HL Deb 03 August 1972 vol 334 cc547-610

8.0 p.m.

House again in Committee.

LORD STOW HILL moved Amendment No. 6: Page 2, line 11. leave out subsection (3).

The noble Lord said: I move this Amendment purely for the purpose of probing. I should like to put a number of questions to the noble Viscount who, I believe, is going to be so good as to reply. I cannot put the questions without harking back for a moment or two to lines 5 to 8 in the previous subsection because I want to make quite certain that I understand to what those lines may apply. May I start by putting this question: When we were looking at those lines the noble Baroness, Lady Tweedsmuir, said that we were considering Treaties to be entered into in the future. As I pointed out earlier there is in the wording of lines 5 to 8 no obvious indication that they are to apply only to future Treaties. I presume, however, that I am right in supposing that Ministers feel that the words in lines 5 to 8 can apply only to future Treaties because the definition of pre-accession Treaties in the first part of Schedule 1 contains paragraph 7. As I read it, that paragraph seems to cover all Treaties entered into before January 22, 1972. It follows almost word for word the language of lines 5 to 8 and seems to cover the same ground as those lines in relation to Treaties entered into before January 22, 1972. I assume that Ministers are relying on that situation when they say that lines 5 to 8 can only apply to Treaties in the future. Probably they would agree that that has to be amended slightly. If that is the process of reasoning, lines 5 to 8 would apply not only to Treaties entered into in the future but to any Treaty entered into after January 22, 1972.

Perhaps I may start, therefore, upon the assumption that that is what those lines deal with. Then I go to subsection (3) to put my questions. First I have a preliminary question. During the course of this debate it has been asked whether the Orders in Council which may be made under Clause 1(3) are subject to Parliamentary control. I would have answered that question in the affirmative, and I should be grateful if the noble Viscount would tell me whether he thinks I am right or wrong. I would so answer it because of the provisions of paragraph 2(2) of Schedule 2. That sub-paragraph reads: Any statutory instrument containing an Order in Council … if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House. Therefore, if it is not approved by Affirmative Resolution procedure it must be approved by Negative Resolution procedure. When one goes back to subsection (3) one finds that it is divided into Treaties entered into before January 22, 1972, and, with an exception to which I do not make reference, Treaties entered into after January 22, 1972. It goes on to provide that all Treaties entered into after January 22, 1972, must be approved by Affirmative Resolution procedure. Therefore those entered into before that date are subject to annulment by Negative Resolution procedure, and those entered into after that date cannot be approved except by Affirmative Resolution procedure. That is how I read it. If my reading is correct the answer to the first question which I venture to put—namely, is there adequate Parliamentary control in the case of this subsection?—is that no Order in Council can have effect unless either there is an Affirmative Resolution procedure or there is no Negative Resolution procedure.

Then I go to the next question. I should like to ask whether I am right in assuming that when one looks at subsection (3) one is looking at a provision which can make Treaties Community Treaties in addition to those which are made Community Treaties by lines 5 to 8. I know that the noble Viscount disagrees with me on that, but I cannot help saying that I cannot understand why he so thinks. May I put the question in the form of an example? Suppose in 1980 a Treaty is entered into by the United Kingdom. If that Treaty is a Treaty ancillary to any of the Treaties in the definition in subsection (2) it becomes a Community Treaty or a Treaty within the definition. I apprehend that there can be no doubt about that. I add that there can be no doubt, if that is right, that no Order in Council is requisite for it to be a Community Treaty.

All that has to be asked is, first, was it entered into by the United Kingdom after January 22, 1972; and secondly, if it was so entered into, was it a Treaty of which it can he said that it was ancillary to one of the pre-accession Treaties? And no more is requisite; it is automatically within the definition of a Treaty or a Community Treaty.

If I am right in that respect, then I look back to subsection (3) and, as I read subsection (3), it gives a power by Order in Council to declare Treaties to be Community Treaties although it could not he said of them that they are Treaties ancillary to one of the defined Treaties. I should very much like to know whether I am right in so supposing, or not. May I put my question in this concrete form? Supposing one has Treaty X. Treaty X has been thought by parties to proceedings to be a Treaty which, within the meaning of subsection (2), is a Treaty entered into by the United Kingdom ancillary to one of the defined Treaties. The party so thinking, or being advised by advisers, has gone to an English court (or indeed any Community court) and has made a claim based upon the view that Treaty X is, by virtue of lines 5 to 8, and without more, a Community Treaty. Supposing the English learned judge who tries that person's claim has ruled, as a matter of law (considering the terms of Treaty X and all other relevant circumstances; perhaps the circumstances in which it was entered into, or whatever else he may think relevant) and as a firm conclusion, that that Treaty X is not, within the meaning of line 7, an ancillary treaty. He has answered that question in the negative. Assuming that is so, I myself cannot see anything in subsection (3) which would prevent Her Majesty, by Order in Council, from declaring that, notwithstanding the judge's ruling that that was not an ancillary treaty, it is to be so regarded: it is to be regarded, if I may quote, as "one of the Community Treaties as herein defined". If an Order in Council so declaring were not negatived, or were approved by positive resolution, as the case may be, why then subsection (3) proceeds to declare that the order is to be conclusive: that Treaty X is to be so regarded. I know that the noble Viscount, Lord Colville of Culross, disagrees with me. But I have not—I am sure it is entirely my fault—understood on what language he bases that disagreement. I cannot find any words in subsection (3) which lead to that conclusion, and I should be most grateful if he would indicate them.

This sounds all very dry-as-dust, and I apologise to your Lordships for taking time on these technicalities. I venture to do so because I think that, not only in the Temple but in the solicitors' profession, and broadly speaking in very large numbers of undertakings in this country which are, as we said in the last debate, formulating, or contemplating the formulation of, long-term plans, people do want to know how subsection (3) is meant to work. I therefore put to the noble Viscount the question: Am I not right in supposing that subsection (3) enables Her Majesty, by Order in Council, to declare that Treaties which do not fall within the scope of lines 5 to 8 in subsection (2) are nevertheless to be regarded as Community Treaties, and that that Order in Council would be effective unless in the case in question it is either negatived or approved by Affirmative Resolution procedure? That is the question I should like to put.

May I also put this question, which is my final question on subsection (3). Subsection (3) clearly by its terms contemplates that Treaties entered into before January 22, 1972, may be declared to be Community Treaties. That is obvious from the first three lines up to the semi-colon. What Treaties are those? What Treaties are envisaged, which were entered into before January 22, 1972, which may be declared by Order in Council to be Community Treaties? Those, one would have thought, cannot be Treaties which are co-terminus with those which are described in lines 5 to 8, if lines 5 to 8 apply only to Treaties entered into after January 22, 1972. There must be some others entered into before that date. I should very much like to know what those other Treaties are. Those are the questions I should like to ask, and I should be most grateful if the noble Viscount would be so kind as to give me an answer.

It might be for the convenience of the Committee if, while I am on my feet, I indicated quite shortly, so as to save time, what are the reasons which underlie the next two Amendments. I can put the case quite simply. The two Amendments would produce the result that the delegated legislation procedure, which is described in subsection (3), could not be used in relation to Treaties entered into after January 22, 1972. The case in support of that proposal rests on broad considerations of Parliamentary sovereignty. The argument would be that if a Treaty is entered into in the future which could have the far-reaching effect of becoming as to some of its provisions part of our own domestic law, it should be made part of our own domestic law as and when it is entered into in the future by Statute, and not by a process of delegated legislation. That is the case, but I am perhaps anticipating because I am now only moving the first of the three Amendments. I should be most grateful if I might have answers to the questions I have posed.

8.17 p.m.


I do not know whether other noble Lords would like to join in this debate, but it might be for the convenience of the Committee if I answered those questions straight away; then if anything further needs to be said about it, it can be said afterwards in the light of what I have told the Committee. The noble and learned Lord, Lord Stow Hill, was quite right in starting with lines 5 to 8, and he is perfectly correct in the reasoning whereby he deduced, after looking at the seventh paragraph of Schedule 1, that it was upon this that we rested the claim that those words could refer only to Treaties entered into after January 22 of this year. He went through that with absolute propriety and correctness, if I may say so. He is quite right that it is not future as from to-day; it is future as from the date of accession. Therefore, he wholly and accurately described the situation.

The noble and learned Lord then went on to ask his three questions about the provisions of subsection (3). The first was on Parliamentary control and how it was going to work. This, I am glad to be able to tell the Committee, is a good deal less complicated than Lord Stow Hill suggested, because for the purposes of this subsection I am glad to say that there is no need to look at Schedule 2 at all. Schedule 2 is intro- duced by part of Clause 2 and applies only to the subordinate legislation that will be made under Clause 2. If one looks at Clause 2(4) one will see the substantive provision which brings in Schedule 2. At the beginning of Schedule 2 it will be seen that it refers back to Clause 2 of the Bill, and not Clause 1. Therefore, all one has to do in order to see what is the measure and method of Parliamentary control under Clause 1(3) is to look at the words at the end of that subsection, which, in talking about the specification of treaties, states that Treaties shall not be specified unless a draft of the Order in Council has been approved by resolution of each House of Parliament. That is the Affirmative Resolution method and it applies both to the list of treaties (and I will come back to this) which are already in existence and are the pre-accession treaties, as it does to the subsequent lists or individual Orders in Council declaring that later Treaties are Community Treaties within the meaning of the Bill. Therefore, in both cases it will be Orders in Council subject to Affirmative Resolution in both Houses, the draft having been previously laid, and the noble and learned Lord need not trouble himself at all with the contents of Schedule 2.


May I interrupt the noble Lord at this point? Again it is quite clear, but in so far as Schedule 2 relates only to Clause 2, does it therefore mean that whereas there is certain subordinate legislation, as it is called, which requires to be handled by main legislation—in other words, the subordinate legislation in the E.E.C. sense—none the less there would have to be a Bill to increase taxation or a Bill to increase criminal offences? However, this would not prevent one from making a Treaty to give effect to this and putting it into effect by Order, so to some extent subsection (3), if it is done by Treaty, weakens the protection which is given in paragraph (1) of Schedule 2.


In that case I am afraid I must become a little more complicated, because the first thing that one has to try to recognise is that what we are doing in Clause 1 is to deal with directly applicable law which, if one looks at the phraseology of Clause 2(1), arises by or under the Treaties. Now "the Treaties" is a magic term; it is a term of art, a drafting term in the Bill, and when you want to know what are "the Treaties" you have to go back to Clause 1 in order to find out; and "the Treaties" will be added to from time to time as new Treaties are entered into by us, or indeed by the Community, which have direct applicability in this country within the notion which is set out in Clause 2(1).

Those Treaties will be entered into and if they are going to apply to us they are either Community Treaties which we are bound to accept under the terms of the main Treaty, or they are Treaties which we have been party to. Therefore we will have been in on their formulation and we will have had influence over the way in which they are phrased and the extent to which they are directly applicable. The extent to which they are directly applicable must be common across all the member States of the Community. Therefore, the notion of direct applicability comes in at this stage so that they will apply here as they do in France, Germany and all the other countries of the Community; and it is part of the essence of this whole affair that there should be directly applicable law common throughout all the countries. We only control this in two ways: one, by being party to its formulation; and, two, by the whole process under Clause 1 whereby it actually becomes directly applicable. No law can become directly applicable unless it is a treaty law because otherwise Clause 2(1) does not "bite".


If I may interrupt—


This is a most complex argument, and if the noble Lord will let me finish my sentence I should be immensely grateful. I will give way in one moment but really this is very difficult and if I am going to follow it clearly I must be allowed to go on for a moment. No directly applicable law becomes directly applicable under Clause 2(1) unless it is a Treaty. To be a Treaty it has to go through the procedure under Clause 1(3) and be specified in an Order in Council under an Affirmative Resolution. Prior to that, it has no status in this country as directly applicable law at all. Therefore our control is, secondly, Parliamentary control by the Order in Council machinery. If Parlia- ment says, or if the Government decide: "This is much too important for an Order in Council; this ought to go by legislation", then either a Bill will be introduced or one or other of the Houses will throw out the draft Order in Council and the Government of the day will be forced to resort to legislation in order to implement it. I think that is the answer on that part. There is a good deal more, but this might be a convenient moment to answer the noble Lord, Lord Beswick.


I confess that I cannot quite understand. The noble Viscount is continually and only using the term "Treaty". The difficulty that I have in following him is in the position of the regulation. Although the noble Viscount said that the only law—I think I am quoting him correctly—which will be directly applicable are the Treaties which come under Clause 2(1), the fact of the matter is that it carries with it the whole of the regulations which flow from those Treaties, and they are the source of the concern and the trouble. These are in effect Orders in Council. This will not be legislation in the sense that we understand it. These will not come before us, or if they do come before us we can only say "yea" or "nay"—and indeed we cannot say "nay".


The noble Lord must recognise that when I use the word "Treaties" I use it in the terms of the Bill. He is quite right: it does not only include what one might, in other contexts, call "a Treaty"; it includes other instruments as well. Therefore, when one is speaking about directly applicable law it could include regulations and, exceptionally, there may he cases, as I explained during the Second Reading debate, where it may include a directive or part of a directive, or a decision or part of a decision.

Whether or not the noble Lord likes it, the facts of this situation are as he has described them. We have these directly applicable decisions agreed to, and I reinforce what I have said—agreed to by us as well as the other members, setting up the directly applicable law. Then we come back and we consider it by the machinery under this clause.




Yes, we do. because it cannot be directly applicable by the courts of this country until it has been made into what is called "a Treaty" by Order in Council procedure under Clause 1(3) or, if that is not applicable, or the House does not like it, by Bill. That is the way in which it works.


That is no protection at all.


The noble Lord may say that it is no protection, but what I am trying to do is to answer the points raised by the noble and learned Lord, Lord Stow Hill, about how the Parliamentary control works. I was wrong when I said that this applied to the Treaties made by the Communities; it applies to the Treaties made with us as one, at least, of the signatories.

The noble and learned Lord, Lord Stow Hill, went on to a much more difficult point which really touches on the method whereby courts could say that Orders in Council made under Clause 1(3) have wrongly included something as being directly applicable when it was not in fact valid—if I may put the noble Lord's argument in a shorthand form. In fact the examples he gave cannot, think, arise (and I will explain briefly why not) because it follows from what I have just been saying that a judge in this country could not pronounce upon the validity or otherwise of any provision of directly applicable law under lines 5 to 8. He could not say whether it was or was not an ancillary treaty until there had first been made an Order in Council, because until an Order in Council has been made that particular treaty would not be a treaty at all, would not be directly applicable under Clause 2(1) and therefore would not come before the court. The matter is, therefore, a little more simple.

What I think the noble Lord might have in mind is this situation: that for some reason a regulation or some other directly applicable provision is passed by the Communities and an Order in Council is made which purports to show, under Clause 1(3), that it is conclusively part of the directly applicable law of this country, and a party to a case comes before an English court and says, "But it is absolutely monstrous that any such Order in Council was made because it is as plain as the nose on your face that this particular treaty or regulation cannot under any circumstances be said to have been ancillary to the Treaties"; in other words, it does not fall within the basic definition in lines 5 to 8. The noble Lord is perfectly correct in saying that there is nothing in the Bill which cures this situation, but fortunately there is in our domestic law.

It is at this point that I would like to refer the Committee to two decisions of this House which were made in 1969. The first of them is Anisminic v. The Foreign Compensation Commission, and here we have a situation where, under the Act of Parliament whereby they were set up, a determination of the Foreign Compensation Commission about the amount of money to be handed out—this happened to relate to the Egyptian situation directly after Suez—was final. The money was split up. Usually the money was obtained from a foreign country under a treaty and the Commission divided it between the various applicants, and their determination was not to be challenged in any court of law. This is what the Act said. Orders in Council were made under this Act. The case came before the Foreign Compensation Commission and they decided it taking into account a certain provision in the Order in Council which governed them.

It is a very long case. But the noble and learned Lord, Lord Reid, went into the question about whether the Foreign Compensation Commission were right in taking this into account, because if they had not been right the whole case failed and the whole of their determination was bad. In this case he went into the question of jurisdiction and validity, and he gave the criteria upon which the courts may hold that, despite the fact that an Act of Parliament says something is conclusive or cannot be called into question, nevertheless there has been an excess of jurisdiction. An excess of jurisdiction can take the form, for instance, of bad faith. This was one of the examples he quoted. It need not. But if it is not a question of bad faith, it can be looked at in the context that the Order in Council has been made in such a way that it goes beyond the powers laid down by the parent Act. If, therefore, an Order in Council was made which said a particular Treaty was directly applicable, in other words made under Clause 1(3), but this Treaty was subsequently held by the British courts not to be ancillary, there is a residual power in the British court to say that the Order in Council was invalid to that extent, on the ground that although the Act says that the Order in Council is conclusive nevertheless the courts can still go behind conclusiveness when a question of vires is involved.

The other example, which some of your Lordships may remember, and is perhaps a little easier to follow, arose when the A.A. Club was levied by the Hotel and Catering Industrial Training Board on some of its members. The club challenged the propriety of this levy on the ground that the subordinate legislation made under the Industrial Training Act did not entitle the Secretary of State to include in the Order as being liable to have levy paid for them by their employers all the people whom the Secretary of State had in fact put in. The case came to this House, and the House held that the subordinate legislation was in fact too wide, that it included people as being subject to levy for whom the original parent Act did not allow the Secretary of State to provide, and consequently it was held that the A.A. Club did not have to pay levy on those people. The result was that the original subordinate legislation was withdrawn, and new and much narrower subordinate legislation covering the scope of the Hotel and Catering Industry Training Board was finally introduced.

So there are these Dowers, first of all to go behind conclusiveness—that is, Anisminic; secondly, to upset subordinate legislation on the ground that it exceeds the scope of the parent Act—that is, the A.A. Club. Both powers are available to the British courts to deal with the situation the noble Lord, Lord Stow Hill, mentioned, and there is no need therefore for anything to be put in the words of the Act to deal with it. I am sorry that I am going on for so long, but this is a very difficult and complicated point.

In the second limb of Clause 1(3), when one looks at the words in line 17, "shall not be so regarded", the point about this, which I confess I had originally missed, is that the Treaty "shall not be so regarded" means that it shall not be regarded as a Community Treaty at all. It does not mean it shall not be regarded as conclusive, but that it shall not be regarded as a Community Treaty at all unless there has been an Order in Council. That is why I say to the noble Lord, Lord Stow Hill, that the judge could not be in the position he posited in his example.

The last point the noble Lord made was a comparatively short one; namely, what were the pre-Accession Treaties? I think the easiest thing for me to do is to refer him to Cmnd. 4862, Part 1, pages 137 to 144, which, to the best of my knowledge, includes the pre-Accession Treaties which are covered by paragraph 7 of Part I of Schedule 1. I am not sure whether that is conclusive; my noble friend Lady Tweedsmuir is better placed to answer that. But that is my understanding of the situation, and that is where the noble Lord will find the answer to that question. I hope that reassures the noble Lord on some of those points, because they are very important and very basic, and I would wish him to be quite satisfied that they are covered.

8.37 p.m.


Am I, as a layman, to understand that although an Order in Council is made it is possible in the British courts for that Order in Council passed by Parliament to be cancelled by order of the British courts without the matter going to the European Court?

Then the noble Viscount spoke about the power of the court. I would like to ask this question again in this general context: Parliament makes laws and judges interpret them as they under- stand, the intention of Parliament; but they often cannot do that. That goes for all Governments and Acts. In this case, there will be the Act which covers a variety of things. I have read over 20 volumes of the discussion that took place in the other place. I am not sure, and I would like the noble Viscount to consider, whether he has reported the same interpretation as the Solicitor General did. It seems to me to be slightly different; I would have to look it up again tomorrow. It seems to me that there has been a variety of opinions from lawyers on both sides of the House and within each side of the House.

We are getting to the point to-day where we are discussing in legalistic language what simple phrases mean. I wonder how we are going to deal with this in a way which is satisfactory, because some of us employed had lawyers over the years, good lawyers, bad lawyers, and they have all given us different opinions on different cases. Hence the courts. We have found out that many of our most eminent lawyers, so far as the judge has been concerned, have been wrong. If you do take one of these cases to the courts—I do not know who would take the case about an Order in Council, whether it would be a common informer or whether he would have the money eventually to take the case to the House of Lords. Who would deal with the case after the judgment had been given? Would it go back to Parliament? Would it go direct to the European court? I am sorry that my questions are long but I have not been trained to handle a case legally.


I do not think that the noble Lord has quite understood, and I am terribly sorry. I did explain that this was rather a difficult point; I am sorry if I did not make it clearer to him. The question I was asked by the noble and learned Lord, Lord Stow Hill, was what would happen in essence (if I could again abbreviate it) if an Order in Council is made which declares to be directly applicable a Treaty which is perfectly obviously miles outside the scope of the Treaty with which this Bill deals. If this happens, one has to recognise that there will have been passed by the Community some sort of Treaty or regulation, or whatever it is, which purports to create this directly applicable law. At the moment, however, all we are considering is whether that is or is not directly applicable under the terms of this Bill in Britain. All I am saying is that there is built into the municipal law of this country machinery whereby the Order in Council which purports to declare that it is directly applicable can be declared to be ultra vires.

Now this has nothing whatever to do with the European Court because it is a matter of municipal law in this country only. It would, I think, inevitably follow, certainly if it happened in more than one country, that the regulation concerned would have to go back to Brussels on the grounds that there was something wrong with it and, at any rate, that the courts of one of the countries concerned had held that it was invalid. This could be done in a number of ways; it could be taken back on the political level or there is no reason why this country, as a signatory and member of the Community, should not take the question of validity of the regulation to the Luxembourg Court under the provisions, I think, of Article 177. But this would not happen directly as a result of the municipal court's judgment. It would require a separate initiative by the Government of this country.

The noble Lord then asked a question which I am afraid I did not altogether follow, but I think that he wants to know who would take this sort of point. The fact of the matter is that when you get a case of what lawyers call vires which is the extent of powers to make regulations or to make Orders in Council, there is usually somebody who is sufficiently hard hit to think it is worth while to take it to the court. One would not have thought that the Hotel and Catering Industrial Training Board Levy Scheme would be taken up, but there was the A.A.; you would not have thought that anybody would be so brave as to challenge the Foreign Compensation Tribunal but there was in fact a British subsidiary of the Sinai company concerned. If it does turn up there is someone to do it. I am not quite sure whether that answers the noble and learned Lord's second question, because I did not quite follow what it was.


I am afraid it does not. I should like to invent a possibility. An Order in Council is made by a Government which has a very narrow majority, and Parliament does not like that Order in Council but has no power to stop it. A nation is in jeopardy—I do not mean that in the widest sense—but it is not an individual; it is not the Automobile Association, or shareholders or possible people placing money for past services—it is a nation. If Parliament cannot do it, how can Parliament or the nation take action against an Order in Council which has gone through by a majority of three in Parliament? How can they start an action?


In the courts of this country they cannot. The only person who has an opportunity and a right to appear in this sort of case is somebody who is directly affected; somebody who has only a hypothetical case in the situation is not given an audience by the courts. But the way this would be done, if somebody was directly affected, would be that he would find his rights were in some way infringed, and he would, no doubt, decide to take this to the courts. You cannot do this in any circumstances on a hypothetical basis. But there is practically always somebody who will take it up.


The noble Viscount's confidence appears to be ebbing a little. We are grateful to my noble friend for putting a point of view which is a point of view held by a good many non-legal people. I wonder whether I may put a similar point of view. The noble Viscount posed a question that if an Order in Council is passed and it is miles outside the provisions of the Treaty—and then he went on to answer it. We are not concerned with something which is miles outside and which therefore it is not open to argument. We are concerned with the sort of Order in Council which is held by the Government of the day to have been within the provisions of the Treaty, which is a marginal case possibly, but about which there is a difference of opinion. The question put to the noble Viscount by my noble friend behind me was: "Where then does the Luxembourg court come in?" I suggest to the noble Viscount that he really would be much more frank with noble Lords if he was to say that in these circumstances we have in this country no protection at all; it is what the Luxembourg court eventually says which goes.


I am sorry, but the noble Lord is perverting everything I have said. I have most carefully tried to explain this. A marginal case is always much more difficult than a direct one. If I tell the noble Lord that the Anisminic case turned on Article IV(1)(b)(ii) of the Regulations made under the Act in question, set up by the Foreign Compensation Tribunal, and the whole question was whether, in a case of a national of this country who originally had a claim under this scheme set out in the Treaty of Egypt, you did or did not have to take into account whether that person had a successor under the wording of the Order, the noble Lord will see that the point can become extremely marginal. In fact it is on that that the whole thing turned and fell. Nothing could be more marginal in the world. Now the rest of it I perfectly well explained. I have explained how the Luxembourg court comes into it; I have explained the relationship of that court with the municipal courts of this country, and if the noble Lord wants to be reminded, if a judge in any inferior court or in any superior or final court where he has got to wishes it, a reference can be made to the Luxembourg Court on any case on which the Luxembourg Court can adjudicate on its validity. That is not the point I am on. I am on the point of the validity under English law and the noble Lord, Lord Bernstein, wants it chased up under English law. I told the noble Lord how to do it, I have explained to the Committee what the jurisdiction of the courts is. I have explained the cases which established that they have jurisidiction and if noble Lords do not like it I am very sorry, but that is the situation.


I wonder whether the noble Viscount would be a little more patient in his replies. I fully realise that he is under strain, but so are noble Lords on this side of your Lordships' House. Although I may be inclined to agree with the noble Lord's exposition, I would be grateful if he would be a little more patient while we try to understand his arguments.


May I apologise to the Committee; I did not mean to be discourteous. I did not want to be cross, but with great respect it seemed to me that we were getting into a position where there was confusion between what happened in the courts of this country and the situation in which some cases might come within the jurisdiction of the Luxembourg Court. The whole of Lord Stow Hill's question related to what happens in this country under the municipal law which applies here. It was Lord Bernstein's helpful suggestion that we should also consider how the Luxembourg Court can come into it. But I was particularly anxious that my explanation should be divided into two parts, and if any noble Lord opposite thinks that I am getting cross, I unreservedly apologise.

8.50 p.m.


I feel that the questions that I desire to put to the noble Viscount must be so unbearably boring for all of your Lordships, that I hesitate very greatly to do so. I hope that your Lordships will be a little indulgent to me if I do put the questions, I hope at not too great length, because I think they are important. May I first thank the noble Viscount very sincerely for going to such trouble in formulating his reply to the questions I asked? I hope he will not think I am disrespectful if I feel obliged to say that I do not quite agree with him in some of the conclusions he advanced. He has obviously thought about the matter so carefully, that it seems presumptuous of me to doubt the validity of his reasoning. May I go to each point in turn?

First, Parliamentary control. He said that I need not go to paragraph 2 of Schedule 2, and that in any case Schedule 2 applies only to Clause 2. Clause 2 is simply a side-note, and I have always been brought up to believe that you had to look at the contents of a Schedule to see what its application was, and that if the contents seemed to conflict with the side-note the side-note had to be disregarded. Applying that test, I look at paragraph 2 of Schedule 2. It is in two subsections. The first subsection reads: Subject to paragraph 3 below, where a provision contained in any section of this Act confers power to make regulations … the power shall be exercisable by statutory instrument. I should have thought there could not be a plainer indication in the wording of the Schedule that it is not limited to Clause 2. I quite agree that paragraph 1 of the Schedule is, but paragraph 2 of the Schedule, in the plainest terms is not.


I should like to get this right. The noble Lord is perfectly correct in that. But what he said was that you had the alternative forms of Negative and Affirmative Resolution procedure. I agree that the Order in Council would be made by Statutory Instrument, but the power of Parliament is not determined by Schedule 2 because it is written into Clause 1(3) that it has to be affirmative.


I genuinely hesitate—and I hope your Lordships will believe that I am sincere about this—to go on bandying technicalities with the noble Viscount. I think I really must limit myself to saying that I am sorry indeed, but I simply cannot agree with him. Subsection (3) of Clause 1 applies the Affirmative Resolution procedure to Treaties entered into by the United Kingdom after January 22, 1972. I will not repeat it, because one can go on for ever crossing swords on matters of this kind.

Let me pass to the next point. I think this is rather more substantial. The noble Viscount said that no English judge could be faced with the task of deciding whether a Treaty was within the meaning of lines 5 to 8 ancillary, unless that Treaty had previously been specified in an Order in Council. I was puzzled to know where he finds the language by which he gets there. Towards the end of his argument I understood him to say that the language which he relies upon in advancing that proposition is the language in line 17: shall not be so regarded unless it is so specified, … I really will not trouble your Lordships by elaborating reasons why, but I submit that that language has nothing whatever to do with it. It harks back to the language earlier in the subsection, If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded; but a treaty entered into by the United Kingdom after the 22nd January 1972 … shall not he so regarded", unless there has been an Affirmative Resolution It seems to me—and I cannot go on repeating it—that the words just do not produce the conclusion that the noble Viscount seeks to draw, or any conclusion like it.

I may be quite wrong—probably, I am extremely obtuse about the matter—but I still adhere to the opinion that I have expressed. As the noble Viscount differs from me on that fundamental point of the interpretation of lines 5 to 8, it probably does not profit anybody to continue the discussion, and to ask him what the answer would be if he did not differ from it, so I will not do it. I will simply content myself by thanking him for his reply. He has obviously taken a lot of trouble over it. I hope when I have studied it that I shall convince myself that I am wrong and he is right, but at the moment I am rather pessimistic on that aspect. With the permission of the Committee, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.56 p.m.

LORD SHACKLETON moved Amendment No. 11:

Page 2, line 20, at end insert: ("( ) The text of any treaty which may be a Community treaty within the meaning of this section, other than the pre-accession and accession treaties, shall be referred in draft or immediately upon publication of the text to a Select Committee of Parliament for scrutiny and report, and until such report has been made the procedure provided in subsection (3) above shall not be followed.")

The noble Lord said: Some of your Lordships may be rather thankful as am, to have an Amendment which I think will be intelligible to the Committee. I have listened to the exchanges between my noble friend Lord Stow Hill and the noble Viscount, and I think a lot of us sat back amazed and wondered how we could possibly usefully intervene at all. Of course we shall read the report of what was said, and no doubt return to it at Report stage. What my noble friend has said, I must say, strengthens the case for Amendment No. 11. I suspect that not all of your Lordships have the Amendments in front of you. This Amendment is something which I hope is acceptable. Whether or not the Government have taken on rights, powers, liabilities, obligations and restrictions not to accept any Amendments, I hope that what I am recommending to the Committee is something upon which we are all agreed.

This Amendment states: The text of any treaty which may be a Community treaty within the meaning of this section,"— and we are still on Clause 1— other than the pre-accession and accession treaties,"— which we are excluding— shall be referred in draft or immediately upon publication of the text to a Select Committee of Parliament for scrutiny and report, and until such report has been made the procedure provided in subsection (3) above shall not be followed. That is the subsection which we have just been discussing. If I understand the noble Viscount correctly—he has been working hard and has gone; I wanted to make sure that I had got this right—a treaty (which sounded to me a little odd), does not become a treaty for the purposes of this Bill until there has been an Order in Council. Perhaps some Member of the Government's Front Bench can confirm whether that is so.


The first half of Clause 1(3), which we were discussing earlier, is really a supplementary provision for the avoidance of doubt. It refers to a treaty entered into by the Communities, with or without one of the member States and whether in fact it is a treaty. The second half, of course, applies to a treaty ancillary to the treaties entered into by the United Kingdom; and it is that—that is, a future treaty—which has to be subject to an Order in Council and to the Affirmative Resolution procedure.


I am not sure whether it is wise for me to ask for that help. The noble Baroness is always very helpful. Let me state again that I am concerned with future Treaties. If I understood the noble Viscount correctly (it is not a major point; it is a point of argument), a Treaty does not become effective until there has been an Order in Council. This is new treaties; it is not the pre-accession or Accession Treaties. That being so we know that with any Treaty and with the strange collection of protocols and what not there has to be an Order in Council. I almost believe I am right up to this moment. The fact remains that thereafter the Treaty might become—I think "self-executing" is the right word, or "directly applicable". Perhaps we could have a lawyer to help us on this.


May I say that I think the noble Lord is getting on very well indeed without a lawyer.


I shall feel so much more confident with a lawyer. I am very anxious to persuade my case to the House. I shall not put the point again in case I get another answer. Having listened carefully to the noble Lord, as I understand it a new Treaty will require an Order in Council for it to operate as domestic law. I think I am correct.


All legislation.


All legislation. The noble Lord argued powerfully—perhaps he did not put it as strongly as this—that Parliamentary control is retained by the obligation to have a Resolution of both Houses of Parliament. I should be very surprised if the noble and learned Lord the Lord Chancellor, did not fulminate against the practice of the Labour Government in the 1945–50 Parliament of using subordinate legislation and Statutory instruments. We know that the noble Lord is a reformed character in these days, but certainly in those days this was still very undesirable, and I still believe that major matters ought not to be dealt with by Order. I do not think many noble Lords would disagree with this.

The objection to these is that first of all in another place the Government of the day will use their majority. I shall be careful of my language in this matter; there are noble Lords and there are Members of another place and critics of Parliament who have been concerned at what might almost be called—I will not use the word "dictatorship", but an authoritarianism by which the Government get their way. Noble Lords may say that this House has the power in fact to protect the country in regard to a Treaty. But supposing a Treaty was so bad that in fact we felt we could not go on with it, that we could not go on as a member of the Community; we should then be in trouble with the Luxembourg Court and so on. These safeguards are built in. The Government require that there should be an Order to give effect to Treaties; but your Lordships' House is not in a very strong position in this matter. It is very unlikely—and there are good reasons why it is unlikely in an unreformed House of Lords—that this House would override such an Order. It may well be our constitutional duty to do so. It may well be that this could be, in the words of the noble Lord, Lord Carrington, "The last bee sting of the House of Lords". It may be that the Treaty could bear on the powers of an awkward Second Chamber. This is quite hypothetical.

The Government's short answer is that we should not dream of giving effect to any major Treaty of this kind except by a Bill and an Act of Parliament. But this is precisely what we are doing in this Bill now. We are giving effect to a large number of Treaties and Clauses 1 and 2 amount to all the legislation that there is on them. Furthermore, the Government have been unwilling to allow a single Amendment in another place, and are clearly unwilling to allow a single Amendment in this House. Therefore they do not give confidence in the sort of matters dealt with by Orders.

I accept that the Government are in difficulty; they have been in difficulty with their Parliamentary majority in another place. We all understand this, and many people sympathise. But this Bill has now left another place; they have passed through the ordeal of the endless nights and the guillotine procedure. We are in a position, I would suggest, to provide the sort of additional safeguard with which I believe every Member of your Lordships' House would agree, and which I believe to be consistent with the intentions of the Government: simply, that before a Treaty could be subject to the procedure of the Order which leads to resolution it should either be referred in draft, or, even if it is not in draft it could be entered into, on publication, before Parliament is asked to approve of this new Treaty by Order. It should go either to a Select Committee of Parliament or perhaps to a joint Select Committee. Of course, the noble Lord, Lord Brooke of Cumnor's Committee is considering these matters. Suggestions have been produced by Mr. Rippon, at one stage rather out of a hat, as a major proposal. I know that the noble Earl himself is in favour, and that it is only because of some of the difficulties between the Parties at this moment that we are not further on. But we are operating as the Second Chamber, with an obligation to provide such safeguards as we think fit; and all we are saying is that it must go to a Select Committee if this automatic procedure is to be used. If it goes to a Select Committee, Parliament will be advised, will know what is involved.

Your Lordships know what happens when an Order arrives in this House—and I am not trying to be difficult when I say, "Look at some of the Northern Ireland Orders with which we are having to cope": we cannot cope with them, we acknowledge that, and I am not blaming the Government for that, until we have a proper Select Committee. If it does not go to a Select Committee, then it will call for main legislation and one will have to proceed by Bills. Governments will get their way, if they wish, by main legislation, but it takes a great deal longer; and one of the checks on a Government who are inclined to move into a dictatorial mood—and all Governments are inclined to be authoritarian in these matters—is the timetable. The threat that they might have to move to main legislation, as opposed to a simple Order which can go through in an hour or two, seems to me to be a powerful one.

What we are now suggesting, therefore, is that, in the interests of Parliament, and fully in accordance with, I believe, the intentions of the Government, we should write into the Bill that all Treaties should go to a Select Committee, and that they should then be reported upon. Thereafter, of course, if they are reported upon, Parliament will know what it is about, instead of its being sprung on them—and we know how badly we deal with Orders. We do not deal with Orders at all seriously in either House at the moment; and I think a provision that this should go to a Select Committee is one which ought to command the support of your Lordships. I beg to move.


Before the noble Earl replies. I am tempted, if I may, just to add one short observation in view of the speech which the noble Viscount made when we were considering the last Amendment. It is this. The noble Viscount's view is that a Treaty could not get before an English court until it had been included in an Order in Council, and in those circumstances an English judge could not be called upon to decide whether it was, within the meaning of lines 5 to 8, "ancillary" until it had been so specified by an Order in Council. I venture to propose this argument in support of my noble Leader for this reason. It is obviously, I should have thought, most undesirable that an Order in Council should be made specifying a Treaty, and that an English judge should thereafter say, "I do not mind what the Order in Council says. It is ultra vires because this Treaty is not an ancillary Treaty and cannot in law be so regarded". The procedure which my noble Leader suggests would, I should have thought, very considerably lessen that risk.

I think Parliamentarians and lawyers are very conscious of the old dispute between the courts and Parliament. I know that the noble and learned Lord the Lord Chancellor has this very much in mind; and there has been this difference, this kind of borderland between where the courts may rule and where Parliament's jurisdiction extends. I should have thought that, in order to try to avoid this kind of conflict between the courts and Parliament, this sort of procedure, which would result in Treaties being very carefully examined by experienced people conscious of that sort of risk, would make the chance of the courts being forced into a position in which they must disagree with what Parliament has done very much less. If there were such a disagreement, I suppose it would provoke the most disagreeable reaction among the other Community countries. I do not know what the result would be. I suppose the European Court might then be called upon under, I think Article 173 and Article 177 of the Rome Treaty to pronounce upon it, and to decide between Parliament and our courts. That would be a very unenviable situation, and if we could avoid it we should try to do so. I would submit that the procedure suggested is really very well suited for that purpose. Before the subsection (3) procedure is invoked, the Treaty would have had to be scrutinised by Members of, I suppose, both Houses—Members who no doubt will have particular experience in those matters—and they would be conscious of the risk that there might be a very serious question as to whether a court could say that this was an ancillary Treaty. I submit that argument to the Committee in support of the proposal of my noble friend.


Like the noble Lord, Lord Shackleton, I venture rather diffidently into this discussion but I congratulate him because I found that what he was saying—although I do not agree with all he said—perfectly intelligible. I have a horrible feeling that he may not find perfectly intelligible what I am about to say. I should like to say, first, that we recognise clearly that there is a need in this general area—above all where it affects Treaties entered into by the United Kingdom after January 22, 1972—for Parliamentary control. On that, I think we are all agreed. We have come to the conclusion that here the Order in Council procedure, subject to Affirmative Resolution, is the best. This is a great deal more than applies in certain treaty areas at the present time.

Take for example the extradition Treaties. Under the Extradition Treaty Act of 1870 an Order in Council can be made for extradition Treaties; but these are merely laid and Parliament can do nothing about them. To go further than that—and there were certain Amendments which would have made the introduction of a Bill obligatory—would, we feel, have been disproportionate to many of the Treaties covered by Clause 1(3). If we look at the pattern of existing Community agreements, an absolute requirement to have a Bill in each case would, we feel, be disproportionate because many of these Treaties are not like the Treaty of Utrecht, or of Campo Formia, or of Versailles; they are humdrum terre à terre affairs.


I am not proposing that there should be a Bill in every case. I am proposing that it should go to a Select Committee.


I am aware of that, but I wanted to sketch in the background to your Lordships. If I was doing so at too great a length I apologise. I was sketching in the background by way of reaffirming our clear recognition of the need for Parliamentary control here.

That said, I do not think the noble Lord should undervalue the degree of Parliamentary control which exists in the Bill before us. Future Treaties entered into by the United Kingdom would require an Affirmative Resolution Order in Council. Parliament can prevent this by refusing an Affirmative Resolution. If Parliament does this, and it it is neces sary for implementation of the Treaty that it should be within the definition in the Bill, such a refusal would force the Government of the day either to proceed by Bill (if it has not already exercised that option; and that is perfectly well open to it in the Bill) or to renegotiate the terms of the Treaty in order to improve those aspects to which Parliament may have objected. The final thing is to withhold ratification of the Treaty, with what goes with it.

There is, therefore, an important degree of Parliamentary control in the Bill as it stands at present. The noble Lord wishes to introduce this extra safeguard of a Select Committee. While I am sympathetic towards the idea of Parliamentary control in this area I cannot say that I am sympathetic towards the importation into Statute of the idea of a Select Committee. I will say briefly why. In the first place an express statutory provision for a Select Committee is unusual in the highest degree. As far as I know, it is unprecedented. I am sure that the noble Lord, Lord Shackleton, who is usually extremely meticulous in these matters of procedure, would agree that Select Committees should be set up with clearly defined terms of reference. But the terms of reference which are laid down in the Amendment are exceedingly broad.

I see a gravely practical objection to the Amendment in that it would require the Houses of Parliament to await the Select Committee's Report before passing an Affirmative Resolution under Clause 1(3). It would mean that Parliament would be putting itself into baulk. The Select Committee could consider the matter for ever, if it so chose. I hesitate to say so in the presence of the noble Lord, Lord Foot, but if Mr. Michael Foot, his brother, happened to be Chairman of the Committee I think that the matter might be sat upon for a long time. The same might apply if the noble Lord, Lord Brockway, was Chairman of the Committee.


He does not have a brother.


Is there any reason why a standing Select Committee of this kind should not be subject to the same kind of timetable procedure as the Select Committee on Statutory Instruments has to abide by?


There is nothing here which would suggest so. The wording is very clear indeed. Noble Lords may say that those are technical drafting points. But the fundamental objection is to importing into Statute a definite requirement that there should be a Select Committee of this sort. Matters of this kind are not really suitable for statutory provisions. They have never been thought so appropriate. It is far better that they should be left to be worked out flexibily in the ordinary way in which Parliament does these things. But I should like to say this. The sort of proposal which the noble Lord has embodied in the Amendment, which I could not ask the Committee to accept, affects the kind of area which the Government are only too willing to have examined by Parliament.

The noble Lord, Lord Shackleton. referred to the ad hoc Committee proposed by my right honourable friend the Chancellor of the Duchy of Lancaster in another place, to look at the possibilities of Parliamentary supervision and to make proposals in this respect. That offer is open. This area and the area of secondary legislation, are very much areas which require looking at. We are anxious to have this looked at by agreement with the major Parties. What we are anxious not to do in default of that examination is to import into Statute an inflexible and rigid requirement for a particular Select Committee. In fact we think it would be highly undesirable to import this requirement into Statute at all. But we are perfectly willing to have this possibility: that some Parliamentary control should be exercised in this general area, looked at by an ad hoc Select Committee or indeed by any other machinery which is agreeable to the two Parties.


I may appear very stupid, but may I ask one question? As I understand it, Treaties of the type we are discussing will not be regarded as Community Treaties unless they are so specified, or unless they are specified and a draft Order in Council has been approved by Resolution of each House of Parliament. The noble Earl the Leader of the House explained why he does not agree with the supplementary suggestion from the noble Lord opposite, that they should automatically be submitted to examination by a Select Committee before Parliament takes a decision. But, rightly or wrongly, is there any reason why, if the Bill stands as it is, either House of Parliament should not in its wisdom, if it wanted to, submit any draft regulation for Treaty to investigation by a Select Committee; and therefore, surely, the Amendment is otiose.


The noble Lord, Lord Gladwyn, is quite right in what he said. Parliament can submit anything; either House of Parliament can submit anything to a Select Committee, to a Standing Committee or to any other sort of committee and no court can stop them.


Am I to understand from what the noble and learned Lord the Lord Chancellor has just said, that even if there is nothing injected into the Bill about the creation of a Select Committee Parliament can decide to refer a draft Treaty to a Select Committee? Is that what he is saying, that it has jurisdiction to refer any matter coming before it to a Select Committee?


Either House of Parliament has full jurisdiction to refer to a Select Committee of that House any matter which is before Parliament, and by parallel Resolutions the two Houses have rights to submit it to a Joint Select Committee.


We have now been discussing this Bill in Committee for six hours or more and we have reached Amendment No. 11. Every proposed Amendment has been successfully rejected by the Government Front Bench. May I repeat a question which I asked the Leader of the House at the very beginning of this debate: Have the Government already decided that they are not going to allow any Amendment to this Bill to be carried? If that is so, if they have decided that in order to comply with the Government's timetable this Bill has to go through unamended, then all talk of a discussion of the Measure on its merits is hypocrisy.



If the Government have really decided to reject every Amendment, whatever its merits, it is nonsense to talk of discussing things on their merits. I should like the Leader of the House to tell us directly whether the Government have already decided that no Amendment will be allowed to pass.


Before the Leader of the House replies I would make a submission to him. During the course of his remarks on the Amendment he said more than once—and it was just repetition because he had expressed the view during discussions on other Amendments and during the Second Reading debate—that it was desirable to have a measure of Parliamentary control. I think he would agree that he is sympathetic to that point of view. If he is rejecting the proposition that a post-accession draft Treaty should be referred to a Select Committee and yet is in favour of some measure of Parliamentary control, what is the alternative to a debate in both Houses of Parliament on an Affirmative Resolution? As noble Lords are well aware, such a Resolution may be scrutinised but not amended; it is open to rejection or acceptance. Obviously if there is a majority Government holding strongly to its point of view, any proposition to reject will be rejected and the Government will carry the day. That is the position.

I am not pressing for the point raised by my noble friend Lord Foot because I do not believe the Government have made up their minds definitely to reject every Amendment. It may well be that something will come along to which the Government will feel sympathetic. After all it will be a minor modification; the Government will concede the point and claim credit for it. They will say, "Always a liberal Government making concessions." So I do not accept the view, put forward even by noble Lords on the Front Bench on this side, and by my noble Friend, Lord Foot, that the Government have made up their minds that no Amendment will be accepted. If on the Government Bench there are noble Lords who say that there is something to be said for a measure of Parliamentary control, and if the Government reject the proposition for a Select Committee to deal with a post-accession draft Treaty, what is the alternative? That is a fair point. Have they any other proposition to put forward? This gives them an opportunity to show how liberal-minded and sympathetic they are. There must be a measure of Parliamentary control. If the Government make a concession of that kind, however minor—even in muted tones—we can leave here at 10 o'clock, or hopefully before then, feeling that everything in the garden is lovely.


Let me reply to the noble Lord, Lord Shinwell, first. I would reaffirm the Government's belief that there should be Parliamentary control, and that is already provided in Clause 1(3). What is more, as I have said, so far as important Treaties are concerned, the Government of the day may well decide to proceed by Bill, and they could be forced to do so if the Order in Council Affirmative Resolution were rejected. But I have also said, as the noble Lord, Lord Shinwell, quite correctly recalled, that there are areas here—I think this applies particularly to secondary legislation—where it is clearly desirable in these circumstances that means of Parliamentary scrutiny should be worked out and elaborated. That is why we have proposed the ad hoc Committee, and that is why we hope that this ad hoc Committee or some other mechanism can be set up and get to work as soon as possible.

Turning from the noble Lord, Lord Shinwell, to the noble Lord, Lord Foot, all I wish to say, quite categorically, is that I made my position absolutely clear on Second Reading. No such decision as the noble Lord is crediting me and the Government with has been taken. I said on Second Reading that we wished to look at Amendments which might be moved on their merits. Quite frankly, we do not think a great deal of the merits of the Amendments that we have had so far. But we will wait and see.


Before the noble Earl sits down, has he answered my noble friend Lord Greenwood's question about what controls the French, Dutch, German and Italian Parliaments have on matters of this Bill, which takes the powers away from Parliament, except by an Order in Council?


We are, if I may say so, on a definition clause here. There will be plenty of opportunity to come back to this particular point on Clause 2.


I do not wish to press the point too hard, but if the noble Earl could answer that question now we might save a lot of time next week, because the information is important in relation to the matter of sovereignty, powers of Parliament and so on.


I apologise for coming late into this debate, but I should like to support one point made by the noble Earl the Leader of the House. I would say with some feeling that, whereas I very much hope there will be some means of Parliamentary scrutiny that will be worked out by the ad hoc Committee, none the less I must support the Leader of the House in saying that it would be an unhappy precedent to put a Select Committee of the House of Commons into a Statute. I believe that the whole strength of the Select Committee system—certainly the system in the House of Commons as I always knew it—lay in the fact that Select Committees were set up by the Parliament of the day and did not depend on some previous statutory enactment.

I would just add this. To a real extent, and more than perhaps is always realise, I believe that each Parliament has its own individuality. As the noble and learned Lord the Lord Chancellor will recall, there came a time—and he and I were both sympathetic—when there was a stronger demand than ever before for a Select Committee on the subject of science and technology. I think that was justified. But the whole strength and initiative for new Select Committees comes from the House itself. I believe that we should not be strengthening the power of Parliamentary scrutiny, and certainly not the power of Parliamentary control, but would be weakening it if we put this in a Statute and established this new precedent. Therefore, while I do not think too much of the point about Mr. Michael Foot, I think that a Select Committee here will work perfectly well in practice. None the less, I should infinitely rather see the initiative taken by each House of Parliament individually rather than to attempt to solve this by a statutory addition to the clause.


I will just make this point right at the beginning. I think it was a little unfortunate—I will say no more—that the noble Earl suggested that a Select Committee under the chairmanship of certain of our colleagues in this House and another place would not get on with the job. I regard that as an absurd and unfortunate statement.


If I may interrupt the noble Lord, if I caused offence to the noble Lord, Lord Foot, I immediately apologise. I did have my tongue a little in my cheek. If it was not visible, I will try to make it more so in the future.


No member of my family ever takes offence at anything.


The reason why I think it is unfortunate is that it was rather bad from the point of view of the noble Earl's case, because to me it suggested a misunderstanding of how Select Committees operate. Furthermore, he used as an argument that there might not be time to refer such Treaties to Select Committees before they became Treaties. That is what I understood again the noble Viscount to say. But they are going to have to go, under our existing procedures—admittedly not determined by Statute but by Order of the House—to the Special Orders Committee of this House and to a Committee in another place, so that totally destroys the noble Earl's argument. As we well know, and as the noble Earl the Chairman of Committees will make clear, the Special Orders Committee in our House are not in a position to give the sort of scrutiny and report that we are seeking.

A main argument of the noble Earl—and indeed one that was used by the noble Lord, Lord Boyle, and obviously it attracted some support on that side of the House—is that we have never before set up Select Committees by Statute. But neither have we ever signed a Treaty of accession comparable to this. As noble Lords know, I happen to be in favour of this, but I am really very sad that when we are embarking on such a revolutionary step—and it is a revolutionary step; indeed it is perhaps the most important constitutional step. for good or for evil that this country has, ever taken and it is comparable with one of the great constitutional Acts—the Government are prepared to argue that it is inappropriate to build into a Statute, admittedly a short Statute, an additional Parliamentary safeguard, the only purpose of which is to prevent the tyranny by Government majorities operating through the system of statutory instruments.

I congratulate the Government on their initiative in setting up the Committee of the noble Lord, Lord Brooke. It is an extremely important Committee and is going to look into this whole question, but I would be more confident, and critics of this step would also be more confident, if there were the sort of protection which ensures that Treaties are not brought into force simply by statutory instrument. The noble Earl quoted as justification past action; for instance, the fact that there is no statutory control over Extradition Treaties. We are well aware of all this. There are a lot of things which may have been appropriate in the past but are wholly inappropriate to-day, and there are a lot of thing which were inappropriate in the past and are even more inappropriate to-day. The argument in favour of this is simply that if we can put this into a Statute it will ensure that Parliament will not be confronted with the sort of situation that we get time after time to-day with regard to our own statutory Orders.

It is perfectly open to the Government to say that if they do not wish to proceed by Statute—which I find perfectly satisfactory, and if it had not been done before I see no reason why it should not be done now—they would accept a Resolution to this effect. Will they say that now? But all we have received is a sort of sympathetic idea that the Government would like this sort of thing, yet they have totally dissipated such arguments as they had in this respect by saying, for instance, that there might not be time to deal with it. I hope that noble Lords opposite, whom I know to be concerned for constitutional rights, will see the force of this argument.

We do not expect to carry this Amendment, nor would we necessarily assume that the Amendment would ultimately remain in the Bill in this form. It would be a blow for the type of Parliamentary control which this House is particularly fitted to exercise on a Government. If noble Lords are particularly content to do this with a Conservative Government, will they be content when my "lot" are in power? I suspect that they will not. Therefore, I advise them to vote for this Amendment. We will return to it at later stages; if it is not satisfactory the Government can always put it right. I entirely reject the argument that has been used in this House and in another place, that it is not done to make provision for Select Committees by Statute.

9.41 p.m.


I wonder whether I can add a word on this matter. I wish that I could persuade the noble Lord the Leader of the Opposition that this particular procedure is fundamentally unconstitutional. It is not a mere coincidence that there never has been, so far as I know, even in the jungle that our Statute Law is becoming, a Statute which set up a Select Committee of either House, let alone a "Select Committee of Parliament", whatever that may mean—and that is the phrase used in the Amendment—as a condition precedent to the validity of a legal situation. It is not a coincidence, nor is it due to the fact that no unique situation has ever occurred earlier in our long history—many situations of equal uniqueness have occurred, if I may use that rather illogical phrase.

I come back to the basic facts of legality and of the Constitution, which I thought the noble Lord, Lord Stow Hill, was going to deal with at one moment of his speech. It is a fundamental concept of our Constitution that each House of Parliament is master of its own procedure in this particular sense; that no court can inquire what goes on inside our walls. If we chose, for instance, to alter our fundamental procedure as to the number of Readings a Bill should have (and we have from time to time in Parliamentary history done that very thing) no court could question it. The effect in law, as I see it, of introducing an Amendment of this kind is precisely the opposite of what the noble Lord, Lord Stow Hill, suggested it might be.

In order to decide upon the validity of a treaty instrument of direct application under this Statute, when it becomes law, a court would have to inquire as to the very thing from which by privilege of Parliament it is debarred from inquiring. It would have to inquire whether a Select Committee had been properly set up, whatever the obscure and meaningless phrase "Select Committee of Parliament" means. I think it means nothing, because a Select Committee must either be a Select Committee of one House or a Joint Select Committee of the two Houses. It cannot be a Select Committee of Parliament.

The court would have to inquire as to the due constitution of a Committee and the propriety of its procedure, and as to whether the Committee was a Select Committee, a Standing Committee or a Committee of the Whole House. In other words, the very conflict which the noble Lord, Lord Stow Hill, would be so anxious to avoid—and rightly so—is inherently built into the Amendment. I am in favour of the kind of scrutiny not only in this clause, and not particularly in this clause, but more particularly in Clause 2, that the noble and learned Lord, Lord Diplock talked about on Second Reading. But this must be dealt with by the machinery of Parliament and must not be built into a Statute; otherwise you are insisting that the courts will have to pronounce upon the validity of the procedure inside Parliament and that would be subversive of the whole Constitution.

I wish that I could persuade some people who are putting down Amendments—and I say this particularly to the noble Lord, Lord Foot—that it is not sheer bloody-mindedness which leads some people on this side of the Committee to resist these Amendments. It is not due to some decision to accept nothing. It is because we do not want this Bill to be used as a means of subverting the very thing which the critics of this Bill are—I doubt not sincerely—anxious to preserve. This Amendment is far more serious and far more subversive of our Constitution than the supporters of it have realised.


Would the noble and learned Lord, since he made a particular reference to me towards the end, state whether, if at the end of the proceedings in Committee on this Bill we find that the Government have not been prepared to accept one single Amendment of any kind, detail or substance, we are to regard that as a pure coincidence?


The noble Lord should regard it as a matter of profound shame that he has not by that time thought of an Amendment which meets with the approval of the Committee.


I wonder whether I might express a word of surprise at the tone and attitude of the noble and learned Lord. He has endeavoured to put to us the case that everything is quite all right in the Bill as it stands, and that everything has been honestly and sincerely done. The phrase "Parliamentary control" has been repeated over and over again, and the impression is created that we are about to move into a new form of democracy. The democratic content of this Bill is sound, but the procedure is a little different. I confess that I am completely unable to recognise the Bill about which they are talking when I look at what is said by other people about it. I am not referring to bloody-minded people whom the noble and learned Lord appeared to think are the only people who criticise this Bill.


The noble Lord has misunderstood me. The bloody-mindedness to which I was referring was the bloody-mindedness which the noble Lord, Lord Foot, was seeking to impute to the Government. It was not I who was seeking to impute it to noble Lords opposite; far be that from me.


Except that I do not use that kind of language.


May I quote from an article by the legal adviser of the European Community, who explained what was happening here? He put a somewhat different complexion upon the procedure that we are expected to adopt. He said: The E.E.C. Treaty provides for three different forms of binding acts, the force and content of which widely differ. In this sense there is a certain gradation of powers as expressed by the different Community acts. A regulation"— we are dealing here with regulations, although the word "treaty" is used by noble Lords opposite almost as if it were something that happened only now and again and not as a continuous flow of regulations— is the most powerful act typical of the Community legal order. It is binding in every respect and directly applicable throughout the entire Community without any intervention whatsoever on the part of the member States. It may impose obligations or confer rights on member States and individuals alike. By its content a regulation is a veritable Community law.

Bernstein, L. Garnsworthy, L. Phillips, Bs.
Beswick, L. Granville of Eye, L. Segal, L.
Blyton, L. Greenwood of Rossendale, L. Shackleton, L.
Brockway, L. Hoy, L. Shinwell, L.
Champion, L. Lindsay of Birker, L. Stow Hill, L.
Collison, L. Llewelyn-Davies of Hastoe, Bs.[Teller] Strabolgi, L. [Teller]
Gardiner, L.
Aberdare, L. Elliot of Harwood, Bs. Mowbray and Stourton, L. [Teller]
Abinger, L. Emmet of Amberley, Bs.
Ailwyn, L. Falmouth, V. Northchurch, Bs.
Amherst of Hackney, L. Ferrers, E. Nugent of Guildford, L.
Arbuthnott, V. Gainford, L. Onslow, E.
Astor of Hever, L. Goschen, V. Orr-Ewing, L.
Balerno, L. Gowrie, E. Pender, Lord
Balfour, E. Greenway, L. Penrhyn, L.
Barnby, L. Gridley, L. Polwarth, L.
Beaumont, L. Grimston of Westbury, L. Radnor, E.
Belstead, L. Grimthorpe, L. Rankeillour, L.
Berkeley, Bs. Hailes, L. Reay, L.
Bessborough, E. Hailsham of Saint Marylebone L. (L. Chancellor) Redesdale, L.
Blake, L. Redmayne, L.
Boyd of Merton, V. Hanworth, V. Reigate, L.
Boyle of Handsworth, L. Harcourt, V. Rhyl, L.
Brentford, V. Harvey of Prestbury, L. Roberthall, L.
Brooke of Cumnor, L. Hatherton, L. Rochdale, V.
Chelmer, L. Hawke, L. Ruthven of Freeland, Ly.
Chesham, L. Hemingford, L. Sackville, L.
Coleraine, L. Henley, L. Saint Oswald, L.
Coleridge, L. Hewlett, L. Sandford, L.
Colville of Culross, V. Hives, L. Sandys, L.
Cork and Orrery, E. Hood, V. Selkirk, E.
Cowley, E. Jellicoe, E. (L. Privy Seal) Sempill, Ly.
Craigavon, V. Shaftesbury, E.
Craigmyle, L. Kemsley, V. Stonehaven, V.
Cranbrook, E. Lansdowne, M. Stradbroke, E.
Croft, L. Limerick, E. Strathcarron, L.
Cullen of Ashbourne, L. Lindsey and Abingdon, E. Strathclyde, L.
Daventry, V. Listowel, E. Stratheden and Campbell, L.
de Clifford, L. Lothian, M. Tanlaw, L.
De L'Isle, V. Macleod of Borve, Bs. Terrington, L.
Denham, L. [Teller] Macpherson of Drumochter, L Teviot, L.
Digby, L. Mancroft, L. Thorneycroft, L.
Drogheda, E. Massereene and Ferrard, V. Trefgarne, L.
Drumalbyn, L. May, L. Tweedsmuir, L.
Dudley, E. Merrivale, L. Tweedsmuir of Belhelvie, Bs.
Dundee, E. Mills, V. Vivian, L.
Dundonald, E. Milverton, L. Wakefield of Kendal, L.
Ellenborough, L. Monk Bretton, L. Wynford, L.
Elles, Bs. Mottistone, L. Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

I am unable to understand what noble Lords opposite are talking about when they say that we will have full Parliamentary control of the future legislation governing the life of this country.

9.49 p.m.

On Question, Whether the said Amendment (No. 11) shall be agreed to?

Their Lordships divided: Contents, 19; Not-Contents, 123.

9.57 p.m.

LORD BESWICK moved Amendment No. 12: Page 2, line 23, at end insert ("which is related to the purposes for which the Communities have been established.")

The noble Lord said: I shall move this Amendment briefly, and largely to hear what excuse is put up by the Government. I can see absolutely no reason why these words should not be incorporated. Over and over again spokesmen on behalf of the Government have said that nothing would be put down on the Statute Book or brought forward, either as an Order in Council or a regulation or a direction, or any of the other matters of obtaining a legal enforcement in this country, unless it was related to the purposes for which the Communities have been established. We have been assured of this over and over again, and therefore I am suggesting to noble Lords opposite that it would be reasonable if, within the Bill, it was clearly stated that the Treaties and the regulations would be within the purposes for which the Communities have been established. Even a company in this country would have within its articles a similar clause to this, and therefore I hope that noble Lords will have no difficulty in accepting it. I beg to move.


Perhaps I should say that while I quite understand the reason why the noble Lord, Lord Beswick, has moved this Amendment, I am afraid I have to tell him that it is in fact unnecessary, because Clause 1(4) is already a definition provision concerned with the whole description of a Treaty. The necessary link which he desires (just as we all do) in the Community context is in fact already achieved by Clause 1(2). Perhaps I should describe it a little further. The whole idea of subsection (4) is that it is a definition provision, just as, indeed, is the whole of Clause 1. It does not try to introduce any kind of change of any substance. Its whole point is to try to avoid any doubts about the meaning of "Treaty", which is exactly the meaning behind the Amendment. It tries to make it clear that this term is not limited to those international agreements that are entitled "Treaties" but it also includes protocols and annexes to the Treaties.

I can understand the noble Lord saying that he wants to be quite certain that everything which is in subsection (4) is, in the terms of this Amendment, related to the purposes for which the Communities have been established; but the definition of Community Treaties has of course to be linked with the purpose of the Communities and this has been already achieved under subsection (2) of Clause 1. Any agreement which is entered into by a Community must, by definition, be an agreement connected with the purposes of the Community, because otherwise, of course, the Community would have no power to conclude it. Therefore, agreements entered into by member States and their connection with Community purposes is, I think, secured by the use of the word "ancillary", which we debated earlier, in line 7, on page 2, and line 26, on page 19. It is for that reason only that I would advise the Committee not to accept an Amendment which is unnecessary because the provision is already in the Bill.


Will the noble Baroness kindly tell us what her objections are to adding it? She has said that it is already in the Bill. I have seen many contracts and many Bills with repetitive paragraphs. Could we know the reason for refusing it? It seems to me that it cannot do any harm if it is added.


I feel deeply disappointed that the noble Lord, Lord Bernstein, did not apparently hear what I thought was a fairly clear explanation of why it is unnecessary to accept this Amendment. Briefly, to sum it up, Clause 1(4) is a definition provision concerned with description of a Treaty, and the necessary link with the Community context is already achieved in Clause 1(2), which we have discussed at great length.


I thank the noble Baroness for that, but she has not answered my question. My question did not relate to whether it is already in the Bill, but what was the objection to adding it to this clause.


If I may speak for the third and, I promise, the last, time, the objection to including the words in the Amendment is that they are unnecessary because the provisions sought to be secured by the Amendment are already in the Bill.


Although there are a number of noble Lords opposite who have come in and been entirely convinced by what the noble Baroness has said, there are a a lot of other people, probably equally informed who are not convinced. I am very sorry indeed the noble Baroness did not feel able to accept this Amendment, but in view of the attitude of the Government in refusing to consider any addition, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

10.3 p.m.

LORD GARNSWORTHY moved Amendment No. 13:

Page 2, line 23, at end insert— ("(5) This Act shall not come into force unless a consultative referendum has first been held to enable the electorate to express its attitude upon the accession of the United Kingdom to the Communities.")

The noble Lord said: Having regard to what has happened to all the Amendments that have been moved this afternoon, and the political attitude of the Government as to willingness to accept anything proposed from this side, it may seem a matter of supreme optimism that at this hour of the evening I rise to move this Amendment. In doing so, I make it quite clear that I have no claim to legal expertise, but I do not think one needs to be a constitutional lawyer to feel that where the vital interests of this country are concerned, the vital issue of national sovereignty, the people have a right not only to the fullest consultation but a right to play a part in making a decision. It is generally agreed in all parts of this Committee that the Bill affects the future of this country, for good or for ill, in the most profound way. I think it is generally conceded that there has been before Parliament no issue of greater importance. It introduces changes which will colour and determine the future lives of our people in a manner not paralleled in peacetime or at any time. On Second Reading some notable speeches were made. One which received well deserved tributes was that delivered by the noble Earl, Lord Lauderdale. The case he made for allowing the people to speak was overwhelming, and I think I am justified, in the light of what was said in that debate, in saying that the case he made was not, on that occasion at least, effectively answered.

The Amendment I move is designed to allow the issue to be put to the electorate. To date no one can claim they have been fully consulted or give the opportunity to declare their will. The Tory Party Manifesto as quoted by the noble Earl showed the limits of the Government's mandate. It says, as the noble Earl quoted, Our sole commitment is to negotiate; no more, no less.

The Government have negotiated and the people should have the opportunity to say whether they are satisfied. At a General Election they could be given the opportunity to declare their views by way of a consultative referendum. All the signs we have to judge by indicate that on this issue on the Common Market the majority of these people who have declared a viewpoint are unhappy. I do not wish to weary the Committee with details of public opinion polls that have been held, because they are pretty generally known; but the latest poll shows that the majority of the people of this country remain unconvinced and remain extremely unhappy. If we had a consultative referendum it would provide an opportunity whereby the case for and against might be fully put and the public themselves given an opportunity to indicate then, in the light of information laid laid before them, what their reaction might be.

I have no doubt at all that whatever our views in this House may be the people of this country ought to be given an opportunity to say what they think about this vitally important issue. This House is very different to the other place. May I say that I think that the overkill that is exhibiting itself in Divisions in this Committee is no indication and will not be seen by the people of this country as a reflection of their opinion as a people. I doubt that many people abroad will be persuaded that the very large majority that your Lordships opposite are putting on the Record this evening will impress anyone outside this House. Here we enjoy great privilege; we are not elected, we inherit our seats or we are appointed. In the end, we are unlike the people in the other place. There they are responsible to the electorate and the electorate can pass censure on them. In this House we are answerable only to our own consciences. I believe that the limit that our consciences should permit in the circumstances of our unrepresentative position is to make sure that people have the right to govern themselves. The late Sir Winston Churchill put it in that way. I think it right that the Committee should have the opportunity to accept this subsection in Clause 1 and thus justify its acceptance as a protector of the right of appeal.

At this late hour I have no intention of speaking at any greater length. I will conclude by saying that the people of this country have a right to play a major role in the determination of their own destiny. I think it proper to give your Lordships' House the opportunity of indicating that that is your view also. If it be not your view, then I think the time will come when the people of this country will determine the usefulness of this place. I beg to move.

10.11 p.m.


With due respect to the noble Lord, I really think that he is speaking nonsense. The elected representatives of the people have spoken. They have agreed to this Bill. The noble Lord was talking about the great majority in this House that there has been on these Amendments. I would remind the noble Lord—I am only speaking from memory, but I think I am right in saying this—that there are 200 Labour peers. Where are they? If the noble Lord's supporters felt so strongly on this issue, surely they would be here. I do not want to overstress that point; indeed, it does not require overstressing.

Regarding a referendum, this has never been the custom of this country. The Treaty of Rome and the Common Market is a very complex subject, and I should doubt if a percentage of.000001 of the population have read the Treaty of Rome. Such a referendum would be decided completely on emotion—I would hesitate to call it the Yellow Press". Therefore, such an exercise would be quite pointless. You might as well ask the people to hold a referendum on the fluoridation of water. That is just as technical a subject as the Common Market.

Again it would be pointless. Or you might as well have a referendum on brucellosis in cattle. With the greatest respect, I do not think the noble Lord was really "on the ball."


The Liberal Party, as a Party, regard a referendum on major political issues as quite extraordinarily unwise. It has often been said that if you had a referendum on whether to reintroduce capital punishment you know perfectly well what the answer would be on that, or even on any other major issue of that kind. What the noble Viscount has said is quite true; these issues would be decided by momentary emotion. There would have been a series of murders, or whatever it may be affecting that issue, and the public would not judge the matter on rational grounds at all. The whole system of a referendum would be a denial of our present system of democracy. The will of the people is expressed by their elected representatives, and they presumably elect people they can trust.

In Norway, and perhaps even in Denmark, the Government by a majority would probably come to a conclusion after a long debate, and taking everything into consideration, that they should join the European Economic Community. It may be that someone will then make a demagogic speech, the referendum will go wrong, and they will not be able to join the Common Market, although it is in their interests. I think that I need say no more. The enormous majority in this House, and I am sure the enormous majority in Parliament, would be dead against the Amendment now before us.


I shall try to answer the two preceding speakers in the course of my remarks on this issue. I want to say that I support my noble friend who moved this Amendment. This Amendment is to give to the people of this country a say as to whether we are going to give up sovereignty and take away from the people the democratic rights that they have had for over half a century, and hand over to others remote from the people the power to govern and tax them for years ahead. The Amendment before the House is not concerned with whether we are for or against Britain's entry into the E.E.C. It is concerned with whether the electors, the British people, are to be allowed to express their wish at the ballot box. Many people have said that it is not merely unwise but a disaster to join on the terms that are before us, which the Government have accepted. The Government, on the other hand, say they will bring prosperity unknown to us before, and give security to the nation. It is these two views which should be submitted to the electors for their decision, and the case for this is exceptionally strong.

There are very few who will dispute the gravity of the changes which membership of the E.E.C. means to the lives of the British people. They mean a great departure from our national history and also from the history of our Parliament. We are asked to approve treaties and regulations grounded in the belief that, in the foreseeable future, we will bind ourselves in close association with Western Europe and with any other nation or group of nations in different parts of the world. We are asked to tie our island to the Continent of Europe, to give preference in all our future dealings to the nations in the Community, and to treat as third countries all those in the Commonwealth and elsewhere with whom we have had the closest ties for many years. The people are having imposed upon them, without a voice on the issue, the acceptance, not just of closer alliance and friendship with the Common Market countries which many would welcome and accept, but of an arrangement which will make us part of a single European Community, a single Economic and Monetary Union and, probably, a political union as well in the future.

As part of this policy, or new destiny, we have to change the Constitution of our country at its heart and at its centre. The people are being forced by the Government to accept the end of an edifice on which our democracy was built—the doctrine of the supremacy of Parliament. When the country goes in, agencies in Europe will have the right under this Bill to make laws binding on the British public without their consent, and even, as I read Clause 1, without the knowledge of the House itself. Those same agencies will have the right to impose taxes on the people and determine how those revenues will be spent, and in all matters of law it will be the courts of Europe covered by the treaties and not the courts of Britain which will decide.

For the first time, we shall have a Constitution writen in the text of the Rome and other Treaties, not a word of which we have helped to write, and on top of that there will be a substantial amount of Community law, the result of 13 years of Common Market regulations and directives, which is destined to be extended as the Community exercises its undoubted right to further legislation. This Bill concedes, unnecessarily in my opinion, a device to the Community; the requirement that only an Affirmative Resolution is needed to sanction major new advances which could progressively bring the British economy under their control.

What is the importance of what is at stake? What is envisaged is totally unprecedented, giving away great powers from Parliament and thereby diminishing the rights and power of every man, woman and child in Britain. Another important reason why the people should be consulted is that the Government have no mandate for this Bill. All that the Conservative Manifesto said was that their sole commitment was to negotiate—no more and no less. And in the last Election all the political Parties swept the Common Market under the carpet until the Election was over. The situation is now different. The Government have negotiated—if they can be called negotiations. To me, it seemed like a French and British affair; and there are very few in the country, except the Common Marketeers, who would not say that the French exacted a price that they are not ready to pay.

It cannot be said that the full-hearted consent of the people or of Parliament has been given. In fact, in another place, had it not been for dissident socialists the Bill itself would have been defeated on many of its important provisions; and the Opposition, the Labour Party, is opposed to the terms of entry. This provides an important reason why the people should have a voice. As I said in my Second Reading speech, this Bill cannot bind the Government's successor in power, whenever the Election comes. It is in these circumstances that I believe it is not sensible, and certainly it is not in the national interest, for the Government to go on as they are. A decision of this kind, if it should have been taken at all, should have had the support of the major Parties in the State. But if this cannot be obtained, and if the Government are to go ahead with this as the policy of the Government of the day, and of only one Party, then it is surely all the more important that the Government should get the consent of the British people before they embark on it.

All my life, as a democratic Socialist, I have strived for the extension of political power to the economic, industrial and social affairs in order to create in Britain a more just society. Now the people of Britain, who have believed in this, face a new situation: one in which Parliament ceases to be supreme and one in which laws that our own people may wish to change cannot be changed because the power to make these decisions will no longer rest in this Parliament. This will have a profound and damaging effect on our political life. People outside today say that there is too little democracy in their lives; they wish their views to be heard on an ever increasing number of matters, and they wish Governments to be closer and more sensitive to their needs. How, then, can we expect to achieve this when, without their consent, there is the transfer of powers to such remote and bureaucratic agencies as the Commission in Brussels and the Council of Ministers in Paris?

The question of consent has figured prominently in all the debates ever since the proposals were made. In fact, in 1962 Hugh Gaitskell said that if there were any major groupings in the country, and major difficulties, then the proper and democratic way was to let the people decide. He also said, answering Mr. Macmillan, about the ordinary working-class folk not understanding what it meant: We are being told that the British people are not capable of judging this issue, the Government knows best, the top people are the only people that understand and it is difficult for the rest. He went on to say: This is the classic argument of every tyranny in history. We did not win the political battles of the 19th and 20th centuries to have this reactionary nonsense thrust upon us again. That was Hugh Gaitskell in 1962. In 1963, the late Lord Attlee said this: It is the electors who have the right to decide on a vital matter of this kind. I know that some people put up their hands in horror at the idea of a consultative referendum, as if it had never been suggested before. Yet Sir Winston Churchill, on May 18, 1945, said on seeking a two-year prolongation of the War Parliament: I am conscious, however, in the highest degree, of our duty to strengthen ourselves by direct expression of the people's will. Let us discuss means of taking the nation's opinion—for—example—a referendum on the issue of whether in these conditions, the life of this Parliament should be further prolonged. So I happen to be in good company tonight. The then Mr. Attlee refused this, and we had the 1945 Election.

How profoundly different is this from the present Government's attitude, which seems to have little regard for the direct expression of the nation's will! Even the Liberal Party in February, 1969, voted in the House of Commons for a referendum in the case of self-determination for parts of the United Kingdom. Indeed, the Scottish Liberal Election Manifesto spoke of a referendum on the Common Market as a "further democratic step which might be taken". So I am really in exalted company to-night. And this Amendment before your Lordships to-day is not something new, but something that has been explored before. This brings to the forefront the Prime Minister's statement. His argument was that the people and Parliament must give him full-hearted consent. But he has shifted his ground. He has lopped off the people and talks now only about Parliamentary consent. That is the interpretation, after careful research, of the statements lie has made over the last 12 months.

There are many noble Lords in this House who would argue that there is something improper about the consultative referendum but it comes mighty strangely from noble Lords who have frequently carried through referenda for other people. Nearly all the colonial territories have had a referendum built into their Constitution—territories like the West Indies and Gibraltar. In fact, Gibraltar had a referendum whether to stay with us or with Spain. If these people could be given the opportunity to decide—and Gibraltar decided to stay with us—what is wrong in asking the British people whether they wish to be submerged in Europe or not? The point is that these referenda were applied because it was thought desirable, in view of subsequent rule and conduct of affairs, that sanction should be given to what was done.

I want to conclude by saying this. There is plenty of evidence, if you look for it, of statesmen who have argued for a referendum. This issue was not decided at the last Election. All that was asked for was negotiation. My Party has declared that it will have a referendum when it comes back to power—as it will at the next Election; and we shall negotiate our way out if the terms are not acceptable. And we shall ask the people of the country, by referendum, whether they agree with us. I support the Amendment.

10.30 p.m.


I am glad to follow the noble Lord, Lord Blyton. I think it typical of your Lordships' House that noble Lords have listened so attentively to the speech which he made. For many years the noble Lord, Lord Blyton, has given more attention to this subject than anyone I know. When I was Member of Parliament for Slough, I remember his coming to Slough, many years ago, and addressing a meeting. The thoroughness of his examination of this subject is something that we should all appreciate, whether we agree with him or not.

I apologise for arriving rather late in the discussion of this Amendment; I did not appreciate that it had been reached. I was not deeply interested in many of the Amendments which preceded this one. I am not one who takes the view that Britain should view with repugnance the loss of its sovereign rights for the sake of wider sovereign rights. We are now living in a world where national sovereign rights must be coordinated with the much greater rights of the world as a whole. Therefore I have often been in disagreement with those who have opposed our entry into the Common Market on the ground that Britain was losing sovereign rights. We are living in the last century if we think that today sovereign rights can be placed against the rights of a smaller world.

My opposition to our entry into the Common Market is on the grounds not simply of the surrender of sovereign rights but their surrender of them to a Community which I believe will be a reactionary one. Not only will the multi-capitalistic system in Europe cause vast unemployment and low conditions of life, but it will be a rich mens' club that will exploit the peoples of the developing countries. I want to say seriously that this Bill represents the biggest constitutional change that has taken place in this country for centuries. It means that the rights of our own people about their own territory will be coalesced in a wider Community. When one has a measure of that character it is tremendously important that not merely Parliament but the people should be carried with one in the decision. While it is claimed—and I do not challenge this—that a large majority was obtained in another place. for the Second Reading of this Bill, and while I resent very much the Party Pressures which are put on individual Members of Parliament, either in another place or here, not to reflect their own convictions in the Lobbies, I would ask whether anyone in this Committee would deny that the Government have no right to make this deep constitutional change on any mandate which they received at the last Election. This mandate at the last Election was only to consider and to negotiate; no one can claim that it was a mandate to go into Europe on the present terms. One has no right to make this deep constitutional change in the whole of our territory without some reference to the population.

I am not one who pays very great attention to public opinion polls, but all the public opinion polls indicate that the majority of the people of this country are against this great change. I am submitting, I hope in reasonable terms, that when one is making this vast constitutional change one should be sure that not only Members of Parliament—often succeptible to party pressures—but also the people of the country understand and support it. Throughout my life I have stood for the principle of self-determination of peoples. The noble Lord, Lord Blyton, referred to various colonial countries in which referenda have been taken. I would point out that they are taken not only in colonial countries. They are taken, for instance, in Scandinavia and in the Republic of Ireland. The Common Market referndum in the Republic of Ireland showed a majority in favour of joining Europe. I do not complain; all we are asking in this Amendment is that the British people should have the same opportunity to declare their view before this great and historic change is made.

I do not reject the principle of this deep change in our society, because we must give up national sovereignty for wider sovereignties. But a nation of our centuries of democratic growth, of our own Parliaments, of our sovereignty is being asked, without any mandate from the people—without their voice; one might almost say without their understanding—to change to the new loyalties, disciplines and restrictions which entry into Europe will demand. One of the pathetic things about our present situation is that this vast change is being made without the people of our nation even understanding what it involves. In that situation, surely your Lordships will agree that the people of our country ought to have the opportunity to make the decision—a decision which would be reached after a campaign upon the issues, and which they might be ready to understand. It is that plea for democracy which I am making in supporting this Amendment.

10.41 p.m.


I thought that, on reflection, the noble Lord, Lord Garnsworthy, would regret the last sentences in his speech proposing this Amendment. I think he must realise that the number of people who have voted in the Government Lobby tonight are not adequately referred to by "overkill". The large numbers in the Government Lobby this afternoon and this evening have been due to the deep feelings which are held on this side of the Committee and the great conviction with which we are voting, and nothing else. I thought it was an extraordinary proposition to put forward that if we do not accept an Amendment which proposes a totally novel introduction into our Constitution—novel in the sense that it has never been accepted before—the House of Lords should be abolished. That was his last proposition. I hope that we shall vote upon the merits of a referendum according to our honour and our opinion, as it is our duty to do.


The noble and learned Lord will forgive me for interrupting. He is a pretty formidable political figure, and no doubt he has resources which will enable him to answer me without imputing to me words that I did not use.


I am not anxious to impute to the noble Lord words which he did not use; but that is what I understood him to say, and what I understood him to mean. When he reads Hansard tomorrow I think he will discover that to what he did say can only be imputed the impression that I gave. I am very glad to learn from the noble Lord that it was a false impression. It was none the less the impression that I think many of us on this side of the Committee received.

Of course the noble Lord, Lord Blyton, is perfectly correct in saying that a referendum is a device which has often before been proposed in this country. It has always been rejected. It has been proposed many times during my public life, and I have always spoken against it, whether in private or in public, and whether the suggestion came from my own side or from the side opposite. The noble Lord, Lord Blyton, reminded us that in this respect Sir Winston Churchill had not been as constant as I upon this particular issue. He was answered by Mr. Attlee (as he then was) in these words, which I respectfully adopt: I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and Fascism. Hitler's practices in the field of referenda and plebiscites can hardly have endeared these expedients to the British heart.


Does not the noble and learned Lord—


The noble Lord will forgive me, but I wish to finish my sentence. I think, as in so many things, Mr. Attlee's sound British instincts more accurately reflected the judgment of the British people on this matter than any words that I am likely to use this evening.


Does the noble and learned Lord not think that this Bill introduces into the British Constitution something completely alien to the British Constitution? How does he dare to speak about Mr. Attlee's opinions when he introduces something that is completely alien to the British tradition?


I do not think that that was a reasonable intervention. I dare say what I say because it is my opinion; and though the noble Lord may disagree with me, it remains my opinion and I shall continue to express it. Nor, for the reasons which I gave in my Second Reading speech and in the two previous speeches that I have made on this subject, do I agree that this is in the least alien to the traditions of the British people. So on both those grounds I reject the noble Lord's intervention, which in any event only reproduced in rather briefer form the speech that we heard and enjoyed from the noble Lord, Lord Brockway.

It is, I think, one of the pathetic things about this debate that the opposition, the anti-Marketeers in this country, have consistently (though, as we say, falsely) accused us of undermining the authority of the Queen in Parliament by adhesion to the Communities. That is the charge against us. It is wrong, as we say, because the Bill we are now endeavouring to pilot through Parliament is itself an exercise of that sovereignty on which alike our liberties, our reforming tradition and the efficacy of our laws depend. But this Amendment, proposed by the same anti-Marketeers, would (if I may coin a phrase) undermine at one stroke the authority of the Queen in Parliament by the introduction of an instrument of government wholly foreign to our institutions and subversive alike of the responsibilities of Government and of the sovereignty of Parliament.

It is wrong, to speak of democracy, as the noble Lord, Lord Brockway, attempted to do, as if it was a single system. There are as many types of democracies as there are other types of Government. There are democracies with a written constitution; there are democracies composed of voters who choose to attend an assembly or a popular gathering like those of ancient Athens or Rome, or like the Canton of Schwyz to this day. There are democracies based on a strong presidential system; there are democracies based on an assembly popularly elected, democracies based on proportional representation. But ours is a democracy through Parliamentary representation, based on an asembly popularly elected but presided over by a Government responsible to that Parliament and composed of members of the majority Party. Whatever the faults of our system, it is this which preserves its orderliness, which ensures coherence in policy and government by discussion and not by ignorance or emotion. It is in fact the most successful form of human constitution that has yet been devised by human kind.

The instrument of referendum, on the contrary, is spurious democracy, based on specious and fallacious reasoning and productive of ridiculous or disastrous results. It has been, as Mr. Attlee reminded Sir Winston Churchill, the favourite instrument of dictators, with the 99 per cent. majorities they are able to engender. More insidious still—and this is what astonishes me about the attitude of some members of the Party opposite in supporting it—it has become in some countries the instrument of blind and ignorant conservatism, even reaction. It is this instrument which denied women for so long the vote in Switzerland. Except in conditions of dictatorship, it is almost invariably productive of a negative answer. It substitutes the error and timidity of the market-place for the boldness of rational and informed discussion.

It would be a mistake to believe that its introduction in this context could ever be made a solitary or unique exception to our practice. It would be too easy an escape route for a Government which wished to duck responsibility without resigning for introducing or rejecting a particular policy. It might, as one noble Lord said—I think the noble Lord, Lord Gladwyn—prove an irresistible demand in the hands of a demagogic populist, desirous, say, of re-introducing savage punishments or racialist programmes. It is a dangerous and specious weapon and should be firmly resisted on this, as on other occasions.

I am the last to deny the importance of the Bill we are now discussing in Committee. But it is not quite the uniquely important decision which it is represented to be. Far more lasting and far more formidable in their results were the declarations of war in 1914 and 1939, the decision to proceed with the nuclear bomb, the creation of N.A.T.O. and the programmes of the Labour Government in 1945 nationalising our major industries.

In the context of Europe the carrying of this Amendment would destroy our credibility and, if the referendum failed, dishonour our people whose honour has been deeply committed. What guarantee have the opposition that the campaign would be carried out on rational and sober lines, or that the issue of entry could be precisely isolated in discussion? What guarantee have we that voters would not be stampeded by appeals to working class solidarity, the Industrial Relations Act, the Housing Finance Bill, the crisis in the docks, Party or class prejudice or other irrelevant appeals to demagogy or emotion? My whole experience of public life leads me to believe that no referenda are decided on merits. It is ns impossible to confine an Election to a single question as to restrict a debate on a referendum to the merits of an issue.

I am appalled at the want of logic in the description of the proposed referendum as "consultative". What on earth can sponsors conceive to be the merits of this ridiculous anomaly? Do they seriously think that, having obtained one answer from the electorate, we should be able to perform the opposite? There is no purpose in consulting the electorate if the electorate is not to be treated as sovereign and its verdict binding. No-one has voted for this Amendment in the Commons unless they were determined to prevent our entry at all costs—even at the cost of introducing an unconstitutional chimera into our working institutions—or else, in the case of the Labour Party, because they were coerced by their Party Whips or fearful of the fate of Dick Taverne. One of the things, as Burke once observed, that Members of Parliament are elected for is their judgment. Even more in this House of individual counsellors we should pride ourselves on the use of ours. If we are to exercise logic in the light of informed discussion surely Parliament would be unwise to abandon its right to do so on matters of the utmost weight where informed discussion is more and not less important.

I have not so far mentioned the practical difficulties. This is because I oppose referenda on principle. But the practical difficulties are none the less formidable. Who, for instance, is to settle the question? In what form is it to be cast? What size of majority is required? Are England and Scotland to be separately assessed? What is to be the position of Northern Ireland? Nobody has ventured an answer to any of these conundra.

Noble Lords opposite are sometimes sensitive when I have referred to what seem to me to be the unusual somersaults executed by the Leader of the Opposition in another place on this and a variety of other issues. But it is inevitable that on this occasion I should be entitled to refer to his attitude in this of all subjects.

As Prime Minister, Mr. Wilson refused a referendum on entry when the terms were known (see Hansard, Vol. 792, col. 199). He reiterated his objections as recently as July last year. As for the Government's attitude, it has been consistent and not as represented by the noble Lord, Lord Blyton. During the last Election, in a passage only part of which the noble Lord, Lord Blyton, referred to, Mr. Heath said this: We as a Party are committed to negotiate, no more and no less"—


Hear! Hear!


Let the noble Lord wait until the whole quotation is finished, and then cheer. The Prime Minister said: We as a Party are committed to negotiate, no more and no less. We will report the whole time to the country, through Parliament, what is going on in the negotiations; at the end, when they see what has been negotiated, Parliament can judge completely as to whether it is in the interests of the country to go into the Common Market or not. I do not hear quite the same cheers from the noble Lord at that stage of the quotation.

On another occasion, when asked whether he had said that no Government would take the country into the Common Market against the will of the people, my right honourable friend gave this answer: Yes, this is my view, the view I have held for the last ten years. I held this when I was doing the negotiations myself. I always said that you could not possibly take this country into the Common Market if the majority of the people were against it. But this is handled through the Parliamentary system. I do not think that there could be a plainer statement of what we are doing now than that.

I do not want to say very much more, except that we set out exactly in this Parliament the course which we were going to follow. We said that we were going to negotiate. We said that we were going to resolve the major issues outstanding in the negotiations. This is a statement made, I think last June, by the Prime Minister in another place: Second, Parliament should be invited to take a decision of principle on whether the arrangements so negotiated are satisfactory and whether we should proceed to join the Communities. If that be agreed, we have, third, to resolve the remaining issues in the negotiations. Fourth, a Treaty of Accession has to be prepared and signed. Fifth, legislation to give effect to that Treaty has to be drafted, considered by Parliament and enacted. Finally, we and the other parties to the Treaty have to deposit instruments of ratification of the Treaty. When that statement was made did the Opposition challenge this programme? Did they demand instead at that stage the different and unprecedented step of a referendum? Of course they did not. The Leader of the Opposition welcomed and endorsed what the Prime Minister had said about the proposed arrangement. This is the programme which the Government have followed.

On October 28 last year both Houses of Parliament approved the policy of entering the Community on the terms obtained. It was in compliance with this verdict by the elected representatives of the people in Parliament that the Treaty of Accession was signed in Brussels on January 22. The Government have now brought forward the measure which will enable the Treaty to be ratified. That measure has now been endorsed by another place. Not merely is the course advocated by this Amendment impracticable; it would mean doing the very thing of which we are being accused—wrongly—by the Opposition: it would mean abdicating Parliamentary responsibility. It would be profoundly damaging to the constitutional traditions of this country, quite apart from representing a reversal of policy on the part of all three parties. For all these reasons I invite the Committee to reject the Amendment wholeheartedly.

10.58 p.m.


I could not understand at first why the noble and learned Lord was so angry about the alleged use by my noble friend of the term "overkill". I did not follow him. I did not see why he should be so cross about the use of the word. By the end of his speech I realised why: the noble and learned Lord wanted to pre-empt the use of the word, otherwise I might have applied it to his speech. I am reminded of the story of a vicar who stayed at our house and left his sermon on the bedroom floor. The wife picked it up. She saw there was one part sidelined with a little note, "Argument weak here; shout loud". I think this is kind of philosophy behind the noble and learned Lord's speech.

May I say at the outset how pleased I am to be able to agree with something that the noble Lord, Lord Gladwyn, has said? I am so happy about that that I should like to put it on record. I agree with him that a referendum would be inappropriate on an issue like capital punishment. Like the noble and learned Lord, Lord Chancellor, and others in this Committee, I have fought a number of Elections. At every Election I have been asked whether I would submit a particular issue to a referendum. Always, like the noble and learned Lord, I said that it would be wrong. I said that it was against our tradition to have referenda and that I thought Members of Parliament were sent to Westminster for the purpose of exercising their own judgment. But there has been absolutely nothing in our tradition and practice like the prospect that we now have before us as a result of this legislation. We have had nothing before in our history which proposed to hand over to others control of our legislation. It is no use the noble and learned Lord getting so hot under the collar about the virtue of their proposed legislation. It really does not conform with the facts. It is not, again I say to him, what we, the anti-Marketeers, think about the denial of democracy that is inherent in this Bill: it is not we alone.

I quoted a little earlier—and have had absolutely no reply—the analysis of the Legal Adviser to the Commission itself. Just to put in someone else's words, may I quote from an article in The Times of Tuesday, May 2, by T. J. O. Hickey. He says of this Bill. a Bill of which we have been hearing so much and which provides for such detailed Parliamentary control: This is by common consent the bit of the Bill"— he was referring to the clause we are discussing— which is of greater constitutional significance than any other bit. It affects the one really large constitutional innovation in all these European proceedings. It confers on authorities other than the Parliament at Westminster—authorities external to the State—confined but undoubted powers of direct legislation and taxation within the United Kingdom. There has been nothing like it here since the Pope's privileges and jurisdiction within England were repudiated in the sixteenth century. That is the view of someone capable of looking at the issue in a balanced way, and he comes to a conclusion very different from that of the noble and learned Lord and his friends opposite. And the noble and learned Lord must not get so hot under the collar if there are some of us on this side who think that Mr. Hickey has more of the truth than he has.

So I say that the precedent argument against the referendum just falls. We have not had a precedent of this kind before. Although I have been consistently against the use of the referendum on issues such as capital punishment, homosexual practices and so on—absolutely against it on those issues—when we come to this issue I think we are dealing with something on which the people themselves, instinctively, are as likely to come up with as good a judgment as any noble Lord opposite. I am bound to say that I find it difficult to listen with patience to the noble Viscount, Lord Massereene and Ferrard, when he sets himself up as being so superior in his judgment to the busman outside and the policeman on his beat. I believe that on this kind of issue the policeman or the busman, or the miner or the carpenter—the man who does not spend his time here—is as likely to be right as is the noble Viscount.


May I ask the noble Lord a question? If he is so really convinced of this, why did he not resign in 1969 when Mr. Wilson refused a referendum on this very topic?


I am quite prepared to go into the history of that whole period, but it would not be profitable at the present time. But wait a moment. At the time when Mr. Wilson was talking against a referendum we never had a Bill of this kind before us. There was never any possibility of the Labour Party, I assure the noble and learned Lord opposite, approving a Bill of this kind. There was never any chance at all of that being done by the Labour Government of which I was a member. I say that with absolute conviction. So we are dealing with a different situation.

The noble and learned Lord quoted in aid Lord Attlee. Lord Attlee was against this proposal to go into the Community. But, in any case, what he said about the referendum was said at a time when we had no Bill of this kind before Parliament. Had he been confronted with a piece of legislation of this kind, I am fairly convinced that Lord Attlee might well have taken a different view. So I am saying that the question of the precedent does not here arise, because we have had absolutely no precedent of the present situation in the whole of our history. It would have been preferable if we could have had a General Election on the issue; that would have been straightforward. Why did not the present Government go to the country to get a mandate? They have had no mandate on this. They have spent enormous sums of money on propaganda, and still the people of this country instinctively and stubbornly say, "We do not want it". The majority of the people in this country are against this action.

I think that it is very dangerous indeed to transfer decision-making further from the people who are affected by those decisions. Yet that is what is proposed. As I say it is dangerous to do that, but I think it is doubly dangerous to do it when the people so clearly say that they do not want it to be done; and in the long run it may well prove that it would have been better to have the support of the people expressed in one form or another before this piece of legislation was brought before us. I do not accept the precedent argument. I do not accept that the issues before us are such as to be incapable of judgment by the people who are to be affected by them. It is my belief that it would be better in the long run to have a verdict from them.

It is proposed by this Amendment to submit the issue, if the Government of the day refuse to have a General Election, to a referendum. In the circumstances, I regard that as a reasonable suggestion. The noble and learned Lord was indignant about the whole respectability of a referendum. Is it really so unrespectable—or disrespectable—in Switzerland or Norway or Denmark? Are they not democratic countries? And if the procedure is so bad, would the noble and learned Lord like to get up and tell me why it is proposed to apply it to Ulster? Why is it so wrong to have here what we are asking for in Ulster? Why is it so wrong for us if M. Pompidou was prepared to put the thing to the test by this means in France? The noble and learned Lord really should not get quite so angry about the evil character of this "alien instrument". After all the lectures we have had about being "little Englanders", and about being prepared to adopt Continental ways, why should this be a terrible thing? And why should it be called an "alien instrument"? really think the noble and learned Lord overdid it a little.

Well, we have had the discussion, and I think there is probably not a majority in the House who would support us. Nevertheless, I am sure that the Amendment moved by my noble friend was worth putting on the Marshalled List, and it would be interesting to see what the result would be if we had a Division.

11.8 p.m.


May I express appreciation that the Committee have shown so much interest and devoted so much time to this Amendment? Having said that, may I return briefly to the point where the noble and learned Lord attributed to me words which I think I did not use—though let me say right away that I might well have given the impression. Certainly the point I intended to make was that the House would bring about its own demise. If I have been able to make that point clear, I am grateful to the noble and learned Lord for giving me the opportunity of doing so. If I erred and did use the words that he attributed to me, let me say that I regret very much having intervened to attempt to correct them when I ought not to have done so.

I have no wish to speak at any great length. My noble friend Lord Beswick has made a fairly full reply, but I should like just to add one comment. I have been very impressed by two speeches: one by the noble Viscount, Lord Massereene and Ferrard, and the other by the noble Lord, Lord Gladwyn. I am very impressed that they should compare an issue like fluoridation with the issue of joining the Common Market. And I believe that the people will be very interested that they should dare to do so: because, of course, there is no valid comparison, and they must know it. I am impressed by the line they took and what they said, by the limited degree of trust (and this goes, too, for other noble Lords; indeed, to some extent it applies to the noble and learned Lord the Lord Chancellor) they place in those on whom eventual power, as is so often claimed, rests. When it comes to the issue, they appear to be very anxious not to give them an opportunity to express their view on something that is going to play such a tremendous part in determining their future lives. I have no wish to press this Amendment to a Division; I am prepared to leave it to the voice of the House.


It appears that Tellers for the Contents have not been appointed in pursuance of Standing Order No. 51 and a Division therefore cannot take place, and I declare that the Not-Contents have it.

On Question, Amendment negatived.

Clause 1 agreed to.

House resumed.