EUROPEAN COMMUNITIES BILL

HL Deb 03 August 1972 vol 334 cc466-535

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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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, 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.

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 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 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 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 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 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 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 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 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 Instrumentsdoes 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 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- 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 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 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 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 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 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 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 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 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 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 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. 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 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- 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 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, 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.