European Communities (Amendment) Bill (Hansard, 16 June 1986)

§ Mr. Spearing
I must apologise. I now understand that my point has already been raised during my short absence from the Chamber. However, it would be helpful for the Committee to know whether the suggestions from the European Court have been received and published. We could then make more progress.

§ Mr. Deakins
That is apparently not a point of order; I shall now continue my speech.
I was following up a point made by the hon. Member for Southend, East (Mr. Taylor) about the hierarchy of the courts. At present there is a single European Court of Justice whose judges can divide themselves into chambers, which I would regard as lesser courts within the scope of the European Court of Justice. Under the proposal, we will set up one, or more than one — and the precise number remains to be clarified by the Minister —subsidiary court whose relationship with the European 853 Court of Justice is laid down in the article in the Single European Act. However, the scope for extending the number of subsidiary courts is unlimited.
Although I do not wish to alarm hon. Members unduly, it is possible to envisage the European Court of Justice being at the apex of a network of courts, many of which could be based in the individual member states of the Community.

§ Mr. Butterfill
Does the hon. Gentleman agree that there would be a growth of such courts only in response to demand? In other words, the number of courts would be increased only if sufficient cases were being brought.

§ Mr. Deakins
I do not deny the hon. Gentleman's point. However, the prospect of that happening scares the living daylights out of me. I am not considering bureaucracy; rather I am thinking about the web which will entangle us more and more and which will affect citizens within the context of an integrated western Europe. I do not want to go into that subject now, as we will debate that later.

§ Mr. Butterfill
The hon. Gentleman would not want to encourage delay through a long backlog of cases. Would he agree that it would be desirable to have an extension of courts in that circumstance?

§ Mr. Deakins
I want to make it clear that I want to reduce the number of cases and the scope of the European Court and limit it until we have changed the relationship between this country and the rest of the Community. I accept that, while the European Court exists and if article 2 is enacted, there will be scope for the European Court, in association with the Council acting unanimously, to extend the Community's legal system downwards. It certainly cannot extend it upwards because it would not be possible to go higher than the one single court at the apex. That is something which should worry the whole House.
What sort of people will be able to take cases to the subsidiary court? Will individual citizens of member states who are aggrieved at some action of their national Government which might or might not contravene Community law or at an action of a Community institution be able to go to the subsidiary court? There are plenty of lawyers here to advise us. At present, I suspect that the European Court is basically for the use of member states and institutions rather than individuals.

§ Mr. Butterfill
indicated dissent.

§ Mr. Deakins
The hon. Gentleman shakes his head, so I assume—perhaps the Minister will confirm this—that individuals can go to the European Court. Will individual people — "natural persons" under the legislation — be able to go to the subsidiary court, and will a network develop of lawyers skilled in the processes of European law to advise people whether to take their cases to the subsidiary court or courts or to the European Court and what their rights are? This may appeal to the lawyers, but is there not a danger of building up a whole new legal network to advise people in Community countries?

§ Mr. Foulkes
Has my hon. Friend, with his fertile imagination, considered whether residents of the Channel islands and the Isle of Man, who are British citizens with British passports, could take cases to those courts? There is scope for further consideration there.

§ Mr. Deakins
My hon. Friend asks an important question to which, I confess, I do not know the answer, not merely because I am not a lawyer but because I am not skilled in the intricacies of this Single European Act. I hope that the Minister will take these questions on board.

§ Mr. Spearing
Is not the real position even more serious? The Minister's answer to question No. 181 in the Foreign Affairs Committee, to which my hon. Friend has referred, was that no lawyer and apparently no Government yet know the answer because, as the Minister made plain and as the text of the measure makes rather less than plain, there must be a request from the European Court of Justice. In other words, the answers to germane questions which the House should know before it decides on the amendment, let alone the Bill, rest not with the House or even with national Parliaments or the so-called European Parliament but with the request of the existing European Court of Justice.

§ Mr. Deakins
My hon. Friend makes his own point and will no doubt wish to make his own speech. I wish people to have whatever rights are available that they need, but if individuals can go to the subsidiary courts as well as to the European Court, matters will be further complicated.
To make a party political point, the next Labour Government are pledged to certain matters of economic policy which would not be acceptable to Conservative Members—import controls, for example—but which will nevertheless be put to the electorate.

§ Mr. Teddy Taylor
You cannot do that.

§ Mr. Deakins
The hon. Gentleman says that we cannot do that. Within reason, the British Government can do whatever they like. Whether they are breaking international obligations is another matter. Let us assume that there is a limit on the import of German motor cars. At present, an importer can go to the European Court for a declaration that the action of the British Government in imposing import controls was illegal and the court would no doubt pronounce on that. Clearly, it is more expensive to go to the full European Court. In the future, will an aggrieved importer be better advised to go to the subsidiary court? Would that court be able to handle the case, or would the matter have to be referred up to the full court? Again, we do not know and I am not at all sure that the Minister knows.

§ Mr. Butterfill
If a future Labour Government banned the import of German motor cars, it would be a direct breach of a treaty obligation into which this country had entered and in which a previous Labour Government played a major part. Presumably, if a future Labour Government wished to do something like that, they would abrogate the treaty rather than breach it.

§ Mr. Deakins
The hon. Gentleman's analysis is right, but I doubt whether what he suggests will happen in practice. I do not wish to stray from the narrow remit of the amendment, but some of my right hon. and hon. Friends may prefer to take their chance on that and remain within the EC. We shall return to this matter later.

§ Mr. Teddy Taylor
Does the hon. Gentleman accept that it is not only the Labour party but Conservative Members who should study the clause carefully, because under article 20 there is a commitment to converge and harmonise economic policies between member states? There will be nothing to stop any natural or institutional 855 person going to the court or getting the Commission to say that our economic policy, whatever it is, does not converge with the policies of other member states.

The First Deputy Chairman
Order. The hon. Gentleman should not go clown that road until we reach that discussion.

§ Mr. Deakins
I certainly shall not, Mr. Armstrong. However, I accept the hon. Gentleman's point that the European Court is extremely powerful and that having a subsidiary court will make it even more powerful, for a reason which has not yet been advanced in the debate.

Mr. Butterlill
Why?

§ Mr. Deakins
I shall explain why. I mean that the court is powerful in spreading its tentacles rather than in arrogating to itself, which it cannot do, additional constitutional powers under the statute.
The European Court will get rid of all the mundane cases which the Minister tells us are clogging up the works. If the top European Court gets rid of all those mundane cases, will it not have much more time to deal with what it would regard as the important cases which, because the court is federalist by nature, will advance the cause of European union? More and more of the court's judgments and time will be spent pontificating on those matters and directing national Governments towards European union. At present, the court is being held back from doing that because it cannot push on to a subsidiary court the minor cases which do not raise major issues of principle of Community law and of the relationship between the institutions, the member states and individual citizens.

§ Mr. Marlow
Many hon. Members follow European affairs closely but others do not have a great deal of knowledge about them, and the debate is becoming increasingly intricate and based on the legal aspects—the court, its powers and powers between courts. As the hon. Gentleman has the Floor, will he, perhaps, catch the eye of my hon. Friend the Minister to see whether she will bring a Law Officer before us? Before we go much further, we need a full explanation of the rigours and meanings of the amendment and clause from a Law Officer?

§ Mr. Deakins
I take the hon. Gentleman's point, but it is entirely up to the Minister. I hope that the Minister, who, like me, is not a lawyer, is not relying solely on the legal department of the Foreign Office for this debate. In 1982, the Foreign Affairs Select Committee investigated the patriation of the Canadian constitution and we had legal advice from the Foreign Office legal department, not from the Law Officers, which ultimately proved to be completely wrong about the constitutional relationship between the United Kingdom and Canada. The constitutional advice from the three most distinguished constitutional lawyers whom we had as witnesses was that the Foreign Office legal department was wrong. One may argue that that is merely a dispute between lawyers. We produced two reports which were then produced, almost in evidence, and quoted by judges in the Canadian supreme court which upheld the view of the Select Committee on Foreign Affairs which was opposed to the legal advice of the Foreign Office.

§ Mr. Cash
I happened to be adviser on the Canadian provincial case before I entered Parliament. I think that it 856 was Professor Marshall's evidence in particular which clinched the whole matter and which I find rather extraordinary. I have a certain sympathy with what the hon. Gentleman said, but I must weigh that against the fact that there are many eminent lawyers in the Foreign Office and I would not like it to be thought that although I thought that they were wrong on that occasion—

The First Deputy Chairman
Order. We should get bact to the amendments before the Committee.

§ Mr. Deakins
I promised the hon. Member for Lancaster (Mrs. Kellett-Bowman) that I would give way to her.

§ Mrs. Kellett-Bowman
Will the hon. Gentleman accept that my hon. Friend the Minister said that the staff cases to which he referred arc not legally significant? They are time-consuming, but they are of great importance to the individuals concerned. Surely it is important that those individuals should get their justice more rapidly.

§ Mr. Deakins
Indeed. I accept entirely what the hon. Lady says. When the Minister gave evidence before the Select Committee on Foreign Affairs — she was not necessarily pressed on this point, although I was not present—she was unable to give details of the number of cases in recent years. Why there should be so many staff disputes which require legal action makes one's mind boggle. Britain has plenty of disputes between employers and employees but few end up in the courts. They are usually disposed of without the need for legal processes. There must be something wrong with the Community if, every time the staff have a dispute with the management, they have to go through the European Court of Justice. Think of the expense, apart from anything else.
I want to refer to article 188 of the treaty of Rome, which is mentioned in the Single European Act. Article 188 is short and says: The Statute of the Court of Justice is laid down in the separate Protocol. That is annexed to the Treaty. The second paragraph says: The Court of Justice shall adopt its rules of procedure. These shall require the unanimous approval of the Council. The Single European Act is seeking to insert into the second paragraph of article 188 some new words, which have already been quoted. I shall quote them again because it is important that the Committee should hear them in mind. They are: The Council may, acting unanimously at the request of the Court of Justice"— that is more or less equivalent to what is there at the moment— and after consulting the Commission and the European Parliament, amend the provisions of title III of the statute. But what article 12 of the Single European Act does not say is that the existing wording should be deleted.
This part of the Bill is very much a dog's breakfast. We are being asked to insert, where there are already two minor paragraphs, in article 188 of the Treaty of Rome, a new second paragraph without taking out the old second paragraph. I do not understand how that can happen legally or constitutionally or how those who drafted the Single European Act came to draft that. Some British people may have been involved, but they did not do a good job on that. I am not a lawyer but that is nonsense. How can something he inserted unless something else is pushed to one side, which I presume is the case, or replaced? Obviously the intention of the insertion in article 12 is to 857 replace the second paragraph of article 188 of the treaty of Rome. It is not replaced by the wording of the Single European Act.
Finally, let me deal with the statute in the protocol on page 153 of the treaty of Rome with annexes which I have before me. That is the statute which can be amended by the delegated legislation which the right hon. Member for South Down (Mr. Powell) mentioned. That is concerned entirely with procedure. I have no objection to courts. In Britain they regulate their own procedure, subject to the Lord Chancellor. The European Court of Justice deals not merely with individuals but with member sovereign Governments and one needs to be careful about the mechanisms for changing rules of procedure.
Title III, article 21 of the treaty of Rome says: The Court may require the parties to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal. The next and important sentence reads: The Court may also require the Member States and institutions not being parties to the case to supply all information which the Court considers necessary for the proceedings. That seems to be a fairly draconian provision, but at least it was put in after approval by the national Governments by way of ratification and is a treaty matter. It is embodied in Britain in the European Communities Act 1972.
We are now handing over our power to control such changes in the rules of procedure not merely to the European Court, but to any subsidiary future courts that it may set up, and those may be unlimited in number. Those courts will be unable to regulate their own procedure and will still have to do it by unanimous opinion of the Council, but the matter will no longer come to this Parliament. It will not come here in the form of a Bill and we shall be entirely dependent on the Government of the day — I make no party political point here — as to whether or not that Government say that such changes in the rules of procedure are matters that this Parliament representing the British people ought to be cognisant of and to have an opportunity to comment upon, even if we do not have a right to approve of them. I hope that at least we will have a right to approve as well.

§ Mr. Butterfill
If the hon. Gentleman reads article 4(2), which is the same as article 11(2), he will see that it is only for the purposes of necessary adjustments, necessary for the purposes of paragraph I. Enormous safeguards are built into paragraph I and the hon. Gentleman is making a big fuss about nothing.

§ Mr. Deakins
I hope that the hon. Member is right. I am raising the issue because I am worried about it, but if I am wrong and the hon. Gentleman is right, I am sure that the Minister will take legal advice and put me right.

§ Mr. Marlow
The hon. Gentleman mentions one area in which the European Court can act and in which our courts cannot. That is to say, it can demand evidence from institutions or from national Governments within the Community. During my days in uniform I used to go to courts martial from time to time and there were various rules of evidence which were important for an individual's freedom and justice. One of those rules was that hearsay evidence was not acceptable. What is to stop this institution flipping through some late night sitting as part of the quid pro quo with other Community Governments over something about us getting back our rebate? Because things are bogging down in the Community and the court does not have as much power as it would like to have or because it wants to investigate this, that or the other, it could take hearsay evidence. What is to prevent that sort of monstrosity from taking place?

§ Mr. Deakins
I am not in charge of the Bill and I cannot answer the question posed by the hon. Member for Northampton, North (Mr. Marlow). The Minister must take note of these points.

§ Mr. Teddy Taylor
Does the hon. Gentleman accept the matter of rule changes having to be necessary? The only determinant of what is necessary is the Council of Ministers. There is no question of the Council being limited by paragraph 1 because it acts in accordance with paragraph 1.

§ Mr. Butterfill
Has my hon. Friend read the paragraph?

§ Mr. Taylor
Indeed I have, and I have it in front of me. The Council of Ministers, and only the Council of Ministers, decides what is necessary for a rule change. Neither the House of Commons nor member states have any jurisdiction. Rule changes are a matter for the Council of Ministers and nobody else.

§ Mr. Deakins
It is not just a matter for the Council of Ministers, and that is another of my objections to the provision in the Single European Act and therefore to clause 2 of the Bill. In future, unlike the present position under article 188 of the treaty of Rome, the Commission will have the right to be consulted and to put its oar in. So will the so-called European Parliament, but not this Parliament. This is another derogation of the sovereignty of this Parliament. I accept that it is derogation in a minor respect, but principles do not depend on measurements. The principle is vital and one which we should seek to safeguard. Perhaps the Minister will reassure us when she replies to the debate.