of its name. I join those who have said that the term "sifting committee" has an inadequate sound for the nature of the beast. I hope that a more characteristic title will be found to illustrate the work it will be called upon to do.
A number of hon. Members, particularly the hon. Member for Ebbw Vale (Mr. Michael Foot) have spoken of the selection of Members to serve on the committee. My right hon. Friend the Leader of the House will have taken due note of what has been said. The point is one among many that the Government will cull from the debate.
In dealing with the material which is to be under the committee's scrutiny, I should perhaps make one or two observations about the nature of Council business to which its whole work will refer. The proportion of time spent in the Council discussing legislative matters is very small in relation to the total time spent on its business. It would be easy to gain the impression from the 2020 debate that the Council spent a large proportion of its time discussing legislative proposals put before it by the Commission. That is not correct. The vast majority of the Council's time is spent in dealing with matters concerning executive functions, which are not then carried forward into legislation purposes. It is important to underline that, as otherwise the legislative characteristic of the Council, which I entirely admit, would be seen as the dominant one, which is not the case.
§ Mr. Shore
There is a distinction between the time the Council of Ministers gives to the legislative matters and the weight of legislative output in relation to the total output of the Council. I have a feeling—the right hon. Gentleman knows better than anyone—that the legislative output of the Council is by far the greater part of its work, even if the time it gives to it is small, because I think it leaves a great deal to its permanent officials.
§ Mr. Davies
I think it would be very difficult to try to quantify the output. It would be very hard to measure the value of certain pieces of legislation against the extensive matters concerning social policy, the Social Fund, and like matters. So it is difficult to answer the point put by the right hon. Gentleman. I return to what I said—that some of the time of the Council is spent on legislative matters.
It is right that I should make another point in some detail about the nature of instruments which emerge from the Commission to the Council and to make two different but interrelated points on that subject. The first is that those proposals are the Commission's proposals. They are subject to a very considerable degree of negotiation, discussion and argument both within the subordinate bodies of the Council and the Council itself, and they often return to the Commission for review and modification in the light of the discussions.
So it is certainly necessary that our proposed committee should be able to keep up with the evolution of proposals of this kind in order that it does not, for instance, find itself discussing something which is positively an out-of-date proposal as has been suggested, in particular by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell).
2021 Secondly, I think it virtually impossible to discuss in the context of secondary legislation things which do not have the character of a formal proposal. The right hon. Member for Stepney (Mr. Shore) referred, for instance, to the problems which arose about the supplementary budget last year. I agree with him—I think I did at the time—about the unsatisfactory way, from the point of view of both the House and the Government in which that matter emerged. But I am sure he will realise it would be virtually impossible for the Government to be called upon, as they are by this report, to elucidate and amplify proposals or points in proposals which are no more than rumour. It is necessary that there should be a formal document or a formal proposition which is subject to the sifting or scrutiny committee's activity, and upon which, therefore, the Government and Ministers and others can respond in a positive sense. This was not the case with the supplementary budget to which the right hon. Gentleman referred earlier.
§ Mr. Marten
But surely on that occasion, on which, we all know, there was a very swift decision, my right hon. Friend could have said, "All right. You want £35 million from us and I must go back to Parliament to get its permission"?
§ Mr. Davies
I am not seeking to relive the experience of the supplementary budget. I am simply seeking, in the context of the proposals in the Select Committee's report, to show what is needed to deal with matters of urgency and importance and how difficult it would be to do that in relation to proposals which are merely reported or rumoured statements or announcements.
§ Mr. Powell
My right hon. Friend has referred to the supplementary budget. He recognises, I take it, that the general budget falls into a different category, and falls into secondary legislation on which these recommendations would bite?
§ Mr. Davies
I agree entirely with that. I would add only that there is some danger there also of some confusion in the sense that we in this House regard the Budget as something which is not only an assembly of mathematical facts but also a director of policy. This is not the 2022 case with the Community budget. The Community budget is simply a mathematical assembly of figures, with small exceptions relating to staff matters and the like, flowing from a series of decisions which have already been taken. They therefore, have inevitable consequences to be collected together and aggregated into a budget. I make this distinction because it is a matter of importance for the new committee.
It seems to me that in many ways the essential theme of the debate has centred round the question of ministerial responsibility, responsibility to Parliament and the Committees, and a responsibility which arises inescapably in these new conditions of which we have had only a year's experience.
Much has been said today about the problem of Ministers being in a position of having the assent and authority of Parliament in what they do in the Council of Ministers. I do not think that any one of my colleagues, and certainly not I, would dissent from the thought that any Minister who went to the Council on a matter of substantial importance lacking guidance and a sense of direction from Parliament would be in an unsound position.
Equally it is true that in the exceptional cases where there has been a specific resolution of Parliament on a given issue arising in a Council debate, a Minister who defied that would defy it at his risk and also at the risk of the Government of which he was a member.
§ Mr. Deakins
The right hon. Gentleman appears—I hope I have got him wrong—to be going back on what we thought was the undertaking by the Lord President to accept in particular paragraph 53(b). On each occasion on which the House was able to express a conclusion and a view on an important matter, then obviously the Minister would be going to the Council meeting apprised not only of the views of the House but of a collective expression of will.
§ Mr. Davies
That is right, and it has already been pointed out in the debate—I noted it with interest—that a resolution of the House in the form to which the hon. Member refers, has no constitutional effect of stopping the Minister from doing what he may conceive to be his proper task. But he would do it at his 2023 risk, because he would at that moment be failing to comply with what he has seen to be declared as the will of Parliament.
In constitutional terms, this would be something that he would not be debarred from doing, but it would be ridiculous to imagine that he is not closely observing the views of Parliament and is not bound to take due account of them in all he does in the Council of Ministers.
§ Mr. Davies
I entirely agree. I can only say that the form of that answerability is different because of the different nature of the form of activity. This is the reason, indeed, for the creation of the committee and for this report.
§ Mr. English
Throughout today's debate, the positive side has hardly been mentioned. I presume that the committee would be able to suggest things which should be changed even though it was not considering a proposal that it did not like.
§ Mr. Davies
That is not the tenor of the report, I think. The tenor of the report is to seek to isolate matters which it regards as being of importance and urgency and to direct them to the attention of the House. My right hon. Friend the Leader of the House has made it clear that he wishes, again in as positive a way as possible, to accede to the demands that that may make upon the time of the House. This, too, is a matter which has come up for a great deal of discussion.
It is essentially right to say that ensuring that time is available is very much my right hon. Friend's view and very much his wish. This is his personal responsibility to the House, which I know he has every intention of seeking absolutely to respect. But it would be dangerous at this time to start to postulate the number of days that this will occupy in the time of Parliament. If it involved the large number of days that some hon. Members 2024 have suggested, it would indeed prove intolerable to Parliament.
I therefore believe that it will be practicable within the kind of time scale which has been put forward and accepted by the Leader of the House to cover the urgent and important matters. It should not prove impossible, and it is by no means sacrosanct that every subject should have a full day's debate. It would be possible to sub-divide, and this must clearly be one of the plans.
The issue of the proposed special legal advice to the committee occupied a great deal of time in the debate. There is every wish here to ensure that the committee, in coming forward with its recommendations, should have access to the best possible legal guidance. I am anxious, and I make no bones about it, not to undermine the situation in which departmental Ministers must be responsible for answering Questions on the legal consequences as they are on the technical consequences.
I realise that legal issues have a special part, and these are referred to quite clearly in the report. It may be found necessary to find some amplification of this normal way of dealing with the matter. But I hope that the House would not find it automatically desirable to discard the departmental legal advice which is available to every departmental Minister and with which he must be familiar in seeking to help the work of the Committee.
There has also been a good deal of discussion about statements which might be made and about a Minister with overall responsibility. It is easy to see, as the Leader of the House made clear, that on the question of making statements accompanying a declaration of the likely business in the ensuing months he has an open mind. I am sure that point he made is sound. A difficulty is ensuring that adequate explanation of this very brief, rather telegramatic statement which is given at the moment, is available. It would be most undesirable if it entailed a revelation of a considerable part of the negotiating posture of the individual Minister. I draw a sharp contrast between the position of a Minister at this Dispatch Box in such circumstances and a Minister with his Cabinet colleagues 2025 reaching a negotiating posture which is obviously critical and where he is bound to be given certain negotiating limits by his colleagues. Anything he would say say at the Dispatch Box would be public knowledge.
As to the overall responsibility of a given Minister, it is the position in the Government, which I do not think we would see any reason to vary, that each individual Minister carries the responsibility within Community affairs for his own departmental matters, and I as Chancellor of the Duchy carry responsibility for co-ordinating these positions. My comment referring to overall responsibility carries a connotation which is not implicit in the Government's organisation as it stands. That would have to be borne in mind in relation to any statements which either anticipated or followed the Council meetings.
Equally, on the question of Parliamentary Questions, my right hon. Friend has indicated that he is prepared to consider something which would suit hon. Members. Therefore, again for the same reasons I have mentioned in connection with the statements, it would be singularly inappropriate if there were an attempt to try to group all Questions on the Community on a single day. It would need a considerable phalanx of my colleagues to be present and it would confuse rather than elucidate.
I have sought to comment on some of the points raised in what has been a full debate. For me it has been of great use, and I am grateful to the House for helping.
§ Question put and agreed to.
That this House takes note of the Second Report from the Select Committee on European Community Secondary Legislation in the last Session of Parliament.