Lords Sitting of 3 August 1972

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.
The Earl of Oxford and Asquith—Took the Oath.

SEABED CONFERENCE
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress has been made at the Seabed Conference at Geneva in the preparation of a draft treaty for next year's international conference.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, preparations for the International Conference on the Law of the Sea due to be held next year have been slow. However the United Nations Seabed Committee has made some progress on an international Seabed Convention.
LORD BROCKWAY: My Lords, while thanking the noble Baroness for that rather indefinite Answer, may I ask whether she is aware that one cannot deal with this matter by interrogation? Further, is the noble Baroness aware that I have put down a Starred Question only because of the unpopularity of Unstarred Questions? Will Her Majesty's Government consider, when they are preparing this international draft, the advantages and disadvantages of three alternative methods: first, control by multi-national companies which within three years can go to a depth of 3,000 metres; secondly, control by nation-States, which would be a new form of colonialism; and, thirdly, control by an international authority which could use these resources for the benefit of all peoples?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I think that the noble Lord's question amply justifies what he said at the start of his remarks: it is a very difficult subject to discuss by question and answer. But on his specific question as to whether one would consider three different forms for the control of the seabed: multi-national companies, nation-States or an international authority, that is just the kind of question which is being considered now and which, because of its difficulty, is taking so long to resolve.

OVERLOADING OF LORRIES
3.9 p.m.
VISCOUNT HANWORTH: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what further steps they are taking to enforce the law and prevent overloaded lorries being used on the road.
THE PARLIAMENTARY UNDERSECRETARY OF STATE DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, Her Majesty's Government are much concerned about the problem of overloaded lorries. In January of this year my right honourable friend the Minister for Transport Industries implemented statutory provisions under which enforcement officers may prohibit the movement of vehicles overloaded to the point of danger. Earlier this week the Road Traffic (Foreign Vehicles) Act 1972 came into force. This closes loopholes which have hitherto prevented our laws being enforced on foreign vehicles in this country. More weighbridges are being provided and further measures are being considered.
VISCOUNT HANWORTH: My Lords, while thanking the Minister for that reply, may I ask him why he thinks it is that Nottinghamshire had 22 per cent. of the total convictions in 1972 for overloaded lorries, when they have only 0·8 per cent. of the road system? Does the noble Lord think that if Nottinghamshire can enforce law, other counties also could do it?
LORD SANDFORD: My Lords, I should like to thank the noble Lord for

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giving me the opportunity to pay tribute to the activities of the Deparament's Nottinghamshire staff. They work very closely with the police, and statistics the noble Lord mentioned include the Department's effort in this direction.
LORD POPPLEWELL: My Lords, could the noble Lord give us some idea of the Government's intentions about the appointment of more inspectors or interrogators, as distinct from the police?—because at the present moment the police check, of necessity, can only be a very casual one. This evil is growing to an alarming degree, and talk has been going on for quite a long time about the appointment of law enforcement officers. I do not like too many law enforcement officers, but I think that this is a matter of some importance.
LORD SANDFORD: My Lords, the Department's staff has been increased from 181 to 195, and it may be increased further.
LORD LEATHERLAND: My Lords, is the noble Lord aware that almost daily we receive reports of gas mains and water mains bursting, with consequent great interruption of traffic? Does he not think that the presence of so many of these heavy lorry-loads on the roads has something to do with that?
LORD SANDFORD: My Lords, I note the noble Lord's question and I will certainly look into it.
LORD CHAMPION: My Lords, the noble Lord praised Nottinghamshire. May I ask whether the reason for their success is the fact that they have an unfair proportion of enforcement officers? If not, what is the reason for success in this particular county? Further, does the noble Lord not agree that all the rest of the country is suffering from the fact that we see so much of this overloading, particularly at this time of the year, when there are loads of bales of hay and straw which are dangerously loaded and not properly secured?
LORD SANDFORD: My Lords, Nottinghamshire is figuring largely in this exchange because it was featured in the article in the magazine, Drive.
LORD SLATER: My Lords, is the noble Lord aware that the general public have concluded that a mockery is being
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made of the police authorities throughout the country who are dealing with the problem of overloaded lorries? Many of the police authorities are not up to their full establishment, and they do not know what to do to attract more people into their service in order to get up to their full establishment.
LORD SANDFORD: My Lords, the noble Lord knows that while I can speak directly for the Department's own staff, the police authorities and the weights and measures inspectors used for these enforcement purposes are employed by the local authorities. It is a matter for them to judge the priority that enforcement work must take.
LORD ORR-EWING: My Lords, bearing in mind the fact that the police are already heavily overloaded, that they are asked to keep a check on fumes from lorries, on the overloading of lorries, and on the testing of brakes of lorries, and when they have so many other wide responsibilities in the field of crime, is it not unrealistic to continue piling responsibility on to the police? Would the Minister consider alternative methods of carrying out these inspections and bringing these lorries under proper control?
LORD SANDFORD: Yes, my Lords, certainly. In addition to the measures that I have mentioned, we are considering further moves. We are of course aware of the need to avoid distracting the police from other pressing duties.
BARONESS SUMMERSKILL: My Lords, can the noble Lord say what is the maximum penalty for overloading a lorry?
LORD SANDFORD: No, my Lords; not without notice.
VISCOUNT HANWORTH: My Lords, is the Minister aware that a responsible estimate of the proportion of overloaded vehicles on the roads is one in ten? Is the Minister also aware that, of the deaths occurring to occupants of cars and light vans, at least half are caused by those vehicles coming into collision with lorries?
LORD SANDFORD: My Lords, if I may say so, it is only too easy to arrive at conclusions of that kind as a result of reading the article in Drive. But in fact the heavy lorry accident rate is the

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lowest for any category of vehicle. It is not that 10 per cent. of all lorries are overloaded, but that 10 per cent. of all lorries checked are found to be overloaded. Lorries are not checked unless, first of all, there is a suspicion that they are overloaded.
LORD POPPLEWELL: My Lords, will the noble Lord forgive me for pressing my question again? This matter of the appointment of additional investigating or interrogating officers has been under discussion for a great number of years. Is the Minister able to indicate when he hopes to be able to make a statement giving some indication of the number that he ultimately aims at, in order to reach a satisfactory solution to this problem?
LORD SANDFORD: My Lords, I did not just say that we were considering an increase. I said that we had increased the staff from 181 to 195. We may increase it further.
LORD BLYTON: My Lords, is the Minister aware that the complaints to which we have listened—and they are justifiable complaints—are nothing to what we shall have when we go into the Common Market, and have harmonisation of our road transport with the Continental vehicles?

PARKING FACILITIES IN THE WEST END
3.17 p.m.
LORD SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their attitude towards the construction of an underground car park adjoining the new Green Park Underground station.
LORD SANDFORD: My Lords, my right honourable friend has no plans to build such a car park.
LORD SEGAL: My Lords, while thanking the Minister for that reply, may I ask whether, while the Government have declared themselves against an underground car park under St. James's Park and under Kensington Gardens, they
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can be equally forthcoming on the subject of Green Park?
LORD SANDFORD: My Lords, I should not have thought it was possible to be any more forthcoming than I have just been. My right honourable friend has no plans to build such a car park.
LORD SEGAL: My Lords, would not the noble Lord agree that something ought to be done to relieve the congestion at present caused by motor coaches all the way down Constitution Hill and along the Mall? Could not something also be done to encourage motor drivers to leave their cars in the West End and travel to the City by public transport?
LORD SANDFORD: My Lords, the noble Lord is now raising much wider issues. I agree that there is certainly scope for looking into all these matters, and I can confirm that they are being looked into.
LORD STRABOLGI: My Lords, may I ask the noble Lord whether the Government will look into the question of constructing underground car parks—if we must have them—under open spaces where there are no trees? Will the Government study what has been done in Paris?
LORD SANDFORD: Yes, my Lords.
BARONESS STOCKS: My Lords, may I ask a supplementary question on the matter of Green Park? Can the noble Lord explain the immense works that are going on there with bulldozers, and much else, at Green Park well behind the extended Tube station? Is that anything to do with a projected car park?
LORD SANDFORD: My Lords, as I have said, there is no plan to build a car park there. The work to which the noble Baroness has referred is in connection with the construction of the Fleet Line.
LORD SEGAL: My Lords, can the noble Lord inform the House whether it is intended to restore Green Park to its original attractive appearance, and when this is likely to be completed?
LORD SANDFORD: My Lords, the London Transport Executive are likely to require the site until 1976. Certainly, as soon as they have finished with it the Park will be restored.

PEST CONTROL AND CROPS DAMAGE
LORD HAWKE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether in view of the harassment of horticulturists by ever increasing swarms of pigeons, rabbits, bullfinches, grey squirrels and, in some parts of England, deer, they will consider the reintroduction of anti-pest schemes.
EARL FERRERS: My Lords, it is the responsibility of occupiers, including horticulturists, to take their own control measures against pests on their land. The agricultural Ministers have enforcement powers under Part V of the Agriculture Act 1947 and these are exercised as appropriate. I should point out, however, that reports which my right honourable friend receives regularly from all parts of the country do not lead to the conclusion which my noble friend's Question implies.
LORD HAWKE: My Lords, I thank the noble Earl for his reply, which is flatly in contradiction of my own experience. Am I right in thinking that a number of years ago rabbits were alleged to do £50 million-worth of damage to agriculture? At to-day's prices that would be well over £100 million. Am I not also right in thinking that squirrels are doing great damage to all the plantations in the country; that bullfinches are ruining plant and apple orchards so that some growers are grubbing them up; that many farmers are giving up growing brassicas because of the plague of pigeons, and that the Forestry Commission has only one deer clear to cover the whole of the South of England?
EARL FERRERS: My Lords, I am not sure that I could confirm all the matters about which my noble friend has asked. I would only tell him that I accept that in some parts of the country there are problems; but my right honourable friend's Department carries out surveys and has come to the conclusion that, on the whole, there is not a great increase in the number of these animals. I would confirm that before 1954 about 94 per
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cent. of all farms had rabbits, that now only about 60 percent. Have rabbits and that only 2 percent. are badly infested with them.
LORD DAVIES OF LEEK: My Lords, is the noble Lord aware that some of us would prefer to have a swarm of pigeons, a bunch of rabbits, bullfinches taking the top off the milk and grey squirrels, than to have lorries which we cannot control? If we are going to listen to every egghead who, with his mortar and pestle, is producing poisons in the countryside, this country will be denuded of some of the lovely things which God has created. I would rather be in a country where bullfinches sang and where it may have cost nothing to keep them. The ox that treadeth his corn should not have a muzzle.
EARL FERRERS: My Lords, I think the answer to that rather depends whose corn he is treading.
LORD HALE: My Lords, may I declare a personal interest in this matter, because since I have been here grey squirrels have been occupying my home for longer periods than I have? Is the noble Earl aware that when Her Majesty's then advisers elevated the civic rat catcher to a distinguished rodent officer they forgot to tell him what a rodent was? The grey squirrel is a rodent. Might not a little information be helpful to those of us who are suffering what is a real and difficult plague?
EARL FERRERS: My Lords, as my original Answer indicated, it is the responsibility of occupiers to take their own control measures. If I found my house occupied by grey squirrels, as the noble Lord does, I would take measures to try to get rid of them.
LORD MAYBRAY-KING: My Lords, will the noble Earl assure us that whatever his noble friend has said about the rabbit he will never tolerate the reintroduction of the control of rabbits by myxomatosis?
EARL FERRERS: My Lords, in fact, myxomatosis is the cause of the greatest control of rabbits at the moment.
LORD SHACKLETON: My Lords, is the noble Earl aware that on the occasion

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when there was a bounty (I cannot remember whether it was on pigeons or squirrels) the Chief Scientific Adviser of the Forestry Commission and of the Nature Conservancy said that it was as effective as erecting a six-inch high sea wall round Britain to keep out the sea?
EARL FERRERS: My Lords, I was not aware that that statement was made. I do not think it concurs with the advice that I am given with regard to the control of squirrels.
BARONESS HYLTON-FOSTER: My Lords, is the noble Earl aware of the very high cost of the materials that may be used to deter animals from nibbling at vegetation and also of the high cost of cartridges? Would he look into this?
EARL FERRERS: My Lords, yes, I am aware of the high cost of both these deterrents. Some time ago Her Majesty's Government used to subsidise the cost of cartridges for the destruction of wood pigeons, but it has been considered more appropriate that this cost should be borne by the occupiers themselves rather than subsidised by the taxpayer.
VISCOUNT MASSEREENE AND FERRARD: My Lords, would not my noble friend agree that if Her Majesty's Government were to introduce pests officers, and if we were to have hordes of pests officers as we had at one time, they would be likely to become just as great pests as the pests they were supposed to limit?
EARL FERRERS: My Lords, I entirely agree with my noble friend. I do not think this would have the desired effect.

PERSONAL STATEMENT
3.26 p.m.
LORD SHINWELL: My Lords, by arrangement with the Leader of the House may I ask the indulgence of your Lordships to make a brief personal statement? In the course of the recent debate on the Common Market reference was made to a confrontation between the noble Lord, Lord Gladwyn, and myself at the London School of Economics a few years ago. On that occasion there was an allegation that a meeting was being packed. In the course of my observations during the
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debate I ventured to associate the noble Lord, Lord Gladwyn, with the packing of the meeting. That was a most improper observation. The noble Lord was in no way associated with the allegation or what may have happened, and I ask leave to withdraw unreservedly the imputation.

BUSINESS
LORD DENHAM: My Lords, it is expected that with the leave of your Lordships' House my noble friend the Leader of the House will be making a Statement at a convenient moment after 3.30 p.m. on the Proclamation of a State of Emergency.
LIVERPOOL CORPORATION BILL
Read 3a, with the Amendments, and passed, and returned to the Commons.

EUROPEAN COMMUNITIES BILL
3.27 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Jellicoe.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Short title and interpretation]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 1:
Page 1, line 18, leave out ("taken with") and insert ("and")
The noble Lord said: This would appear at first sight to be merely a drafting change perhaps devoid of any real importance. In the context in which the words appear a change of that sort does to some extent impinge upon principle and is of some importance for the reasons which I would now venture to give. Clause 2, by a process that your Lordships may wish to investigate in rather more detail later in our proceedings, makes auto-

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matically part of the law of England the actual wording of a great many Treaties. From the time that this Bill becomes law—as I hope it will—the words in those Treaties to which Clause 2 appertains will be as much a part of the law of England as any Finance Act, Bill of Rights or any other Act. That being the effect of Clause 2 it becomes absolutely imperative that the Committee should know precisely what Treaties we are talking about. In order to know what those Treaties are one has to turn back to Clause 1, which is the definition clause, in which one should find clearly and specifically set out what those Treaties are.
As a matter of general complaint, I would venture to say this. The situation being as I have, I hope, correctly described it, it would, I should have thought, have been highly desirable that all those Treaties that fall within the scope of Clause 1 which have up to this moment been entered into should be actually listed, perhaps in a Schedule to the Bill. A liege should know what are the Treaties portions of which are, from the time of the passing of this Bill, to be in their actual wording part of our own law.
My first complaint is that those Treaties are not listed. One has to work them out by seeking to apply the definition in Clause 1 of the Bill. In those circumstances, I submit that it is of the greatest importance that that definition should admit of no doubt in its interpretation if any change can be made which makes it more precise in its application. The definition refers to the:
"the Treaties' or ' the Community Treaties '"
as meaning in the first place
"pre-accession treaties, that is to say, those described in Part I of Schedule 1".
That is clear enough. Then follow the words "taken with" and then paragraph (a) which refers to the Treaties that were entered into on January 22, 1972, which in the Bill is described as the entry date; namely, the date on which the Treaties were entered into making this country, as from January 1, 1973, a member country of the European Community.
It is in the middle of that definition that these words "taken with" appear. I cannot myself discover or think of any
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reason why the extremely experienced and skilful draftsman whose work this is did not use the ordinary English word "and". What is the difference between "and" and "taken with"? I should have thought that in ordinary parlance, if one were asking oneself what Treaties one is talking about, one would say, "Treaty A and Treaty B and Treaty C and Treaty D. "That, I should have thought, admits no doubt. You are talking about those four Treaties. But I cannot quite make out what the draftsman had in mind when, instead of using that simple English precise word "and", he substituted for it the words "taken with". Therefore, in his drafting "the Treaties" means the pre-accession treaties set out in the Schedule taken with the accession Treaty, if I may so describe it, of January 22, 1972. What does that mean? Does that mean that both of those Treaties come within the definition, or does it mean that both are to be regarded as constituting one Treaty?
I would ask the noble Earl who I believe will reply to this debate: What is the difference between the expression that the Treaties we are talking about are "Treaty A and Treaty B", and the expression that the Treaties were are talking about are "Treaty A taken with Treaty B "? My respect for the draftsman is so high that I am sure there must be a perfectly simple reason which has eluded me. I have been puzzling over it, but I have not yet lighted upon the reason which would explain the matter at any rate to me. I therefore put this Amendment before your Lordships for consideration as a matter of some importance, because it is essential that we should know, as they are not listed, what it is we are talking about. I would ask the noble Earl the Leader of the House if he would be so good as to give me the answer to the simple question: What is the difference between the expression "pre-accession treaties and the accession Treaty", on the one hand, and the expression, "pre-accession treaties taken with the accession Treaty", on the other hand? There must be some difference. There must be some reason why the draftsman has chosen that terminology, and I should be very grateful indeed if the Government would be so kind as to say what that is.
I am perfectly prepared, so far as I am concerned, to assent to the position if there is a reason. But if there is not, I would respectfully submit to your Lordships that this is an example, to which we should attach importance, of a lack of precision which could have been avoided, in a context where precision is of the highest possible importance. That is the case I venture to put before the Committee, and I hope it will be given an answer which will answer the simple question which I have, probably only too innocently, asked.
THE LORD PRIVY SEAL (EARL JELLICOE): May I—
LORD BESWICK: I want to say, if I may be allowed to say, following my noble friend, and my name is down to the Amendment—
EARL JELLICOE: May I interrupt the noble Lord for a moment to say that the Home Secretary has now started to make a Statement in another place, and if it is for the convenience of your Lordships' House I would beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

DOCKS STRIKE: STATE OF EMERGENCY
3.35 p.m.
EARL JELLECOE: My Lords, I have it in command from Her Majesty the Queen to deliver to your Lordships a Message respecting the declaration of a State of Emergency. The Message is as follows:
"The Emergency Powers Act 1920, as amended by the Emergency Powers Act 1964, having enacted that if it appears to Her Majesty that there have occurred, or are about to occur, events of such a nature as to be calculated by interfering with the supply and distribution of food, water, fuel or light or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, Her Majesty may by Proclamation declare that a State of Emergency exists. And the present stoppage of work among persons employed in the ports, having in Her
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Majesty's opinion constituted a State of Emergency within the meaning of the said Act of 1920, as so amended, Her Majesty has deemed it proper, by Proclamation dated August 3, 1972, and made in pursuance of the said Act of 1920, as so amended, to declare that a State of Emergency exists."
My Lords, I should now like, if I may, to repeat a Statement which my right honourable friend the Home Secretary is making in another place. It is as follows:
"With permission, Mr. Speaker, I wish to make a Statement.
"The Government consider that the present industrial situation in the ports constitutes a threat to the essentials of life of the community which is sufficiently serious to justify taking immediate emergency powers to maintain essential services. They have therefore thought it right to advise the Proclamation of a State of Emergency under Section 1 of the Emergency Powers Act 1920, as amended, followed by the making of emergency regulations under Section 2.
"The regulations will come into force at midnight to-night. Copies will be available this afternoon."—
I understand, at 4.30 p.m., my Lords—that was an interjection into the Home Secretary's Statement.
"I shall shortly make an announcement about the arrangements for debating the usual Motions on the Address and the regulations. The regulations are almost identical with those made last February; the only significant change is a new regulation to facilitate the supply of medicines.
"The use of the powers will be limited, as always, to what the essential public interest requires and it is premature to say what orders may have to be made under the regulations."
My Lords, that concludes the Home Secretary's Statement. Before I resume my seat I should perhaps mention to your Lordships that I understand it has been agreed through the usual channels that the House may be asked to consider Her Majesty's Message and a Motion to approve the regulations on Wednesday, August 9, at about 7 p.m.
LORD SHACKLETON: My Lords, it is customary to thank a noble Lord for making a Statement, however unwelcome it may be. So I do thank the noble Earl, though perhaps I may register one small complaint. It is one of the courtesies of the House to enlighten the Front Bench opposite that a Statement is about to be made. That might have saved the eyeball-to-eyeball confrontation between my noble friend Lord Beswick and the noble Earl. I realise that there is probably not a Government Whip—oh yes; there is a Government Whip present. This is usually done, but I realise that the Government Front Bench are in such chaos at the moment that they cannot remember these courtesies.
It is, of course, a very serious Statement. This is not the time to debate it. I have not seen the Orders. I take it that they are those with which, one way and another, we have been familiar—with perhaps one exception—for a number of years. We shall have an opportunity to debate the matter on Wednesday. Indeed, it was partly in anticipation of this situation that we were having our debate that was so tragically interrupted the other night. Of course time is very short. I hope the Government will continue—and this, I take it, is the reason for this Proclamation now—their more cautious posture. Also, I again beg the Government not to go on making provocative remarks that may exacerbate the situation, which has developed largely from the Industrial Relations Act.
LORD GLADWYN: My Lords, I can only say on behalf of my colleagues on these Benches that we believe the Government are entirely right to declare a State of Emergency at the present time, and we can only hope that before we come to debate it next Wednesday the dockers' strike will have been ended and the powers will no longer be needed.
EARL JELLICOE: My Lords, I am grateful for the reception which both the noble Lord the Leader of the Opposition and the noble Lord, Lord Gladwyn, have given to the Statement which I have repeated. All I can do is to echo the hope which the noble Lord, Lord Gladwyn, has expressed and which I think was also implied in the remarks made by the noble Lord, Lord Shackleton: that the present dispute in
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the docks, with all its very serious implications, will be terminated in the, near future. That is certainly the ardent wish of Her Majesty's Government.
LORD SHINWELL: My Lords, may I ask the noble Earl the Leader of the House one question? Is it not the case that the Emergency Regulations are necessary, not because the situation has become really critical but because it is necessary that these regulations should be taken in the other place within a stipulated period, and that that would involve recalling the Members of the other House? Is that such a serious matter? Would it not be far better for the other place to remain in session a little longer rather than to present regulations now which seem to imply that the situation has become critical and could possibly lead to panic hoarding of foods and other supplies?
EARL JELLICOE: My Lords, it is not for me to comment on the timetable or the programme in another place, and I should like to assure the noble Lord, Lord Shinwell, that these powers have not been taken as a result of considerations regarding the Parliamentary programme but rather as a necessary precaution. I think that at this stage no one can predict to what extent any of these powers might have to be used and in what precise timing. If the strike were to continue any longer, as we all hope it will not, the threat to the essentials of the life of the community would become graver.
A practical point is that under the regulations port emergency committees can be set up, and this, in the view of the Government, is a necessary precaution. Of course, as the noble Lord, Lord Shinwell, will have noted, there are emerging certain areas of shortage—such as animal feedingstuffs—which are becoming really quite serious.

EUROPEAN COMMUNITIES BILL
3.46 p.m.
House again in Committee.
LORD BESWICK: We shall listen with particular interest to the answer that is given by one of the noble Lords or by the noble Baroness opposite to the case that was put by my noble and learned

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friend Lord Stow Hill. As he said, this is not simply a probing Amendment. It certainly is not a wrecking Amendment. We believe it to be, and it is certainly intended to be, an improvement to the Bill. If, on balance, Her Majesty's Government accept that my noble and learned friend, a very distinguished and ardent supporter of the Community, has put forward an improvement then we shall know that the assurances that were given by the noble Earl, Lord Jellicoe, on Second Reading, about listening to the merits of each Amendment, were fully meant and we can then go on to what I hope will be a useful and constructive Committee stage. If, however, there is read out the kind of negative, prepared brief which we heard so often during the unhappy Committee stage of the Industrial Relations Bill, then of course we shall have to draw our own conclusions. For our part, however, we are fully prepared to listen sympathetically to what is said.
I should like just to add another word or two on the merits of the Amendment. As my noble friend said, its purpose is to give added precision to the meaning of the Bill. If there is one thing which will emerge, I believe, throughout this Committee stage it is that we are about to see a quite appalling blight of uncertainty settling on a very large body of our English law. So much of our legal system will then become imprecise in language and unclear in meaning. The whole purpose of this Bill is to superimpose upon our legal system a totally different principle of law making. Hitherto an Act of Parliament was hand made, custom built. It was the initial product of a skilled professional draftsman and it was scrutinised and polished by the two separate Houses of Parliamentarians to ensure that the words used were precisely those needed to achieve an agreed objective.
If I venture to give the appearance of pre-empting arguments which undoubtedly will be used about the rest of this clause it is because this Amendment is such an excellent example of how, through the years, by debate in Committee stage, we have learned to appreciate the importance of each single word and phrase that was destined to go upon
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the Statute Book. It may well be that this Bill will be the last example of a piece of legislation dealing with really major matters to go through this process which we have evolved. There is all the more reason, therefore, why we should use this opportunity to the full. Unless Ministers can produce quite significant reasons to the contrary I much hope that they will be able to accept this Amendment.
EARL JELLICOE: I am grateful to the noble Lord, Lord Stow Hill, for his very clear exposition of the purpose of his Amendment. I must apologise to the noble Lord, Lord Beswick, for unwittingly interrupting him; as he knows, no discourtesy was intended. I should like to say by way of preface that the substantive effect of the noble Lord, Lord Stow Hill's Amendment would be nil; it would neither add any Treaties to the definition, nor would it remove any Treaties from the scope of the definition. And may I say, again by way of introduction, that I was rather surprised to hear the noble Lord, Lord Stow Hill, assert that all the Treaties defined in Clause 1, which is, of course, a pure definition clause, as he knows, were to be incorporated into the law of England by Clause 2. This is not really correct.
LORD STOW HILL: I am sorry to interrupt. I did not, with great respect, say that. What I said was that parts of them were: those parts which fall within the scope of Clause 2; those parts which constitute rights, powers, obligations and so on.
EARL JELLICOE: Then I think the noble Lord and I are closer together. It would, of course, depend whether the Treaty included provisions which were directly applicable as a matter of Community law. Unless that were the case, Clause 2 (1) would not be involved. But I do not think the noble Lord and I are far apart on this particular point.
I think it might help the Committee if I were to explain, as briefly as I may, that Clause 1 (2) includes in the definition of the Treaties three separate categories of instrument. First, there are the pre-accession Treaties, that is, those set out in Part I of Schedule 1. Second, there is what I would like to term the accession complex, that is, the Treaty of Accession

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and the decision—I would lay some weight on that—of the Council; and third, the future Treaties, about which it is likely that a good deal may be said on later Amendments to this clause, and about which I will not expand in answer to the first Amendment. All these categories are defined in Clause 1 (2) as comprised within the terms "the Treaties" or "the Community Treaties".
It might be thought very natural—and indeed, when I saw the noble Lord, Lord Stow Hill's Amendment I was inclined at first blush to think it was natural—to link all three categories with the simple conjunction and", as the noble Lord, Lord Stow Hill, has proposed. Nevertheless, I must explain to your Lordships that the Amendment would be technically incorrect, and that the words "taken with" were not dreamt up, as I know the noble Lord, Lord Stow Hill, would recognise, given his knowledge of the pen that drafted this Bill; that those words "taken with" were carefully and consciously adopted in preference to the word "and", and this was for a very precise reason. I would agree with him that in this important Bill we must be precise.
The reason is that the Bill must take into account the fact that the decision of the Council of the European Communities relating to the accession of the United Kingdom to the European Coal and Steel Community, which is referred to in paragraph (b) of subsection (2), is not itself a Treaty. It is, as its title makes clear, a decision of the Council. Nevertheless, its terms are important because they set out the basis on which we become members of the European Coal and Steel Community, and they in some respects amend the provisions which will apply in the context of that particular Community. It is, therefore, entirely necessary—and I believe that there can be no dispute about this—for this decision to be taken into account in the definition of the Community Treaties. But at the same time it must be done in such a way as to accord to the decision a proper recognition of its status as a Council decision. It is for that reason that the words "taken with" are adopted in the Bill.
It is also necessary to make clear that the Treaty of Accession and the decision of the Council are not themselves pre-accession Treaties in the sense in which
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that term is used in the Bill as meaning pre-January 22, 1972, Treaties. They were not entered into before January 22, but they were in fact entered into on that precise date. The words "taken with", carefully imported into the drafting, avoid any possibility of reading the reference in lines 16 to 18 on page 1 to "the pre-accession treaties" as including the Accession Treaty complex. Nevertheless, the Accession Treaty complex is closely related to the pre-accession Treaties, and they must obviously be read together, and the words "taken with", I would claim, bring this point out precisely.
LORD BESWICK: Before the noble Earl leaves that matter, when he says they must obviously be taken together, does he mean that we have to accept what is said in them or not? Do they apply to us or not, and if they apply, why cannot we refer to them simply as another Treaty?
EARL JELLICOE: Of course they apply to us. That must be crystal clear to the noble Lord.
LORD BESWICK: The noble Earl has said it must be crystal clear to me. What appears crystal clear to me is that if they apply to us equally with others why cannot they simply be listed as additional Treaties? Thus the conjunction "and" is therefore absolutely in order.
EARL JELLICOE: The noble Lord may care to reflect on this a little further, because I was making a rather carefully argued reply, and this is a very technical area. I think he might come to the conclusion that here there is force and logic behind the use of the words "taken with".
There is another reason for the use of this phraseology, and that is the need to mark clearly the prime importance of the Treaty of Accession and the Council decision. Without them the pre-accession Treaties are irrelevant, and with them the pre-accession Treaties are in many respects amended. By using a phrase such as "taken with" the special significance of the Treaty and of the decision is given due recognition.
I should like to say straight away, if I may, in answering this first Amendment, that I feel some trepidation in venturing

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into the deep waters of Clause 1—and they are deep waters, and not at first sight the easiest waters in which to swim. I have considerable consolation in that I of accompanied there by so good a swimmer as my noble friend Lady Tweedsmuir of Belhelvie, and buoyed up, if need be, by the legal waterwings of the noble and learned Lord the Lord Chancellor, and by my noble friend Lord Colville of Culross. I would say to the noble Lord, Lord Stow Hill, that on balance, for the reasons that I have given, I cannot accept that the phraseology, which would appear to be very simple—the importation of the little word "and" would be an improvement on the carefully calculated use of the words "taken with". They are there for the reasons I have given and in order to import a necessary precision in view of the fact that the decision of the Council of European Communities relating to our ac scion was, in fact, a decision and not a Treaty.
4.0 p.m.
LORD SHACKLETON: May I interrupt the noble Earl? I am bound to say—and I make no personal reflection on the noble Earl—that if this is a foretaste of the debate which is to extend before noble Lords for some time to come then I am sure the great part of it will be totally unintelligible to your Lordships. I say this in no disrespect to the intelligent and cheerful faces of noble Lords sitting behind the noble Earl at the moment but it is a measure of the technical difficulty of this Bill. This Amendment is really a relatively simple one. It is one in which I think I understood both the learned and noble Lord, Lord Stow Hill, and indeed the noble Earl, even though he did not convince me. The important point that I should like to reiterate is that this is a definition clause, although to an ordinary layman it seems to go further than definition. A definition clause has a particular significance—and this is the point my noble friend has made, and we shall come back to it in the light of the statements made by the noble and learned Lord the Lord Chancellor on Second Reading—in that in certain respects it has a binding effect on future legislation. A definition clause has great significance. I may be wrong here; but I do not think I am, because
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I have had some very good legal advice—in fact, what I am saying has come from none other than lawyers, because only lawyers can understand this Bill.
I am encouraged by the way in which the noble Earl dealt with the first Amendment. He may have thought that this was comprehensible at least to him and me, but I am still not entirely convinced by his argument because if he is saying it is appropriate, as I follow the argument, to apply the words "taken with" to a decision, it does not appear to me to be appropriate to apply it to the Treaty relating to accession, which is a Treaty. We know that in this Bill a Treaty can be almost anything. Again, it has the Pickwickian or Conservative Government sense and not that which the ordinary layman attaches to a Treaty. It can, as noble Lords know, be protocol, and I would have thought it could almost be a decision. If we are going to play with words why not say that a decision is a Treaty? My noble friend Lord Stow Hill, who really does understand what he is talking about (and I feel very thankful for that) may well be satisfied with the noble Earl's answer; but I must say that, hoping to be satisfied, I am not. I am wondering whether the Government ought to undertake to look at this again, and perhaps allow this simple Amendment to be made so as to see the consequences. It would be perfectly easy, if necessary, for them on Report stage or on Third Reading—we have lots of time—to put the "taken with" in before paragraph (b), the decision. What I cannot understand is why we need to have "taken with" applied either to paragraph (a) or, indeed, to the part of the Bill to which we shall be coming, in lines 5 to 8, which are also Treaties. It may be that it is thought to be more convenient.
There is this point that I would stress to noble Lords. This is a very important Bill. It is brilliantly drafted—so brilliantly drafted that most of us laymen cannot understand it. It probably fulfils the purpose intended for it. But I would have thought this a reasonable Amendment, and to my mind its acceptance might also show a willingness on the part of the Government to meet attempts to improve the Bill, which we are genuinely anxious to do. I stress this. This is not just a Party political move; it is an attempt, especially by those of

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us who have supported entry, to try to remove anxieties on some of those points which I think have been exaggerated by those who are opposed to entry. But it is not helpful if we are unsuccessful in doing that.
LORD FOOT: Before the noble Lord replies may I intervene for a moment because I think the Committee is confronted at this early stage in the consideration of this Bill with a question of fundamental importance; that is, how the consideration of these various Amendments are going to be dealt with by the Government. The first Amendment is one which simply goes to the wording of the Bill, and is an attempt to improve and make more precise its meaning. It is a test case. It is a test of whether the Government are prepared to listen to argument and decide these matters on merit, or whether a decision has already been made that the Bill is going to be driven through this House without Amendment of any kind, as it was driven through the other place. This is a basic question which clouds the whole of the discussions that we are to have. I should like to ask the noble Earl, Lord Jellicoe, whether this small Amendment is being resisted on its merits or because the Government have already decided that they are not going to accept any Amendment of any kind. I think we are entitled to be told this. We are entitled to be told whether a decision has been made. If it has been made, then all the time we are going to give to this Bill, supposedly talking about various Amendments on their merits, is a pure waste of time and the constitutional function, the revising function, of this Chamber to which the noble Earl. Lord Lauderdale, was speaking on Second Reading, is going to be thwarted throughout the long deliberations, and the deliberations are going to be a prolonged farce.
I find the reply of the noble Lord—and I hope my noble friend Lord Stow Hill will agree—totally unconvincing. I ask myself the question: if the Government were dealing with this Bill as they would deal with any ordinary Bill—for instance the Local Government Bill—where they were not under the domination of a timetable, and if they had not made up their minds to resist all Amendments, should we have heard a speech such as
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we have had from the noble Earl in reply to this Amendment? What are the two points he made? He says that the words "taken with" must be used because the word "and" would not be appropriate to the decision of the council under (b). If that is the case, then put the words "taken with" after (a) and before (b), before "the decision". Another reason the noble Earl gave for preferring "taken with" to "and" was this. He suggested that if you insert "and" there might be a risk of someone supposing that the Treaty under (a) was one of the pre-accession treaties, but the very use of the word "and" makes it clear that it is not. The use of the words "taken with" is more ambiguous if you are trying to make it clear that the Treaty referred to in (a) is not one of the pre-accession treaties. If the Committee is going to be dealt with in this way during our long discussions, and if we are going to be asked to accept arguments of the frailty which have just fallen from the noble Earl, then we might as well go home because we are wasting our time.
BARONESS EMMET OF AMBERLEY:I must say one word in support of the noble Earl the Leader of the House. I am not a lawyer, and I understood his explanation perfectly. I found it completely satisfactory, and I do not know what the fuss is about.
4.10 p.m.
LORD SHINWELL: Before my noble friend replies to the debate may I offer a few observations? I did not expect that we should be in such a muddle so early in the proceedings. The noble Lord, Lord Foot, sought to inject more clarity into the debate so far as this Amendment is concerned, but I confess that I am completely in the dark. I should not be at all surprised if I were not the only Member of your Lordships' House in that situation. What surprises me more than anything else is that my noble friend and Leader, Lord Shackleton, accepted the Bill, hook, line and sinker, without any reservations whatever, and now he is concerned about definitions. I should have thought that before we proceed to the general we should concern ourselves about the particular. We ought to define our terms and know what we are talking about know where we are going on the road to our destination. He is in precisely the same position as

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my noble friend Lord Stow Hill, who is now concerned about the legal niceties and whether we should use this term or that term.
We are going to be involved in a long argument about semantics, and at the end of the day what is going to happen? Along will come the members of the legal fraternity. The noble Earl the Leader of the House has promised that. I think he did very well himself. He did his best to explain the matter and as a layman I could not have done better myself. But now we are going to have the noble and learned Lord the Lord Chancellor, the noble Viscount, Lord Colville of Culross, and no doubt other legal luminaries who are going to explain these matters most meticulously, but forgetting something. I know it is wrong, it is improper, it is a violation of procedure—at least I suspect it is—to speak about what happens in the other place. However, I have been reading the debates in the other place, and the debate that took place only the other day when they were discussing whether a decision to enter the Common Market was irreversible or reversible.
At the end of the day, the Solicitor Generally, who has had a large say—probably all the say—in the drafting of this remarkable Bill admitted after a long debate, that it was reversible. That is to say, you can go into the Market and some day you can come out. It would be quite improper to do it, it would be an act of discourtesy to do it, but there was no legal obstacle in the way; once you are in you can come out. I am a bit doubtful about that myself, and no doubt we will come to that subject later in the Committee stage. I ventured to make the observation during the debate last week that there would be a legal quibble about this Bill. There has been one, there will be one before we go in for the rest of the period until 1973, and there will be many legal quibbles afterwards. At the end of the day not only the general public will be left in the dark; I should not be at all surprised if many Members of your Lordships' House will be without the necessary information to come to a rational conclusion as to whether or not we should have gone in.
Let the lawyers come along; let them explain, and let them clarify the issues. All the better. But is it not astonishing
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that at the very beginning of our debates we should be engaged in a discussion on semantics, and that the noble Earl the Leader of the House, with all his ingenuity, his courtesy, and his goodwill fails to convince those Members of your Lordships' House (who are not like me, against going into the Common Market) like my noble friend the Leader of the Opposition, my noble friend Lord Stow Hill and the noble Lord, Lord Foot, all of whom are pro-Common Marketeers?
4.16 p.m.
LORD STOW HILL: I hope that the noble Earl will allow me to say without presumption that, in my opinion at any rate, he has no reason whatsoever to fear the deep waters. I thought he breasted the waves most gallantly and that he produced a carefully-thought-out and most admirable answer which had only one defect—it was wholly inadequate. May I seek to demonstrate why in my opinion it was in that sense inadequate? The noble Earl began by saying that if one accepted the Amendment which I proposed, namely, to substitute the word "and" for the words "taken with", it would produce no result. That is simply saying that "taken with" means no more and no less than "and". If that is so why not use the simple English word "and"?
Then the noble Earl, perhaps slightly inconsistently, said that nevertheless there were two very good reasons why in this context one should use the words "taken with" instead of "and". The first of those reasons was that if one turns to Clause 1(2)(b) one sees a reference to the decision of the Council relating to the accession of the United Kingdom, and that that decision does not constitute a Treaty. If that were so I still would not follow why one should not use the word "and". But, with great respect, is he right? If one looks at subsection (4) one sees that
"For the purposes of subsections (2) and (3) above, 'treaty' includes any international agreement, and any protocol or annex to a treaty or international agreement."
I hold the decision in question in my hand. I will not read from it extensively, but it clearly says:
"The Council of the European Communities having regard to certain circumstances has decided as follows: Article 1, the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and

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Northern Ireland may become members of the European Coal and Steel Community by acceding …"
et cetera. I need not read any more. If does not come within the scope of subsection (4) I cannot think why. I should have thought that that was exactly what subsection (4) was designed to achieve; to bring into its scope documents of the sort from which I have just cited.
The second reason which the noble Earl gave for using "taken with" instead of "and" was that the accession Treaties and the decision amended the pre-accession Treaties. It is the first time I have ever thought that the words "taken with" are to be construed as being equivalent to the words "amended by". They seem to me to mean something quite different, and I rely on what the noble Earl said when he said that they mean no more and no less than "and". I do not feel that the noble Earl has given reasons which in any sense can be said to be adequate. So far as the point about the accession Treaty and the decision amending the pre-accession Treaties is concerned, one has simply to look at their terms to see that they amend the pre-accession Treaties. There is no reason to use the words "taken with" to indicate that they so amend them. Their terms are inconsistent with the pre-accession Treaties, and therefore produce a change.
In all those circumstances, with very great respect, I propose to the Committee that it should express its opinion on this matter. It is, for reasons which have been advanced in this debate, a matter of importance. Once again I congratulate the noble Earl in producing so much attractive material out of such scanty premises. I think he is a splendid athlete, but he has not really answered the case that I put, and I do not feel disposed to withdraw the Amendment.
4.20 p.m.
LORD GLADWYN: Before the noble Earl or the noble Baroness replies to the remonstrances of my noble friend Lord Foot, I should like to say one word about the general attitude of the Liberal Party in this debate. Our attitude is that Amendments which, on the face of them,
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seem to be reasonable, and which in no way cast doubt on the validity or credibility of our signature of the Act of Accession, may very well merit our support. But we shall certainly not support any Amendment which comes into the latter category; that is to say, which casts any doubt on the credibility of our signature of the Act of Accession. I should find difficulty—and I am speaking only for myself—in voting for any Amendment which, though it may be preferable from a strictly legal point of view, does not materially affect our obligations under the present Bill.
THE MINISTER OF, STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS): I wonder whether I may add a little clarity—although I hate the word—on this matter. I think it is very important when one is considering Clause 1 to remember that under the procedure to which my noble friend referred, and to which we shall come in subsection (3), all of the various sorts of Treaties which will become part of our law and which are dealt with by way of the Order in Council procedure must, by one means or another, be brought into our law by this machinery. But the pre-accession Treaties in Part I of Schedule 1, to which this definition refers, were all made long before our accession decision came about. They become part of our law, and conclusively so when they are dealt with by Order in Council under Clause 1(3). But they had nothing to do with us in the first place and were made by the other members and by the Community itself. They get into our law only through the accession Treaties. They come into our ambit only because they are to be read with, and applied by virtue of, the accession Treaties themselves—not only the one on the Coal and Steel Community, but all three. Those Treaties bring in the pre-accession Treaties. I suggest to the Committee that in order to get those pre-accession Treaties into the law of this country under Clause 2, they have to be read or taken with the accession Treaties which alone are capable of applying them to this country. That is the reason why the words used are "taken with", because that connotation cannot apply to the word "and".
4.24 p.m.
On Question, Whether the said Their Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents 49; Not-Contents,154

CONTENTS

Balogh, L.

Greenwood of Rossendale, L.

Rathcreedan, L.

Bernstein, L.

Hale, L.

Serota, Bs.

Beswick, L.

Hall, V.

Shackleton, L.

Birk, Bs.

Henderson, L.

Slater, L.

Blyton, L.

Hoy, L.

Stocks, Bs.

Bowden, L.

Janner, L.

Stow Hill, L.

Brockway, L.

Leatherland, L.

Strabolgi, L.[Teller.]

Buckinghamshire, E.

Lindsay of Birker, L.

Summerskill, Bs.

Champion, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Taylor of Mansfield, L.

Crook, L.

Wells-Pestell, L.

Davies of Leek, L.

Lloyd of Hampstead, L.

White, Bs.

Douglass of Cleveland, L.

McLeavy, L.

Willis, L.

Faringdon, L.

Maelor, L.

Wise, L.

Foot, L.

Moyle, L.

Wootton of Abinger, Bs.

Gardiner, L.

Nunburnholme, L.

Wright of Ashton under Lyne, L.

Garnsworthy, L.

Pargiter, L.

Wynne-Jones, L.

Geddes of Epsom, L.

Phillips, Bs.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Monck, V.

Abinger, L.

Emmet of Amberley, Bs.

Monk Bretton, L.

Ailwyn, L.

Essex, E.

Morrison, L.

Albemarle, E.

Falmouth, V.

Mottistone, L.

Alexander of Tunis, E.

Ferrers, E.

Mountevans, L.

Amherst of Hackney, L.

Fortescue, E.

Mowbray and Stourton, L. [Teller.]

Annan, L.

Gage, V.

Ashbourne, L.

Garner, L.

Moyne, L.

Astor of Hever, L.

Gisborough, L.

Napier and Ettrick, L.

Balerno, L.

Goschen, V.

Netherthorpe, L.

Balfour, E.

Gowrie, E.

Northchurch, Bs.

Balfour of Inchrye, L.

Grantchester, L.

Nugent of Guildford, L.

Barnby, L.

Greenway, L.

Onslow, E.

Belstead, L.

Grenfell, L.

Orr-Ewing, L.

Berkeley, Bs.

Gridley, L.

Penrhyn, L.

Bessborough, E.

Grimston of Westbury, L.

Perth, E.

Bethell, L.

Grimthorpe, L.

Polwarth, L.

Blackford, L.

Hailes, L.

Poole, L.

Blake, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Radnor, E.

Boyd of Merton, V.

Rankeillour, L.

Bradford, E.

Hankey, L.

Rathcavan, L.

Brecon, L.

Harcourt, V.

Reay, L.

Brentford, V.

Harvey of Prestbury L.

Redmayne, L.

Brock, L.

Hatherton, L.

Reigate, L.

Brooke of Cumnor, L

Hawke, L.

Rennell, L.

Clwyd, L

Hayter, L.

Rhyl, L.

Coleralne, L.

Hemingford, L.

Robbins, L.

Coleridge, L.

Hereford, L. Bp.

Roberthall, L.

Colgrain, L.

Hertford, M.

Rochdale, V.

Colville of Culross, V.

Hewlett, L.

Rothes, E.

Cottesloe, L.

Hives, L.

Ruthven of Freeland, Ly.

Cowley, E.

Hood, V.

Sackville, L.

Craigavon, V.

Howard of Glossop, L.

Saint Oswald, L.

Cranbrook, E.

Hylton-Foster, Bs.

Sandford, L.

Crathorne, L.

Ilford, L.

Sandys, L.

Crawshaw, L.

Jellicoe, E. (L.Privy Seal.)

Selkirk, E.

Croft, L.

Kemsley, V.

Shaftesbury, E.

Cullen of Ashbourne, L.

Kindersley, L.

Sherfield, L.

Daventry, V.

Limerick, E.

Sinclair of Cleeve, L.

de Clifford, L.

Listowel, E.

Somers, L.

Denham L. [Teller.]

Long, V.

Stamp, L.

Digby, L.

Lothian, M.

Stonehaven, V.

Drumalbyn, L.

Lucas of Chilworth, L.

Strathclyde, L

Dudley, E.

Macleod of Borve, Bs.

Stratheden and Campbell, L.

Dundee, E.

Macpherson of Drumochter, L.

Suffield, L.

Dundonald, E.

Mar, E.

Thomas, L.

Ebbisham, L.

Massereene and Ferrard, V.

Trefgarne, L.

Eccles, V.

Merrivale, L.

Trevelyan, L.

Effingham, E.

Mersey, V.

Tweedsmuir of Belhelvie, Bs.

Elles, Bs.

Milverton, L.

Vernon, L.

Vivian, L.

Waldegrave, E.

Wynford, L.

Wadefield of Kendal, L.

Wolverton, L.

Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

4.33 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): Before I call Amendment No. 2, I should point out to the Committee that if this Amendment is agreed to I cannot call Nos. 3 and 4.
LORD SHACKLETON LORD SHACKLETON moved Amendment No. 2:
Page 2, leave out from beginning of line 5 to end of line 8.
The noble Lord said: I rise to move Amendment No. 2 on behalf of my noble friends, and it may be for the convenience of the Committee if we discuss with it Amendments Nos. 3 and 4, so that we can take a comprehensive look at this. Indeed, it could be argued that, had the Amendments been marshalled another way, we should have gone from the particular to the general, because Amendment No. 2, which proposes to leave out from the beginning of line 5 to the end of line 8 is almost like an Amendment to leave out a clause, because it covers a particular little part of the subsection. The noble Earl appears to be leaving the Chamber, but I was going to say that, in a way, I would ask for his sympathy, as he has mine in dealing with these highly technical matters; and I would apologise to the Committee if, as is very likely, I get some of the arguments in a rather confused way. I am bound to say that, of all the Bills I have had to deal with—and this again is a measure of its brilliance—this one is the most difficult I have ever known. Luckily, we have a number of noble Lords who I think understand it. There are moments when I understand it myself, but a minute or two later it escapes me.
The purpose of the Amendment to leave out lines 5 to 8 is this—and for noble Lords who have not got the Bill in front of them I should like to read the passage, so that they may know what we are talking about even if they do not understand it. This is a definition clause, but it in fact carries much greater influence than a pure definition. Noble Lords will recall that the noble Earl, in that gallant and clear speech of his, explained the purpose of subsection (2), with which
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we are concerned at the moment. It was in fact to list the Treaties and other items—the decision "taken with", as the Committee has decided—which we are in effect adopting, and some of which are self-executing. The last part of this particular subsection reads:
"and any other treaty entered into by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom;…"
Seeing the look of bright and enthusiastic intelligence on the part of noble Lords opposite, I realise that they understand what every word means; but I must say, then, that they ought to be in Iceland playing chess, because it really is a very difficult piece of phrasing.
I have attempted to construe this (and I may say—as a former classical scholar, that I found this much harder to construe than many of the Latin and Greek passages I have had to construe in the past), and as I understand it this particular passage really has two parts to it. One part relates to Treaties, some of which may have been entered into by the Community; and, correctly, they would be, as I understand it, Community Treaties. As to the phrase "with or without any of the member States", the noble Earl last night asked me if I understood it, and we both finally decided that we did; and the noble Earl will confirm that the Community may make an agreement or Treaty without any of the members participating. The second part is,
"any other treaty entered into … as a treaty ancillary to any of the Treaties …",
and these are ones which we have agreed to, if I am correct on this. So there are two parts.
Now our first complaint is that this is an extremely broad description, and I should like to ask the noble Earl: would a Treaty entered into by the Community with say, China, depending on its nature—it would be quite a small one, a commercial Treaty—in fact be covered by this passage—I cannot call it a subsection. It is a very wide power indeed. This could be entered into by the Community without a participation by the United Kingdom except in its capacity as a member of the Community, and therefore it would be as a result of a

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decision by the Council of Ministers and we might not ourselves be a signatory to that Treaty. This has some importance, because it again raises the question as to how we establish the right kind of Parliamentary control over later parts of some of these other activities.
I should like to know why this passage has to be so wide and so unlimited in scope. It is the nature of Governments to take powers which will provide them with all the authority that they need. In objecting to this I am not suggesting that there is no Parliamentary sanction; although I am bothered about the treaties which are ancillary; for an ancillary treaty, so far as I know, might not be—though it could be—subject to the provisions of subsection (3) and would require an Order in Council procedure even if it was not self-executing. As I understand it, unless it had been laid before January, 1972, it would not need to come before Parliament. I think I am right about that, but it will be interesting to have an explanation. I do not want to discuss subsection (3) now; although I must refer to it to indicate how my mind in its present murky state is working. As I understand it, an Order in Council in relation to a treaty ancillary to any of the treaties entered into by the United Kingdom before January, 1972, would not require to come before Parliament.
It appears that these ancillary treaties are not listed anywhere in the Bill, not even in the Schedule. I know that there has been a reference to other documents but it would have been helpful to have them set out in the Bill. Such treaties are quite often annexed to a Bill. The noble Lord has a good reply on this; he can say, "We have not annexed any other treaties; they are to big for that" I. accept that. Nevertheless, we are concerned about the words "ancilliary treaty". For that reason we have put down two further Amendments to leave out lines 7 and 8, the effect of which will be to cut out the reference to "ancillary treaties". This is not because we do not think it will be needed but because we should like to know what these ancillary treaties are and we should like to have them somewhere in the Bill linked more obviously to this clause. I do not know whether it would conform
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to usual practice but perhaps it would be possible to cross-reference it to the relative documents. In this connection we had also thought it might be clearer if we inserted after "any other treaties" (this is Amendment No. 3), the words, "signed on or before that date"—that is. January, 1972. Perhaps the noble Lord will agree that it might be useful to discuss these three Amendments together.
To sum up, what we are complaining about this passage is that it is extremely wide and extremely obscure, and although it may achieve what the Government want there is enough ambiguity about this Bill to arouse grave doubts. It is the duty of Parliament to ensure that what passes into law will be intelligible and, above all, intelligible to the courts. It may be that the courts will be the only people who are able to understand this passage. We shall seek to deal later with the points made, for instance, by the noble and learned Lord, Lord Diplock, on Second Reading. A point of particular concern that I should like to mention in this. It appears that by virtue of this being a definition clause (and taking into account Clause 2(1) and Clause 2(4)) we are doing that to which the noble and learned Lord the Lord Chancellor referred on Second Reading we are providing new rules
"of construction for Statutes to substitute in the appropriate case".—[OFFICIAL REPORT, 25/7/72, col. 1230.]
This matter arises more appropriately on Clause 2; but because of the importance of the definition clause and because, as I understand it, it has a pre-eminence—I do not know whether that is the right word—in relation to future legislation, it seems to me to be of the greatest importance that there should be clarity.
It may be that my remarks have merely added to the confusion in noble Lords' minds. If so, I apologise. My noble friend Lord Stow Hill will shortly be coming in and will seek to put this to the Commitee in clearer language than mine. I hope that I have not confused your Lordships; and I should not blame you if you thought that I was confused. This is one of the problems with this Bill. It is for that reason that we wish to probe. We hope to get a clear explanation; but I wish very much that the Government would consider a form of words—even another clause—which

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would be rather more intelligible. There may be great economy of words here, but it does not provide great clarity. I beg to move Amendment No. 2.
LORD SHINWELL: Before the noble Baroness replies no doubt my noble and learned friend Lord Stow Hill will be making his more effective contribution to the debate on this Amendment. I want to ask a question, and on the reply to it will depend whether I would desire to speak later on this Amendment. The Treaties referred to in this subsection are undefined, they are not specified, and my first question is this: when the Government injected this subsection into the Bill what Treaties had they in mind? Let us assume that France and Germany entered into an agreement—in fact, a treaty—related to one of the Communities referred to in this clause, say, the Atomic Energy Community; or let us suppose that Italy entered into an agreement—an agreement is a treaty, so far as I understand it—with, say, the Netherlands or with one of the additional countries which are going to become the Ten. I want to know whether those treaties would be binding on the United Kingdom.
The second question is this. Let us assume that one of the countries of the Six entered into an agreement of whatever nature—I myself cannot specify the kind of agreement they could enter into; it might be dealing with commodities—with one of the associated countries in Africa. Would that agreement be binding on the United Kingdom, which had no heart and no part in the preliminary discussions about its details? We are entitled to an answer to those questions because, although one can understand what is meant by some of the Treaties referred to in this clause, one is unable to understand what is meant by those Treaties which are undefined.
4.50 p.m.
LORD STOW HILL: May I, shortly I hope, add to the questions that have been put by my noble Leader and by my noble friend Lord Shinwell? May I first seek to deploy some considerations which, in my view at any rate, seem to stress the importance of the type of inquiry upon which we are engaged. A good deal of the argument in support of this Amendment was advanced in our last
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discussion. It is to the effect that as part of these Treaties may automatically become parts of our law we ought to know what they are. My noble Leader said he accepted that perhaps the annexing of the Treaties would be hardly feasible because they might be too long. On the other hand, what I ventured to propose was not that they should be annexed but that they should be listed. We ought to know what Treaties are spoken of; at any rate those which up to date have been entered into.
May I seek to enlarge on that. We are dealing with a definition clause and I submit that it is extremely wide when one comes to look at it. We have considered part of it. First comes the preaccession Treaties, which are set out in the first part of Schedule 1 on page 19. If one looks at that Part it is not in any sense, shall I say, self-contained. It lists in seven paragraphs the Rome Treaty, the European Coal and Steel Treaty, the Euratom Treaty and three others that I will not trouble with. Then again there is a general provision in paragraph 7 because it includes any Treaty—I emphasise the word "any"—
"entered into before the 22nd January 1972 by any of the Communities (with or without any of the member States) or, as a treaty ancillary to any treaty included in this Part of this Schedule, by the member States (with or without any other country)."
So one starts with pre-accession Treaties defined in the language to which I have referred, as amplified by paragraph 7 in the first part of Schedule 1. That in itself is very wide.
Then one gets to the second group, which is the accession Treaties of January 22, 1972 and the decision referred to in subsection (2)(b) of Clause 1. That is a very wide net to spread already, and it is only when one has, as it were, considered all the Treaties within that wide net that one gets to the third category of Treaties which are, or may be, embraced by the very general language to which my noble Leader referred. I will not read it again, but if your Lordships would look at the lines between line 5 and line 8 on page 2 you will see that there is no time limit; the Treaty may have been one entered into before January 22, 1972 or after. The noble Viscount, Lord Colville of Culross, shakes

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his head; I do not understand why. The wording is:
"and any other treaty entered into by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom."
That may mean a Treaty entered into in 1964, say, or it may mean a Treaty entered into in 1984; there is nothing to stop it.
I do not see why the words—I infer this from the fact that the noble Viscount shakes his head—should not be construed as being applicable to Treaties entered into already. There is nothing to limit it in time. So that one gets, as it were, a fourth category of Treaties included in those very wide words. As my noble Leader said, the words fall into two subdivisions. First they seem to relate to Treaties entered into by the Communities with or without any of the member States. The Communities may enter into a Treaty. They may do so with or without any of the member States. That means, I think I am right in saying—I should be grateful if the noble Viscount would confirm it; I do not know how the courts would construe it—or is intended to mean with or without any of the member States as co-signatories; it does not mean as the opposite parties to the Treaty.
The second limb to which my noble Leader referred is included in the words
"… or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom."
So you have two separate groups there, I suggest, with no time limit and with very little limitation as to what they may be. It is
"…any other treaty entered into by any of the Communities…"
The purpose of the Treaty is not described; it may be a Treaty relating to almost anything so far as the language goes. If you are talking about a Treaty entered into by the United Kingdom falling within the second limb of those lines then it has to be
"a treaty ancillary to any of the Treaties."
What "ancillary" means I do not know. "Ancilla"—my noble friend Lord Shackleton is a classical scholar and I think that probably he would confirm this—means a hand maiden or a slave girl. I do not think that affords very
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much guidance when one is considering whether one Treaty is an ancillary Treaty to another. It is a very wide term, and I think I am right in recollecting that on Second Reading the noble and learned Lord the Lord Chancellor envisaged a situation in which an English judge might have put before him a Treaty—I do not know what Treaty—and be called on to decide whether, within the meaning of these wordings, it was an ancillary Treaty, a Treaty ancillary to any of the Treaties or not. That, I should think, would be putting an impossible task on the learned judge. The words are so wide and imprecise that they would confront him with a problem which I would think, in terms of ordinary legal interpretation, would be well nigh insoluble.
Then one goes to a still different category of Treaties, namely, those set out in subsection (3). I believe I am right in thinking, from a shake of the head by the noble Viscount when my noble friend was speaking, that the noble Viscount would not assent to the view I put to the Committee, that when you look at subsection (3) you are looking at a further category of Treaties. The noble Viscount shakes his head, but I very much doubt whether there is anything in the language to limit them to Treaties which have already been referred to. There is a power given by Order in Council to declare
"that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined …".
If it is so specified it is conclusive. That, I should have thought, as a matter of ordinary English means that the Government may by Order in Council take some Treaty, which is wholly beyond the scope of subsection (2), and specify it as a Treaty which is to be within the definition—
VISCOUNT COLVILLE OF CULROSS: The noble and learned Lord—
LORD STOW HILL: If I may complete my point. May I venture to offer one, slight I hope, correction to what my noble friend said? All the Treaties referred to in subsection (3) I think are subject to Parliamentary control. Those entered into before January 22, as I read paragraph 2(2) of Schedule 2 on page 20, are subject to Negative Resolution procedure; those entered into after that date,

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with some slight exceptions, are subject to Affirmative Resolution, otherwise they cannot be specified. There is again a new field of Treaties, I submit, on the language used here. I have already referred to subsection (4) with its very wide terminology—
VISCOUNT COLVILLE OF CULROSS: I do beg Lord Stow Hill's pardon, but the noble Lord, Lord Shackleton, made the point earlier that this is not very easy to follow. With the greatest possible respect to the noble and learned Lord, Lord Stow Hill, if we want to discuss the last few lines of subsection (2) of Clause 1, in my humble submission it really would be the greatest mistake to get on to the question whether, under subsection (3) of Clause 1, anything else is covered, because there is an Amendment on this. The point that the noble and learned Lord is on is something which I think should be dealt with and explained fully; and if we want to know what Treaties are covered by the lines in the Amendment now before the Committee we shall only get confusion worse confounded if we get on to subsection (3) of Clause 1 at the moment.
LORD STOW HILL: I entirely accept that rebuke and will endeavour to restrain my exuberance. I hope that, for the time being, the Committee will forget subsection (3). I read in the Report of a debate in another place that reference was made to eight volumes of Treaties and supporting documents. I made reference to them during the Second Reading debate. I went to the trouble of examining them and I have brought to the Committee two random specimens. One is Volume 1, and the other is Volume 8, Part II. When we talk about volumes we envisage something much thicker than these very slender volumes, but even these are somewhat alarming. Volume 1 contains a very lengthy and substantial treaty altering, I think, Article 53 of the iron, coal and steel community. I suppose part of that Treaty is part of our law. I will not look at Clause 2 of this Bill, since I am still smarting under the noble Viscount's rebuke, but it is formidable when we have to take this document, go through all of this Treaty and ask ourselves whether it is part of our law, or whether part of it is part of our law. Much of it is not.
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The second volume which I chose at random was one about which my noble friend Lord Shinwell in effect asked a question. He asked whether it would include, for example, an association treaty entered into under Article 238 of the Rome Treaty which provides for association treaties. The second volume I happened to choose was just such a treaty, an enormously long thing relating to association with Morocco. I will not read it, but I suppose we should have to go through it and, in terms of Clause 2, we should have to pick out what were rights, powers, liabilities and so on and say, "From now on those are part of our law". That is a rather formidable proposal.
I hope the noble Viscount will forgive me if I turn to page 119 of this volume. May I, with great trepidation, make one reference to subsection (4)? I apologise and I take the point entirely that if one wants to have some clarity and order in this discussion one must restrain oneself, but I think the point is relevant to what we are saying. On page 119 and onwards there are exchanges of letters between Morocco and the Communities. If I read Clause 1(4) correctly, all those exchanges of letters would constitute international agreement. I do not know whether that is right or wrong. but they look as if they would. In any case, I do not see why they should not. I should have thought that the net result is that a very strong case mounts for doing one's level best to obtain maximum decision here. A very strong candidate for change in that direction are the lines 5 to 8 on page 2.
That is the argument which I would respectfully put to the Committee. I hope the Government may feel that they can accept the view that one must get something clear, in the absence of a listing of these treaties, to enable Her Majesty's subjects to know what is their law and what is not. I accept that as a matter of drafting this is an extremely difficult undertaking. I have ventured humbly to pay tribute to the draftsman for producing the Bill, but I submit that it does not quite measure up to that standard of precision which in this context it is so highly desirable to achieve.
LORD ROBBINS: May I ask the noble Lord, Lord Stow Hill, to elucidate for a

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layman a point in his speech which caused me some perplexity? He alluded to the difficulties of the word "ancillary" and made some reference to the classical learning of the Leader of the Opposition. The noble Lord explained the word "ancillary" by reference to its original meaning, "handmaid". I can understand that, if one starts to trace things upwards, so to speak, a great crop of ambiguities can develop; but in 20th century English is there some great legal difficulty in grasping the general conception? I think, for instance, of business operations with which I am far more familiar than I am with the law. I give a directive to a certain part of an organisation and say that certain subordinate officers will take the necessary action ancillary to that directive. Is that an ambiguous statement?
LORD STOW HILL: May I answer the noble Lord, Lord Robbins, in this way. I quite accept that it is perfectly easy to formulate to oneself the general concept which is embodied in the word "ancillary". It is quite a different thing sitting on the Bench as a judge, having two Treaties in front of one, and having to answer positively or negatively the question as to whethr one treaty is ancillary to the other. The trouble is that the concept is so wide and general in its terms. Learned judges crave for something more precise for guidance in coming to a conclusion which may be of the utmost importance to millions of people. I accept that people know what "ancillary" in the general sense means. The old adage is that we know an elephant when we see one. But then we know what heaps and heaps of words mean in a general sense; but if in relation to a given situation of the utmost importance to enormous numbers of people we expect our learned judges to come to a clear, certain conclusion as to the result of the application of words of general import, I submit that we owe it to our Bench to give them more guidance than is given in the language now under consideration by the Committee.
5.9 p.m.
LORD HALE: I had firmly resolved that in this debate I would say no word which might incur for me the malice of the Ramnusian maid. The way in which
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the debate has gone up to the moment almost compels me to make one general observation on the Amendment, and I propose to limit myself to the Amendment relating to lines 5 to 8. The way in which this Bill is drafted is a Parliamentary outrage. During the very few minutes of our discussion much more learned Members than I have had the greatest difficulty in comprehending the Bill word by word. We have got two documents. We have got the Treaty of the European Economic Community, beautifully written, admirably presented, full of aspirations, perhaps not very precise because precision was not then possible. In many ways it refers to the hopes of the Western American poet, Vachell Lindsay, who talked about Abraham Lincoln,
"Walking by night dreaming of a Europe free,
The league of sober folk,
The workers' earth,
Bringing white peace to cornland, alp and sea."
When we look back on the years through which we have passed we can all agree that much needs to be done. Then we see this miserable document designed to suppress debate, to prevent the free expression of democratic opinion, and defended miserably by saying that if you can put something shortly that is a good way to do it. Edmund Burke had an election colleague whose speech on the hustings was: "I say 'ditto' to Mr. Burke." One might just as well have framed this Bill by say, "Ditto to Mr. Rippon", except that we do not know what Mr. Rippon said, and the candidate in Bristol probably knew what Edmund Burke had said. So we are at a disadvantage.
But I wish to call attention to my own activities. I put a Question on the Order Paper and I received a perfectly courteous and clear answer from the noble Baroness, Lady Tweedsmuir, as to what these words mean and what they include. I put the Question in relation to paragraph 7 of Schedule 1, but that is the same paragraph in almost precisely the same words and referring to precisely the same things. Of course I cannot go outside the terms of my own minute and refer to the second question. But noble Lords who are bored by my speech may read the first line of the second question, which seems as if it was

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extracted from Roget's Thesaurus and gives words which are capable of meaning almost anything: "Rights" and "Obligations" and so on—a whole list of them.
The noble Baroness said—and the noble Viscount appeared to me to be rather puzzled about this—that the agreements referred to are those set out in the Appendix to Command Paper 4862, No. 1: in other words, the Treaty documents with the Appendix. I do not propose to be facetious—I got past that juvenile stage some time ago—and I propose for the moment to mention only matters relating to the E.E.C. Those who have the Appendix before them will see that it is divided into:
"The Treaties establishing the European Communities as supplemented and modified by the related and further agreements and other acts."
Then another section is:
"Other Treaties and related instruments concluded among the member States of the European Communities."
And another section:
"Treaties and related instruments concluded by the Communities."
Each of those is divided, quite properly, into European Coal and Steel Community, Atomic Community and the E.E.C. But if we look at those Treaties—and surely we are entitled to look at them and question them—we find that the first list starts with a Treaty; the next is a protocol, and then we get half a dozen protocols or more.
Then there is an implementing convention on the association of the overseas countries and territories with the Community. This is not a small matter. Then we come to a regulation, No. 7A of the E.E.C. Council, modifying the list in Annex II to the E.E.C. Treaty 1961 Official Journal, page 71. Then another convention and so on. Then an agreement, and later a decision of July 10, 1963 in the second section. A convention for mutual assistance and internal agreement of July 29. I really thought that I had come to the complete variety of these things.
Yesterday, with the generous assistance of the Lords' Library, I tried to make a little investigation into the terms of what is called the "snake in the tunnel" arrangement. The noble Lord will say of course: "Yes, I know". He will
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say that this was made after the date of the Treaty and therefore is not included in these words. But I propose just to show what I did find in the official journal, and I relate it back to the photostat copy I have of the order, regulation, protocol or statute (I forget which) that is included in the schedule and was the origin of these directives and of these procedures. I have not really found the "snake in the tunnel" agreement, because there does not seem to be one.
THE MARQUESS OF LOTHIAN: Yes, there is.
LORD HALE: I am sorry. It is a picturesque phrase which appeared in every paper, and I am sure that it was in The Times because that is the only paper that I read, apart from Le Monde. This is the European limitation of the Smithsonian Washington Agreement which was made before the Treaty was signed. The Washington Agreement limited the variation of currencies to either 2½ per cent. or 2½per cent.—I think 2½ per cent.—and the European Communities met on March 21, after a series of interviews, and decided to reduce that limit; and it was that reduction of the limit which everybody (including I think the Chancellor of the Exchequer) said, was what really forced us to float the pound. It is not a small matter. It arises and is based precisely on one of the directives or agreements I have, which is included in lines 5 to 8, page 2, Clause 1 of the Bill, which is the Amendment that we are now discussing.
I turned up the Journal officiel of the European Community. I am afraid that it is in French. I do not speak a word of a foreign language; I have never been educated. However, I can read a few words of French, and I will try to translate it into English if your Lordships will trust me; but if any noble Lord wishes to know the precise word. I will use it. Perhaps I should start in French by saying that this is headed "Legislation 18th April, 1972", and it starts:
"1. Actes dont la publication est une condition de leur applicabilite."
What is that? This is legislation which applies when published; and one would have thought that that was a fairly

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reasonable propositon. If people are to know the law they should have some means of getting it, even if they do now have to pay about £3·50 to find out what is the law on local government.
Then there follows a list—and I do not criticise—"Reglments", and so on, about the distillation of table wines and many others. Then we come to paragraph II:
"Actes dont la publication n'est pas une condition de leur applicabilite."
I do not want to be facetious, and I do not want to be unfair. It may be that some of these Acts are to be communicated to Ministers and Ministers are to act upon them. But if we are bound by Acts—and we are—of which the publication is not necessary to their applicability, we are entitled to go, not hostilely, not unduly critically—I am not sneering about distillation of wines order, or coffee orders or bananas, which are still important in Jamaica; I am talking about the financial basis for the moment. This is called a "directive du Conseil." I think there could be 10 different translations of "directives". But we call it a directive in English as the simple explanation. It is dated March 21, 1972, and sets out a whole series of considerations and movements of capital, steps regulating internal liquidity, indispensable:
"The moment has now come to discourage movements of capital,…"
and so on. There are observations about "big movements of capital", though no one says what is a big movement of capital or a small one, or whether you add £505 to £500,000 and divide them by 501 and find that they are not so great or how you govern it.
I do not say this maliciously. What I am saying is that they are trying to give civilised directives and advice. But how does it come that Her Majesty's Government say that we must incorporate into our Jaw civil directives and advice, on the meaning of which our courts may have to seek advice from Brussels and upon which we might be called upon to act, and, certainly in this particular connection, on which we might be rebuked for having failed in our Treaty obligations, for having honoured these directives too little. We have to take
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our turn, of course, because Italy, as everybody knows, has already been rebuked. The actual arrêté of the present directive says:
"… the member States will take all necessary measures to conform to the directive."
and
"Each member State will apply in case of need all or part of the instruments mentioned in Article and the banking authorities will maintain a close relationship and keep the Council informed of the state of the situation and its evolution."
There are a whole series of provisions. I do not say they are not wise ones; I do not say they are not well-intended; but they are certainly not precise. I should be very much surprised if President Pompidou took quite so much notice of them if they did not suit French foreign policy. It may be well within the notice of Members of this Committee that Le Monde to day on its front page is reporting that the price of gold has more than doubled and is advising a return to the gold standard.
BARONESS ELLES: Would the noble Lord give way? I think perhaps the noble Lord should be aware that the translation of directive is directive, and according to Community law a directive is for the future and it is up to each member State to apply it in their own country, according to the legislation that they see fit; so naturally any directive in any publication from the Community must be in general terms.
LORD HALE: With very great respect to the noble Baroness, this directive I am concerned with uses the precise words, moment venu—now. It does use that phrase. If the noble Baroness will bear with me, I have said that in a way this is expressed rather as advice and encouragement, but it is expressed with great urgency. These steps have to be taken, and that is one reason why it is expressed with such urgency—because much the same thing has been said in the agreement which is incorporated in lines 5 to 8 of Clause 1 of this Bill, of which I have a photostat copy in English. This is a Resolution of the Council—no, I am sorry; I think I have got the wrong photostat copy. This is dated March 31, 1971; so this is actually the English translation of the French one that I have used. However, I have read it and I have done a great deal of

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research over it, but I do not want to take up too much of the time of the Committee and I will ask your Lordships to accept for the moment what I say about this. We are discussing something which is very important. This is our last chance. Let us think it over: I repeat, let us think it over.
There area series of decisions in Section A of 1970—decisions on representatives on the accession of institutions, decisions on the replacement of financial contributions, decisions concerning forecasts for several years, a Treaty amending certain budgetary revisions in the Treaties, a Treaty on the Accession of the Kingdom of Denmark—and the precise one I am referring to is certainly dated 1970 and is to be found, I think, in the second part of this Schedule. It is under E.E.C.—I beg your Lordships' pardon: I was looking at European Atomic Energy Community. It shows how easy it is to be wrong.
5.25 p.m.
BARONESS TWEEDSMUIR OF BELHELVIE: Would the noble Lord care for me to intervene at this point and try to clarify some of the matters which seem to be of great concern to him? Would that be convenient to him and to the Committee?
LORD HALE: May I ask the noble Baroness to repeat what she said, because I did not quite catch the opening words? I heard the last bit.
BARONESS TWEEDSMUIR OF BELHELVIE: I just wondered whether it might help if I tried to explain in layman's language these Amendments as I see them. It might help the noble Lord, because he is referring to the volume of pre-Accession Treaties, and under the Amendment we are discussing future Treaties at this moment.
LORD HALE: Certainly.
BARONESS TWEEDSMUIR OF BELHELVIE: If that is acceptable, perhaps I should just try briefly to reply and if the noble Lord, Lord Hale, is not satisfied he can always return to the charge. As I understood it, we were discussing Amendment No. 2 on the Marshalled List which refers to the lines 5 to 8 in Clause 1(2), and these do of course apply to the future Treaties. At
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the same time it was agreed that we should discuss the substance of Amendments Nos. 3 and 4. The noble Lord, Lord Hale, was of course quite correct in referring to the list of Treaties he had in his hand, but these are the pre-Accession Treaties and the related Instruments. They were also referred to by the noble Lord, Lord Stow Hill; and so far as we are aware, together with the Community, this list is believed to be complete. I will only briefly say that Volume 1 of the publication European Community Treaties and Related Instruments does contain references to where in this list the English texts of the Treaties may be found.
Now if we turn to lines 5 to 8 on page 2, they of course refer to the future Treaties—
LORD BESWICK: Would the noble Baroness allow me to intervene? I did not quite grasp where she said the English texts could be found. We should be most grateful if she would tell us where the English texts of all these Treaties could be found; and we should be grateful also if she could tell us who actually translated them in the first place.
BARONESS TWEEDSMUIR OF BELHELVIE: There are nine volumes to which the noble Lord, Lord Stow Hill, referred, and Volume 1 indicates where the English texts may be found. It would not be suitable, I think, for debating across the Floor of the House, but it is in this Volume, a copy of which the noble Lord also had in his hand.
LORD HALE: The noble Baroness asked me to give way, and I did so in order that she could make that explanation. I always do anything she says. I am very grateful for the explanation. What she has said, with her usual clarity, is really the most severe condemnation of the working of the Act that has yet been made in the course of this debate, because the words we are discussing—
"and any other treaty entered into by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom"—
I will give way again with pleasure.
BARONESS TWEEDSMUIR OF BELHELVIE: I was just about to try to explain in my own layman's language

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the lines which have just been read out by the noble Lord, Lord Hale. Would he be happy to hear me do my best on this, and then see if he is satisfied?
LORD HALE: I am happy to give way.
BARONESS TWEEDSMUIR OF BELHELVIE: Then that being so I would say first of all to the noble Lord, Lord Shackleton, who started this debate, that one understands perfectly why he wishes to see what Parliamentary control there is on this particular matter. Lines 5 to 8 on page 2 of course refer to the future Treaties. They thus follow from the words in the Bill "any other treaties", because of course all the pre-Accession Treaties have already been dealt with. These future Treaties, like the past Treaties, can be of three kinds. There are those entered into by a Community without any member State as a cosignatory, because the Community has express powers and is a legal entity in itself. Secondly, there are those Treaties that are entered into by the Community with member. States as co-signatories, for example the Yaoundé Agreement; and then there are those that are entered into by member States like the merger Treaty, and we are only interested in this in so far as the United Kingdom itself is a party. That is why lines 7 and 8 on page 2 refer to Treaties entered into by the United Kingdom. We want only to cover United Kingdom Treaties in a Community context.
The word "ancillary" was referred to by the noble Lords, Lord Robbins and Lord Stow Hill. This word has been written into this Part of the Bill. The three categories of future Treaties that I have mentioned are within the definition in Clause 1(2). I want to say this in passing as questions were raised on it. The second part of Clause 1(3) does not derogate from Clause 1(2), because it provides that no future Treaty—this is where the Parliamentary control point of the noble Lord, Lord Shackleton, comes in—entered into by the United Kingdom will come within the definition unless there is an Order in Council subject to Affirmative Resolution. This point about the Order in Council applies to any Treaty within the categories which I have described.
The noble Lord, Lord Shinwell, asked specific questions. Of course we are talk-
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ing about future treaties. He asked: "What kind of future Treaties will be binding on this country?" This is a definition clause. Parts of Treaties which become binding in any way are dealt with later in the Bill. Treaties that are entered into by the Community acting alone are automatically binding under Article 228 of the E.E.C. Treaty. That does not mean to say that they are directly applicable under Clause 2(1). One has to consider how the Treaties entered into by the Community come about. First of all, the Council of Ministers, acting together, have to ask the Commission to work out the provisions of a Treaty. If it were not acceptable to the Council as a whole a Treaty could not be entered into. What we are discussing at this moment is the definition clause and not what part of any Treaty would be applied by, for example, Clause 2(1).
The noble Lord, Lord Shinwell, also asked about other kinds of future Treaties. Those entered into by some of the other member States, either among themselves, or with a third country, but not involving the United Kingdom as a party will not be binding upon the United Kingdom. They will not therefore come within the definition in Clause 2(1). I am not a lawyer, but I have sought to address myself to this Amendment and to the other two Amendments to which the noble Lord referred.
LORD HALE: The noble Baroness spoke with her usual clarity, but she was not clear about what is in the Bill. For this purpose I must turn to Schedule 1. Schedule 1 says: "Part I. The Pre-Accession Treaties". That is clear. That is Treaties before January 22, 1972. Clause 1 does not say anything about pre-accession Treaties; it does not give any dates. It does not say what Treaties it is referring to. After specifying in similar terms the Communities' Treaties, it refers to the Treaty relating to the accession of the United Kingdom and the decision of the same date of the European Communities. The part we are really debating is:
"…and any other treaty entered into by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom";
That is what we are talking about. Is the noble Baroness really saying that on

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January 1 we are going to say: "Boys, we have passed a Bill, but of course we have not accepted anything that has been done since"? This is despite the fact that, in general, the Six have been good enough to permit a British observer to be present and, indeed, very often to make representations. This was done over the snake in the tunnel. We took part in these decisions and obligations. The clear meaning of the words stated is that they include all the associated Treaties right up to the time when we enter the Community.
The noble Viscount nods his head. He is trying to say that you come along with an Order in Council and say that there is a State of Emergency, or something like that, or that we have to pass it quickly because the boys are going on holiday, and there will be a full opportunity for discussion so long as people do not take too long. But at the moment we are discussing the wording of this Bill. I submit that the wording is grossly misleading if it is meant to be what the noble Baroness said, and completely lacking in the clarity necessary for an Act of Parliament.
5.36 p.m.
THE EARL OF LAUDERDALE: Since my name appears on this Amendment, perhaps I may be permitted to say a word. I hope that I will be shorter than the noble Lord, Lord Hale. Those of us who knew him in the other place are happy to welcome the noble Lord here. I speak as a juryman among lawyers. Having sat in my place since 3 o'clock this afternoon, I am already completely confused. It is because I am completely confused that I should like to ask a question. We were told by my noble friend Lord Colville of Culross that it would be best if we kept to lines 5 and 8, only to find that his fair colleague has discoursed on to Clause 1(3). This is my difficulty is it the case that future Treaties as yet unwritten are to be accepted without legislation, but by Order in Council, or is it that they are to be accepted with legislation? This is quite a short point; I am quite certain that it can be answered in one sentence or less.
There are those of us who wish well to the Government and well to this House in its handling of this Bill. The impression so far after two hours of this debate
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is not of a great readiness on the part of the Government to say, "If there is an ambiguity we will look at it between now and the Report stage. We will do the best that we can to meet the points raised". I hate to think that so early on in this debate the word might get around that there are:
"None so deaf as those who will not listen."
LORD BALOGH: I wish to avoid the legal difficulties which have been so well characterised by my noble friend Lord Shackleton. I shall ask one naïve question. I take the rebuke, or the admonition, of the noble Viscount, Lord Colville of Culross, most seriously, nevertheless, I shall have to disobey because the real essence of the problem cannot be discussed merely with this Amendment, but with two or three following Amendments. My naïve question is this: can we entrust the Government with these powers? This Bill is what one used to call in Roman law in the old days, "rapina pulchra priellae". The Government's difficulties are due to the fact that they cannot admit that they are enjoying it. It seems to me that the Government cannot be entrusted with these powers, because they have been palpably unsuccessful even with less powers. They cannot be entrusted, we cannot entrust them to legislate by Orders in Council unilaterally telling us what we should do with the very imperfect supervision which is represented in the Affirmative Resolution process.
This is a Government which have so misunderstood the needs of the times as to get themselves into the enormous tangle of which today's Emergency Proclamation is a consequence. It is the same Government which have lost in oil revenue as much as the whole cost of European entry. It is the Government which has already violated one of the most important monetary rules before we even enter. I am certainly going to vote, if a vote is called, for these Amendments because they at least reduce the enormous risks which we are facing with the Government with its present powers.
LORD GREENWOOD OF ROSSENDALE: Over many years I have seldom disagreed with my noble friend Lord Stow Hill but I did disagree with him in accepting the limitations which the noble Viscount sought to put on our

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discussion by saying that we should keep the issue much less confused if we restricted our discussion to subsection (3).
VISCOUNT COLVILLE OF CULROSS: Perhaps I may clear up the point I was trying to make. I did not mean that this should be dealt with in isolation from Clause 1(3). I know that the noble Lord, Lord Stow Hill, is very worried about the possibility of certain Orders in Council being made under Clause 1(3) which could, as he said, add a fourth category of treaty to the three mentioned by my noble friend Lady Tweedsmuir that appear in Clause 1(2), with which we are dealing. It was solely on that point that I sought to divert the Committee. We can deal with that as an entirely separate issue. It is purely legal; it is a matter of vires and we can deal with it separately. It was only that from which I sought to divert the Committee because it is an entirely different and rather difficult point.
LORD GREENWOOD OF ROSSENDALE: We are grateful to the noble Viscount for approving that we should consider this in the general context of the rest of Clause 1 which it is most essential to do. Unless we get this into its proper context, as the noble Earl, Lord Lauderdale, has said, it is very difficult to understand and to accept. I do not think there is any difference between the two sides of the Committee as to what are the basic Treaties. They are set out perfectly clearly in Part I of Schedule 1 to the Bill although, when one comes to paragraph 7, there is a certain amount of difficulty because it refers to any Treaty entered into before January 22, 1972 and so on. It is difficult to know what Treaties are included in paragraph 7.
In another place it was suggested that by this Clause Parliament was approving several major Treaties and 100 other ancillary treaties and making them part of the law of this land. So far as I have been able to discover from studying the discussions in another place, there was no effective or convincing answer to that criticisms. I would hope that noble Lords opposite might find it possible to publish, perhaps in the OFFICIAL REPORT, a list of the Treaties which are
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covered by paragraph 7. Unless we have a list of that kind your Lordships will be buying a pig in a poke and entering into a completely incomprehensible morass of legislation which has been imposed upon them from outside.
One of the problems that we have is knowing what all this ancillary legislation boils down to. It is difficult enough to understand the Treaty of Rome itself. I should say that Article 203 is engraved upon the minds of all Members of your Lordships' Committee. It is very difficult to understand; it is probably the most difficult official statement that I have ever encountered. It begins with Article 203 with an asterisk against it. At the bottom of the page there is a footnote saying that it has been amended. Above the footnote Article 203 with an asterisk finishes at the end of paragraph 3. One then turns over the page and finds Article 203 without an asterisk which runs 1, 2, 4, and then later 4. Then one turns over to page 5. There is a line across at the end of that paragraph. There is another paragraph; then we come to 5, and then 6, 7, 8, 9, over the page and then to Article 203a with an asterisk. It is difficult for Members of your Lordships' Committee who are not unaccustomed to reading official documents to understand exactly what that boils down to. Yet this is something which your Lordships' House agreed to accept by a very large majority last October; of course, one accepts the obligation which we entered into on that occasion.
I can see no justification whatsoever for adding to the Treaties which we are accepting without knowing exactly what the existing Treaties are and what future Treaties are likely to cover. It is unreasonable to expect your Lordships to give approval at this stage to Treaties which may be signed four or five years from now and which may cover subjects such as economic or monetary union or perhaps European defence. It is unreasonable to say that the justification for this is that it will be done by Order in Council and therefore Parliament will be involved. As I understand it, even the Order in Council procedure will apply only in certain cases, and, as your Lordships know, that procedure does not provide for amendment of the Order in Council. It is something that your Lordships have to accept

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or reject. As the Bill stands at present Parliamentary control seems to be almost completely non-existent; this will be the case if your Lordships pass Clause 1 and allow it to go on to the Statute Book.
We shall come at a later stage to ways and means of improving the Bill and making provision for greater Parliamentary control and for proper scrutiny. This should be the case not only when something has been done—if the Government is kind enough to let us know what it has done—but perhaps we should also be told in advance through machinery which will clearly have to be established in both Houses of Parliament if the legislators of the country are to know what the Government's policy is and if they are to have any influence on what is being done in Brussels, Luxembourg or wherever the decision is taken. The last point I want to put is that this is an onerous responsibility that we are apparently prepared to accept. I should like the Government to tell us whether the Parliaments in the other countries of Europe have voted away their obligations and rights in the way that Her Majesty's Government are proposing that this Committee should do.
LORD SHACKLETON: I do not know if there is going to be a further reply.
BARONESS TWEEDSMUIR OF BELHELVIE: I had not intended to speak again because I had sought to cover all the points except one which was raised by the noble Lord, Lord Greenwood of Rossendale, just now. If I may say so, I thought a good deal of what he referred to was more appropriate to a speech on the Question, whether Clause 1 stand part of the Bill. But of course I was guilty myself in that I referred to Clause 1(3) because of the question of the Order in Council. However, what I omitted to say—and this is important in view of the remarks the noble Lord has made—is that where an Order in Council is used, where the United Kingdom is a party to a Treaty in regard to these four lines which we are discussing under Clause 1(2), it will not be that only an Order in Council, subject to Affirmative Resolution, must be employed; one could also have legislation in the shape of an ordinary Bill. That is not excluded. This is a most important
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point which has been raised by the noble Lord.
LORD SHACKLETON: I am grateful for that helpful speech by the noble Baroness and for the other interventions. Once again, I have a dim perception of what this means. It will remain with me for a few minutes and then will disappear. I believe that this will be the state of many noble Lords who are now sitting back and saying, "Yes, we think we understand." This section or provision—I do not know quite what to call it—
VISCOUNT COLVILLE OF CULROSS: Limb.
LORD SHACKLETON: This limb refers to what may be done in the future, and covers these two categories: Community Treaties in which we may not be participants, and treaties ancillary to ones to which we shall be signatories. I suppose that the phrase "entered into" has a specific legal meaning. I do not know, and would not argue if the lawyers say, "Yes, it is in order and the word 'signed' does not have to be used". I am not sure at what point one enters into a Treaty. Presumably it is when one signs it.
VISCOUNT COLVILLE OF CULROSS: I think that this point is susceptible of a fairly easy explanation. On the point of the phrase "entered into", one first of all makes the agreement, and that is entering into it. It does not become binding until it is ratified. As a rule, one has to do something in one's own country before it can be ratified. Therefore, the phrase used is "entered into". At this stage of the definition, before we reach Clause 1(3), whereby we ratify, it is probably correct to use these words.
LORD SHACKLETON: The noble Viscount has been helpful and it is obviously necessary to consider subsection (3) in the consideration of this limb. He need not be worried; I am not going to start on that point now because we shall be coming to it shortly. I am not totally without belief or hope that the Government have it right, but I still think it would be possible for an assurance to be given. And this is where we see the significance of the earlier Amendment on which the noble Viscount gave a helpful explanation, although

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rather late in the day. By the time it came we were almost heading for the Division Lobby. But I do not see how it can be satisfactory to leave this provision as it stands.
This Bill is going to be the basis of a lot of work by many people. I refer not only to the lawyers, who may welcome this (though the lawyers are becoming increasingly overworked) but to ordinary Members of Parliament and Members of the House of Lords. We shall undoubtedly have to look at this Statute many times in the future because it is going to be one of great importance. Unless there is the kind of explanation which my noble and learned friend the former Lord Chancellor at one time had in mind with regard to Statute Law, because it will be necessary for people to go back to the explanations given in debate in order to understand it, I do not think this is satisfactory.
I do not assume that all Bills and Acts have to be absolutely intelligible to everyone, but it would have been possible for this drafting to be clearer. Noble Lords on the Front Bench have helped us, with patience, to understand this, but it is my view that we have a duty in this House

CONTENTS

Balogh, L.

Foot, L.

Phillips, Bs.

Bernstein, L.

Gardiner, L.

Rathcreedan, L.

Beswick, L.

Garnsworthy, L. [Teller]

Serota, Bs.

Birk, Bs.

Gifford, L.

Shackleton, L.

Blyton, L.

Greenwood of Rossendale, L.

Shinwell, L.

Bowden, L.

Hale, L.

Slater, L.

Brockway, L.

Hoy, L.

Stocks, Bs.

Buckinghamshire, E.

Janner, L.

Stow Hill, L.

Burntwood, L.

Lauderdale, E.

Strabolgi, L. [Teller]

Caradon, L.

Leatherland, L.

Taylor of Mansfield, L

Champion, L.

Lindsay of Birker, L.

Walston, L.

Colyton, L.

Llewelyn-Davies of Hastoe, Bs.

Wells-Pestell, L,

Davies of Leek, L.

Lloyd of Hampstead, L.

White, Bs.

de Clifford, L.

McLeavy, L.

Willis, L.

Evans of Hungersall, L.

Maelor, L.

Wise, L.

Faringdon, L.

Ogmore, L.

Wynne-Jones, L.

Fiske, L.

Pargiter, L.

NOT-CONTENTS

Aberdare, L.

Blackford, L.

Colgrain, L.

Abinger, L.

Blake, L.

Colville of Culross, V.

Ailwyn, L.

Boothby, L.

Cork and Orrery, E.

Alexander of Tunis, E.

Boyd of Morton, V.

Cottesloe, L.

Amherst of Hackney, L.

Bradford, E.

Craigavon, V.

Arbuthnott, V.

Braye, L.

Craigmyle, L.

Ashbourne, L.

Brecon, L.

Cranbrook, E.

Astor of Hever, L.

Brentford, V.

Crathorne, L.

Balerno, L.

Brooke of Cumnor, L.

Crawshaw, L.

Balfour, E.

Brougham and Vaux, L.

Croft, L.

Barnby, L.

Camoys, L.

Cullen of Ashbourne, L.

Belstead, L.

Chesham, L.

Daventry, V.

Berkeley, Bs.

Clwyd, L.

Denham, L. [Teller]

Bessborough, E.

Coleraine, L.

Digby, L.

Bethell, L.

Coleridge, L.

Drumalbyn, L.

in this connection. We are not seeking to hold up the Bill—we are moving quite fast—but my noble friends are not happy about this. I suspect that there are noble Lords on the opposite side of the House also who are not happy about it. Since the Government have given no undertaking—and are clearly in no position, I fear, to give one—to look at the arguments to see whether the drafting can be improved, I feel I must divide the Committee. It is almost impossible for the rest of us to deal with this.
The Government have brilliant hacking from the particular draftsman. We ackknowledge that—and I am not saying this in other than an admiring way—but something more intelligible could have been produced. In these circumstances I should like to divide the Committee in order to encourage the Government to recognise that we should like clearer legislation. We shall go on pressing throughout the Committee stage to obtain greater clarity.
5.56 p.m.
On Question, Whether the said Amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 51; Non-Contents, 152.

Dudley, E.

Kemsley, V.

Reigate, L.

Dundee, E.

Killearn, L.

Rennell, L.

Dundonald, E.

Kindersley, L.

Rhyl, L.

Ebbisham, L.

Lansdowne, M.

Robbins, L.

Eccles, V.

Limerick, E.

Roberthall, L.

Elles, Bs.

Long, V.

Rochdale, V.

Elliot of Harwood, Bs.

Lothian, M.

Rootes, L.

Emmet of Amberley, Bs.

Lucas of Chilworth, L.

Rothes, E.

Essex, E.

Luke, L.

Ruthven of Freeland, Ly.

Falmouth, V.

Macleod of Borve, Bs.

Sackville, L.

Ferrers, E.

Macpherson of Drumochter, L.

Saint Oswald, L.

Fortescue, E.

Mancroft, L.

Sandford, L.

Gage, V.

Massereene and Ferrard, V.

Sandys, L.

Gainford, L.

May, L.

Selkirk, E.

Goschen, V.

Merrivale, L.

Selsdon, L.

Gowrie, E.

Mersey, V.

Sempill, Ly.

Greenway, L.

Milverton, L.

Shaftesbury, E.

Grenfell, L.

Monck, V.

Sherfield, L.

Gridley, L.

Monk Bretton, L.

Sinclair of Cleeve, L.

Grimston of Westbury, L.

Morrison, L.

Stonehaven, V.

Hailes, L.

Mottistone, L.

Stradbroke, E.

Hailsham of Saint Marylebone, L.(L. Chancellor)

Mountevans, L.

Strathclyde, L.

Mowbray and Stourton, L. [Teller]

Stratheden and Campbell, L.

Harcourt, V.

Suffield, L.

Harris, L.

Netherthorpe, L.

Teviot, L.

Harvey of Prestbury, L.

Northchurch, Bs.

Thomas, L.

Hawke, L.

Nugent of Guildford, L.

Trevelyan, L.

Hayter, L.

Onslow, E.

Tweedsmuir, L.

Hemingford, L.

Orr-Ewing, L.

Tweedsmuir of Belhelvie, Bs.

Hewlett, L.

Penrhyn, L.

Vernon, L.

Hives, L.

Perth, E.

Vivian, L.

Hood, V.

Polwarth, L.

Waldegrave, E.

Howard of Glossop, L.

Poole, L.

Watkinson, V.

Hurcomb, L.

Radnor, E.

Wolverton, L.

Hylton-Foster, Bs.

Reay, L.

Wynford, L.

Jellicoe, E. (L. Privy Seal)

Redmayne, L.

Young, Bs.

Jessel, L.

6.5 p.m.
TILE EARL OF LAUDERDALE TILE EARL OF LAUDERDALE moved Amendment No. 5:
Page 2, line 10, at end insert—
(" ( ) (a) this Act shall continue in force until the end of the year 1973 and shall then expire unless continued in force in accordance with the following provisions of this subsection;
(b) subject to paragraph (c) below, Her Majesty may from time to time by Order in Council provide for this Act to continue in force for a period of twelve months beyond the day on which it would otherwise expire;
(c) no Order in Council shall be made under paragraph (h) above so as to continue this Act beyond the end of the year 1977.")
The noble Earl said: This Amendment, which may appear rather formidable in length, is in fact neither anti nor pro Common Market, and on that controversy at the moment I do not propose to enter. But to those who profess that this Bill, when it becomes an Act, will indeed be an Act of sovereignty rather than of diminution my Amendment should offer proof, and at the same time it should offer some solace to those who are legitimately anxious. It is not
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intended in any way to compromise, to corrupt, to contaminate, to soil or to spoil our accession; and I am advised that since each State ratifies by its own procedures this would in no way affect our ratification.
My right honourable friend in another place, the Chancellor of the Duchy of Lancaster, said on Third Reading:
"…the broad issue of sovereignty … is broadly as it is under other Treaties we have signed in the past.—[OFFICIAL REPORT, Commons; 13/7/72, col. 1979.]
When we signed the North Atlantic Treaty in April 1949 we pledged mutual defence aid to the limit of our capacity, and in the first instance we did so for some 20 years ahead. Yet at that time Parliament had provided a standing Army and Air Force for no more than 12 months.
In the following year, the North Atlantic Treaty being now ratified, Parliament still did no more than repeat the Army and Air Force annual Act and kept our standing forces in being simply for

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another year, and this against a commitment which now had more than 19 years to run.
The same formal self-restriction on our willing the means to comply with our pledged word occurred also when we adhered to the SEATO commitment in South-East Asia in September 1954. Our defence obligations there were undertaken for an indefinite time. Yet on the day when we signed the annual Act had but half a year to run, and therefore in law we had a standing Army and Air Force for just another six months. The next year, in February 1955, when we signed the CENTO Treaty, pledging defence aid for not less than five years, we did it when the annual Act keeping the Army and Air Force in being had fewer than three months to run.
No voice was raised to cry, whether in 1949, in 1954 or in 1955, that having willed the end we had now failed to will the means. Still less was any voice raised to plead that failure to authorise our Armed Forces, whether for eternity, for two decades or indeed for only five years, in the smallest degree would compromise or weaken either our ratification or our good faith or our national honour. Of course not. For the yearly exercise in renewing the Army and Air Force annual Act was just how my right honourable friend the Solicitor General on Third Reading in another place described our joining in and acting within the Community. He called it "a deliberate and continuing act of sovereignty". Indeed this annually repeated exercise of sovereignty both fulfilled the aspirations of the Petition of Right and obeyed the Bill of Rights of 1689, two provisions of which are particularly relevant to this time and place. The first one reads:
"The pretended power of suspending laws and of the execution of laws"
and the sixth one reads:
"The raising or keeping of a standing army … in time of peace".
and they both have this passage in common:
"without the consent of Parliament is against law".
That last phrase has remained part of our legislation, being incorporated in the Preamble to the annual Acts for the Army and Air Force, until in 1955 Parliament chose to foreshorten matters.
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To-day we have the Armed Forces Act 1971 with effect for a year only, renewable each year by Order in Council, but, even so, valid for not more than five years altogether; and in 1976 we begin the same process again.
The wording of my Amendment has been taken straight from the Armed Forces Act 1971. What is good for the armed forces is surely good for us all. Like that Act, if the Amendment were incorporated in the Bill now before us, it would hold intact the principles of 1629 and 1689, which some believe have been pushed somewhat aside. My words in this Amendment have been designed to respect the principle that, though many times over Parliament has supported the Executive in adhering to a treaty with costly, burdensome and, in many cases, totally unforeseeable commitments, unforeseeable in their extent, ranging from periods of five years to periods in the indefinite future or eternity, nobody disputes and nobody has disputed the propriety of keeping the means to such ends under annual Parliamentary review.
This group of Treaties which we have now been talking about for nearly three hours are not only wide-ranging but are intended to range wider still. Little wonder, then, that when my right honourable and learned friend in another place, the Solicitor General, spoke of our "continuing act of sovereignty" he also qualified that phrase, for he said:
"So long as we remain a member"
pooling decisions
"… will be a continuing act of sovereignty".
So it is quite plain that the Government Front Bench have conceded, at any rate elsewhere, that Britain might at some point wish to withdraw.
To enable withdrawal is not the purpose of my Amendment. Indeed, by this Amendment I do not seek to make the Community stumble and fall. But I believe that accession, if accession there is to be, should be set upon a rock of stone. Such expressions by the Solicitor General are expressions of opinion; such expressions are only expressions of opinion, such expressions bind nobody outside the Government from which they are sprung. Do not let us leave to chance what can only, as it stands, be an opinion, which might even prove in the future to

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have been a misleading opinion. Do not let us be fellows in any kind of deceit. If we believe what the Solicitor General has said, let us make sure, let us set it in the Statute.
"Loss of sovereignty implies that Parliament has been forced to accept membership …."—
that is, of the Communities—
"… without choice".
That was said by the Solicitor General, again on the same occasion. If we believe this, then let us set it in the Statute.
My noble and learned friend on the Woolsack told us on Second Reading that he believed—and he used the word "belief"—that there was nothing in this,
"…which derogates … from British soveregnty, legal or political—if sovereignty means, as I think it means, the right … or at least the power to do anything right or wrong."—[OFFICIAL REPORT, 25/7/72; Col. 1233.]
Those were his words. Once again they are an expression of belief, albeit the belief of a magisterial personality to whom, if I may take the liberty of saying so, our respect is clothed in personal affection. But belief is not enough for a matter so grave as this, and in this particular case it has indeed been contradicted by the Master of the Rolls. Where there is doubt, let us set it in the statute.
I have listened, like others of your Lordships, with interest and hope, mingled with apprehension, to the reactions of our Government Front Bench to questions that have been put to them about the meaning or the drafting of this Bill. I am bound to say that so far I am not greatly encouraged, but I believe firmly in their good faith and I feel confident that before this Committee stage is over there will have been abundant demonstrations of it. But what I say to my noble friends on the Front Bench is this. If the Government would accept the spirit and purpose of what I propose, if they would undertake to look at it and come back with their own wording on Report, they would at a stroke prove by deed that sovereignty still lives where they tell us they believe it does; they would at a stroke allay much public anxiety: they would at a stroke put to confusion much lurking hostility; they would at a stroke win new support outside Parliament and, I believe, within it; they would at a stroke prove them-
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selves sincerely attentive to the constitutional revising function of your Lordships' noble House. My noble friend Lord Jellicoe assured us in his winding-up of the Second Reading debate a little while ago, that he would make sure as Leader of the House that we were no mere rubber stamp, and he added that that was no mere formal promise.
This Amendment is not proposed lightly or wantonly. It is designed to meet a real difficulty, albeit in my own ignorant kind of way; it is designed to do it in accord with our most venerable Parliamentary practice; it is designed to do it with grace and decency, and it is designed to do it without loss of honour to the Government in any way, and, may I add, without in the smallest sense denigrating the great hopes which I know repose in many of your Lordships in Great Britain's joining what I would choose to call the great congregation.
LORD SOMERS: I would beg the Government to pay earnest heed to the Amendment moved by the noble Earl. I am not going to say anything about my own particular attitude towards the Bill because I have lived long enough now to know that I am more often wrong than right. But there can be very little doubt that this Bill is taking our country into a totally new era and very few of us, even, those expert on the subject, have any idea as to what our problems and difficulties are going to be. Therefore, I sincerely hope that the Government will consider the Amendment which has just been moved as a way of preventing our country from going into a position from which it cannot extricate itself.
6.23 p.m.
LORD ROBBINS: I have never in your Lordships' House listened without deep respect to a speech from the noble Earl, and I certainly listened to the pronouncement he has just made in the same spirit. Nevertheless, I would suggest that the analogy on which he based his recommendation is, in fact, misleading. Let us suppose for a moment that we are considering not relations with other Powers but other matters relating to the law of this country. There are special reasons, going back to the 17th century, whereby it has been considered desirable—and I agree it is desirable—that arrangements concerning military forces

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be reviewed at frequent intervals. But suppose, lit is suggested that arrangements concerning the general law of property should be reviewed at frequent intervals; supposing other branches of the law were automatically to come up for review in such a way. Then surely the orderly processes of society would be gravely impaired. Needless to say, if due cause can be made out for review of any parts of our legislation it is open to anyone in your Lordships' House or in the other place, operating according to the proper conventions, to make them the subject of debate and to put the matter to a democratic vote. But surely it would be regarded as unwise—if I may use Burke's phrase—to make
"The occasional medicine, our yearly bread'.'
Turning to the matter in hand. I suggest that the arrangements we are contemplating, which are arrangements consequent on our proposed entry into an economic Community are arrangements which are not to be regarded as suitable to come up automatically for review at 12-monthly intervals. For all the business enterprise concerned these arrangements will involve, planning ahead, not merely for months, but for years. My imagination boggles at the uncertainty involved if it were thought that every year we should have debates of this sort as to whether these arrangements should continue. I am not arguing that in certain emergencies we ought not to call into review the arrangements now contemplated; but I am arguing that to write automatic review year by year into the present Bill would be an act of unwisdom.
6.26 p.m.
LORD SHINWELL: The noble Lord, Lord Robbins, speaks always with great authority, but it does not follow that one must always agree with him. In the course of his observations he rejects the analogy submitted by the noble Earl, Lord Lauderdale, but it is a very effective and logical analogy, as I shall venture to demonstrate. What is being asked for, essentially, is that there should be effective and regular Parliamentary control, and it must be conceded, from a study of the debates in the other place and a knowledge of the arguments and contentions submitted in your Lordships' House,
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that the one thing which is absent from this legislation is effective Parliamentary control. If it is the opinion of noble Lords that we should enter the E.E.C. without adequate terms—indeed, accepting unconditional surrender—then I understand it. In fact the decision just reached on the previous Amendment, when the Government rejected the appeals that were made by my noble friends on the Front Bench and by others on this side of the House, is a demonstration of what I have just said: unconditional surrender.
It does not matter treaties have been agreed in the past or are envisaged for the future—if indeed one can envisage something which is vague, nebulous and ambiguous. Nevertheless, we are determined to go in, and that is the end of the story; that is the attitude of the Government, and I suspect (I say this with great respect) that the noble Earl, Lord Jellicoe, the Leader of the House, and those associated with him in these debates, have not the slightest intention of yielding an inch, so far as the principles embodied in this legislation are concerned. That is my view.
Of course, my noble friends on the Front Bench speak with much greater authority than I can hope to do, but I think they are wasting a lot of their time. They will discover this in due course. It is true to say we have been approached, many of us, by some of our colleagues in another place who have suggested that we might by our efforts improve the Bill. That is impossible. I think the only way to deal with this Bill is to demolish it; finish with it completely. That is my view. I have given reasons before, and I shall venture one or two in the course of my remarks. What we might be able to do—and here I agree with my noble friends on the Front Bench, and those on this side of the House who are building up an opposition—is to weaken the legislation so that it might not do as much harm as under the original intentions of the Bill. That is the only hope we have. Opponents of the Bill can go on in their agitation and approaches, some of them emotionally presented and some logically argued; they can do it all, and see what happens at the end of the day.
I support the Amendment proposed with great courage in the circumstances.

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The noble Earl, Lord Lauderdale, is almost the only one on that side of your Lordships' House ready to argue logically against the principles embodied in this legislation. It shows remarkable courage. I applaud his sentiments. I applaud him more particularly because it is obvious that we do not know what we are in for. Even the noble Lord, Lord Robbins, has ventured to suggest that we cannot accept an annual review, but there might be an occasional review every four or five years. Why? Why four or five years, seven years, or ten years?
LORD ROBBINS: With deep respect, I did not suggest a five-yearly review. I said that in circumstances of great emergency, naturally the sovereignty of Parliament would permit a review.
LORD SHINWELL: The noble Lord, Lord Robbins, is right to correct me. He did not specify any period of time. He suggested that there might be a review dependent on the circumstances. Nevertheless, while he rejected the automatic annual review, he was prepared to consider a possible review? Why? It is a fair question that I pose. I presume that it is because he has doubts; that it may not work out as some people expect. Indeed there are doubts. The legal arguments that have been adduced in the course of these debates, not only at the Committee stage this afternoon but in the general debates we have had—and I think that there have been three over the last 18 months or so—have indicated that doubts exist. There are doubts on that side of the House, and there are doubts on this side of the House; and quite rightly, because, in a sense, it is a leap in the dark.
It is all very well to come along and say, "Look at the growth that has been developed on the Continent. Look at the wages the workers receive. Look at the co-ordination and the co-operation, and the sense of unity." That is all very well, but there are still doubts and reservations. In those circumstances, and having regard to that sentiment, it is wise to consider whether it would not be desirable that we should, after a period of time, consider whether it is worth while going on or—and I will modify what I have just said, because that would indicate perhaps the end of it—perhaps
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seek some modifications where the harm has been done, where there has been injury, and seek to correct it. I can understand that, and that is what the noble Lord, Lord Lauderdale, is suggesting, as I understand it from listening to his speech and reading his Amendment. That is also my view.
I beg your Lordships to understand that I accept what the noble Earl, Lord Lauderdale, said, about the good faith of the Government. Of course their sincerity is not in question. How can it be? But I do not believe that they are going to give way at all. If it should happen, as a result of the very strong and strident appeals, backed up by the logic imparted by my noble friends on the Front Bench, that the Government give way on something, I shall be prepared to examine it. If they do yield, after my meticulous examination I shall make the remarkable discovery that it has hardly been worth while. There are to be no great discoveries so far as this legislation is concerned. There will be no "Columbus's"—none at all. So we must accept the worst. I am ready for that. I have predicted disaster from the outset. I deplore it. I hate it.
If I may be allowed to say so—and I am not speaking with any excess sense of emotion; I am speaking from my mind, if not from my heart—I would much rather it had been the other way; that we had backed down and gathered up our loins and made a really great effort, as this country has done in the past, in order to retain our independence. But that I do not mean refusing to associate with other countries in trade and commerce, and in various activities—not at all! I mean merely that we should retain a measure of independence and Parliamentary control. I should not be at all surprised if—it may be in my time: who can tell?—I had better touch wood the way things are—we make the discovery that your Lordships' House is no longer of any value in the context of the Economic Community, and that it has become really an anachronism. I should regret it if that were to occur in my time. If it is after my time, well I shall know nothing about it. I beg your Lordships to understand that I am an unrepentant opponent of Britain's entry into the Common Market; and if disaster ensues do not blame me.
6.36 p.m.
LORD BARNBY: I am glad that before intervening I had the opportunity of listening to the noble Lord, Lord Robbins, whose views I certainly always listen to not only with great attention but also with great respect. This is a matter of a general character on which he could quite properly let us have his views. Of course the noble Lord, Lord Shinwell, is an unequivocal opponent of entry, and for me it is always interesting to hear the reasonings which he advances in support of the views which, with his long experience, he has the right to hold.
I do not propose to take the time of the Committee in saying much on this Amendment. I read it with great interest, and waited with impatience to hear the way it was going to be presented by my noble friend, and after the three speeches, I now await with impatience to hear the manner in which it is going to be dealt with by the Front Bench. But I must say that I found the speech of my noble friend Lord Lauderdale persuasive. His argument was certainly moderately put. It was ingenious. He reached back a long time. He must have made much research in support of it. I could not pretend to have the ability, or the knowledge, to make any comment on the substance on which he advanced his reasoning; but at least we must admit that it had much logic behind it.
The main objection was raised by the noble Lord, Lord Robbins; not unnaturally, it was that for us to agree to support the views of the noble Earl would lead to great question marks. But the fact is that the Army Act is renewed only once a year, and there is a general expectation that that will occur, unless there is suddenly an inconceivable change of public opinion in the country. So it may well be that it would be possible to find some manner in which this yearly examination could, with advantage, be done. In a very much humbler sphere, the difference between a banker's order and an annual scrutiny is something we have all had experience of and it is improper to bring it into such an important question; but for myself I was impressed with the logic and the reasoning of my noble friend and it is for that reason, awaiting with interest the manner in which it is going to be dealt with by the
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Front Bench, that I, at least at this stage, support the Amendment.
6.41 p.m.
LORD GREENWOOD OF ROSSENDALE: The noble Lord, Lord Barnby, and my noble friend Lord Shinwell have set the rest of the House an example. As I look around me I feel that the lacklustre expression on many faces derives from the fact that we all sat up so late last night trying to understand this completely incomprehensible piece of legislation, and the monolithic silence which seems to have descended on some sections of the House is no doubt a reflection of the fact that many of us were unable to make sense of the legislation.
The criticism has been offered of the noble Earl's proposal that it is an unusual proposal. I forget the exact words which the noble Lord, Lord Robbins, used, but he was really saying that this was something which had not been done before and therefore might be a rather dangerous precedent. I do not accept that at all. If we were for the first time in this country starting to have an Army it would be regarded as complete lunacy to say that the Army should depend on an Annual Vote of Parliament. It really would not make sense. One of the most important protections our Constitution has had has been that every year the Armed Forces of the Crown have had to obtain the support of the House of Commons. It seems to me that over the centuries, or at any rate over the last half century, the annual Army Act and the Expiring Laws Continuance Act, upon which the noble and learned Lord who sits on the Woolsack and I occasionally joined issue in another place, have both worked well and have both been admirable checks upon the Executive.
The fact that this is unusual in this context is not, I think, a matter for criticism. This is, after all, a most unusual proposal. That we should surrender such a large measure of the sovereignty of this country is probably the most unusual proposal that has ever been made to your Lordships' House. I do not think that even the Prime Minister now deludes himself that the Government are going ahead with this legislation with the wholehearted support either of the people of this country or of the

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Members of another place; and when we are taking this quite drastic action to curtail the rights, and perhaps to affect the future, of the rest of the population it is surely not unreasonable to ask that we should allow ourselves some escape hatch by which, if public opinion turns fiercely against this proposal, as it may well do, we are able to release ourselves from the obligations into which we are entering. It would mean that we were doing it under honourable conditions. I am not very happy about the idea that once we are in we should try to re-negotiate. I believe that probably the only sanction we should have in the last resort would be to break our Treaty obligations; and that is something that no honourable man or woman willingly does.
If we were to accept the proposal in the noble Earl's Amendment tonight it would mean that we put the Community under warning that in certain circumstances we in this country might think it necessary to withdraw. I ask noble Lords to consider seriously the political situation in France, in Germany, in Italy. I think anybody would be pretty optimistic to bet heavily on the fact that ten years from now Italy will be a democratic country. I think there is a pretty good chance that Italy may go either Fascist or Communist in the next ten or fifteen years. I would not put my shirt on Germany's remaining indefinitely a democratic country. We have to remember that France has the largest Communist Party outside Eastern Europe. These are the partners we are trying to wed ourselves to, absolutely indissolubly, for all time. The White Paper issued by the Government points out that these Treaties are binding for all time except for the Coal and Steel Treaty, which is for a period of 50 years. Would it not be prudent to give ourselves the opportunity of saying that we have accepted the principle, that we want to see the thing work once we are inside, but that we want to give notice that we may find the attitude of other members in the Community incompatible either with our own philosophy or with the basic material interests of this country and that therefore we propose to look at this matter from time to time.
LORD ROBBINS: May I put a question to the noble Lord? Accepting, as I am sure he does, as a good citizen of the world, that there should persist some degree of solidarity in Western Europe, would he think it a good thing if each of the present members of the Common Market were to adopt the procedure which it is proposed we should adopt?
LORD GREENWOOD OF ROSSENDALE: That is a perfectly fair point for the noble Lord to make. I only wish that the noble Lord who referred to discussion on the previous Amendment had answered the question I put to him: that was, whether other countries, when going into the European Economic Community, had accepted the same limitation which the Government has put into this Bill. This question was put to the learned Solicitor General in another place, and so far as I have been able to discover it is a point which none of the Ministers in another place was able to answer. It seems to me that we have in fact voluntarily proposed that we accept in this country obligations that the other Western European countries have not accepted.
LORD DAVIES OF LEEK: Would my noble friend give way? The example par excellence is Italy, who in the transition period refused to apply the value added tax because of the trouble it would cause.
LORD GREENWOOD OF ROSSENDALE: If I may continue without the helpful support that I am getting from the noble Lord, Lord Robbins, and my noble friend Lord Davies of Leek, I want to say that I think the onus here rests upon the Government. So far, no means have been proposed—at any rate, no means have been disclosed to the House—of keeping your Lordships' House or another place informed of what is proposed should happen inside the Community. We have to look very carefully at the kind of machinery that is to be set up. We do not know what we are being committed to. There is no provision for scrutiny of various legislation to which we shall be committed. There is no proposal, so far as I know, for a regular report to be made by the British Government to the people of this country about how they have behaved and comported

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themselves in the councils of the Community. This is still a complete mystery, and it is something we shall have to learn about as time goes on.
I think it would be wise if the Government would help us just a little by conceding that there is a case for giving this kind of reassurance, or some equal reassurance, to people who have these serious doubts about joining the Community. I say this not in any pugnacious way, but I would put it to noble Lords who represent the Government in your Lordships' House that it would be helpful if they would follow the tradition of the noble Lord, Lord Somers, and say that they would look to see whether this or some similar proposal could be made to work. If the noble Lord who is to reply to this debate were able to tell me that the Conservative Party will have discussions with the leaders of the other political Parties in this country, then I would gladly urge the noble Earl, Lord Lauderdale, to withdraw his Amendment, and I would advise my noble friends not to support it if it was pressed. So I hope noble Lords opposite will be able to make just this one concession to us, that between now and Report stage we should see whether we cannot give Members of your Lordships' House and the general public the reassurance for which I believe all of them are entitled to ask.
6.51 p.m.
EARL JELLICOE: Perhaps it might be a good thing if I were to intervene at this stage, I hope fairly briefly, in the discussion on this Amendment. First of all, I should like to say that, with other noble Lords, I found the advocacy of my noble friend Lord Lauderdale in moving his Amendment both powerful and passionate. What is more, he was quite correct when he stated that his Amendment would not prevent us from ratifying the Treaty of Accession; although, as I think he also made clear in his equally eloquent speech on Second Reading, he would not himself shed bitter tears if we found ourselves in the position of not being able to ratify. But the fact is that if we were to adopt this Amendment—and I think it is worth saying this, as I want to be straightforward with your Lordships—our ratification would remain valid and binding; indeed, that would be the fact whether or not the Act was
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renewed each year and re-enacted in 1977. However, if the Act were not renewed in the way provided for in my noble friend's Amendment, and were not re-enacted, if it were allowed to lapse, we should be unable to fulfil under our domestic law those obligations to which we should still be bound in International Law under the Treaty of Accession—and I must confess that this is not a position into which I should like to see our country deliberately put itself.
The alternative is re-enactment in five years' time; to have the sword of Lauderdale hanging over us for five years, with the possibility of a further two million words spoken in another place and half a million—I do not wish to prejudge how many million words your Lordships will utter, but we seem to be notching up quite a lot on the speedometer at the present time—
A NOBLE LORD: Not a speedometer!
EARL JELLICOE: Not a speedometer, no; but with the possibility of a few words spoken in your Lordships' House—is not a prospect which particularly commends itself to at least this noble Lord. But I come back to this point. The fact remains, quite correctly stated by my noble friend, that there is no technical incompatibility between acceptance of his Amendment and our ratification of the Treaty of Accession.
I do not wish to dwell unduly on the legal aspects of the case, the semi-military case, developed by my noble friend, and my noble friend Lord Colville will, if need be, intervene towards the end of the discussion on this Amendment, but I should like to make one point in reply to the noble Lord, Lord Greenwood. If his argument has validity, it points, as I see it, basically, to a reservation in the Treaty of Accession and not in this Bill. Our Treaty obligation is not subject to a time limit, and it is my belief that the Bill ought in honour to follow the Treaty obligation, the obligation which we have assumed. But I do not wish to rest unduly on the legal argument. In fact, I should be very unwise to do so as there are better lawyers than I—indeed, I am not a lawyer at all—in your Lordships' Committee. I have said that there is no technical incompatibility between the

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acceptance of this Amendment and ratification. However, given the whole background to this matter, there is in my view a very considerable practical and political incompatibility—political in its widest, international sense.
My noble friend spoke of the spirit and purpose of his Amendment. I would suggest that the spirit and purpose of his Amendment, sincerely moved, is in fact contrary to the whole spirit of our application to join the Communities. For the past five years we have been negotiating for entry on acceptable terms and, pace the noble Lord, Lord Shinwell, I believe we have won acceptable terms. For the past 14 months we have been moving steadily nearer our goal. In June last year we completed our negotiations, and in October last year your Lordships voted by an overwhelming majority in favour of joining the European Communities on the terms negotiated, and by an equally overwhelming majority on Second Reading of this Bill last week. Now, when the Bill giving effect to this decision has already passed through another place, it is suggested that we should hesitate; that we should not commit ourselves wholly but should review the situation at annual intervals and that, in five years' time, if we decide to stay in the European Communities—"if we decide—we should enact new legislation. If, after all the argument, all the discussion, all the negotiations of the past few years, we are not sure that we wish to join the Communities: if we really entertain all the doubts, all the hesitations, which the noble Lord, Lord Greenwood, has expressed, it is better that we should not enter, rather than that we should join hesitantly, making it abundantly clear by our hesitation that we have not accepted the continuing nature of our Community commitments.
THE EARL OF LAUDERDALE: Would the noble Earl allow me to interrupt him for one moment—and I apologise for doing so—to clarify one point? He has said, in effect—and I take the point—that this proposal, though technically not incompatible, would be practically and politically incompatible; and I accept the distinction. He has suggested that if we incorporated some such provision in our Bill we would then
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display hesitancy to our proposed partners. But when we signed NATO we had just such a provision. Did it then suggest hesitancy? When we signed SEATO it was the same; and when we signed CENTO, the same. Surely no hesistancy is implied: we are merely conforming to our traditional practices in Parliament.
EARL JELLICOE: I think that what my noble friend is seeking to do is to import this hesitancy expressly into the ratification Bill. There was no such provision in our ratification of the NATO Treaty. I know he used an analogy. I must say that, along with others, I thought the analogy was a false one; but my noble friend will come back on that, if need be. With the noble Lord, Lord Robbins, I believe that if we were deliberately to write in this provision for review it might have a really disastrous effect upon the economic and commercial evolution of the Community itself. But quite apart from that, quite apart from the effect upon the wider Community. I believe it would be seriously detrimental to our own, narrower interests. All our industry and commerce, as I made clear on Second Reading, would be placed in a position of uncertainty which would make long-term planning and total involvement in our policies towards Europe virtually impossible. I would suggest that unless we enter the Communities with a firm commitment, the commitment implicit in our Treaty of Accession—and that Treaty of Accession has been on the Table ever since January of this year—determined to play our full part as members and to make sure our membership is a success, we shall be ourselves undermining the chances of that success and ourselves undermining our chances of success within the Community. If we have to decide this—
LORD SLATER: May I—
EARL JELLICOE: May I just finish? I was coming to a conclusion. I will then answer the noble Lord's point.
If we have to decide this matter one way or another—and we have so to decide—let us decide it now once and for all in a clear-cut categorical way, in a way compatible with what is said in the Treaty of Accession. I listened to the noble Earl's plea that we should consider

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this matter between Committee and Report stage; but it would be disingenuous of me, given what I have said, to hold out any hope that I could change on this fundamental point, that I could see my way to any Amendment which could accommodate him. I must say that to him and—
SEVERAL NOBLE LORDS: Order! Address the Committee!
EARL JELLKOE: I have noticed noble Lords on the Front Benches opposite sometimes turn, fearing the shafts which may reach them from behind. I turned to my noble friend for I did not know that the sword of Lauderdale was about to—
THE EARL OF LAUDERDALE: My noble friend referred to the ratification Of NATO, and SEATO and of CENTO. Can he tell the House by what Bills we ratified those Treaties? There was no Bill at all! We do not in Parliament make this ratification Bill by a Parliamentary Act. We deposit the ratification when whatever means are needed to an end have been willed. Here, the means to an end were not willed. We did not provide a standing Army for 20 years, for five years or for eternity. Surely there is some slight confusion here.
EARL JELUCOE: If I used the word "ratification" inappropriately, I would—
VISCOUNT COLVILLE OF CULROSS: The word was used correctly.
EARL JELLICOE: I am advised by my legal friend that I used it correctly. I said that I would prefer to leave the legal argumentation on this point to my noble friend Lord Colville of Culross.
LORD SLATER: The noble Earl said that he would answer what I have to say. First, is he aware that many of us in the past have listened to the noble Earl, Lord Lauderdale, in another place taking the same stand on this issue, a stand against his Government. The noble Earl talked of committal. How did some such committal come about? How did such an acceptance by Her Majesty's Government come about? It did not come about through reasonable debate and discussion in another place; it came about because it was forced through by the guillotine
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measure introduced on the Bill. It was not debated and discussed in the way it ought to have been. It has been forced on this House. I hope that when the noble Earl, Lord Jellicoe, speaks to-night he realises that the words which fall from his lips will go out through this nation and that the people of the nation will take particular note of what he says on behalf of Her Majesty's Government in regard to the speech he has already made about going into Europe.
EARL JELLICOE: I am very glad to hear that my words will be listened to. I am grateful to the noble Lord, Lord Slater, for giving me that assurance.
7.5 p.m.
LORD GLADWYN: I do not know whether any words that I say will be able to influence a single vote when the matter comes to a vote, as I am sure it will. But I must say that I myself would think that this Amendment, if not a wrecking Amendment, could at any rate be said to be a weakening Amendment and in the general category of Amendments advanced by the noble Lord, Lord Shinwell. Therefore, I would say that it comes into the category of those Amendments which, as I have already said, I think that my friends would be opposed to: namely, any Amendment which casts any doubt on the credibility of our signature to the Act of Accession. Surely if any Amendment would cast doubt on the credibility of our signature to the Act of Accession, it would be this particular Amendment! What would our friends abroad say? It would be that "every January, the Sword of Damocles is hanging over the whole show."It might be that in a few years a Government here could be extremely annoyed with the Government of Germany, or of France or Italy—a case was mentioned by the noble Lord, Lord Greenwood—and then perhaps in December, in a fit of petulance, that Government would say, If you go on like this, then there will be no Order in Council, the Order will not be renewed." Then at one bang everything would just lapse. No Government who are serious about entering the Community could put themselves into a position like that. Without any hesitation I shall vote against the Amendment.
LORD PEDDIE: I hope the noble Earl will help me in making what I hope will

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be the right decision on this Amendment. Am I to assume that the acceptance of these review conditions would impose some restrictions on our own Government in their association with the Community and restrict their credibility in being associated with any long-term decisions which the Community may be called upon to make? To me that is the most important aspect of this particular matter. I should like some reassurance on that before I make up my own mind.
THE EARL OF CORK AND ORRERY: May I say a brief word on a point connected with the analogy? The noble Lord, Lord Robbins, said that he was going to attack this analogy. He did so; but I felt that he did not put his finger precisely on the point which lies at the centre of it. Nor, indeed, did my noble Leader. My noble friend Lord Lauderdale in what I thought, if I may say so without impertinence, was a most moving, sincere and memorable speech, said at one moment that what is good for the Armed Forces is good for us all. But it seems to me that there is a flaw in so thinking. The arrangements that we make for the Armed Forces for annual or quinquennial review are not for the good of the Armed Forces; they are for the good of Parliament, on behalf of the people. They are intended to make it absolutely certain that, originally the Sovereign and now the Government, should not find themselves in permanent control of the Armed Forces. That arrangement therefore is not in existence in order that at the drop of a Governmental or Parliamentary hat we suddenly allow the Armed Forces to fall into a disunited and undisciplined rabble; it is to make certain that no Government can entrench itself and find it has the Army under its control.
That is one side of the analogy. My noble friend developed it by referring to the Treaties that we already have. He referred to NATO, SEATO and CENTO. As he pointed out, it has made no difference whatever to our adherence to those Treaties simply because our allies in those organisations never had the slightest doubts about our intentions. They knew that we had no intention of not renewing the Armed Forces Act in, say, five weeks' time, or five days or five
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years. It would not make sense. The only reason why we should possibly do such a thing would be the arising of a situation of such enormous internal emergency that we had to do so to free ourselves of the despotism of our own Government. It is unlikely that any nation on earth thinks that that is likely to happen in Great Britain.
Now we come to the other side of the analogy. We are asked by my noble friend to say why we think the other members of the Community should not take a similar view. On that analogy, they think that we are not likely to take advantage of this get-out provision in the Amendment unless there arises some monumental domestic emergency of such an appalling magnitude that we are bound to take action in order to prevent it. There is really no analogy at all. When my noble friend says—as he did say, with what I am sure is perfect truth, for he cannot speak in any other way—
"To enable withdrawal is not the purpose of my Amendment,"
that I entirely accept. But if I were a Frenchman, an Italian, or a member of another of the Communities, I would say that, whether or not that is the purpose of Lord Lauderdale's Amendment, it is certainly the effect; and from our point of view (I am still speaking from the Community's point of view) that must be the intention of any Parliament that accepts it and drafts it into its legislation.
The effect, to outer eyes from the other side of the Channel, and indeed to eyes on this side of the Channel, must surely be that this Amendment is put in for no other purpose than to enable us to get out of agreements into which we have entered. And this comes back to what my noble Leader has said: that it would be perfectly deplorable and entirely opposed to the whole spirit and, indeed, to the legality of the way in which we have hitherto acted. And, as I say, I think that the result would be totally deplorable.
LORD MACPHERSON OF DRUMOCHTER: I should like to congratulate my noble friend Lord Lauderdale on the way he presented his case, which he did very clearly and very well. Unfortunately, I am unable to support him because what he is proposing cuts

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right across the whole principle of the Common Market. It is not a practical proposition that annually we should opt in or opt out or, with respect to your Lordships' House, decide each year whether or not we are going to continue. To me this is not a small Amendment. It is an Amendment which cuts right across the whole principle of our entry into the Common Market. Finally, I should like to make one comment on the remarks I have heard so far during the Committee stage discussions about the Government's being reasonable. Just because a Government do not accept an Amendment it does not mean that a good Amendment has been lost. What it means, usually, is that the proposer of the Amendment has not made a sufficiently good case to persuade us to vote in favour of it. This question of the Government not having good faith is, I think, being overplayed.
BARONESS ELLES: Before anybody votes on this Amendment, can we turn our eyes to what has happened in the member States? Since 1957, they have continuously pursued a policy of improving the standard of living and the life of the people within the Community, and there has never been any question of renewing or looking at it each year. Let us look at the situation to-day. If it were not for the 1951 European Coal and Steel Community, when France and Germany willingly gave up sovereignty over the products of coal and steel, which, after all, are the products for making conventional weapons, we might not have been able to sit in this Chamber discussing this problem. For the first time—looking back to 1870 and up to 1939–45—we can say: "For 25 years we have been able to live without the threat of rearmament within Western Europe."Certainly no woman can stand back and say, "Right, let us renew this every year", when for the last 25 years we have been able to bring up our children in peace without any threat of rearmament. Therefore, I seriously ask noble Lords to consider that point before voting in favour of this Amendment.
7.12 p.m.
THE EARL OF LAUDERDALE: I am not quite sure whether it is in order for me to take up the points which have been made, because I understood that the noble
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Viscount, Lord Colville of Culross, was going to say a final word. Perhaps, working backwards, I may say that if many noble Lords believe, and all of us hope, that the consequences of going into the E.E.C. will be an immense improvement in our standard of living with no worry about back-sliding, then an annual review or a five-yearly review is nothing whatever to be afraid of. I am surprised that noble Lords who put their faith in this Treaty seem to fight shy of an annual or quinquennial review.
Another point has been made by my noble friends Lord Cork and Orrery and Lord Macpherson of Drumochter and I thank them both for their kind words about me. Their suggestion was that to our future partners this Amendment must look as if we were trying to provide some backdoor way out. But surely it would be much more convincing to our partners in Europe to know that we had gone in with the full-hearted consent of Parliament and without violation of our traditional procedures. The noble Lord, Lord Robbins, suggested that this annual review would produce great uncertainty. I am not aware that the annual or quinquennial review produces any uncertainty in the Armed Forces. The noble Lord, Lord Greenwood of Rossendale, took up the spirit of my Amendment by asking the Government, All right, you may not like these words or this proposition, but what have you to propose; and are you willing to enter into discussions about Parliamentary review?" so that Parliament may have a regular free-ranging review of our obligations in the future. If the Government and others are so confident that their hopes will be realised, what on earth is there to be afraid of? I cannot understand this fear. I am sorry that we have not had some sort of response from the Front Bench, at any rate to the proposal by the noble Lord, Lord Greenwood of Rossendale. I do not ask for the precise wording of the procedures of my Amendment to be accepted. What I ask is that the Government should look at it. They have said that they will not, and apparently the reason is that this would be politically incompatible with our ratification.
The noble Earl, Lord Jellicoe, said that this is a ratification treaty. I should like him to name—or perhaps the noble

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Viscount, Lord Colville of Culross, will name—the Bills that passed through Parliament to ratify our adhesion to NATO, CENTO and SEATO. I have never heard of them. My researches may not have gone far enough, but I believe that there were no such Bills; and to liken this Bill to some Bill that ratified NATO is not, I submit, correct, though I am open to correction.
The noble Lord, Lord Peddie, put a question, I am not sure whether to me or to the Government Front Bench, but I will give way immediately if the noble Lord would like to repeat his question. I am sorry that I did not catch it.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD MAYBRAY-KING): Does the noble Earl wish to withdraw his Amendment?
THE EARL OF LAUDERDALE: No, I am not withdrawing my Amendment. I was waiting to see whether the noble Lord, Lord Peddie, would clarify what he said.
LORD PEDDIE: Perhaps the noble Earl would be good enough to reply to the point that I raised. It seems to me an extremely important and significant aspect of this discussion.
LORD KINDERSLEY: May I add a word—
SEVERAL NOBLE LORDS: Order!
THE EARL OF LAUDERDALE: I did not catch what the noble Lord, Lord Peddie, said earlier and therefore I cannot answer what he asked. If he would
be so kind as to repeat his question, I will try to answer. I apologise to him but my attention was distracted earlier and I do not hear very well.
LORD KINDERSLEY: My Lords, may I add a word—
SEVERAL NOBLE LORDS: Order!
LORD PEDDIE: I understand that the noble Earl, Lord Lauderdale, did not hear the point I made originally. With the permission of the Committee, I will repeat it. I asked: if the Committee accepted these review provisions would it not prejudice the activities, or indeed the credibility, of the British Government in their association with the European Common Market in the determination of long-term policy?
THE EARL OF LAUDERDALE: I am obliged to the noble Lord. I am open to correction—and the only solace I have these days is that I am invariably wrong; this is the comfort I get in life—but when we adhered to NATO, still subjecting our Armed Forces to an annual or quinquennial review, that did not diminish our credibility; nor did it do so when we adhered to SEATO or CENTO. So my answer is that it does not diminish our credibility. Our frankness and the open stance that we would have taken would enhance it.
7.20 p.m.
On Question, Whether the said Amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 155.

Collison, L.

Hawke, L.

Polwarth, L.

Colville of Culross, V.

Hemingford, L.

Radnor, E.

Cork and Orrery, E.

Hertford, M.

Rankeillour, L.

Cottesloe, L.

Hewlett, L.

Reay, L.

Cowley, E.

Hives, L.

Redesdale, L.

Craigavon, V.

Hood, V.

Reigate, L.

Craigmyle, L.

Howard of Glossop, L.

Rennell, L.

Cranbrooke, E.

Hylton-Foster, Bs.

Rhyl, L.

Croft, L.

Janner, L.

Robbins, L.

Daventry, V.

Jellicoe, E. (L. Privy Seal.)

Roberthall, L.

De L'Isle, V.

Kemsley, V.

Rochdale, V.

Denham, L. [Teller.]

Killearn, L.

Rootes, L.

Digby, L.

Kindersley, L.

Ruthven of Freeland, Ly.

Drogheda, E.

Lansdowne, M.

Sackville, L.

Drumalbyn, L.

Limerick, E.

St. Davids, V.

Dudley, E.

Lindsey and Abingdon, E.

Saint Oswald, L.

Dundee, E.

Long, V.

Sandys, L.

Dundonald, E.

Lothian, M.

Selsdon, L.

Eccles, V.

Lucas of Chilworth, L.

Sempill, Ly.

Ellenborough, L.

Luke, L.

Shaftesbury, E.

Elles, Bs.

Macleod of Borve, Bs.

Simon, V.

Elliot of Harwood, Bs.

Macpherson of Drumochter, L.

Sinclair of Cleeve, L.

Emmet of Amberley, Bs

Mancroft, L.

Stonehaven, V.

Essex, E.

Massereene and Ferrard, V.

Stow Hill, L.

Falmouth, V.

May, L.

Stradbroke, E.

Ferrers, E.

Merrivale, L.

Strathclyde, L.

Fletcher, L.

Mersey, V.

Stratheden and Campbell, L.

Fortescue, E.

Mills, V.

Suffield, L.

Gage, V.

Milverton, L.

Tanlaw, L.

Gainford, L.

Monck, V.

Terrington, L.

Gladwyn, L.

Monk Bretton, L.

Teviot, L.

Goschen, V.

Mottistone, L.

Thomas, L.

Gowrie, E.

Mountevans, L.

Thorneycroft, L.

Greenway, L.

Mowbray and Stourton, L. [Teller.]

Trevelyan, L.

Gridley, L.

Tweedsmuir, L.

Grimston of Westbury, L.

Netherthorpe, L.

Tweedsmuir of Belhelvie, Bs.

Grimthorpe, L.

Northchurch, Bs.

Vernon, L.

Hailes, L.

Nugent of Guildford, L.

Vivian, L.

Hailsham of Saint Marylebone, L. (L. Chancellor)

Onslow, E.

Wakefield of Kendal, L.

Orr-Ewing, L.

Waldegrave, E.

Hanworth, V.

Peddie, L.

Wolverton, L.

Harcourt, V.

Penrhyn, L.

Wynford, L.

Harvey of Prestbury, L.

Perth, E.

Young, Bs.

Hatherton, L.

Resolved in the negative, and Amendment disagreed to accordingly.
VISCOUNT COLVILLE OF CULROSS: It has been agreed between the usual channels, that we should adjourn this Committee stage for half-an-hour for dinner. So I beg to move that this House do now resume for half-an-hour until eight o'clock.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

CONSOLIDATED FUND (APPROPRIATION) BILL
Brought from the Commons; read 1a, and to be printed.

DEACONESSES AND LAY MINISTRY MEASURE
7.29 p.m.
THE LORD BISHOP OF CHESTER THE LORD BISHOP OF CHESTER rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Deaconesses and Lay Ministry Measure be presented to Her Majesty for the Royal Assent. The right reverend Prelate said: My Lords, I apologise to your Lordships for bringing you down from the matters of high policy, with which we have been occupied during these past hours, to the very humble matters which are contained in this Measure. The reason for my having to do so is one which I have had to explain to your Lordships' House on a number of occasions. The Church of England has

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the power to legislate for its own domestic affairs by means of Canons which are made under Royal licence. The conditions, however, that attach to Canons is that they may not vary or be in contradiction to the existing Statute law: and, since the Book of Common Prayer is a part of the Act of Uniformity, when the Church of England wants to alter anything in the Book of Common Prayer, however small and reasonable that change may be, we have first of all to alter the law before we can make a Canon about it. That is why I have to ask for an Affirmative Motion regarding the Deaconesses and Lay Ministry Measure.
The reason for this is that over the past years there has been a considerable movement in the Church of England to employ more and more the services of lay persons in the conduct of divine worship. Already, as a result of action that has been taken under various Measures, readers, both men and women, are permitted to conduct divine worship, to assist in the administration of the Sacrament at Holy Communion and so on. But there are certain things which they are precluded from doing because the Book of Common Prayer orders that the minister shall do them. Therefore we are seeking powers to be able to make Canons which would permit lay persons to take the service of the churching of women in the absence of the minister, to baptise, and, with the good will of those who are responsible, to bury the dead or to read the burial service before, at or after cremation. These things are by the Book of Common Prayer reserved to the minister, but as a result of this Measure it will be possible to allow other persons to perform these services.
My Lords, this is an enabling Measure, and it is the intention of the General Synod first of all to give these permissions to deaconesses, who are women who have been ordained to that function. We already have a draft Canon that has gone through most of its stages in the General Synod and is awaiting only the passage of this Measure before we can formally promulgate it as a Canon. The contents of the Canon are set out in the comments
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and explanations of the Legislative Committee of the General Synod to the Ecclesiastical Committee of the two Houses of Parliament. No doubt later on we shall want to extend these powers by Canon, but, as I say, at the present time it is the intention of the General Synod to pass a Canon to permit all deaconesses to perform these functions. I hope therefore that your Lordships' House will give this Measure an Affirmative Resolution. I beg to move.
Moved, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Deaconesses and Lay Ministry Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Chester.)
7.35 p.m.
LORD FLETCHER: My Lords, I am sure that the whole House is indebted to the right reverend Prelate the Bishop of Chester for the careful way in which he has explained the object of this Measure, and I feel confident that I am speaking for all my noble friends on this side of the House if I say that our general approach to this question is that, Parliament having given the Church a very wide measure of freedom to legislate on all matters affecting its own domestic affairs, this House, as on other occasions, will, almost without exception. wish to endorse any Measure of this kind to which the Church of England, acting through the General Synod, has given approval with substantial unanimity.
I should like to ask the right reverend Prelate, merely as a matter of interest, two or three questions which occur to me arising out of the comments and explanations by the Legislative Committee. I gather from what he said that the intention is to pass a Measure which will give deaconesses certain rights. But of course the Measure that we are considering goes further than that. I think it would perhaps remove any doubt if the right reverend Prelate could confirm me in which I believe to be the present state of the law. Am I right in thinking that at the present time in the Church of England no sanction is required to enable a minister, with the consent of the Bishop, to invite any lay person, man or woman to preach at divine service. I mention that because I am sure that the right

539
reverend Prelate would not wish it to be thought that this Measure in any way takes away any existing right.
Similarly, the Measure will enable deaconesses and others, in the absence of the priest, to baptise. Perhaps the right reverend Prelate will confirm that, as the law of the Church of England stands at the moment, in cases of urgency the service of baptism, which, after all, is one of the two major sacraments, can be performed in private by anybody, layman or indeed a woman, and from time to time it happens that in hospitals a doctor or a nurse performs the right of baptism, which more often than not is then followed by a service, not of baptism, but of reception into the Church. I take it that nothing in this Measure is intended to take away the existing law in that respect.
Then, a further provision will enable deaconesses and others, as it says, "with the goodwill of the persons responsible"—and I suppose that means the relatives—to bury the dead. I take it that that is intended to give power not merely to bury the dead—because I suppose there is nothing to prevent anybody from performing a service of burial at any time—but to enable others than those who are at present entitled to do so to recite the service of burial for the dead which is contained in the Book of Common Prayer, being, as the right reverend Prelate said, part of the common law of England. No doubt there is nothing to prevent any other form of service being said by anybody at any time, or no service being conducted at all.
Finally, my Lords, it is proposed that we should authorise the publication of the banns of marriage at morning and evening prayer by deaconesses and others. That seems to me to be an eminently desirable permission, in line with the general intention of this Measure, as I understand it, which is to facilitate others than ordained ministers to assist the ordained clergy in performing services and taking part in services of divine worship in the Church of England. With those few words, I hope that the House will support the Measure proposed by the right reverend Prelate.
THE LORD BISHOP OF CHESTER: My Lords, I am grateful to the noble Lord, Lord Fletcher, for the kind and helpful way in which he has approached this Measure. He has asked me four questions. The first concerns the right of any lay person to preach in a church. This is controlled by one of the miscellaneous provisions Measures which came previously before your Lordships' House and gives permission for readers and other lay persons to preach so long as they have been authorised. This Measure in no way detracts from those powers that already exist.
With regard to baptism, this Measure refers to the reciting of the Service of Baptism in the Book of Commotion Prayer—for of course the noble Lord is quite right when he says that the Sacrament of baptism is the most open of Christian Sacraments, even to the extent that it may be validly administered even by a person who is not a Christian. Very frequently, as the noble Lord said, a nurse or doctor in a case of emergency will administer a valid baptism, and that is then followed by reception into the Church. So this Measure would enable a deaconess or a lay person who was authorised by Canon to use the service in the Book of Common Prayer which at the present time they are not technically permitted to use. The noble Lord referred to the right to burial, and I would draw attention to the fact that the Measure refers to some of the burial Acts to which we have had to make ourselves fit on this occasion. The Service for the Burial of the Dead is referred to in the Book of Common Prayer according to the rites of the Church of England.
Finally, as regards the publishing of banns of marriage, the noble Lord will notice that this is not in the Measure itself but in the draft Canon of which we have given notice, since this does not need authority from Parliament in this particular respect. I understand that this is something which has to be authorised by means of the Marriage Act. A reader at the present time has the right to read the banns in church and this Measure will extend that right to deaconesses or to other lay persons if the Canons so permit.
On Question, Motion agreed to.

CLERGY PENSIONS (AMENDMENT) MEASURE
7.43 p.m.
THE LORD BISHOP OF CHESTER THE LORD BISHOP OF CHESTER rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Pensions (Amendment) Measure be presented to Her Majesty for the Royal Assent. The right reverend Prelate said: My Lords, the system of clergy pensions is controlled by the Clergy Pensions Measure and by subsequent amending Measures. If, therefore, we want to vary the way in which retired clergy and their widows are paid pensions, we have to come to Parliament in order to get an amending Measure. This Measure which is before your Lordships' House does two things. First of all, it proposes a number of improvements in the existing situation and, very importantly, in Clause 6 it proposes a new way in which changes in the pensions system shall be effected by regulations rather than by Measures. So that this may well be the last pensions Measure that comes before Parliament.
The improvements that are suggested in the Measure are as follows. First of all, by Clause 1 we are trying to make it easier to pay a good pension to a clergyman who has retired at the age of 65 (which is the pensionable age) but who has not been able to effect 40 years' pensionable service. This clause will give some amelioration of what would otherwise be a difficult situation. Clause 2(1) of the Measure gives power to the Pensions Board to select certain classes of persons who may have an increase in their pensions. There may sometimes be a certain group of clergy who have had some injustice done to them by other changes, and it is therefore desirable for the Pensions Board to have this opportunity of picking out certain groups and being better able to help them.
By subsection (2) of Clause 2, the granting of supplementary pensions is made discretionary instead of mandatory, because there have been situations in which gross inequalities and injustices have occurred because of the way in which, technically, the granting of pen-great help, and also a help to justice, if the granting of these pensions is made sions has worked. It will therefore be a
542
discretionary instead of mandatory. I can assure the House that the Pensions Board is a very generous-minded body, very sensitive to the needs of the clergy, and they would always exercise their discretionary power in the most generous way.
Clause 3 deals with the problem which arises when a clergyman who has been given a disability pension later recovers his health and is able to continue working. It seems appropriate that in these cases the Board should have power to discontinue or decrease the disability pension where this is appropriate. Clause 4 deals with a number of questions regarding widows' pensions. Subsection (1) provides that a pension should be at the discretion of the Board when a clergyman marries after retirement. At the present time, his wife gets a pension as of right if they have been married five years. But it can happen that a clergyman, after retiring, marries a very young wife and then the Pensions Board may have to pay a pension for 40 or 50 years. So it is thought that these cases should be matters of discretion.
Subsection (2) makes it clear that these provisions will not be used to the detriment of widows who now receive pensions. Subsection (3) applies to the widows the same rights as have been applied to clergymen in Clause 2(1). Subsection (4) gives the Church Commissioners power to give directions for increasing the pensions of particular classes of widows, as is done for particular classes of clergymen. Subsection (5) provides the opportunity to give a widow a higher pension under certain circumstances. The obvious example is where a clergyman has to be admitted to a hospital or nursing home at considerable expense. This subsection would allow the power to be exercised in respect of widows.
Subsection (6) deals with the widows of clergymen who have moved from the Church of England to another church in the Anglican Communion, and who have pension rights under the Church of England. In addition, the clergyman may have contributed to a pension for his widow. At the moment, these pensions are not transferable and we think it desirable that this injustice should be remedied. Subsection (7) provides that when a widow receives a pension for

543
which her husband has paid, she should continue to have it even if she remarries. Clause 5 deals with a number of minor points, and the procedure for changing the system is in Clause 6.
As I have explained to your Lordships, every time we want to amend the system of pensions we have to come back to your Lordships' House for an amending Measure. This seems to be very burdensome to everybody, and indeed it is contrary to most pension schemes in these days. The Superannuation Act 1972, together with earlier Acts, provided for pensions paid to civil servants, local Government employees, teachers, the Police and persons employed in connection with the Fire Services and the National Health Service to be embodied in schemes or regulations, instead of in Acts of Parliament. So we think that the way in which pensions for clergy are arranged should similarly be by regulations. When they have been approved they will have to be laid before Parliament and will be subject to annulment by a Resolution of either House. This is in accordance with one of the recommendations of the recent Church and State Commission. I hope it will commend itself to your Lordships' House, and that you will be able to give this Measure an Affirmative Resolution.
Moved, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Pensions (Amendment) Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Chester.)
7.50 p.m.
LORD FLETCHER: My Lords, here again we are indebted to the right reverend Prelate for the very full explanation that he has given of this Measure, which I am sure will commend itself to all persons in the House. I must declare an interest: having two sons who are ordained as priests in the Church of England I am naturally sympathetic to any Measure designed to increase and improve the pensions of the clergy. One is only too conscious that there are a number of elderly clergymen living in circumstances of some distress, and it is most satisfactory to know that the Church of England is alive to their need and is taking these steps to remove some of the injustices that exist and to improve the pensions of the clergy in general.
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I am sure it is right, as the right reverend Prelate said, that in future we should, by reason of Clause 6, relieve the Church of England from the necessity of coming back to this House and another place every time for a Measure to change the rates of pension. The Church and the General Synod should have the same powers as comparable bodies dealing with superannuations and pensions to revise from time to time the appropriate regulations regarding pensions, and make them subject to confirmation, or otherwise, by a Resolution of this House. I support the Measure as proposed.
LORD HOY: My Lords, may I be permitted to say a word about this Motion? Quite obviously all of us want to do anything we, can to increase the pensions of the clergy and to make life for them, as they get a little older, more comfortable. In this respect this form of poverty—if I may so describe it—is not confined to the Church of England but affects clergy of all denominations. I was a little perturbed about the proposed change from mandatory to discretionary pensions because this means someone has to make a selection. When this is done trouble can arise. Perhaps the right reverend Prelate, when he replies, will be able to assure us that this is going to be dealt with in the most charitable way.
I agree with what my noble friend said with regard to Clause 6. It is intolerable that when a change of this kind has to be made it has to be brought to the Houses of Parliament. It is right that it should be dealt with as outlined in the Bill. Certainly after what we have learned to-day I think the right reverend Prelate has chosen the right time to make these changes. One never knows what will happen after we pass the Bill we were discussing before this business arose.
BARONESS BERKELEY: My Lords, I, too, should like to welcome this Bill, especially Clause 6. I should also like to ask the right reverend Prelate this: With the pension do the clergy who are retiring get any grant towards a house? The housing question is extremely difficult and the price of houses is something which is enormous now.
LORD HAWKE: My Lords, as one who for some years sat on the Church of

545
England Pensions Board I can assure the noble Lord, Lord Hoy, that that body leans over backwards to give the benefit of the doubt to every one of its pensioners. Not least of the reasons for this is that the body seems to consist very largely of retired clergy themselves, so they have great sympathy with their brethren. I have never known a more generous body.
7.55 p.m.
THE LORD BISHOP OF CHESTER: My Lords, may I thank noble Lords for the welcome they have given to this Measure? I would assure the noble Lord, Lord Hoy, that the discretionary powers of the Pensions Board will be exercised in a most generous and sensitive way. Those of us who have to deal with the Pensions Board when concerned with the general problems of our own clergy know the Board as one of the most efficient and, at the same time, sensitive of all the organisations in the ecclesiastical machine. We hope that this discretionary power will make more money available because it will prevent the mandatory pensions being paid in certain cases where they are not justified. Therefore there will be more money available.
The noble Baroness referred to the equal problem of providing a house for clergy when they retire. This is a problem to which the Church is devoting a great deal of attention. Very often the clergy are told, "You are so well off. Think of all the fringe benefits that you have: a very nice house with rates and rent free. You get other fringe benefits." That is all very well, but the moment comes when those benefits stop, and whereas other people have been buying their houses throughout their working lives the clergy are faced with the problem that they have to leave their houses. Worse still, a widow of a clergyman has to leave her house in order to make room for the clergyman who follows.
The Pensions Board has a number of houses and bungalows throughout the country. It has some big houses where individual clergymen can live. In my diocese we have Shafton House, a clergy nursing-home in which a clergyman who
546
is ill, or the wife of a clergyman, can stay while the other member of the family stays in a small house which is attached. Of course those are not able to deal with all the problems and many clergy want to have their own houses. I cannot give the exact details of a scheme which has only just been announced in the General Synod. The clergy get a lump sum on retirement, I think it is £1,000 and I have an idea it is going up to £2,000, but I should like to check that. It is also going to be made possible for the clergy to get a mortgage up to £6,000 on very favourable terms—terms which will be more favourable to those who are on a basic pension and less favourable to those who have rather more means. This is a way in which the clergy will be helped to get a moderate mortgage, and one which will be greatly welcomed and will do a good deal to relieve that problem.
BARONESS BERKELEY: My Lords, I should like to thank the right reverend Prelate very much for what he has just said.
BARONESS PHILLIPS: My Lords, before the noble Lord puts the Question I should like to say that I should have spoken on the previous Measure and I apologise for not doing so. It would be most ungenerous for me as a woman and a layman—and here there seems to be some discrimination!—not to congratulate the right reverend Prelate and the Church of England for this particular action as they have so often suffered in this House from the noble Baroness who feels that occasionally the Church does not rise to the cause of women. As one of another faith I can only hope that perhaps my own Church will take note of this and extend this Measure to us, too. It seems to me that the Almighty must be a supporter of "Women's Lib". After all, He created more of us.
On Question, Motion agreed to.
LORD DENHAM: My Lords, I beg to move that the House do now adjourn until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended at 7.58 p.m. and resumed at 8 p.m.]

EUROPEAN COMMUNITIES BILL
8.0 p.m.
House again in Committee.
LORD STOW HILL LORD STOW HILL moved Amendment No. 6:
Page 2, line 11. leave out subsection (3).
The noble Lord said: I move this Amendment purely for the purpose of probing. I should like to put a number of questions to the noble Viscount who, I believe, is going to be so good as to reply. I cannot put the questions without harking back for a moment or two to lines 5 to 8 in the previous subsection because I want to make quite certain that I understand to what those lines may apply. May I start by putting this question: When we were looking at those lines the noble Baroness, Lady Tweedsmuir, said that we were considering Treaties to be entered into in the future. As I pointed out earlier there is in the wording of lines 5 to 8 no obvious indication that they are to apply only to future Treaties. I presume, however, that I am right in supposing that Ministers feel that the words in lines 5 to 8 can apply only to future Treaties because the definition of pre-accession Treaties in the first part of Schedule 1 contains paragraph 7. As I read it, that paragraph seems to cover all Treaties entered into before January 22, 1972. It follows almost word for word the language of lines 5 to 8 and seems to cover the same ground as those lines in relation to Treaties entered into before January 22, 1972. I assume that Ministers are relying on that situation when they say that lines 5 to 8 can only apply to Treaties in the future. Probably they would agree that that has to be amended slightly. If that is the process of reasoning, lines 5 to 8 would apply not only to Treaties entered into in the future but to any Treaty entered into after January 22, 1972.
Perhaps I may start, therefore, upon the assumption that that is what those lines deal with. Then I go to subsection (3) to put my questions. First I have a preliminary question. During the course of this debate it has been asked whether the Orders in Council which may be made under Clause 1(3) are subject to Parliamentary control. I would have answered that question in the affirmative, and I should be grateful if the noble
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Viscount would tell me whether he thinks I am right or wrong. I would so answer it because of the provisions of paragraph 2(2) of Schedule 2. That sub-paragraph reads:
"Any statutory instrument containing an Order in Council … if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House."
Therefore, if it is not approved by Affirmative Resolution procedure it must be approved by Negative Resolution procedure. When one goes back to subsection (3) one finds that it is divided into Treaties entered into before January 22, 1972, and, with an exception to which I do not make reference, Treaties entered into after January 22, 1972. It goes on to provide that all Treaties entered into after January 22, 1972, must be approved by Affirmative Resolution procedure. Therefore those entered into before that date are subject to annulment by Negative Resolution procedure, and those entered into after that date cannot be approved except by Affirmative Resolution procedure. That is how I read it. If my reading is correct the answer to the first question which I venture to put—namely, is there adequate Parliamentary control in the case of this subsection?—is that no Order in Council can have effect unless either there is an Affirmative Resolution procedure or there is no Negative Resolution procedure.
Then I go to the next question. I should like to ask whether I am right in assuming that when one looks at subsection (3) one is looking at a provision which can make Treaties Community Treaties in addition to those which are made Community Treaties by lines 5 to 8. I know that the noble Viscount disagrees with me on that, but I cannot help saying that I cannot understand why he so thinks. May I put the question in the form of an example? Suppose in 1980 a Treaty is entered into by the United Kingdom. If that Treaty is a Treaty ancillary to any of the Treaties in the definition in subsection (2) it becomes a Community Treaty or a Treaty within the definition. I apprehend that there can be no doubt about that. I add that there can be no doubt, if that is right, that no Order in Council is requisite for it to be a Community Treaty.
All that has to be asked is, first, was it entered into by the United Kingdom after January 22, 1972; and secondly, if it was so entered into, was it a Treaty of which it can he said that it was ancillary to one of the pre-accession Treaties? And no more is requisite; it is automatically within the definition of a Treaty or a Community Treaty.
If I am right in that respect, then I look back to subsection (3) and, as I read subsection (3), it gives a power by Order in Council to declare Treaties to be Community Treaties although it could not he said of them that they are Treaties ancillary to one of the defined Treaties. I should very much like to know whether I am right in so supposing, or not. May I put my question in this concrete form? Supposing one has Treaty X. Treaty X has been thought by parties to proceedings to be a Treaty which, within the meaning of subsection (2), is a Treaty entered into by the United Kingdom ancillary to one of the defined Treaties. The party so thinking, or being advised by advisers, has gone to an English court (or indeed any Community court) and has made a claim based upon the view that Treaty X is, by virtue of lines 5 to 8, and without more, a Community Treaty. Supposing the English learned judge who tries that person's claim has ruled, as a matter of law (considering the terms of Treaty X and all other relevant circumstances; perhaps the circumstances in which it was entered into, or whatever else he may think relevant) and as a firm conclusion, that that Treaty X is not, within the meaning of line 7, an ancillary treaty. He has answered that question in the negative. Assuming that is so, I myself cannot see anything in subsection (3) which would prevent Her Majesty, by Order in Council, from declaring that, notwithstanding the judge's ruling that that was not an ancillary treaty, it is to be so regarded: it is to be regarded, if I may quote, as "one of the Community Treaties as herein defined". If an Order in Council so declaring were not negatived, or were approved by positive resolution, as the case may be, why then subsection (3) proceeds to declare that the order is to be conclusive: that Treaty X is to be so regarded. I know that the noble Viscount, Lord Colville of Culross, disagrees with me. But I have not—I am sure it is
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entirely my fault—understood on what language he bases that disagreement. I cannot find any words in subsection (3) which lead to that conclusion, and I should be most grateful if he would indicate them.
This sounds all very dry-as-dust, and I apologise to your Lordships for taking time on these technicalities. I venture to do so because I think that, not only in the Temple but in the solicitors' profession, and broadly speaking in very large numbers of undertakings in this country which are, as we said in the last debate, formulating, or contemplating the formulation of, long-term plans, people do want to know how subsection (3) is meant to work. I therefore put to the noble Viscount the question: Am I not right in supposing that subsection (3) enables Her Majesty, by Order in Council, to declare that Treaties which do not fall within the scope of lines 5 to 8 in subsection (2) are nevertheless to be regarded as Community Treaties, and that that Order in Council would be effective unless in the case in question it is either negatived or approved by Affirmative Resolution procedure? That is the question I should like to put.
May I also put this question, which is my final question on subsection (3). Subsection (3) clearly by its terms contemplates that Treaties entered into before January 22, 1972, may be declared to be Community Treaties. That is obvious from the first three lines up to the semi-colon. What Treaties are those? What Treaties are envisaged, which were entered into before January 22, 1972, which may be declared by Order in Council to be Community Treaties? Those, one would have thought, cannot be Treaties which are co-terminus with those which are described in lines 5 to 8, if lines 5 to 8 apply only to Treaties entered into after January 22, 1972. There must be some others entered into before that date. I should very much like to know what those other Treaties are. Those are the questions I should like to ask, and I should be most grateful if the noble Viscount would be so kind as to give me an answer.
It might be for the convenience of the Committee if, while I am on my feet, I indicated quite shortly, so as to save time, what are the reasons which underlie the next two Amendments. I can

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put the case quite simply. The two Amendments would produce the result that the delegated legislation procedure, which is described in subsection (3), could not be used in relation to Treaties entered into after January 22, 1972. The case in support of that proposal rests on broad considerations of Parliamentary sovereignty. The argument would be that if a Treaty is entered into in the future which could have the far-reaching effect of becoming as to some of its provisions part of our own domestic law, it should be made part of our own domestic law as and when it is entered into in the future by Statute, and not by a process of delegated legislation. That is the case, but I am perhaps anticipating because I am now only moving the first of the three Amendments. I should be most grateful if I might have answers to the questions I have posed.
8.17 p.m.
VISCOUNT COLVILLE OF CULROSS: I do not know whether other noble Lords would like to join in this debate, but it might be for the convenience of the Committee if I answered those questions straight away; then if anything further needs to be said about it, it can be said afterwards in the light of what I have told the Committee. The noble and learned Lord, Lord Stow Hill, was quite right in starting with lines 5 to 8, and he is perfectly correct in the reasoning whereby he deduced, after looking at the seventh paragraph of Schedule 1, that it was upon this that we rested the claim that those words could refer only to Treaties entered into after January 22 of this year. He went through that with absolute propriety and correctness, if I may say so. He is quite right that it is not future as from to-day; it is future as from the date of accession. Therefore, he wholly and accurately described the situation.
The noble and learned Lord then went on to ask his three questions about the provisions of subsection (3). The first was on Parliamentary control and how it was going to work. This, I am glad to be able to tell the Committee, is a good deal less complicated than Lord Stow Hill suggested, because for the purposes of this subsection I am glad to say that there is no need to look at Schedule 2 at all. Schedule 2 is intro-
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duced by part of Clause 2 and applies only to the subordinate legislation that will be made under Clause 2. If one looks at Clause 2(4) one will see the substantive provision which brings in Schedule 2. At the beginning of Schedule 2 it will be seen that it refers back to Clause 2 of the Bill, and not Clause 1. Therefore, all one has to do in order to see what is the measure and method of Parliamentary control under Clause 1(3) is to look at the words at the end of that subsection, which, in talking about the specification of treaties, states that Treaties shall not be specified
"unless a draft of the Order in Council has been approved by resolution of each House of Parliament."
That is the Affirmative Resolution method and it applies both to the list of treaties (and I will come back to this) which are already in existence and are the pre-accession treaties, as it does to the subsequent lists or individual Orders in Council declaring that later Treaties are Community Treaties within the meaning of the Bill. Therefore, in both cases it will be Orders in Council subject to Affirmative Resolution in both Houses, the draft having been previously laid, and the noble and learned Lord need not trouble himself at all with the contents of Schedule 2.
LORD SHACKLETON: May I interrupt the noble Lord at this point? Again it is quite clear, but in so far as Schedule 2 relates only to Clause 2, does it therefore mean that whereas there is certain subordinate legislation, as it is called, which requires to be handled by main legislation—in other words, the subordinate legislation in the E.E.C. sense—none the less there would have to be a Bill to increase taxation or a Bill to increase criminal offences? However, this would not prevent one from making a Treaty to give effect to this and putting it into effect by Order, so to some extent subsection (3), if it is done by Treaty, weakens the protection which is given in paragraph (1) of Schedule 2.
VISCOUNT COLVILLE OF CULROSS: In that case I am afraid I must become a little more complicated, because the first thing that one has to try to recognise is that what we are doing in Clause 1 is to deal with directly applicable law which, if one looks at the phraseology of Clause 2(1), arises by or under the Treaties. Now "the Treaties" is a magic

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term; it is a term of art, a drafting term in the Bill, and when you want to know what are "the Treaties" you have to go back to Clause 1 in order to find out; and "the Treaties" will be added to from time to time as new Treaties are entered into by us, or indeed by the Community, which have direct applicability in this country within the notion which is set out in Clause 2(1).
Those Treaties will be entered into and if they are going to apply to us they are either Community Treaties which we are bound to accept under the terms of the main Treaty, or they are Treaties which we have been party to. Therefore we will have been in on their formulation and we will have had influence over the way in which they are phrased and the extent to which they are directly applicable. The extent to which they are directly applicable must be common across all the member States of the Community. Therefore, the notion of direct applicability comes in at this stage so that they will apply here as they do in France, Germany and all the other countries of the Community; and it is part of the essence of this whole affair that there should be directly applicable law common throughout all the countries. We only control this in two ways: one, by being party to its formulation; and, two, by the whole process under Clause 1 whereby it actually becomes directly applicable. No law can become directly applicable unless it is a treaty law because otherwise Clause 2(1) does not "bite".
LORD BESWICK: If I may interrupt—
VISCOUNT COLVILLE OF CULROSS: This is a most complex argument, and if the noble Lord will let me finish my sentence I should be immensely grateful. I will give way in one moment but really this is very difficult and if I am going to follow it clearly I must be allowed to go on for a moment. No directly applicable law becomes directly applicable under Clause 2(1) unless it is a Treaty. To be a Treaty it has to go through the procedure under Clause 1(3) and be specified in an Order in Council under an Affirmative Resolution. Prior to that, it has no status in this country as directly applicable law at all. Therefore our control is, secondly, Parliamentary control by the Order in Council machinery. If Parlia-
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ment says, or if the Government decide: "This is much too important for an Order in Council; this ought to go by legislation", then either a Bill will be introduced or one or other of the Houses will throw out the draft Order in Council and the Government of the day will be forced to resort to legislation in order to implement it. I think that is the answer on that part. There is a good deal more, but this might be a convenient moment to answer the noble Lord, Lord Beswick.
LORD BESWICK: I confess that I cannot quite understand. The noble Viscount is continually and only using the term "Treaty". The difficulty that I have in following him is in the position of the regulation. Although the noble Viscount said that the only law—I think I am quoting him correctly—which will be directly applicable are the Treaties which come under Clause 2(1), the fact of the matter is that it carries with it the whole of the regulations which flow from those Treaties, and they are the source of the concern and the trouble. These are in effect Orders in Council. This will not be legislation in the sense that we understand it. These will not come before us, or if they do come before us we can only say "yea" or "nay"—and indeed we cannot say "nay".
VISCOUNT COLVILLE OF CULROSS: The noble Lord must recognise that when I use the word "Treaties" I use it in the terms of the Bill. He is quite right: it does not only include what one might, in other contexts, call "a Treaty"; it includes other instruments as well. Therefore, when one is speaking about directly applicable law it could include regulations and, exceptionally, there may he cases, as I explained during the Second Reading debate, where it may include a directive or part of a directive, or a decision or part of a decision.
Whether or not the noble Lord likes it, the facts of this situation are as he has described them. We have these directly applicable decisions agreed to, and I reinforce what I have said—agreed to by us as well as the other members, setting up the directly applicable law. Then we come back and we consider it by the machinery under this clause.
LORD BESWICK: But—
VISCOUNT COLVILLE OF CULROSS: Yes, we do. because it cannot be directly applicable by the courts of this country until it has been made into what is called "a Treaty" by Order in Council procedure under Clause 1(3) or, if that is not applicable, or the House does not like it, by Bill. That is the way in which it works.
LORD BESWICK: That is no protection at all.
VISCOUNT COLVILLE OF CULROSS: The noble Lord may say that it is no protection, but what I am trying to do is to answer the points raised by the noble and learned Lord, Lord Stow Hill, about how the Parliamentary control works. I was wrong when I said that this applied to the Treaties made by the Communities; it applies to the Treaties made with us as one, at least, of the signatories.
The noble and learned Lord, Lord Stow Hill, went on to a much more difficult point which really touches on the method whereby courts could say that Orders in Council made under Clause 1(3) have wrongly included something as being directly applicable when it was not in fact valid—if I may put the noble Lord's argument in a shorthand form. In fact the examples he gave cannot, think, arise (and I will explain briefly why not) because it follows from what I have just been saying that a judge in this country could not pronounce upon the validity or otherwise of any provision of directly applicable law under lines 5 to 8. He could not say whether it was or was not an ancillary treaty until there had first been made an Order in Council, because until an Order in Council has been made that particular treaty would not be a treaty at all, would not be directly applicable under Clause 2(1) and therefore would not come before the court. The matter is, therefore, a little more simple.
What I think the noble Lord might have in mind is this situation: that for some reason a regulation or some other directly applicable provision is passed by the Communities and an Order in Council is made which purports to show, under Clause 1(3), that it is conclusively part of the directly applicable law of this country, and a party to a
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case comes before an English court and says, "But it is absolutely monstrous that any such Order in Council was made because it is as plain as the nose on your face that this particular treaty or regulation cannot under any circumstances be said to have been ancillary to the Treaties"; in other words, it does not fall within the basic definition in lines 5 to 8. The noble Lord is perfectly correct in saying that there is nothing in the Bill which cures this situation, but fortunately there is in our domestic law.
It is at this point that I would like to refer the Committee to two decisions of this House which were made in 1969. The first of them is Anisminic v. The Foreign Compensation Commission, and here we have a situation where, under the Act of Parliament whereby they were set up, a determination of the Foreign Compensation Commission about the amount of money to be handed out—this happened to relate to the Egyptian situation directly after Suez—was final. The money was split up. Usually the money was obtained from a foreign country under a treaty and the Commission divided it between the various applicants, and their determination was not to be challenged in any court of law. This is what the Act said. Orders in Council were made under this Act. The case came before the Foreign Compensation Commission and they decided it taking into account a certain provision in the Order in Council which governed them.
It is a very long case. But the noble and learned Lord, Lord Reid, went into the question about whether the Foreign Compensation Commission were right in taking this into account, because if they had not been right the whole case failed and the whole of their determination was bad. In this case he went into the question of jurisdiction and validity, and he gave the criteria upon which the courts may hold that, despite the fact that an Act of Parliament says something is conclusive or cannot be called into question, nevertheless there has been an excess of jurisdiction. An excess of jurisdiction can take the form, for instance, of bad faith. This was one of the examples he quoted. It need not. But if it is not a question of bad faith, it can be looked at in the context that the Order in

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Council has been made in such a way that it goes beyond the powers laid down by the parent Act. If, therefore, an Order in Council was made which said a particular Treaty was directly applicable, in other words made under Clause 1(3), but this Treaty was subsequently held by the British courts not to be ancillary, there is a residual power in the British court to say that the Order in Council was invalid to that extent, on the ground that although the Act says that the Order in Council is conclusive nevertheless the courts can still go behind conclusiveness when a question of vires is involved.
The other example, which some of your Lordships may remember, and is perhaps a little easier to follow, arose when the A.A. Club was levied by the Hotel and Catering Industrial Training Board on some of its members. The club challenged the propriety of this levy on the ground that the subordinate legislation made under the Industrial Training Act did not entitle the Secretary of State to include in the Order as being liable to have levy paid for them by their employers all the people whom the Secretary of State had in fact put in. The case came to this House, and the House held that the subordinate legislation was in fact too wide, that it included people as being subject to levy for whom the original parent Act did not allow the Secretary of State to provide, and consequently it was held that the A.A. Club did not have to pay levy on those people. The result was that the original subordinate legislation was withdrawn, and new and much narrower subordinate legislation covering the scope of the Hotel and Catering Industry Training Board was finally introduced.
So there are these Dowers, first of all to go behind conclusiveness—that is, Anisminic; secondly, to upset subordinate legislation on the ground that it exceeds the scope of the parent Act—that is, the A.A. Club. Both powers are available to the British courts to deal with the situation the noble Lord, Lord Stow Hill, mentioned, and there is no need therefore for anything to be put in the words of the Act to deal with it. I am sorry that I am going on for so long, but this is a very difficult and complicated point.
In the second limb of Clause 1(3), when one looks at the words in line 17,
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"shall not be so regarded", the point about this, which I confess I had originally missed, is that the Treaty "shall not be so regarded" means that it shall not be regarded as a Community Treaty at all. It does not mean it shall not be regarded as conclusive, but that it shall not be regarded as a Community Treaty at all unless there has been an Order in Council. That is why I say to the noble Lord, Lord Stow Hill, that the judge could not be in the position he posited in his example.
The last point the noble Lord made was a comparatively short one; namely, what were the pre-Accession Treaties? I think the easiest thing for me to do is to refer him to Cmnd. 4862, Part 1, pages 137 to 144, which, to the best of my knowledge, includes the pre-Accession Treaties which are covered by paragraph 7 of Part I of Schedule 1. I am not sure whether that is conclusive; my noble friend Lady Tweedsmuir is better placed to answer that. But that is my understanding of the situation, and that is where the noble Lord will find the answer to that question. I hope that reassures the noble Lord on some of those points, because they are very important and very basic, and I would wish him to be quite satisfied that they are covered.
8.37 p.m.
LORD BERNSTEIN: Am I, as a layman, to understand that although an Order in Council is made it is possible in the British courts for that Order in Council passed by Parliament to be cancelled by order of the British courts without the matter going to the European Court?
Then the noble Viscount spoke about the power of the court. I would like to ask this question again in this general context: Parliament makes laws and judges interpret them as they under- stand, the intention of Parliament; but they often cannot do that. That goes for all Governments and Acts. In this case, there will be the Act which covers a variety of things. I have read over 20 volumes of the discussion that took place in the other place. I am not sure, and I would like the noble Viscount to consider, whether he has reported the same interpretation as the Solicitor General did. It seems to me to be slightly different; I would have to look it up again tomorrow. It seems to me that there has

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been a variety of opinions from lawyers on both sides of the House and within each side of the House.
We are getting to the point to-day where we are discussing in legalistic language what simple phrases mean. I wonder how we are going to deal with this in a way which is satisfactory, because some of us employed had lawyers over the years, good lawyers, bad lawyers, and they have all given us different opinions on different cases. Hence the courts. We have found out that many of our most eminent lawyers, so far as the judge has been concerned, have been wrong. If you do take one of these cases to the courts—I do not know who would take the case about an Order in Council, whether it would be a common informer or whether he would have the money eventually to take the case to the House of Lords. Who would deal with the case after the judgment had been given? Would it go back to Parliament? Would it go direct to the European court? I am sorry that my questions are long but I have not been trained to handle a case legally.
VISCOUNT COLVILLE OF CULROSS: I do not think that the noble Lord has quite understood, and I am terribly sorry. I did explain that this was rather a difficult point; I am sorry if I did not make it clearer to him. The question I was asked by the noble and learned Lord, Lord Stow Hill, was what would happen in essence (if I could again abbreviate it) if an Order in Council is made which declares to be directly applicable a Treaty which is perfectly obviously miles outside the scope of the Treaty with which this Bill deals. If this happens, one has to recognise that there will have been passed by the Community some sort of Treaty or regulation, or whatever it is, which purports to create this directly applicable law. At the moment, however, all we are considering is whether that is or is not directly applicable under the terms of this Bill in Britain. All I am saying is that there is built into the municipal law of this country machinery whereby the Order in Council which purports to declare that it is directly applicable can be declared to be ultra vires.
Now this has nothing whatever to do with the European Court because it is
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a matter of municipal law in this country only. It would, I think, inevitably follow, certainly if it happened in more than one country, that the regulation concerned would have to go back to Brussels on the grounds that there was something wrong with it and, at any rate, that the courts of one of the countries concerned had held that it was invalid. This could be done in a number of ways; it could be taken back on the political level or there is no reason why this country, as a signatory and member of the Community, should not take the question of validity of the regulation to the Luxembourg Court under the provisions, I think, of Article 177. But this would not happen directly as a result of the municipal court's judgment. It would require a separate initiative by the Government of this country.
The noble Lord then asked a question which I am afraid I did not altogether follow, but I think that he wants to know who would take this sort of point. The fact of the matter is that when you get a case of what lawyers call vires which is the extent of powers to make regulations or to make Orders in Council, there is usually somebody who is sufficiently hard hit to think it is worth while to take it to the court. One would not have thought that the Hotel and Catering Industrial Training Board Levy Scheme would be taken up, but there was the A.A.; you would not have thought that anybody would be so brave as to challenge the Foreign Compensation Tribunal but there was in fact a British subsidiary of the Sinai company concerned. If it does turn up there is someone to do it. I am not quite sure whether that answers the noble and learned Lord's second question, because I did not quite follow what it was.
LORD BERNSTEIN: I am afraid it does not. I should like to invent a possibility. An Order in Council is made by a Government which has a very narrow majority, and Parliament does not like that Order in Council but has no power to stop it. A nation is in jeopardy—I do not mean that in the widest sense—but it is not an individual; it is not the Automobile Association, or shareholders or possible people placing money for past services—it is a nation. If Parliament cannot do it, how can Parliament or the nation take action against

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an Order in Council which has gone through by a majority of three in Parliament? How can they start an action?
VISCOUNT COLVILLE OF CULROSS: In the courts of this country they cannot. The only person who has an opportunity and a right to appear in this sort of case is somebody who is directly affected; somebody who has only a hypothetical case in the situation is not given an audience by the courts. But the way this would be done, if somebody was directly affected, would be that he would find his rights were in some way infringed, and he would, no doubt, decide to take this to the courts. You cannot do this in any circumstances on a hypothetical basis. But there is practically always somebody who will take it up.
LORD SHACKLETON: The noble Viscount's confidence appears to be ebbing a little. We are grateful to my noble friend for putting a point of view which is a point of view held by a good many non-legal people. I wonder whether I may put a similar point of view. The noble Viscount posed a question that if an Order in Council is passed and it is miles outside the provisions of the Treaty—and then he went on to answer it. We are not concerned with something which is miles outside and which therefore it is not open to argument. We are concerned with the sort of Order in Council which is held by the Government of the day to have been within the provisions of the Treaty, which is a marginal case possibly, but about which there is a difference of opinion. The question put to the noble Viscount by my noble friend behind me was: "Where then does the Luxembourg court come in?" I suggest to the noble Viscount that he really would be much more frank with noble Lords if he was to say that in these circumstances we have in this country no protection at all; it is what the Luxembourg court eventually says which goes.
VISCOUNT COLVILLE OF CULROSS: I am sorry, but the noble Lord is perverting everything I have said. I have most carefully tried to explain this. A marginal case is always much more difficult than a direct one. If I tell the noble Lord that the Anisminic case turned on Article IV(1)(b)(ii) of the Regulations made under the Act in question, set up
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by the Foreign Compensation Tribunal, and the whole question was whether, in a case of a national of this country who originally had a claim under this scheme set out in the Treaty of Egypt, you did or did not have to take into account whether that person had a successor under the wording of the Order, the noble Lord will see that the point can become extremely marginal. In fact it is on that that the whole thing turned and fell. Nothing could be more marginal in the world. Now the rest of it I perfectly well explained. I have explained how the Luxembourg court comes into it; I have explained the relationship of that court with the municipal courts of this country, and if the noble Lord wants to be reminded, if a judge in any inferior court or in any superior or final court where he has got to wishes it, a reference can be made to the Luxembourg Court on any case on which the Luxembourg Court can adjudicate on its validity. That is not the point I am on. I am on the point of the validity under English law and the noble Lord, Lord Bernstein, wants it chased up under English law. I told the noble Lord how to do it, I have explained to the Committee what the jurisdiction of the courts is. I have explained the cases which established that they have jurisidiction and if noble Lords do not like it I am very sorry, but that is the situation.
LORD SHACKLETON: I wonder whether the noble Viscount would be a little more patient in his replies. I fully realise that he is under strain, but so are noble Lords on this side of your Lordships' House. Although I may be inclined to agree with the noble Lord's exposition, I would be grateful if he would be a little more patient while we try to understand his arguments.
VISCOUNT COLVILLE OF CULROSS: May I apologise to the Committee; I did not mean to be discourteous. I did not want to be cross, but with great respect it seemed to me that we were getting into a position where there was confusion between what happened in the courts of this country and the situation in which some cases might come within the jurisdiction of the Luxembourg Court. The whole of Lord Stow Hill's question related to what happens in this country under the municipal law which applies here. It was Lord Bernstein's

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helpful suggestion that we should also consider how the Luxembourg Court can come into it. But I was particularly anxious that my explanation should be divided into two parts, and if any noble Lord opposite thinks that I am getting cross, I unreservedly apologise.
8.50 p.m.
LORD STOW HILL: I feel that the questions that I desire to put to the noble Viscount must be so unbearably boring for all of your Lordships, that I hesitate very greatly to do so. I hope that your Lordships will be a little indulgent to me if I do put the questions, I hope at not too great length, because I think they are important. May I first thank the noble Viscount very sincerely for going to such trouble in formulating his reply to the questions I asked? I hope he will not think I am disrespectful if I feel obliged to say that I do not quite agree with him in some of the conclusions he advanced. He has obviously thought about the matter so carefully, that it seems presumptuous of me to doubt the validity of his reasoning. May I go to each point in turn?
First, Parliamentary control. He said that I need not go to paragraph 2 of Schedule 2, and that in any case Schedule 2 applies only to Clause 2. Clause 2 is simply a side-note, and I have always been brought up to believe that you had to look at the contents of a Schedule to see what its application was, and that if the contents seemed to conflict with the side-note the side-note had to be disregarded. Applying that test, I look at paragraph 2 of Schedule 2. It is in two subsections. The first subsection reads:
"Subject to paragraph 3 below, where a provision contained in any section of this Act confers power to make regulations … the power shall be exercisable by statutory instrument."
I should have thought there could not be a plainer indication in the wording of the Schedule that it is not limited to Clause 2. I quite agree that paragraph 1 of the Schedule is, but paragraph 2 of the Schedule, in the plainest terms is not.
VISCOUNT COLVILLE OF CULROSS: I should like to get this right. The noble Lord is perfectly correct in that. But
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what he said was that you had the alternative forms of Negative and Affirmative Resolution procedure. I agree that the Order in Council would be made by Statutory Instrument, but the power of Parliament is not determined by Schedule 2 because it is written into Clause 1(3) that it has to be affirmative.
LORD STOW HILL: I genuinely hesitate—and I hope your Lordships will believe that I am sincere about this—to go on bandying technicalities with the noble Viscount. I think I really must limit myself to saying that I am sorry indeed, but I simply cannot agree with him. Subsection (3) of Clause 1 applies the Affirmative Resolution procedure to Treaties entered into by the United Kingdom after January 22, 1972. I will not repeat it, because one can go on for ever crossing swords on matters of this kind.
Let me pass to the next point. I think this is rather more substantial. The noble Viscount said that no English judge could be faced with the task of deciding whether a Treaty was within the meaning of lines 5 to 8 ancillary, unless that Treaty had previously been specified in an Order in Council. I was puzzled to know where he finds the language by which he gets there. Towards the end of his argument I understood him to say that the language which he relies upon in advancing that proposition is the language in line 17:
"shall not be so regarded unless it is so specified, …"
I really will not trouble your Lordships by elaborating reasons why, but I submit that that language has nothing whatever to do with it. It harks back to the language earlier in the subsection,
"If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded; but a treaty entered into by the United Kingdom after the 22nd January 1972 … shall not he so regarded",
unless there has been an Affirmative Resolution It seems to me—and I cannot go on repeating it—that the words just do not produce the conclusion that the noble Viscount seeks to draw, or any conclusion like it.
I may be quite wrong—probably, I am extremely obtuse about the matter—but I

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still adhere to the opinion that I have expressed. As the noble Viscount differs from me on that fundamental point of the interpretation of lines 5 to 8, it probably does not profit anybody to continue the discussion, and to ask him what the answer would be if he did not differ from it, so I will not do it. I will simply content myself by thanking him for his reply. He has obviously taken a lot of trouble over it. I hope when I have studied it that I shall convince myself that I am wrong and he is right, but at the moment I am rather pessimistic on that aspect. With the permission of the Committee, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.56 p.m.
LORD SHACKLETON LORD SHACKLETON moved Amendment No. 11:
Page 2, line 20, at end insert:
("( ) The text of any treaty which may be a Community treaty within the meaning of this section, other than the pre-accession and accession treaties, shall be referred in draft or immediately upon publication of the text to a Select Committee of Parliament for scrutiny and report, and until such report has been made the procedure provided in subsection (3) above shall not be followed.")
The noble Lord said: Some of your Lordships may be rather thankful as am, to have an Amendment which I think will be intelligible to the Committee. I have listened to the exchanges between my noble friend Lord Stow Hill and the noble Viscount, and I think a lot of us sat back amazed and wondered how we could possibly usefully intervene at all. Of course we shall read the report of what was said, and no doubt return to it at Report stage. What my noble friend has said, I must say, strengthens the case for Amendment No. 11. I suspect that not all of your Lordships have the Amendments in front of you. This Amendment is something which I hope is acceptable. Whether or not the Government have taken on rights, powers, liabilities, obligations and restrictions not to accept any Amendments, I hope that what I am recommending to the Committee is something upon which we are all agreed.
This Amendment states:
"The text of any treaty which may be a Community treaty within the meaning of this section,"—
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and we are still on Clause 1—
"other than the pre-accession and accession treaties,"—
which we are excluding—
"shall be referred in draft or immediately upon publication of the text to a Select Committee of Parliament for scrutiny and report, and until such report has been made the procedure provided in subsection (3) above shall not be followed."
That is the subsection which we have just been discussing. If I understand the noble Viscount correctly—he has been working hard and has gone; I wanted to make sure that I had got this right—a treaty (which sounded to me a little odd), does not become a treaty for the purposes of this Bill until there has been an Order in Council. Perhaps some Member of the Government's Front Bench can confirm whether that is so.
BARONESS TWEEDSMUIR OF BELHELVIE: The first half of Clause 1(3), which we were discussing earlier, is really a supplementary provision for the avoidance of doubt. It refers to a treaty entered into by the Communities, with or without one of the member States and whether in fact it is a treaty. The second half, of course, applies to a treaty ancillary to the treaties entered into by the United Kingdom; and it is that—that is, a future treaty—which has to be subject to an Order in Council and to the Affirmative Resolution procedure.
LORD SHACKLETON: I am not sure whether it is wise for me to ask for that help. The noble Baroness is always very helpful. Let me state again that I am concerned with future Treaties. If I understood the noble Viscount correctly (it is not a major point; it is a point of argument), a Treaty does not become effective until there has been an Order in Council. This is new treaties; it is not the pre-accession or Accession Treaties. That being so we know that with any Treaty and with the strange collection of protocols and what not there has to be an Order in Council. I almost believe I am right up to this moment. The fact remains that thereafter the Treaty might become—I think "self-executing" is the right word, or "directly applicable". Perhaps we could have a lawyer to help us on this.
EARL JELLICOE: May I say that I think the noble Lord is getting on very well indeed without a lawyer.
LORD SHACKLETON: I shall feel so much more confident with a lawyer. I am very anxious to persuade my case to the House. I shall not put the point again in case I get another answer. Having listened carefully to the noble Lord, as I understand it a new Treaty will require an Order in Council for it to operate as domestic law. I think I am correct.
EARL JELLICOE: All legislation.
LORD SHACKLETON: All legislation. The noble Lord argued powerfully—perhaps he did not put it as strongly as this—that Parliamentary control is retained by the obligation to have a Resolution of both Houses of Parliament. I should be very surprised if the noble and learned Lord the Lord Chancellor, did not fulminate against the practice of the Labour Government in the 1945–50 Parliament of using subordinate legislation and Statutory instruments. We know that the noble Lord is a reformed character in these days, but certainly in those days this was still very undesirable, and I still believe that major matters ought not to be dealt with by Order. I do not think many noble Lords would disagree with this.
The objection to these is that first of all in another place the Government of the day will use their majority. I shall be careful of my language in this matter; there are noble Lords and there are Members of another place and critics of Parliament who have been concerned at what might almost be called—I will not use the word "dictatorship", but an authoritarianism by which the Government get their way. Noble Lords may say that this House has the power in fact to protect the country in regard to a Treaty. But supposing a Treaty was so bad that in fact we felt we could not go on with it, that we could not go on as a member of the Community; we should then be in trouble with the Luxembourg Court and so on. These safeguards are built in. The Government require that there should be an Order to give effect to Treaties; but your Lordships' House is not in a very strong position in this matter. It is very unlikely—and there are good reasons why it is unlikely in an unreformed House of Lords—that this House would override such an Order. It may well be our constitutional duty to do so. It may well be that this could be, in the words of
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the noble Lord, Lord Carrington, "The last bee sting of the House of Lords". It may be that the Treaty could bear on the powers of an awkward Second Chamber. This is quite hypothetical.
The Government's short answer is that we should not dream of giving effect to any major Treaty of this kind except by a Bill and an Act of Parliament. But this is precisely what we are doing in this Bill now. We are giving effect to a large number of Treaties and Clauses 1 and 2 amount to all the legislation that there is on them. Furthermore, the Government have been unwilling to allow a single Amendment in another place, and are clearly unwilling to allow a single Amendment in this House. Therefore they do not give confidence in the sort of matters dealt with by Orders.
I accept that the Government are in difficulty; they have been in difficulty with their Parliamentary majority in another place. We all understand this, and many people sympathise. But this Bill has now left another place; they have passed through the ordeal of the endless nights and the guillotine procedure. We are in a position, I would suggest, to provide the sort of additional safeguard with which I believe every Member of your Lordships' House would agree, and which I believe to be consistent with the intentions of the Government: simply, that before a Treaty could be subject to the procedure of the Order which leads to resolution it should either be referred in draft, or, even if it is not in draft it could be entered into, on publication, before Parliament is asked to approve of this new Treaty by Order. It should go either to a Select Committee of Parliament or perhaps to a joint Select Committee. Of course, the noble Lord, Lord Brooke of Cumnor's Committee is considering these matters. Suggestions have been produced by Mr. Rippon, at one stage rather out of a hat, as a major proposal. I know that the noble Earl himself is in favour, and that it is only because of some of the difficulties between the Parties at this moment that we are not further on. But we are operating as the Second Chamber, with an obligation to provide such safeguards as we think fit; and all we are saying is that it must go to a Select Committee if this automatic procedure is to be used.

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If it goes to a Select Committee, Parliament will be advised, will know what is involved.
Your Lordships know what happens when an Order arrives in this House—and I am not trying to be difficult when I say, "Look at some of the Northern Ireland Orders with which we are having to cope": we cannot cope with them, we acknowledge that, and I am not blaming the Government for that, until we have a proper Select Committee. If it does not go to a Select Committee, then it will call for main legislation and one will have to proceed by Bills. Governments will get their way, if they wish, by main legislation, but it takes a great deal longer; and one of the checks on a Government who are inclined to move into a dictatorial mood—and all Governments are inclined to be authoritarian in these matters—is the timetable. The threat that they might have to move to main legislation, as opposed to a simple Order which can go through in an hour or two, seems to me to be a powerful one.
What we are now suggesting, therefore, is that, in the interests of Parliament, and fully in accordance with, I believe, the intentions of the Government, we should write into the Bill that all Treaties should go to a Select Committee, and that they should then be reported upon. Thereafter, of course, if they are reported upon, Parliament will know what it is about, instead of its being sprung on them—and we know how badly we deal with Orders. We do not deal with Orders at all seriously in either House at the moment; and I think a provision that this should go to a Select Committee is one which ought to command the support of your Lordships. I beg to move.
LORD STOW HILL: Before the noble Earl replies. I am tempted, if I may, just to add one short observation in view of the speech which the noble Viscount made when we were considering the last Amendment. It is this. The noble Viscount's view is that a Treaty could not get before an English court until it had been included in an Order in Council, and in those circumstances an English judge could not be called upon to decide whether it was, within the meaning of lines 5 to 8, "ancillary" until it had been so specified by an Order in Council.
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I venture to propose this argument in support of my noble Leader for this reason. It is obviously, I should have thought, most undesirable that an Order in Council should be made specifying a Treaty, and that an English judge should thereafter say, "I do not mind what the Order in Council says. It is ultra vires because this Treaty is not an ancillary Treaty and cannot in law be so regarded". The procedure which my noble Leader suggests would, I should have thought, very considerably lessen that risk.
I think Parliamentarians and lawyers are very conscious of the old dispute between the courts and Parliament. I know that the noble and learned Lord the Lord Chancellor has this very much in mind; and there has been this difference, this kind of borderland between where the courts may rule and where Parliament's jurisdiction extends. I should have thought that, in order to try to avoid this kind of conflict between the courts and Parliament, this sort of procedure, which would result in Treaties being very carefully examined by experienced people conscious of that sort of risk, would make the chance of the courts being forced into a position in which they must disagree with what Parliament has done very much less. If there were such a disagreement, I suppose it would provoke the most disagreeable reaction among the other Community countries. I do not know what the result would be. I suppose the European Court might then be called upon under, I think Article 173 and Article 177 of the Rome Treaty to pronounce upon it, and to decide between Parliament and our courts. That would be a very unenviable situation, and if we could avoid it we should try to do so. I would submit that the procedure suggested is really very well suited for that purpose. Before the subsection (3) procedure is invoked, the Treaty would have had to be scrutinised by Members of, I suppose, both Houses—Members who no doubt will have particular experience in those matters—and they would be conscious of the risk that there might be a very serious question as to whether a court could say that this was an ancillary Treaty. I submit that argument to the Committee in support of the proposal of my noble friend.
EARL JELLICOE: Like the noble Lord, Lord Shackleton, I venture rather

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diffidently into this discussion but I congratulate him because I found that what he was saying—although I do not agree with all he said—perfectly intelligible. I have a horrible feeling that he may not find perfectly intelligible what I am about to say. I should like to say, first, that we recognise clearly that there is a need in this general area—above all where it affects Treaties entered into by the United Kingdom after January 22, 1972—for Parliamentary control. On that, I think we are all agreed. We have come to the conclusion that here the Order in Council procedure, subject to Affirmative Resolution, is the best. This is a great deal more than applies in certain treaty areas at the present time.
Take for example the extradition Treaties. Under the Extradition Treaty Act of 1870 an Order in Council can be made for extradition Treaties; but these are merely laid and Parliament can do nothing about them. To go further than that—and there were certain Amendments which would have made the introduction of a Bill obligatory—would, we feel, have been disproportionate to many of the Treaties covered by Clause 1(3). If we look at the pattern of existing Community agreements, an absolute requirement to have a Bill in each case would, we feel, be disproportionate because many of these Treaties are not like the Treaty of Utrecht, or of Campo Formia, or of Versailles; they are humdrum terre à
terre affairs.
LORD SHACKLETON: I am not proposing that there should be a Bill in every case. I am proposing that it should go to a Select Committee.
EARL JELLICOE: I am aware of that, but I wanted to sketch in the background to your Lordships. If I was doing so at too great a length I apologise. I was sketching in the background by way of reaffirming our clear recognition of the need for Parliamentary control here.
That said, I do not think the noble Lord should undervalue the degree of Parliamentary control which exists in the Bill before us. Future Treaties entered into by the United Kingdom would require an Affirmative Resolution Order in Council. Parliament can prevent this by refusing an Affirmative Resolution. If Parliament does this, and it it is neces
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sary for implementation of the Treaty that it should be within the definition in the Bill, such a refusal would force the Government of the day either to proceed by Bill (if it has not already exercised that option; and that is perfectly well open to it in the Bill) or to renegotiate the terms of the Treaty in order to improve those aspects to which Parliament may have objected. The final thing is to withhold ratification of the Treaty, with what goes with it.
There is, therefore, an important degree of Parliamentary control in the Bill as it stands at present. The noble Lord wishes to introduce this extra safeguard of a Select Committee. While I am sympathetic towards the idea of Parliamentary control in this area I cannot say that I am sympathetic towards the importation into Statute of the idea of a Select Committee. I will say briefly why. In the first place an express statutory provision for a Select Committee is unusual in the highest degree. As far as I know, it is unprecedented. I am sure that the noble Lord, Lord Shackleton, who is usually extremely meticulous in these matters of procedure, would agree that Select Committees should be set up with clearly defined terms of reference. But the terms of reference which are laid down in the Amendment are exceedingly broad.
I see a gravely practical objection to the Amendment in that it would require the Houses of Parliament to await the Select Committee's Report before passing an Affirmative Resolution under Clause 1(3). It would mean that Parliament would be putting itself into baulk. The Select Committee could consider the matter for ever, if it so chose. I hesitate to say so in the presence of the noble Lord, Lord Foot, but if Mr. Michael Foot, his brother, happened to be Chairman of the Committee I think that the matter might be sat upon for a long time. The same might apply if the noble Lord, Lord Brockway, was Chairman of the Committee.
THE LORD CHANCELLOR: He does not have a brother.
LORD GREENWOOD OF ROSSENDALE: Is there any reason why a standing Select Committee of this kind should not be subject to the same kind

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of timetable procedure as the Select Committee on Statutory Instruments has to abide by?
EARL JELLICOE: There is nothing here which would suggest so. The wording is very clear indeed. Noble Lords may say that those are technical drafting points. But the fundamental objection is to importing into Statute a definite requirement that there should be a Select Committee of this sort. Matters of this kind are not really suitable for statutory provisions. They have never been thought so appropriate. It is far better that they should be left to be worked out flexibily in the ordinary way in which Parliament does these things. But I should like to say this. The sort of proposal which the noble Lord has embodied in the Amendment, which I could not ask the Committee to accept, affects the kind of area which the Government are only too willing to have examined by Parliament.
The noble Lord, Lord Shackleton. referred to the ad hoc Committee proposed by my right honourable friend the Chancellor of the Duchy of Lancaster in another place, to look at the possibilities of Parliamentary supervision and to make proposals in this respect. That offer is open. This area and the area of secondary legislation, are very much areas which require looking at. We are anxious to have this looked at by agreement with the major Parties. What we are anxious not to do in default of that examination is to import into Statute an inflexible and rigid requirement for a particular Select Committee. In fact we think it would be highly undesirable to import this requirement into Statute at all. But we are perfectly willing to have this possibility: that some Parliamentary control should be exercised in this general area, looked at by an ad hoc Select Committee or indeed by any other machinery which is agreeable to the two Parties.
LORD GLADWYN: I may appear very stupid, but may I ask one question? As I understand it, Treaties of the type we are discussing will not be regarded as Community Treaties unless they are so specified, or unless they are specified and a draft Order in Council has been approved by Resolution of each House of Parliament. The noble Earl the Leader of the House explained why he does not
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agree with the supplementary suggestion from the noble Lord opposite, that they should automatically be submitted to examination by a Select Committee before Parliament takes a decision. But, rightly or wrongly, is there any reason why, if the Bill stands as it is, either House of Parliament should not in its wisdom, if it wanted to, submit any draft regulation for Treaty to investigation by a Select Committee; and therefore, surely, the Amendment is otiose.
THE LORD CHANCELLOR: The noble Lord, Lord Gladwyn, is quite right in what he said. Parliament can submit anything; either House of Parliament can submit anything to a Select Committee, to a Standing Committee or to any other sort of committee and no court can stop them.
LORD SHINWELL: Am I to understand from what the noble and learned Lord the Lord Chancellor has just said, that even if there is nothing injected into the Bill about the creation of a Select Committee Parliament can decide to refer a draft Treaty to a Select Committee? Is that what he is saying, that it has jurisdiction to refer any matter coming before it to a Select Committee?
THE LORD CHANCELLOR: Either House of Parliament has full jurisdiction to refer to a Select Committee of that House any matter which is before Parliament, and by parallel Resolutions the two Houses have rights to submit it to a Joint Select Committee.
LORD FOOT: We have now been discussing this Bill in Committee for six hours or more and we have reached Amendment No. 11. Every proposed Amendment has been successfully rejected by the Government Front Bench. May I repeat a question which I asked the Leader of the House at the very beginning of this debate: Have the Government already decided that they are not going to allow any Amendment to this Bill to be carried? If that is so, if they have decided that in order to comply with the Government's timetable this Bill has to go through unamended, then all talk of a discussion of the Measure on its merits is hypocrisy.
SEVERAL NOBLE LORDS: Hear, hear!
LORD FOOT: If the Government have really decided to reject every Amendment, whatever its merits, it is nonsense to talk of discussing things on their merits. I should like the Leader of the House to tell us directly whether the Government have already decided that no Amendment will be allowed to pass.
LORD SHINWELL: Before the Leader of the House replies I would make a submission to him. During the course of his remarks on the Amendment he said more than once—and it was just repetition because he had expressed the view during discussions on other Amendments and during the Second Reading debate—that it was desirable to have a measure of Parliamentary control. I think he would agree that he is sympathetic to that point of view. If he is rejecting the proposition that a post-accession draft Treaty should be referred to a Select Committee and yet is in favour of some measure of Parliamentary control, what is the alternative to a debate in both Houses of Parliament on an Affirmative Resolution? As noble Lords are well aware, such a Resolution may be scrutinised but not amended; it is open to rejection or acceptance. Obviously if there is a majority Government holding strongly to its point of view, any proposition to reject will be rejected and the Government will carry the day. That is the position.
I am not pressing for the point raised by my noble friend Lord Foot because I do not believe the Government have made up their minds definitely to reject every Amendment. It may well be that something will come along to which the Government will feel sympathetic. After all it will be a minor modification; the Government will concede the point and claim credit for it. They will say, "Always a liberal Government making concessions." So I do not accept the view, put forward even by noble Lords on the Front Bench on this side, and by my noble Friend, Lord Foot, that the Government have made up their minds that no Amendment will be accepted. If on the Government Bench there are noble Lords who say that there is something to be said for a measure of Parliamentary control, and if the Government reject the proposition for a Select Committee to deal with a post-accession draft Treaty,
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what is the alternative? That is a fair point. Have they any other proposition to put forward? This gives them an opportunity to show how liberal-minded and sympathetic they are. There must be a measure of Parliamentary control. If the Government make a concession of that kind, however minor—even in muted tones—we can leave here at 10 o'clock, or hopefully before then, feeling that everything in the garden is lovely.
EARL JELLICOE: Let me reply to the noble Lord, Lord Shinwell, first. I would reaffirm the Government's belief that there should be Parliamentary control, and that is already provided in Clause 1(3). What is more, as I have said, so far as important Treaties are concerned, the Government of the day may well decide to proceed by Bill, and they could be forced to do so if the Order in Council Affirmative Resolution were rejected. But I have also said, as the noble Lord, Lord Shinwell, quite correctly recalled, that there are areas here—I think this applies particularly to secondary legislation—where it is clearly desirable in these circumstances that means of Parliamentary scrutiny should be worked out and elaborated. That is why we have proposed the ad hoc Committee, and that is why we hope that this ad hoc Committee or some other mechanism can be set up and get to work as soon as possible.
Turning from the noble Lord, Lord Shinwell, to the noble Lord, Lord Foot, all I wish to say, quite categorically, is that I made my position absolutely clear on Second Reading. No such decision as the noble Lord is crediting me and the Government with has been taken. I said on Second Reading that we wished to look at Amendments which might be moved on their merits. Quite frankly, we do not think a great deal of the merits of the Amendments that we have had so far. But we will wait and see.
LORD BERNSTEIN: Before the noble Earl sits down, has he answered my noble friend Lord Greenwood's question about what controls the French, Dutch, German and Italian Parliaments have on matters of this Bill, which takes the powers away from Parliament, except by an Order in Council?
EARL JELLICOE: We are, if I may say so, on a definition clause here. There

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will be plenty of opportunity to come back to this particular point on Clause 2.
LORD BERNSTEIN: I do not wish to press the point too hard, but if the noble Earl could answer that question now we might save a lot of time next week, because the information is important in relation to the matter of sovereignty, powers of Parliament and so on.
LORD BOYLE OF HANDSWORTH: I apologise for coming late into this debate, but I should like to support one point made by the noble Earl the Leader of the House. I would say with some feeling that, whereas I very much hope there will be some means of Parliamentary scrutiny that will be worked out by the ad hoc Committee, none the less I must support the Leader of the House in saying that it would be an unhappy precedent to put a Select Committee of the House of Commons into a Statute. I believe that the whole strength of the Select Committee system—certainly the system in the House of Commons as I always knew it—lay in the fact that Select Committees were set up by the Parliament of the day and did not depend on some previous statutory enactment.
I would just add this. To a real extent, and more than perhaps is always realise, I believe that each Parliament has its own individuality. As the noble and learned Lord the Lord Chancellor will recall, there came a time—and he and I were both sympathetic—when there was a stronger demand than ever before for a Select Committee on the subject of science and technology. I think that was justified. But the whole strength and initiative for new Select Committees comes from the House itself. I believe that we should not be strengthening the power of Parliamentary scrutiny, and certainly not the power of Parliamentary control, but would be weakening it if we put this in a Statute and established this new precedent. Therefore, while I do not think too much of the point about Mr. Michael Foot, I think that a Select Committee here will work perfectly well in practice. None the less, I should infinitely rather see the initiative taken by each House of Parliament individually rather than to attempt to solve this by a statutory addition to the clause.
LORD SHACKLETON: I will just make this point right at the beginning. I think it was a little unfortunate—I will say no more—that the noble Earl suggested that a Select Committee under the chairmanship of certain of our colleagues in this House and another place would not get on with the job. I regard that as an absurd and unfortunate statement.
EARL JELLICOE: If I may interrupt the noble Lord, if I caused offence to the noble Lord, Lord Foot, I immediately apologise. I did have my tongue a little in my cheek. If it was not visible, I will try to make it more so in the future.
LORD FOOT: No member of my family ever takes offence at anything.
LORD SHACKLETON: The reason why I think it is unfortunate is that it was rather bad from the point of view of the noble Earl's case, because to me it suggested a misunderstanding of how Select Committees operate. Furthermore, he used as an argument that there might not be time to refer such Treaties to Select Committees before they became Treaties. That is what I understood again the noble Viscount to say. But they are going to have to go, under our existing procedures—admittedly not determined by Statute but by Order of the House—to the Special Orders Committee of this House and to a Committee in another place, so that totally destroys the noble Earl's argument. As we well know, and as the noble Earl the Chairman of Committees will make clear, the Special Orders Committee in our House are not in a position to give the sort of scrutiny and report that we are seeking.
A main argument of the noble Earl—and indeed one that was used by the noble Lord, Lord Boyle, and obviously it attracted some support on that side of the House—is that we have never before set up Select Committees by Statute. But neither have we ever signed a Treaty of accession comparable to this. As noble Lords know, I happen to be in favour of this, but I am really very sad that when we are embarking on such a revolutionary step—and it is a revolutionary step; indeed it is perhaps the most important constitutional step. for good or for evil that this country has,

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ever taken and it is comparable with one of the great constitutional Acts—the Government are prepared to argue that it is inappropriate to build into a Statute, admittedly a short Statute, an additional Parliamentary safeguard, the only purpose of which is to prevent the tyranny by Government majorities operating through the system of statutory instruments.
I congratulate the Government on their initiative in setting up the Committee of the noble Lord, Lord Brooke. It is an extremely important Committee and is going to look into this whole question, but I would be more confident, and critics of this step would also be more confident, if there were the sort of protection which ensures that Treaties are not brought into force simply by statutory instrument. The noble Earl quoted as justification past action; for instance, the fact that there is no statutory control over Extradition Treaties. We are well aware of all this. There are a lot of things which may have been appropriate in the past but are wholly inappropriate to-day, and there are a lot of thing which were inappropriate in the past and are even more inappropriate to-day. The argument in favour of this is simply that if we can put this into a Statute it will ensure that Parliament will not be confronted with the sort of situation that we get time after time to-day with regard to our own statutory Orders.
It is perfectly open to the Government to say that if they do not wish to proceed by Statute—which I find perfectly satisfactory, and if it had not been done before I see no reason why it should not be done now—they would accept a Resolution to this effect. Will they say that now? But all we have received is a sort of sympathetic idea that the Government would like this sort of thing, yet they have totally dissipated such arguments as they had in this respect by saying, for instance, that there might not be time to deal with it. I hope that noble Lords opposite, whom I know to be concerned for constitutional rights, will see the force of this argument.
We do not expect to carry this Amendment, nor would we necessarily assume that the Amendment would ultimately remain in the Bill in this form. It would be a blow for the type of Parliamentary
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control which this House is particularly fitted to exercise on a Government. If noble Lords are particularly content to do this with a Conservative Government, will they be content when my "lot" are in power? I suspect that they will not. Therefore, I advise them to vote for this Amendment. We will return to it at later stages; if it is not satisfactory the Government can always put it right. I entirely reject the argument that has been used in this House and in another place, that it is not done to make provision for Select Committees by Statute.
9.41 p.m.
THE LORD CHANCELLOR: I wonder whether I can add a word on this matter. I wish that I could persuade the noble Lord the Leader of the Opposition that this particular procedure is fundamentally unconstitutional. It is not a mere coincidence that there never has been, so far as I know, even in the jungle that our Statute Law is becoming, a Statute which set up a Select Committee of either House, let alone a "Select Committee of Parliament", whatever that may mean—and that is the phrase used in the Amendment—as a condition precedent to the validity of a legal situation. It is not a coincidence, nor is it due to the fact that no unique situation has ever occurred earlier in our long history—many situations of equal uniqueness have occurred, if I may use that rather illogical phrase.
I come back to the basic facts of legality and of the Constitution, which I thought the noble Lord, Lord Stow Hill, was going to deal with at one moment of his speech. It is a fundamental concept of our Constitution that each House of Parliament is master of its own procedure in this particular sense; that no court can inquire what goes on inside our walls. If we chose, for instance, to alter our fundamental procedure as to the number of Readings a Bill should have (and we have from time to time in Parliamentary history done that very thing) no court could question it. The effect in law, as I see it, of introducing an Amendment of this kind is precisely the opposite of what the noble Lord, Lord Stow Hill, suggested it might be.
In order to decide upon the validity of a treaty instrument of direct application under this Statute, when it becomes law, a court would have to inquire as to the

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very thing from which by privilege of Parliament it is debarred from inquiring. It would have to inquire whether a Select Committee had been properly set up, whatever the obscure and meaningless phrase "Select Committee of Parliament" means. I think it means nothing, because a Select Committee must either be a Select Committee of one House or a Joint Select Committee of the two Houses. It cannot be a Select Committee of Parliament.
The court would have to inquire as to the due constitution of a Committee and the propriety of its procedure, and as to whether the Committee was a Select Committee, a Standing Committee or a Committee of the Whole House. In other words, the very conflict which the noble Lord, Lord Stow Hill, would be so anxious to avoid—and rightly so—is inherently built into the Amendment. I am in favour of the kind of scrutiny not only in this clause, and not particularly in this clause, but more particularly in Clause 2, that the noble and learned Lord, Lord Diplock talked about on Second Reading. But this must be dealt with by the machinery of Parliament and must not be built into a Statute; otherwise you are insisting that the courts will have to pronounce upon the validity of the procedure inside Parliament and that would be subversive of the whole Constitution.
I wish that I could persuade some people who are putting down Amendments—and I say this particularly to the noble Lord, Lord Foot—that it is not sheer bloody-mindedness which leads some people on this side of the Committee to resist these Amendments. It is not due to some decision to accept nothing. It is because we do not want this Bill to be used as a means of subverting the very thing which the critics of this Bill are—I doubt not sincerely—anxious to preserve. This Amendment is far more serious and far more subversive of our Constitution than the supporters of it have realised.
LORD FOOT: Would the noble and learned Lord, since he made a particular reference to me towards the end, state whether, if at the end of the proceedings in Committee on this Bill we find that the Government have not been prepared
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to accept one single Amendment of any kind, detail or substance, we are to regard that as a pure coincidence?
THE LORD CHANCELLOR: The noble Lord should regard it as a matter of profound shame that he has not by that time thought of an Amendment which meets with the approval of the Committee.
LORD BESWICK: I wonder whether I might express a word of surprise at the tone and attitude of the noble and learned Lord. He has endeavoured to put to us the case that everything is quite all right in the Bill as it stands, and that everything has been honestly and sincerely done. The phrase "Parliamentary control" has been repeated over and over again, and the impression is created that we are about to move into a new form of democracy. The democratic content of this Bill is sound, but the procedure is a little different. I confess that I am completely unable to recognise the Bill about which they are talking when I look at what is said by other people about it. I am not referring to bloody-minded people whom the noble and learned Lord appeared to think are the only people who criticise this Bill.
THE LORD CHANCELLOR: The noble Lord has misunderstood me. The bloody-mindedness to which I was referring was the bloody-mindedness which the noble Lord, Lord Foot, was seeking to impute to the Government. It was not I who was seeking to impute it to noble Lords opposite; far be that from me.
LORD FOOT: Except that I do not use that kind of language.
LORD BESWICK: May I quote from an article by the legal adviser of the European Community, who explained what was happening here? He put a somewhat different complexion upon the procedure that we are expected to adopt. He said:
"The E.E.C. Treaty provides for three different forms of binding acts, the force and content of which widely differ. In this sense there is a certain gradation of powers as expressed by the different Community acts. A regulation"—
we are dealing here with regulations, although the word "treaty" is used by

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noble Lords opposite almost as if it were something that happened only now and again and not as a continuous flow of regulations—
"is the most powerful act typical of the Community legal order. It is binding in every respect and directly applicable throughout the entire Community without any intervention whatsoever on the part of the member States. It may impose obligations or confer rights on member States and individuals alike. By its content a regulation is a veritable Community law."

CONTENTS

Bernstein, L.

Garnsworthy, L.

Phillips, Bs.

Beswick, L.

Granville of Eye, L.

Segal, L.

Blyton, L.

Greenwood of Rossendale, L.

Shackleton, L.

Brockway, L.

Hoy, L.

Shinwell, L.

Champion, L.

Lindsay of Birker, L.

Stow Hill, L.

Collison, L.

Llewelyn-Davies of Hastoe, Bs.[Teller]

Strabolgi, L. [Teller]

Gardiner, L.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Mowbray and Stourton, L. [Teller]

Abinger, L.

Emmet of Amberley, Bs.

Ailwyn, L.

Falmouth, V.

Northchurch, Bs.

Amherst of Hackney, L.

Ferrers, E.

Nugent of Guildford, L.

Arbuthnott, V.

Gainford, L.

Onslow, E.

Astor of Hever, L.

Goschen, V.

Orr-Ewing, L.

Balerno, L.

Gowrie, E.

Pender, Lord

Balfour, E.

Greenway, L.

Penrhyn, L.

Barnby, L.

Gridley, L.

Polwarth, L.

Beaumont, L.

Grimston of Westbury, L.

Radnor, E.

Belstead, L.

Grimthorpe, L.

Rankeillour, L.

Berkeley, Bs.

Hailes, L.

Reay, L.

Bessborough, E.

Hailsham of Saint Marylebone L. (L. Chancellor)

Redesdale, L.

Blake, L.

Redmayne, L.

Boyd of Merton, V.

Hanworth, V.

Reigate, L.

Boyle of Handsworth, L.

Harcourt, V.

Rhyl, L.

Brentford, V.

Harvey of Prestbury, L.

Roberthall, L.

Brooke of Cumnor, L.

Hatherton, L.

Rochdale, V.

Chelmer, L.

Hawke, L.

Ruthven of Freeland, Ly.

Chesham, L.

Hemingford, L.

Sackville, L.

Coleraine, L.

Henley, L.

Saint Oswald, L.

Coleridge, L.

Hewlett, L.

Sandford, L.

Colville of Culross, V.

Hives, L.

Sandys, L.

Cork and Orrery, E.

Hood, V.

Selkirk, E.

Cowley, E.

Jellicoe, E. (L. Privy Seal)

Sempill, Ly.

Craigavon, V.

Shaftesbury, E.

Craigmyle, L.

Kemsley, V.

Stonehaven, V.

Cranbrook, E.

Lansdowne, M.

Stradbroke, E.

Croft, L.

Limerick, E.

Strathcarron, L.

Cullen of Ashbourne, L.

Lindsey and Abingdon, E.

Strathclyde, L.

Daventry, V.

Listowel, E.

Stratheden and Campbell, L.

de Clifford, L.

Lothian, M.

Tanlaw, L.

De L'Isle, V.

Macleod of Borve, Bs.

Terrington, L.

Denham, L. [Teller]

Macpherson of Drumochter, L

Teviot, L.

Digby, L.

Mancroft, L.

Thorneycroft, L.

Drogheda, E.

Massereene and Ferrard, V.

Trefgarne, L.

Drumalbyn, L.

May, L.

Tweedsmuir, L.

Dudley, E.

Merrivale, L.

Tweedsmuir of Belhelvie, Bs.

Dundee, E.

Mills, V.

Vivian, L.

Dundonald, E.

Milverton, L.

Wakefield of Kendal, L.

Ellenborough, L.

Monk Bretton, L.

Wynford, L.

Elles, Bs.

Mottistone, L.

Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.
I am unable to understand what noble Lords opposite are talking about when they say that we will have full Parliamentary control of the future legislation governing the life of this country.
9.49 p.m.
On Question, Whether the said Amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 19; Not-Contents, 123.
9.57 p.m.
LORD BESWICK LORD BESWICK moved Amendment No. 12:
Page 2, line 23, at end insert ("which is related to the purposes for which the Communities have been established.")
The noble Lord said: I shall move this Amendment briefly, and largely to hear what excuse is put up by the Government. I can see absolutely no reason why these words should not be incorporated. Over and over again spokesmen on behalf of the Government have said that nothing would be put down on the Statute Book or brought forward, either as an Order in Council or a regulation or a direction, or any of the other matters of obtaining a legal enforcement in this country, unless it was related to the purposes for which the Communities have been established. We have been assured of this over and over again, and therefore I am suggesting to noble Lords opposite that it would be reasonable if, within the Bill, it was clearly stated that the Treaties and the regulations would be within the purposes for which the Communities have been established. Even a company in this country would have within its articles a similar clause to this, and therefore I hope that noble Lords will have no difficulty in accepting it. I beg to move.
BARONESS TWEEDSMUIR OF BELHELVIE: Perhaps I should say that while I quite understand the reason why the noble Lord, Lord Beswick, has moved this Amendment, I am afraid I have to tell him that it is in fact unnecessary, because Clause 1(4) is already a definition provision concerned with the whole description of a Treaty. The necessary link which he desires (just as we all do) in the Community context is in fact already achieved by Clause 1(2). Perhaps I should describe it a little further. The whole idea of subsection (4) is that it is a definition provision, just as, indeed, is the whole of Clause 1. It does not try to introduce any kind of change of any substance. Its whole point is to try to avoid any doubts about the meaning of "Treaty", which is exactly the meaning behind the Amendment. It tries to make it clear that this term is not limited to those international agreements that are entitled "Treaties" but it also includes protocols and annexes to the Treaties.
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I can understand the noble Lord saying that he wants to be quite certain that everything which is in subsection (4) is, in the terms of this Amendment, related to the purposes for which the Communities have been established; but the definition of Community Treaties has of course to be linked with the purpose of the Communities and this has been already achieved under subsection (2) of Clause 1. Any agreement which is entered into by a Community must, by definition, be an agreement connected with the purposes of the Community, because otherwise, of course, the Community would have no power to conclude it. Therefore, agreements entered into by member States and their connection with Community purposes is, I think, secured by the use of the word "ancillary", which we debated earlier, in line 7, on page 2, and line 26, on page 19. It is for that reason only that I would advise the Committee not to accept an Amendment which is unnecessary because the provision is already in the Bill.
LORD BERNSTEIN: Will the noble Baroness kindly tell us what her objections are to adding it? She has said that it is already in the Bill. I have seen many contracts and many Bills with repetitive paragraphs. Could we know the reason for refusing it? It seems to me that it cannot do any harm if it is added.
BARONESS TWEEDSMUIR OF BELHELVIE: I feel deeply disappointed that the noble Lord, Lord Bernstein, did not apparently hear what I thought was a fairly clear explanation of why it is unnecessary to accept this Amendment. Briefly, to sum it up, Clause 1(4) is a definition provision concerned with description of a Treaty, and the necessary link with the Community context is already achieved in Clause 1(2), which we have discussed at great length.
LORD BERNSTEIN: I thank the noble Baroness for that, but she has not answered my question. My question did not relate to whether it is already in the Bill, but what was the objection to adding it to this clause.
BARONESS TWEEDSMUIR OF BELHELVIE: If I may speak for the third and, I promise, the last, time, the objection to including the words in the

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Amendment is that they are unnecessary because the provisions sought to be secured by the Amendment are already in the Bill.
LORD BESWICK: Although there are a number of noble Lords opposite who have come in and been entirely convinced by what the noble Baroness has said, there are a a lot of other people, probably equally informed who are not convinced.
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I am very sorry indeed the noble Baroness did not feel able to accept this Amendment, but in view of the attitude of the Government in refusing to consider any addition, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
10.3 p.m.
LORD GARNSWORTHY LORD GARNSWORTHY moved Amendment No. 13:
Page 2, line 23, at end insert—
("(5) This Act shall not come into force unless a consultative referendum has first been held to enable the electorate to express its attitude upon the accession of the United Kingdom to the Communities.")
The noble Lord said: Having regard to what has happened to all the Amendments that have been moved this afternoon, and the political attitude of the Government as to willingness to accept anything proposed from this side, it may seem a matter of supreme optimism that at this hour of the evening I rise to move this Amendment. In doing so, I make it quite clear that I have no claim to legal expertise, but I do not think one needs to be a constitutional lawyer to feel that where the vital interests of this country are concerned, the vital issue of national sovereignty, the people have a right not only to the fullest consultation but a right to play a part in making a decision. It is generally agreed in all parts of this Committee that the Bill affects the future of this country, for good or for ill, in the most profound way. I think it is generally conceded that there has been before Parliament no issue of greater importance. It introduces changes which will colour and determine the future lives of our people in a manner not paralleled in peacetime or at any time. On Second Reading some notable speeches were made. One which received well deserved tributes was that delivered by the noble Earl, Lord Lauderdale. The case he made for allowing the people to speak was overwhelming, and I think I am justified, in the light of what was said in that debate, in saying that the case he made was not, on that occasion at least, effectively answered.
The Amendment I move is designed to allow the issue to be put to the electorate. To date no one can claim they have been fully consulted or give the opportunity to declare their will. The Tory Party Manifesto as quoted by the noble Earl showed the limits of the Government's mandate. It says, as the noble Earl quoted,
"Our sole commitment is to negotiate; no more, no less."
The Government have negotiated and the people should have the opportunity to say
590
whether they are satisfied. At a General Election they could be given the opportunity to declare their views by way of a consultative referendum. All the signs we have to judge by indicate that on this issue on the Common Market the majority of these people who have declared a viewpoint are unhappy. I do not wish to weary the Committee with details of public opinion polls that have been held, because they are pretty generally known; but the latest poll shows that the majority of the people of this country remain unconvinced and remain extremely unhappy. If we had a consultative referendum it would provide an opportunity whereby the case for and against might be fully put and the public themselves given an opportunity to indicate then, in the light of information laid laid before them, what their reaction might be.
I have no doubt at all that whatever our views in this House may be the people of this country ought to be given an opportunity to say what they think about this vitally important issue. This House is very different to the other place. May I say that I think that the overkill that is exhibiting itself in Divisions in this Committee is no indication and will not be seen by the people of this country as a reflection of their opinion as a people. I doubt that many people abroad will be persuaded that the very large majority that your Lordships opposite are putting on the Record this evening will impress anyone outside this House. Here we enjoy great privilege; we are not elected, we inherit our seats or we are appointed. In the end, we are unlike the people in the other place. There they are responsible to the electorate and the electorate can pass censure on them. In this House we are answerable only to our own consciences. I believe that the limit that our consciences should permit in the circumstances of our unrepresentative position is to make sure that people have the right to govern themselves. The late Sir Winston Churchill put it in that way. I think it right that the Committee should have the opportunity to accept this subsection in Clause 1 and thus justify its acceptance as a protector of the right of appeal.
At this late hour I have no intention of speaking at any greater length. I will

591
conclude by saying that the people of this country have a right to play a major role in the determination of their own destiny. I think it proper to give your Lordships' House the opportunity of indicating that that is your view also. If it be not your view, then I think the time will come when the people of this country will determine the usefulness of this place. I beg to move.
10.11 p.m.
VISCOUNT MASSEREENE AND FERRARD: With due respect to the noble Lord, I really think that he is speaking nonsense. The elected representatives of the people have spoken. They have agreed to this Bill. The noble Lord was talking about the great majority in this House that there has been on these Amendments. I would remind the noble Lord—I am only speaking from memory, but I think I am right in saying this—that there are 200 Labour peers. Where are they? If the noble Lord's supporters felt so strongly on this issue, surely they would be here. I do not want to overstress that point; indeed, it does not require overstressing.
Regarding a referendum, this has never been the custom of this country. The Treaty of Rome and the Common Market is a very complex subject, and I should doubt if a percentage of.000001 of the population have read the Treaty of Rome. Such a referendum would be decided completely on emotion—I would hesitate to call it the Yellow Press". Therefore, such an exercise would be quite pointless. You might as well ask the people to hold a referendum on the fluoridation of water. That is just as technical a subject as the Common Market.
Again it would be pointless. Or you might as well have a referendum on brucellosis in cattle. With the greatest respect, I do not think the noble Lord was really "on the ball."
LORD GLADWYN: The Liberal Party, as a Party, regard a referendum on major political issues as quite extraordinarily unwise. It has often been said that if you had a referendum on whether to reintroduce capital punishment you know perfectly well what the answer would be
592
on that, or even on any other major issue of that kind. What the noble Viscount has said is quite true; these issues would be decided by momentary emotion. There would have been a series of murders, or whatever it may be affecting that issue, and the public would not judge the matter on rational grounds at all. The whole system of a referendum would be a denial of our present system of democracy. The will of the people is expressed by their elected representatives, and they presumably elect people they can trust.
In Norway, and perhaps even in Denmark, the Government by a majority would probably come to a conclusion after a long debate, and taking everything into consideration, that they should join the European Economic Community. It may be that someone will then make a demagogic speech, the referendum will go wrong, and they will not be able to join the Common Market, although it is in their interests. I think that I need say no more. The enormous majority in this House, and I am sure the enormous majority in Parliament, would be dead against the Amendment now before us.
LORD BLYTON: I shall try to answer the two preceding speakers in the course of my remarks on this issue. I want to say that I support my noble friend who moved this Amendment. This Amendment is to give to the people of this country a say as to whether we are going to give up sovereignty and take away from the people the democratic rights that they have had for over half a century, and hand over to others remote from the people the power to govern and tax them for years ahead. The Amendment before the House is not concerned with whether we are for or against Britain's entry into the E.E.C. It is concerned with whether the electors, the British people, are to be allowed to express their wish at the ballot box. Many people have said that it is not merely unwise but a disaster to join on the terms that are before us, which the Government have accepted. The Government, on the other hand, say they will bring prosperity unknown to us before, and give security to the nation. It is these two views which should be submitted to the electors for their decision, and the case for this is exceptionally strong.

593
There are very few who will dispute the gravity of the changes which membership of the E.E.C. means to the lives of the British people. They mean a great departure from our national history and also from the history of our Parliament. We are asked to approve treaties and regulations grounded in the belief that, in the foreseeable future, we will bind ourselves in close association with Western Europe and with any other nation or group of nations in different parts of the world. We are asked to tie our island to the Continent of Europe, to give preference in all our future dealings to the nations in the Community, and to treat as third countries all those in the Commonwealth and elsewhere with whom we have had the closest ties for many years. The people are having imposed upon them, without a voice on the issue, the acceptance, not just of closer alliance and friendship with the Common Market countries which many would welcome and accept, but of an arrangement which will make us part of a single European Community, a single Economic and Monetary Union and, probably, a political union as well in the future.
As part of this policy, or new destiny, we have to change the Constitution of our country at its heart and at its centre. The people are being forced by the Government to accept the end of an edifice on which our democracy was built—the doctrine of the supremacy of Parliament. When the country goes in, agencies in Europe will have the right under this Bill to make laws binding on the British public without their consent, and even, as I read Clause 1, without the knowledge of the House itself. Those same agencies will have the right to impose taxes on the people and determine how those revenues will be spent, and in all matters of law it will be the courts of Europe covered by the treaties and not the courts of Britain which will decide.
For the first time, we shall have a Constitution writen in the text of the Rome and other Treaties, not a word of which we have helped to write, and on top of that there will be a substantial amount of Community law, the result of 13 years of Common Market regulations and directives, which is destined to be extended as the Community exercises its
594
undoubted right to further legislation. This Bill concedes, unnecessarily in my opinion, a device to the Community; the requirement that only an Affirmative Resolution is needed to sanction major new advances which could progressively bring the British economy under their control.
What is the importance of what is at stake? What is envisaged is totally unprecedented, giving away great powers from Parliament and thereby diminishing the rights and power of every man, woman and child in Britain. Another important reason why the people should be consulted is that the Government have no mandate for this Bill. All that the Conservative Manifesto said was that their sole commitment was to negotiate—no more and no less. And in the last Election all the political Parties swept the Common Market under the carpet until the Election was over. The situation is now different. The Government have negotiated—if they can be called negotiations. To me, it seemed like a French and British affair; and there are very few in the country, except the Common Marketeers, who would not say that the French exacted a price that they are not ready to pay.
It cannot be said that the full-hearted consent of the people or of Parliament has been given. In fact, in another place, had it not been for dissident socialists the Bill itself would have been defeated on many of its important provisions; and the Opposition, the Labour Party, is opposed to the terms of entry. This provides an important reason why the people should have a voice. As I said in my Second Reading speech, this Bill cannot bind the Government's successor in power, whenever the Election comes. It is in these circumstances that I believe it is not sensible, and certainly it is not in the national interest, for the Government to go on as they are. A decision of this kind, if it should have been taken at all, should have had the support of the major Parties in the State. But if this cannot be obtained, and if the Government are to go ahead with this as the policy of the Government of the day, and of only one Party, then it is surely all the more important that the Government should get the consent of the British people before they embark on it.

595
All my life, as a democratic Socialist, I have strived for the extension of political power to the economic, industrial and social affairs in order to create in Britain a more just society. Now the people of Britain, who have believed in this, face a new situation: one in which Parliament ceases to be supreme and one in which laws that our own people may wish to change cannot be changed because the power to make these decisions will no longer rest in this Parliament. This will have a profound and damaging effect on our political life. People outside today say that there is too little democracy in their lives; they wish their views to be heard on an ever increasing number of matters, and they wish Governments to be closer and more sensitive to their needs. How, then, can we expect to achieve this when, without their consent, there is the transfer of powers to such remote and bureaucratic agencies as the Commission in Brussels and the Council of Ministers in Paris?
The question of consent has figured prominently in all the debates ever since the proposals were made. In fact, in 1962 Hugh Gaitskell said that if there were any major groupings in the country, and major difficulties, then the proper and democratic way was to let the people decide. He also said, answering Mr. Macmillan, about the ordinary working-class folk not understanding what it meant:
"We are being told that the British people are not capable of judging this issue, the Government knows best, the top people are the only people that understand and it is difficult for the rest."
He went on to say:
"This is the classic argument of every tyranny in history. We did not win the political battles of the 19th and 20th centuries to have this reactionary nonsense thrust upon us again."
That was Hugh Gaitskell in 1962. In 1963, the late Lord Attlee said this:
"It is the electors who have the right to decide on a vital matter of this kind."
I know that some people put up their hands in horror at the idea of a consultative referendum, as if it had never been suggested before. Yet Sir Winston Churchill, on May 18, 1945, said on seeking a two-year prolongation of the War Parliament:
"I am conscious, however, in the highest
596
degree, of our duty to strengthen ourselves by direct expression of the people's will. Let us discuss means of taking the nation's opinion—for—example—a referendum on the issue of whether in these conditions, the life of this Parliament should be further prolonged."
So I happen to be in good company tonight. The then Mr. Attlee refused this, and we had the 1945 Election.
How profoundly different is this from the present Government's attitude, which seems to have little regard for the direct expression of the nation's will! Even the Liberal Party in February, 1969, voted in the House of Commons for a referendum in the case of self-determination for parts of the United Kingdom. Indeed, the Scottish Liberal Election Manifesto spoke of a referendum on the Common Market as a "further democratic step which might be taken". So I am really in exalted company to-night. And this Amendment before your Lordships to-day is not something new, but something that has been explored before. This brings to the forefront the Prime Minister's statement. His argument was that the people and Parliament must give him full-hearted consent. But he has shifted his ground. He has lopped off the people and talks now only about Parliamentary consent. That is the interpretation, after careful research, of the statements lie has made over the last 12 months.
There are many noble Lords in this House who would argue that there is something improper about the consultative referendum but it comes mighty strangely from noble Lords who have frequently carried through referenda for other people. Nearly all the colonial territories have had a referendum built into their Constitution—territories like the West Indies and Gibraltar. In fact, Gibraltar had a referendum whether to stay with us or with Spain. If these people could be given the opportunity to decide—and Gibraltar decided to stay with us—what is wrong in asking the British people whether they wish to be submerged in Europe or not? The point is that these referenda were applied because it was thought desirable, in view of subsequent rule and conduct of affairs, that sanction should be given to what was done.
I want to conclude by saying this. There is plenty of evidence, if you look

597
for it, of statesmen who have argued for a referendum. This issue was not decided at the last Election. All that was asked for was negotiation. My Party has declared that it will have a referendum when it comes back to power—as it will at the next Election; and we shall negotiate our way out if the terms are not acceptable. And we shall ask the people of the country, by referendum, whether they agree with us. I support the Amendment.
10.30 p.m.
LORD BROCKWAY: I am glad to follow the noble Lord, Lord Blyton. I think it typical of your Lordships' House that noble Lords have listened so attentively to the speech which he made. For many years the noble Lord, Lord Blyton, has given more attention to this subject than anyone I know. When I was Member of Parliament for Slough, I remember his coming to Slough, many years ago, and addressing a meeting. The thoroughness of his examination of this subject is something that we should all appreciate, whether we agree with him or not.
I apologise for arriving rather late in the discussion of this Amendment; I did not appreciate that it had been reached. I was not deeply interested in many of the Amendments which preceded this one. I am not one who takes the view that Britain should view with repugnance the loss of its sovereign rights for the sake of wider sovereign rights. We are now living in a world where national sovereign rights must be coordinated with the much greater rights of the world as a whole. Therefore I have often been in disagreement with those who have opposed our entry into the Common Market on the ground that Britain was losing sovereign rights. We are living in the last century if we think that today sovereign rights can be placed against the rights of a smaller world.
My opposition to our entry into the Common Market is on the grounds not simply of the surrender of sovereign rights but their surrender of them to a Community which I believe will be a reactionary one. Not only will the multi-capitalistic system in Europe cause vast unemployment and low conditions of
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life, but it will be a rich mens' club that will exploit the peoples of the developing countries. I want to say seriously that this Bill represents the biggest constitutional change that has taken place in this country for centuries. It means that the rights of our own people about their own territory will be coalesced in a wider Community. When one has a measure of that character it is tremendously important that not merely Parliament but the people should be carried with one in the decision. While it is claimed—and I do not challenge this—that a large majority was obtained in another place. for the Second Reading of this Bill, and while I resent very much the Party Pressures which are put on individual Members of Parliament, either in another place or here, not to reflect their own convictions in the Lobbies, I would ask whether anyone in this Committee would deny that the Government have no right to make this deep constitutional change on any mandate which they received at the last Election. This mandate at the last Election was only to consider and to negotiate; no one can claim that it was a mandate to go into Europe on the present terms. One has no right to make this deep constitutional change in the whole of our territory without some reference to the population.
I am not one who pays very great attention to public opinion polls, but all the public opinion polls indicate that the majority of the people of this country are against this great change. I am submitting, I hope in reasonable terms, that when one is making this vast constitutional change one should be sure that not only Members of Parliament—often succeptible to party pressures—but also the people of the country understand and support it. Throughout my life I have stood for the principle of self-determination of peoples. The noble Lord, Lord Blyton, referred to various colonial countries in which referenda have been taken. I would point out that they are taken not only in colonial countries. They are taken, for instance, in Scandinavia and in the Republic of Ireland. The Common Market referndum in the Republic of Ireland showed a majority in favour of joining Europe. I do not complain; all we are asking in this Amendment is that the British

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people should have the same opportunity to declare their view before this great and historic change is made.
I do not reject the principle of this deep change in our society, because we must give up national sovereignty for wider sovereignties. But a nation of our centuries of democratic growth, of our own Parliaments, of our sovereignty is being asked, without any mandate from the people—without their voice; one might almost say without their understanding—to change to the new loyalties, disciplines and restrictions which entry into Europe will demand. One of the pathetic things about our present situation is that this vast change is being made without the people of our nation even understanding what it involves. In that situation, surely your Lordships will agree that the people of our country ought to have the opportunity to make the decision—a decision which would be reached after a campaign upon the issues, and which they might be ready to understand. It is that plea for democracy which I am making in supporting this Amendment.
10.41 p.m.
THE LORD CHANCELLOR: I thought that, on reflection, the noble Lord, Lord Garnsworthy, would regret the last sentences in his speech proposing this Amendment. I think he must realise that the number of people who have voted in the Government Lobby tonight are not adequately referred to by "overkill". The large numbers in the Government Lobby this afternoon and this evening have been due to the deep feelings which are held on this side of the Committee and the great conviction with which we are voting, and nothing else. I thought it was an extraordinary proposition to put forward that if we do not accept an Amendment which proposes a totally novel introduction into our Constitution—novel in the sense that it has never been accepted before—the House of Lords should be abolished. That was his last proposition. I hope that we shall vote upon the merits of a referendum according to our honour and our opinion, as it is our duty to do.
LORD GARNSWORTHY: The noble and learned Lord will forgive me for
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interrupting. He is a pretty formidable political figure, and no doubt he has resources which will enable him to answer me without imputing to me words that I did not use.
THE LORD CHANCELLOR: I am not anxious to impute to the noble Lord words which he did not use; but that is what I understood him to say, and what I understood him to mean. When he reads Hansard tomorrow I think he will discover that to what he did say can only be imputed the impression that I gave. I am very glad to learn from the noble Lord that it was a false impression. It was none the less the impression that I think many of us on this side of the Committee received.
Of course the noble Lord, Lord Blyton, is perfectly correct in saying that a referendum is a device which has often before been proposed in this country. It has always been rejected. It has been proposed many times during my public life, and I have always spoken against it, whether in private or in public, and whether the suggestion came from my own side or from the side opposite. The noble Lord, Lord Blyton, reminded us that in this respect Sir Winston Churchill had not been as constant as I upon this particular issue. He was answered by Mr. Attlee (as he then was) in these words, which I respectfully adopt:
"I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and Fascism. Hitler's practices in the field of referenda and plebiscites can hardly have endeared these expedients to the British heart."
LORD BALOGH: Does not the noble and learned Lord—
THE LORD CHANCELLOR: The noble Lord will forgive me, but I wish to finish my sentence. I think, as in so many things, Mr. Attlee's sound British instincts more accurately reflected the judgment of the British people on this matter than any words that I am likely to use this evening.
LORD BALOGH: Does the noble and learned Lord not think that this Bill introduces into the British Constitution something completely alien to the British Constitution? How does he dare to

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speak about Mr. Attlee's opinions when he introduces something that is completely alien to the British tradition?
THE LORD CHANCELLOR: I do not think that that was a reasonable intervention. I dare say what I say because it is my opinion; and though the noble Lord may disagree with me, it remains my opinion and I shall continue to express it. Nor, for the reasons which I gave in my Second Reading speech and in the two previous speeches that I have made on this subject, do I agree that this is in the least alien to the traditions of the British people. So on both those grounds I reject the noble Lord's intervention, which in any event only reproduced in rather briefer form the speech that we heard and enjoyed from the noble Lord, Lord Brockway.
It is, I think, one of the pathetic things about this debate that the opposition, the anti-Marketeers in this country, have consistently (though, as we say, falsely) accused us of undermining the authority of the Queen in Parliament by adhesion to the Communities. That is the charge against us. It is wrong, as we say, because the Bill we are now endeavouring to pilot through Parliament is itself an exercise of that sovereignty on which alike our liberties, our reforming tradition and the efficacy of our laws depend. But this Amendment, proposed by the same anti-Marketeers, would (if I may coin a phrase) undermine at one stroke the authority of the Queen in Parliament by the introduction of an instrument of government wholly foreign to our institutions and subversive alike of the responsibilities of Government and of the sovereignty of Parliament.
It is wrong, to speak of democracy, as the noble Lord, Lord Brockway, attempted to do, as if it was a single system. There are as many types of democracies as there are other types of Government. There are democracies with a written constitution; there are democracies composed of voters who choose to attend an assembly or a popular gathering like those of ancient Athens or Rome, or like the Canton of Schwyz to this day. There are democracies based on a strong presidential system; there are democracies based on an assembly popularly elected,
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democracies based on proportional representation. But ours is a democracy through Parliamentary representation, based on an asembly popularly elected but presided over by a Government responsible to that Parliament and composed of members of the majority Party. Whatever the faults of our system, it is this which preserves its orderliness, which ensures coherence in policy and government by discussion and not by ignorance or emotion. It is in fact the most successful form of human constitution that has yet been devised by human kind.
The instrument of referendum, on the contrary, is spurious democracy, based on specious and fallacious reasoning and productive of ridiculous or disastrous results. It has been, as Mr. Attlee reminded Sir Winston Churchill, the favourite instrument of dictators, with the 99 per cent. majorities they are able to engender. More insidious still—and this is what astonishes me about the attitude of some members of the Party opposite in supporting it—it has become in some countries the instrument of blind and ignorant conservatism, even reaction. It is this instrument which denied women for so long the vote in Switzerland. Except in conditions of dictatorship, it is almost invariably productive of a negative answer. It substitutes the error and timidity of the market-place for the boldness of rational and informed discussion.
It would be a mistake to believe that its introduction in this context could ever be made a solitary or unique exception to our practice. It would be too easy an escape route for a Government which wished to duck responsibility without resigning for introducing or rejecting a particular policy. It might, as one noble Lord said—I think the noble Lord, Lord Gladwyn—prove an irresistible demand in the hands of a demagogic populist, desirous, say, of re-introducing savage punishments or racialist programmes. It is a dangerous and specious weapon and should be firmly resisted on this, as on other occasions.
I am the last to deny the importance of the Bill we are now discussing in Committee. But it is not quite the uniquely important decision which it is represented to be. Far more lasting and

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far more formidable in their results were the declarations of war in 1914 and 1939, the decision to proceed with the nuclear bomb, the creation of N.A.T.O. and the programmes of the Labour Government in 1945 nationalising our major industries.
In the context of Europe the carrying of this Amendment would destroy our credibility and, if the referendum failed, dishonour our people whose honour has been deeply committed. What guarantee have the opposition that the campaign would be carried out on rational and sober lines, or that the issue of entry could be precisely isolated in discussion? What guarantee have we that voters would not be stampeded by appeals to working class solidarity, the Industrial Relations Act, the Housing Finance Bill, the crisis in the docks, Party or class prejudice or other irrelevant appeals to demagogy or emotion? My whole experience of public life leads me to believe that no referenda are decided on merits. It is ns impossible to confine an Election to a single question as to restrict a debate on a referendum to the merits of an issue.
I am appalled at the want of logic in the description of the proposed referendum as "consultative". What on earth can sponsors conceive to be the merits of this ridiculous anomaly? Do they seriously think that, having obtained one answer from the electorate, we should be able to perform the opposite? There is no purpose in consulting the electorate if the electorate is not to be treated as sovereign and its verdict binding. No-one has voted for this Amendment in the Commons unless they were determined to prevent our entry at all costs—even at the cost of introducing an unconstitutional chimera into our working institutions—or else, in the case of the Labour Party, because they were coerced by their Party Whips or fearful of the fate of Dick Taverne. One of the things, as Burke once observed, that Members of Parliament are elected for is their judgment. Even more in this House of individual counsellors we should pride ourselves on the use of ours. If we are to exercise logic in the light of informed discussion surely Parliament would be unwise to abandon its right to do so on matters of the utmost weight where informed discussion is more and not less important.
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I have not so far mentioned the practical difficulties. This is because I oppose referenda on principle. But the practical difficulties are none the less formidable. Who, for instance, is to settle the question? In what form is it to be cast? What size of majority is required? Are England and Scotland to be separately assessed? What is to be the position of Northern Ireland? Nobody has ventured an answer to any of these conundra.
Noble Lords opposite are sometimes sensitive when I have referred to what seem to me to be the unusual somersaults executed by the Leader of the Opposition in another place on this and a variety of other issues. But it is inevitable that on this occasion I should be entitled to refer to his attitude in this of all subjects.
As Prime Minister, Mr. Wilson refused a referendum on entry when the terms were known (see Hansard, Vol. 792, col. 199). He reiterated his objections as recently as July last year. As for the Government's attitude, it has been consistent and not as represented by the noble Lord, Lord Blyton. During the last Election, in a passage only part of which the noble Lord, Lord Blyton, referred to, Mr. Heath said this:
"We as a Party are committed to negotiate, no more and no less"—
LORD BLYTON: Hear! Hear!
THE LORD CHANCELLOR: Let the noble Lord wait until the whole quotation is finished, and then cheer. The Prime Minister said:
"We as a Party are committed to negotiate, no more and no less. We will report the whole time to the country, through Parliament, what is going on in the negotiations; at the end, when they see what has been negotiated, Parliament can judge completely as to whether it is in the interests of the country to go into the Common Market or not."
I do not hear quite the same cheers from the noble Lord at that stage of the quotation.
On another occasion, when asked whether he had said that no Government would take the country into the Common Market against the will of the people, my right honourable friend gave this answer:
"Yes, this is my view, the view I have held for the last ten years. I held this when I was doing the negotiations myself. I always said that you could not possibly take this country into the Common Market if the

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majority of the people were against it. But this is handled through the Parliamentary system."
I do not think that there could be a plainer statement of what we are doing now than that.
I do not want to say very much more, except that we set out exactly in this Parliament the course which we were going to follow. We said that we were going to negotiate. We said that we were going to resolve the major issues outstanding in the negotiations. This is a statement made, I think last June, by the Prime Minister in another place:
"Second, Parliament should be invited to take a decision of principle on whether the arrangements so negotiated are satisfactory and whether we should proceed to join the Communities. If that be agreed, we have, third, to resolve the remaining issues in the negotiations. Fourth, a Treaty of Accession has to be prepared and signed. Fifth, legislation to give effect to that Treaty has to be drafted, considered by Parliament and enacted. Finally, we and the other parties to the Treaty have to deposit instruments of ratification of the Treaty."
When that statement was made did the Opposition challenge this programme? Did they demand instead at that stage the different and unprecedented step of a referendum? Of course they did not. The Leader of the Opposition welcomed and endorsed what the Prime Minister had said about the proposed arrangement. This is the programme which the Government have followed.
On October 28 last year both Houses of Parliament approved the policy of entering the Community on the terms obtained. It was in compliance with this verdict by the elected representatives of the people in Parliament that the Treaty of Accession was signed in Brussels on January 22. The Government have now brought forward the measure which will enable the Treaty to be ratified. That measure has now been endorsed by another place. Not merely is the course advocated by this Amendment impracticable; it would mean doing the very thing of which we are being accused—wrongly—by the Opposition: it would mean abdicating Parliamentary responsibility. It would be profoundly damaging to the constitutional traditions of this country, quite apart from representing a reversal of policy on the part of all three parties. For all these reasons I invite the Committee to reject the Amendment wholeheartedly.
10.58 p.m.
LORD BESWICK: I could not understand at first why the noble and learned Lord was so angry about the alleged use by my noble friend of the term "overkill". I did not follow him. I did not see why he should be so cross about the use of the word. By the end of his speech I realised why: the noble and learned Lord wanted to pre-empt the use of the word, otherwise I might have applied it to his speech. I am reminded of the story of a vicar who stayed at our house and left his sermon on the bedroom floor. The wife picked it up. She saw there was one part sidelined with a little note, "Argument weak here; shout loud". I think this is kind of philosophy behind the noble and learned Lord's speech.
May I say at the outset how pleased I am to be able to agree with something that the noble Lord, Lord Gladwyn, has said? I am so happy about that that I should like to put it on record. I agree with him that a referendum would be inappropriate on an issue like capital punishment. Like the noble and learned Lord, Lord Chancellor, and others in this Committee, I have fought a number of Elections. At every Election I have been asked whether I would submit a particular issue to a referendum. Always, like the noble and learned Lord, I said that it would be wrong. I said that it was against our tradition to have referenda and that I thought Members of Parliament were sent to Westminster for the purpose of exercising their own judgment. But there has been absolutely nothing in our tradition and practice like the prospect that we now have before us as a result of this legislation. We have had nothing before in our history which proposed to hand over to others control of our legislation. It is no use the noble and learned Lord getting so hot under the collar about the virtue of their proposed legislation. It really does not conform with the facts. It is not, again I say to him, what we, the anti-Marketeers, think about the denial of democracy that is inherent in this Bill: it is not we alone.
I quoted a little earlier—and have had absolutely no reply—the analysis of the Legal Adviser to the Commission itself. Just to put in someone else's words, may I quote from an article in The Times of

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Tuesday, May 2, by T. J. O. Hickey. He says of this Bill. a Bill of which we have been hearing so much and which provides for such detailed Parliamentary control:
"This is by common consent the bit of the Bill"—
he was referring to the clause we are discussing—
"which is of greater constitutional significance than any other bit. It affects the one really large constitutional innovation in all these European proceedings. It confers on authorities other than the Parliament at Westminster—authorities external to the State—confined but undoubted powers of direct legislation and taxation within the United Kingdom. There has been nothing like it here since the Pope's privileges and jurisdiction within England were repudiated in the sixteenth century."
That is the view of someone capable of looking at the issue in a balanced way, and he comes to a conclusion very different from that of the noble and learned Lord and his friends opposite. And the noble and learned Lord must not get so hot under the collar if there are some of us on this side who think that Mr. Hickey has more of the truth than he has.
So I say that the precedent argument against the referendum just falls. We have not had a precedent of this kind before. Although I have been consistently against the use of the referendum on issues such as capital punishment, homosexual practices and so on—absolutely against it on those issues—when we come to this issue I think we are dealing with something on which the people themselves, instinctively, are as likely to come up with as good a judgment as any noble Lord opposite. I am bound to say that I find it difficult to listen with patience to the noble Viscount, Lord Massereene and Ferrard, when he sets himself up as being so superior in his judgment to the busman outside and the policeman on his beat. I believe that on this kind of issue the policeman or the busman, or the miner or the carpenter—the man who does not spend his time here—is as likely to be right as is the noble Viscount.
THE LORD CHANCELLOR: May I ask the noble Lord a question? If he is so really convinced of this, why did he not resign in 1969 when Mr. Wilson refused a referendum on this very topic?
LORD BESWICK: I am quite prepared to go into the history of that whole period, but it would not be profitable at the present time. But wait a moment. At the time when Mr. Wilson was talking against a referendum we never had a Bill of this kind before us. There was never any possibility of the Labour Party, I assure the noble and learned Lord opposite, approving a Bill of this kind. There was never any chance at all of that being done by the Labour Government of which I was a member. I say that with absolute conviction. So we are dealing with a different situation.
The noble and learned Lord quoted in aid Lord Attlee. Lord Attlee was against this proposal to go into the Community. But, in any case, what he said about the referendum was said at a time when we had no Bill of this kind before Parliament. Had he been confronted with a piece of legislation of this kind, I am fairly convinced that Lord Attlee might well have taken a different view. So I am saying that the question of the precedent does not here arise, because we have had absolutely no precedent of the present situation in the whole of our history. It would have been preferable if we could have had a General Election on the issue; that would have been straightforward. Why did not the present Government go to the country to get a mandate? They have had no mandate on this. They have spent enormous sums of money on propaganda, and still the people of this country instinctively and stubbornly say, "We do not want it". The majority of the people in this country are against this action.
I think that it is very dangerous indeed to transfer decision-making further from the people who are affected by those decisions. Yet that is what is proposed. As I say it is dangerous to do that, but I think it is doubly dangerous to do it when the people so clearly say that they do not want it to be done; and in the long run it may well prove that it would have been better to have the support of the people expressed in one form or another before this piece of legislation was brought before us. I do not accept the precedent argument. I do not accept that the issues before us are such as to be incapable of judgment by the people

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who are to be affected by them. It is my belief that it would be better in the long run to have a verdict from them.
It is proposed by this Amendment to submit the issue, if the Government of the day refuse to have a General Election, to a referendum. In the circumstances, I regard that as a reasonable suggestion. The noble and learned Lord was indignant about the whole respectability of a referendum. Is it really so unrespectable—or disrespectable—in Switzerland or Norway or Denmark? Are they not democratic countries? And if the procedure is so bad, would the noble and learned Lord like to get up and tell me why it is proposed to apply it to Ulster? Why is it so wrong to have here what we are asking for in Ulster? Why is it so wrong for us if M. Pompidou was prepared to put the thing to the test by this means in France? The noble and learned Lord really should not get quite so angry about the evil character of this "alien instrument". After all the lectures we have had about being "little Englanders", and about being prepared to adopt Continental ways, why should this be a terrible thing? And why should it be called an "alien instrument"? really think the noble and learned Lord overdid it a little.
Well, we have had the discussion, and I think there is probably not a majority in the House who would support us. Nevertheless, I am sure that the Amendment moved by my noble friend was worth putting on the Marshalled List, and it would be interesting to see what the result would be if we had a Division.
11.8 p.m.
LORD GARNSWORTHY: May I express appreciation that the Committee have shown so much interest and devoted so much time to this Amendment? Having said that, may I return briefly to the point where the noble and learned Lord attributed to me words which I think I did not use—though let me say right away that I might well have given the impression. Certainly the point I intended to make was that the House would bring about its own demise. If I have been able to make that point clear, I am grateful to the noble and learned Lord for
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giving me the opportunity of doing so. If I erred and did use the words that he attributed to me, let me say that I regret very much having intervened to attempt to correct them when I ought not to have done so.
I have no wish to speak at any great length. My noble friend Lord Beswick has made a fairly full reply, but I should like just to add one comment. I have been very impressed by two speeches: one by the noble Viscount, Lord Massereene and Ferrard, and the other by the noble Lord, Lord Gladwyn. I am very impressed that they should compare an issue like fluoridation with the issue of joining the Common Market. And I believe that the people will be very interested that they should dare to do so: because, of course, there is no valid comparison, and they must know it. I am impressed by the line they took and what they said, by the limited degree of trust (and this goes, too, for other noble Lords; indeed, to some extent it applies to the noble and learned Lord the Lord Chancellor) they place in those on whom eventual power, as is so often claimed, rests. When it comes to the issue, they appear to be very anxious not to give them an opportunity to express their view on something that is going to play such a tremendous part in determining their future lives. I have no wish to press this Amendment to a Division; I am prepared to leave it to the voice of the House.
THE CHAIRMAN OF COMMITTEES: It appears that Tellers for the Contents have not been appointed in pursuance of Standing Order No. 51 and a Division therefore cannot take place, and I declare that the Not-Contents have it.
On Question, Amendment negatived.
Clause 1 agreed to.
House resumed.

WEST SUSSEX COUNTY COUNCIL BILL
Reported, with Amendments.