§ 2.58 p.m.
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Earl Jellicoe.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ THE CHAIRMAN OF COMMITTEES
My Lords, before I call Amendment No. 14 I should point out to the Committee that if this Amendment is agreed to I cannot call Amendments Nos. 15 to 25.
§ LORD BERNSTEIN
My Lords, may I ask the indulgence of your Lordships before Amendment No. 14 is dealt with? I was also going to ask the indulgence of the noble Earl the Leader of the House, but I see that he has left the Chamber. I think it would be for the convenience of all the Members of your Lordships' House if we could be told, prior to the discussions that are to take place, what powers are still available to the Parliaments of Holland, Germany and the rest of the countries involved in the European Communities. We are going to discuss sovereignty later on and it would be helpful to Back-Benchers like myself if we could compare what powers those Parliaments have with the powers of the Parliaments of the European Communities.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords, my noble friend the Leader of the House is now available, but in case he did not hear the question put by the noble Lord, Lord Bernstein, I must say, subject to anything that the noble Lord the Leader of the Opposition may say, that we are now in Committee upon the Bill and an interpolated statement of the kind suggested would, I should have thought, be out of order. The stage we have reached is Amendment No. 14. No doubt my noble friends and I, who are handling the Amendments as they come, will be able to give such information as is available to us within the Rules of 752 Order, but I do not think we should be able to make statements like this without any question being put or a Motion being before the House.
§ LORD SHACKLETON
I agree with the noble and learned Lord that it is a little unorthodox, but the fact remains that we are in the gravest difficulty because so few noble Lords have this particular information available to them. I have spent the last hour trying to find the answer to this question. Perhaps it will satisfy both the Committee and my noble friend if, at a suitable moment and possibly during our deliberations on Amendment No. 14, the Government give the information required about which my noble friend has helpfully given advance notice.
§ THE LORD CHANCELLOR
I am not in a position to give the information now, even if a Question were before the Committee. However, I am sure that what has been said will have been noted and that anything which is available will be given. I must point out that we were given absolutely no notice of this point. If the noble Lord had been so keen to get the information it would have been relatively easy for him either to give us notice or to put down a Question.
§ LORD BESWICK
Is it not fair to say that my noble friend referred to this matter last Thursday? Unfortunately we do not have in print the OFFICIAL REPORT of our deliberations of that day.
§ THE LORD CHANCELLOR
My impression, having heard both interventions, was that the questions asked, although similar in the beginning, were in fact different questions. Nevertheless, we would of course seek to provide the Committee with as much information as possible within the bounds of order.
§ LORD BERNSTEIN
Would it be helpful if I were to walk over to the Cross Benches and ask for this information from there? I am not raising this matter in a Party way. If noble Lords will look at column 575 of the photostat transcript of our proceedings they will see that it was pointed out that this information, if it could be made available, would be of considerable help to us. We were told that the matter would arise on an Amendment, though I cannot 753 be certain on which Amendment the Government thought it would be acceptable for this matter to be discussed.
§ THE LORD CHANCELLOR
The noble Lord is fully entitled to put his question from any part of your Lordships' House he chooses—it is not a matter for the Government from where he speaks—and we will give him the same attention from whichever part of the Chamber he speaks. We will give whatever information we have at the appropriate moment.
§ LORD SHINWELL
Does the Lord Chancellor appreciate that we are in some difficulty about certain Parts of the Bill? I assume that what the Government will be expected to do in dealing with Amendment No. 14 is not to explain the nature of the subsection to which it refers but to give the reasons why the Amendment should be rejected. In consequence, noble Lords will be deprived of full information about the precise meaning of the subsection. If the noble and learned Lord, the Lord Chancellor, will look at the subsection closely he will realise that it refers to a variety of Treaties and that it is somewhat complicated. One assumes that if the Government are anxious to acquaint the Opposition with the facts—those who are in favour of our entry may be quite happy to be without this and other information—they would be prepared to give as much information as possible to that section of the Opposition who, like myself, have considerable doubts about our entry into the E.E.C. If it is simply to be a question of the Government rejecting the Amendment and not giving more information, obviously we shall be in difficulty.
§ THE LORD CHANCELLOR
The difficulty will cease to arise if the noble Lord will allow Amendment No. 14 to be moved, for that will enable me to give information about subsection (1). Unless it is moved I am unable to help any further.
§ Clause 2 [General implementation of Treaties]:
§ 3.5 p.m.
LORD STOW HILL moved Amendment No. 14:
Page 2, line 24, leave out subsection (1).
§ The noble and learned Lord said: Speaking with the opinions I hold and to which I have previously given expression, I shall be sorry indeed if the Government omit subsection (1). My object in moving this Amendment, which I do in accordance with well recognised custom, is in effect to ask the Government for information as to how Clause 2(1) will work. I do not want to be unnecessarily technical and I hope that your Lordships will not think that I am embarking on an abstruse and and inquiry which bears no relation to reality.
§ If one considers the various expressions of opinion which have been voiced throughout the debates on the Bill one must accept that an important clash of view has occurred. Some noble Lords and Members of another place take the view that by entering into the Treaties we are bound automatically to incorporate into our law the actual ipsissima verba of a large portion of the Treaties themselves and the obligations arising under them, such as regulations made in accordance with them. Many noble Lords and Members of another place who have studied this situation closely entirely repudiate that view and believe that by entering into the Treaties we will not bind ourselves automatically to incorporate Community law into our law in the same words as those in which the Community law is framed. All we shall be doing, they say, is to undertake, as soon as we reasonably can through our own Parliamentary processes, choosing our own language and framing the legislation as we think appropriate—so long as it gives effect to Community legislation—to alter our own laws so as to bring them into accord with Community legislation and to give effect to the Community obligations by which we have undertaken to bind ourselves.
§ That, I hope your Lordships will agree, is not an abstract or arid question of law but a matter which impinges directly on principle. Those who are suspicious of what we are doing say they dislike the idea that by one fell swoop we could make the language of the law of the Community part of our law. They very much object to that on the ground that this would seriously inhibit the freedom of Parliament and abrogate the sovereignty of this country and our Constitutional organs. Some say that we 755 have undertaken to do that very thing and that, by entering into the Treaties, we must go to the full length of doing exactly that. Those are the two conflicting views of principle. They engage very deep feelings and strong speeches have been made on this precise topic. It is for this reason that I think your Lordships will agree that I am not unnecessarily taking the time of the Committee by asking, in the form of the Amendment, for a full statement as to the view the Government take.
§ Now if I may look at Clause 2 subsection (1) to see how it operates, am I not right—and this is the question I would put—in thinking that it operates as follows? First, you have to take the Treaty in question, the Treaty which is one of the Treaties defined in Clause 1. For the purpose of my argument may I confine myself to the Rome Treaty itself? You then have to go through the various articles of that Treaty and have to ask yourself which of those articles can be said to contain or to create rights, powers, liabilities, obligations, restrictions, or to bring into being remedies and procedures. And you concentrate on those articles, and on those articles alone, for the purpose of Clause 2(1).
Having performed that process, you then have to perform a secondary process. May I, for the sake of brevity, simply refer to rights? You have to ask, do those rights fall within the scope of the words which appear on lines 27 and 28?
…as in accordance with the Treaties are without further enactment to be given legal effect…
If in the case of a given right you find that it does fall within the scope of those words—in other words, that you can say with reference to that right that there is some provision in the Treaty which requires that it should be automatically part of our law—then the result is that it becomes in its own language part of our law.
§ The first question I would ask the Minister to be so kind as to answer, therefore, would be whether I have correctly analysed the way in which Clause 2(1) works? If I have correctly analysed it, I should then like to put other questions and ask whether in so doing we do not go too far. In the first place, in order to pursue that enquiry I would invite your Lordships to consider 756 for a moment the Rome Treaty and ask of what provision in the Rome Treaty can one say, in the terms of Clause 2(1), that its wording does provide that the right in question is to be automatically part of our law.
Speaking for myself, and whilst I have endeavoured to make the best examination of this Treaty that I can, the only article which I can find in it which complies with that description is Article 189. Having cited it to your Lordships I will submit that that article itself is not very clear in its implication. It uses language which is ambiguous in import and it is not altogether beyond argument that it imposes the obligation on us to make the regulations with which it deals automatically part of our law. The relevant language is in the article which deals with the making of regulations, directives, decisions, recommendations, and opinions. With regard to regulations it contains this language:
Regulations shall have general application. They shall be binding in every respect and directly applicable in each member State.
In the view of Ministers, do those words or do they not, have the result of imposing upon this country an obligation to take the regulation as such without altering its language, without choosing our own Parliamentary language to reproduce its effect accurately and to incorporate it as such in our law?
I have endeavoured to make some research into the Community decisions on this subject to see whether I can find any answer which is precise. A case which is frequently cited on this aspect of the matter is the case of Costa against End. That was decided in 1964 by the European Court and that deals with Article 189. The language which it uses with regard to that article is:
The pre-eminence of Community law is confirmed by Article 189 which prescribes that Community regulations have an ' obligatory' value and are directly applicable within each member-State.' Such a provision which, it will be noticed, admits of no reservation, would be wholly ineffective if a member-State could unilaterally nullify its purpose by means of a Law contrary to Community dictates.
May I say that I cordially agree with the second sentence. Clearly, we should be infringing our obligations if we made a provision in our law which contradicted the regulation. That I accept at once. But it does not seem to me, if I may expressly put the point—and I put it wholly for elucidation to ascertain the
view of Ministers—that that analysis in the case of Article 189 goes the whole length of saying that we must take the actual language of the Article and automatically, without more ado, make it part of our legislation. That is the first question.
§ I then go on to ask a further question. I ask what is the justification in the Community legislation for our making anything other than the regulations themselves automatically part of our law? Where is the justification for the view that we are required to take portions of the Treaties themselves—those provisions of Treaties which we can call rights, powers, liabilities and so on—and make them part of our law in addition to the regulations? I believe that the answer I shall be given is that if you look at the same case, the Enel case which I have just cited, you will find that the Enel case and other cases which are sometimes relied upon decided in a European court do in point of fact put what I could perhaps properly call this "gloss" upon the terms of the Rome Treaties and other treaties, those terms which contain rights, and so on, that they are by implication to be made part of our own law. I hope I do not cite excessively from that judgment. but there are a few lines which are directly pertinent to that issue and I would submit that when they have been read it will be seen that they are again capable of an interpretation which would require us to do no more than by our own Parliamentary process, choosing our own language, reproduce the effect of the provisions of the Treaty to which they apply.
The language is this:
As opposed to other international treaties, the Treaty instituting the E.E.C. has created its own order which was integrated with the national order of the member-States the moment the Treaty came into force; as such, it is binding upon them. In fact, by creating a Community of unlimited duration, having its own institutions, its own personality and its own capacity in law, apart from having international standing and more particularly, real powers resulting from a limitation of competence or a transfer of powers from the States to the Community, the member-States, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves. The reception, within the laws of each member-State, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the member-
State, to give preference to a unilateral and subsequent measure against a legal order accepted by them on a basis of reciprocity.
If I may say so, I entirely agree with the latter part of that quotation. I accept at once that, having entered into the Treaty, we cannot proceed to make enactments in our own legislative system which conflict with the obligations we have undertaken. But I again put the question to Ministers, and I should be most grateful to ascertain their views as it is an extremely difficult question. I am sure the noble and learned Lord will agree that it is a very important one, whether they think the language I have quoted, or similar language in other cases relied upon, goes the whole length to making it obligatory upon us to frame Clause 2(1) in the form in which it is framed. I ask the question: shall we not be fully implementing our obligations if we look at each particular obligation, choose our own language (many of these regulations, for example, are in extremely ambiguous language and are very difficult to enforce), and have the sort of precision which our own judges would expect to find when they are called upon to administer our laws?
§ If they are called upon to implement regulations as they stand, I submit that it will be extremely difficult for them to do so as they are so ambiguous, so general in scope. I think our own judges may perhaps be confronted with the difficulty which judges of the Supreme Court of the United States find in having to interpret the written Constitution of the United States. That has given rise to an enormous amount of legislation; I speak after many conversations with distinguished American lawyers who accept that the Supreme Court has to be a policy-making body; you cannot interpret with precision the very general language of the Constitution of the United States. Therefore, the Supreme Court is put in a position in which we do not want our judges to find themselves. That is the importance of this question. Those are the questions which I would put before your Lordships' House in inviting a statement from Ministers as to what their approach is.
§ I accept that in the Costa case, from which I cited, the result was that they did treat various Articles of the Rome Treaty as part of the law of Italy. But the issue 759 really, I think, that was before the court then was—it is not altogether clear, but I think it was this—whether the Italian Parliament would be in breach of its obligations if it introduced legislation contrary to the Articles of the Treaty which the court was considering. If that is right, if that is really what the court was then considering, my submission is that the somewhat general language in which it couched its judgment does not go the full length of establishing that we are required—I hope I do not repeat myself—to import the actual language, automatically and without more and without inquiry, into our own legislative system. I would be most grateful if noble Lords would be so kind as to furnish me with an answer on that. I beg to move.
§ 3.24 p.m.
§ LORD BESWICK
My Lords, it would be of great help to the Committee if, before the noble and learned Lord answers this direct question, we can put questions—and I have discussed this with the mover of the Amendment—against a certain context. The difficulty about the discussions we have had so far is, to put it mildly, that it has been confused by an inordinate amount of legal jargon. What we really want to see is if these provisions can be put into language that is understandable by all the noble Lords who sit behind the noble and learned Lord. If the Division comes to be called I venture to think there will be another hundred or so who will come in and troop through the Lobby in support of the Government. But it really is essential that the people of this country, including noble Lords opposite, who make decisions on these matters should try to understand what is being done in their name.
I submit to the Committee that, grateful as we are, and I am particularly grateful for all the coaching that I have had from my noble and learned friend, the fact of the matter is that when we get an answer in legal language to what he says there are very few in the Committee who understand its purport. I am grateful especially to my noble friend, Lord Stow Hill, that he has moved this Amendment, because it does give us an opportunity of looking at this clause, at any rate at this subsection of Clause 2, against what was said on Thursday. We tried to amend Clause 1 on Thursday with two objectives in mind 760 One was to remove ambiguities, and, secondly, we wanted to strengthen the position of Parliament. The fact is that noble Lords opposite, including the noble and learned Lord, Lord Chancellor, got up repeatedly and assured us, and stated and re-stated their assurance, that Parliamentary control in these matters was adequate.
On that occasion the two legal authorities, the noble and learned Lord, the Lord Chancellor himself, and the noble Viscount, Lord Colville, occasionally waxed a little indignant, not to say impatient, when we ventured to doubt their categorical assurance, and what the noble and learned Lord, Lord Stow Hill, has said, suggests that our doubts were justified. We are grateful to him for bringing our attention to this clause because here the language is a little bit clearer than in Clause 1. Let me read subsection (1) again let us relish the language it employs. It says:All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly;…I doubt very much whether ordinary readers of the British newspapers know what is put in this clause. They do not know what is being done in their name. They have an instinctive feeling about this, which they express in the opinion polls, but they do not know that the situation is as bad as in fact it is.
Both the noble and learned Lord, the Lord Chancellor, and the noble Viscount, Lord Colville, are really skilful advocates, but they should not be surprised, and the Lord Chancellor really should not be so indignant, if our doubts still remain. My noble and learned friend Lord Stow Hill is as qualified as any to state an opinion, but I know that in my own case my own doubts are discounted because it is said I am from the start anti-Market. That is not entirely true, and I have endeavoured on occasions to state what my position is as far as collaboration with Europe is concerned. But still it is suggested that there are some of us who take up an a priori position, and are, therefore, not 761 properly able to consider the meaning of these words.
I agree I may be more against than I realise, but I have consulted my noble and learned friend and other authorities and I have tried to find out what is the net legal effect of this subsection. I emphasise that the net effect is what I am after, the effect after all the consequences are made, all the allowances made, all the cross references followed and all the preceding and succeeding paragraphs taken into account. I have endeavoured to find out what remains. I went to the article by the legal adviser to the Commission and read his words very carefully. He is obviously, in his position, able to say what the effect of Community law will be on the member States of the Community, and he is not in any way, I submit, biased. I quoted from the article in the Modern Law Review by Gerhard Bebr, and it is interesting to be reminded again of what he actually said. Having made the point earlier that there are a number of ways in which the Commission can put forward Community law; that there are different grades of law, he went on:A regulation 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 whatever on the part of 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.My Lords, let us consider what Professor Wade had to say in an article in The Times on April 10, 1972, to which reference has already been made. He said:There is nothing new in abdicating sovereignty—the dismantling of the British Empire was a gigantic exercise in exactly that. But it is undoubtedly revolutionary for this country to accept as law, in advance and automatically, the dictates of the Community's executive organs…Or take another undoubted authority, Sir Leslie Scarman. In a lecture to the Royal Institute of Public Administration, he said:Community law consisting of a body of law enacted by institutions other than Parliament, will have to be interpreted and applied within the Kingdom by our courts under the guidance of the European Court, which will be the ultimate and authoritative interpreter of the Treaties.762 So one can go on. In an article in The Times on Tuesday, May 2, T. J. O. Hickey said that Clause 2, which is the clause we are discussing:confers on authorities other than the Parliamentary authorities 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 since the Pope's privileges and jurisdiction within England were repudiated in the sixteenth century".So one could go on. But it really does not match the assurances that we were given last Thursday about the adequacy of Parliamentary control of this legislation. The noble and learned Lord the Lord Chancellor, on Thursday, in what was, if I may say so, a superbly eloquent speech at about 11 o'clock at night, said it was pathetic that we should still go on saying that Parliamentary authority was being undermined. What extraordinary faith the noble and learned Lord has in his own eloquence!;
The final argument of Ministers opposite is that this surrender of Parliamentary control may be inherent in the Bill, but it is what Parliament has agreed. Indeed, this is what the noble and learned Viscount said to me on Thursday when I was querying this particular point. He said: "All right, you may not like it, but this is what it is, and you have got to have it." Ministers say that this is what Parliament has agreed by certain Divisions on Motions—some of which, I may add, were taken before this Bill ever saw the light of day. And they will usually add, of course, that in any case certain Labour Ministers agreed to this surrender in 1967. On this last point, it is interesting to see that Professor Wade said in his article—and I quote:… it is obvious, at any rate, that Community Law makes much great demands than were mentioned in the White Paper of 1967.But leaving that aside it is no less a surrender of Parliamentary control, even though the present Parliament, by the vigorous use of Whips, has agreed to the surrender.
If a man doubtful of his future instructs another to cut his throat, one might argue whether it was suicide or murder, but the result is the same. It really does not help the cause of democracy to be told that Parliament itself has agreed to this cutting off of control which we think is an integral part of a living Parliament. It would be in the best interests of us all if 763 Ministers would refrain—if I may suggest this in good humour and in good faith—in future, from proving to their own satisfaction that this Bill makes adequate provision for Parliamentary control. That really is not the case. What we are concerned with, however, is to see that the maximum possible additional control is given. We have put forward Amendments which do something—not much, as my noble friend Lord Shinwell keeps reminding us—to strengthen the standing of control so far as this Community law is concerned.
I therefore beg the Leader of the House again not to turn down out of hand as the Government have done so far, and as they did on Thursday, the efforts that some noble Lords have made, the pros-and the antis- alike, to improve Parliamentary control. If the Government can give absolutely no indication that they will consider sympathetically some of our later Amendments, the best thing that Parliament can do in its own interests, and certainly in the interests of the British people, would be to accept this Amendment which my noble and learned friend has moved.
§ THE LORD CHANCELLOR
I think it would be convenient, without any attempt whatever on my part to curtail the debate, if I tried to answer the questions put to me by the noble and learned Lord, Lord Stow Hill, because they go to the heart of this matter and I cannot help thinking that if we get that part of it right we can discuss the subsequent words and the particular phrases used in subsection (1) with a clearer understanding of what they mean or, at any rate, the meaning which the Government side attach to them.
May I, before I embark upon that, say this to the noble Lord, Lord Beswick, because I think he still does not understand what I was trying to put to him the other night. Parliamentary sovereignty is one thing; Parliamentary control is another. I personally believe, and I said this the other night, that the noble and learned Lord, Lord Diplock, was right in the debate on Second Reading of the Bill in drawing attention to the need for greater Parliamentary control through new organs of Parliamentary procedure which are necessitated by the nature of this type of legislation. 764 I accept that wholeheartedly. He also went on to add, and I accept this no less wholeheartedly, that in his view, as it is mine, the right way to do it is by new organs of Parliamentary procedure engendered from within each House or, better still, both Houses acting collectively through a specially devised Committee system. He went on to say, as did my noble friend the Leader of the House—and again I agree wholeheartedly—that if instead of tying oneself into knots with a number of, in my opinion, quite misguided Constitutional conumdrums we should get down to discussing in a constructive way what those particular procedures, and the institutions, would be within the Parliamentary body, we should in fact be making a step forward.
It does not follow from that that Parliamentary control should be established in the pre-accession Statute. I quite agree that we should be extremely slow to abandon Parliamentary sovereignty, but for reasons which I have given now on many occasions I do not think that we have done so. I think it is there and it always has been there. As I have pointed out on previous occasions, this is not only my own opinion, it was also the opinion of the noble and learned Lord, Lord Gardiner, and of my predecessors in the previous Conservative Administration. Of course we may be wrong, but it was a view very deliberately arrived at; and in the case of the noble and learned Viscount, Lord Dilhorne—or was it the noble and learned Viscount, Lord Kilmuir, in 1962?—it was arrived at after a very close consultation with almost every prominent lawyer in the country. So far as Parliamentary control is concerned, I have never said that if we do nothing about it we shall have adequate organs of scrutiny or adequate organs of control. On the contrary, I think that the Committee system requires development, and I hope we may soon get a little further in discussion on those lines.
Now may I come back to the noble Lord, Lord Stow Hill, who really put his finger on the nub of this particular matter. I should first like to say that we are in the presence of a new legal concept. I shall try to describe to the Cornmince—it has been done before—what this legal concept involves, and what it 765 is. It is new, and therefore old-fashioned English legal language, or technical English legal language, is not always apt to make it plain. I think that it is bold and imaginative, and I think it is highly desirable; but I want to describe it as it is rather than advocate its introduction, because I think it is a failure to understand what it is which gives rise to a good deal of the confusion of thought that exists about this subsection. The noble Lord, Lord Stow Hill, began by saying that he would be extremely sorry if this subsection was not passed. Therefore, his Amendment, which he claimed, I think with complete justification, to be well within the tradition of the Committee stage in either House of Parliament, was a probing Amendment designed to elicit the answers to certain questions from the Government.
Before I tackle the questions themselves I want to emphasise the nature of direct applicability as it is envisaged in the Common Market. What differentiates a common market from a free trade association pure and simple is basically that if you are going to have a common market the market must be run on certain mutually agreed lines. The persons who are members of the market are not allowed to take advantage of one another by special tariffs or by special subsidies, and equally are forbidden to do so by means of restrictive practices of a particular kind which would prevent the competition from operating, or the market from being a market equally open to all. In other words, the market must have rules which are mutually agreed and which are applied universally among the members of the market. This is basic to the whole conception.
It also follows that if these rules are to be the same for all, they must in the last resort be, not enforced but at least interpreted by a single juridical institution—in fact, in this case, the Luxembourg Court. The result is the development of the directly applicable system of law. To understand what it is, in my Second Reading speech I drew two analogies which I think are fair enough and which I will repeat, but which are misleading, each in a different respect. I want to point out how far they are fair enough and how far they may be misleading before I go any further. I drew attention to the development inside English law in the 17th century in particu- 766 lar—I think perhaps a little earlier, but at any rate at the turn of the 17th century—of what was called the "law merchant". Almost all the law affecting bills of exchange has its origin in the law merchant, which was not a specifically English conception but was drawn from the practice of merchants, particularly in Western Europe, among the trading nations. This was a source of English law different from the Common Law and different from Statute Law. I drew that as an analogy and, like all analogies, it was fair enough up to a point but it was misleading beyond that point. The point at which it was misleading was that although the law relating to bills of exchange is basically international in its origin, it is enforced by separate national courts, and was ultimately enacted after very many years—more than two centuries—in the Bills of Exchange Act drafted by the late Mr. Chalmers. But in the course of the development of the law merchant as part of English law it became true in detail, although the thing was basically an international system, that the different courts of different nations had in detail, and in minor details to some extent, different rules relating to bills of exchange, because each national law developed a different law relating to bills of exchange out of a common root. So to that extent my analogy was misleading.
The second analogy that I drew was that of prize law in time of war. This was to some extent in one respect a better analogy, because in time of war, in theory at any rate, the various belligerents and neutrals operate the same international law of prize. But in practice, of course, the prize courts are nearly always the courts of belligerents, and it became true that, although in theory the law was international and was the same—and indeed the text books are international and are the same—the prize courts in different countries did in fact arrive at inconsistent results. Therefore, to that extent that analogy is slightly misleading.
That brings me back to the Luxembourg Court. The essence of the conception of directly applicable law in the Common Market is, first, that there should be a common set of rules—sometimes going into detail, and sometimes consisting of general rules contained, very 767 often, in Articles of the Treaty—interpreted by a single court in the last resort, so that the courts of the individual countries cannot, in practice, develop idiosyncracies of their own which cannot be corrected. I agreed with the analysis, as one would expect I would, of the noble Lord, Lord Stow Hill, very closely up to one point. However, there was one point where I think I would demur on the particular language he used. He talked of the directly applicable law of the Common Market as forming part of our law. Strictly speaking, this is a misconception. It is directly applicable in our courts. It has, where it is directly applicable by virtue of the subsections of the cause we are now discussing, "preeminence" (which was another word I think he used) over rules of domestic law here—that is to say, where there is inconsistency between the two systems, the Common Market rules must be applied—but it is a separate system of law applied in our courts, and it is not part of our law as such. The Court at Luxembourg tends to call it a new legal order; other people, I think, have called it an independent legal system; I liked to call it in my Second Reading speech a new source of law. But it is important, not that you should use the correct label but that you should get the right idea about its legal characteristics, and it is that idea which I am trying to convey to the Committee.
Having said that, I think we can go back to the questions which the noble Lord, Lord Stow Hill, asked, and I start from the Act of Accession which is annexed to the Treaty of Accession. The Act of Accession annexed to the Treaty of Accession contains the following provision in Article 2:From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act".What we have agreed to accept, of course, is membership of this society as contained in the original Treaties, but in the original Treaties as they are now interpreted authoritatively between the existing members themselves. Many of the ambiguities which might have existed in 1957 (if that is the right date) do not now 768 exist, because a particular interpretation has been given authoritative effect.
Two things are clear, for instance. The first is that certain of the Articles of the Treaties themselves, although not necessarily all of them, are part of the directly applicable law in all the States which adhere to the Treaty. I quite agree with the noble Lord, Lord Stow Hill, that if we had started at the beginning it could have been possible to argue that this was not so; but it is not possible to argue it now because the Treaty has had authoritative interpretation and has been so understood throughout the negotiations by the proposed new member States and by the old members inter se.
If I may just give an example, there is a case (and noble Lords will forgive me for not being able to pronounce the various names of these cases) called van Gelid en Loos v. Nederlandse Tariefcommissie which establishes that Article 12 (I think it is) of the E.E.C. Treaty is of direct effect in the Communities. In that case the obligation or the restriction was a negative one: not to introduce any new customs or equivalent duties against other member States; it would inure for the benefit of individuals, and it would impose a restriction on member States. There are a number of Articles in the Treaty which have been held to be of directly applicable effect. They include Article 12, Article 13, Article 31, the first paragraph of Article 32, the first paragraph of Article 37, Article 53, the first paragraph of Article 85, the second paragraph of Article 85 and Article 95, as examples. They are of directly applicable effect, the acknowledged test being—and I think this came from my noble friend Lord Colville of Culross in the Second Reading debate—whether they are (I use the words in inverted commas) "complete and perfect".
Now exactly the same test as to direct applicability applies to the instruments deriving their authortiy from the Treaty, which is the second source of directly applicable law. Nearly all these are in fact regulations, and nearly all regulations are in fact directly applicable. It is not in fact true that something which takes the form of a regulation is absolutely certainly directly applicable. Nor is it absolutely true that that which takes 769 the form of something other than a regulation—for instance, a directive—is not directly applicable. The test is one of substance and not of form, and the test applied by the Court is whether it is complete and perfect; that is to say, whether it is capable of imposing an obligation without any intervening legislation by the member State. I must say, as a corollary to that, that there are of course regulations which do, as an ancillary part of them, impose an obligation on a member State to take certain action ancillary to the main obligation, in which case, of course, to that extent the ancillary obligation is not part of the directly applicable law.
I hope I have been reasonably lucid about all this. If I am not reasonably lucid, I have been doing my best. The noble Lord, Lord Beswick, wanted it in terms which the ordinary newspaper reader can understand, and, of course, I am anxious to put it in terms which the ordinary newspaper reader can understand. But I cannot do so at the sacrifice of accuracy or at the risk of misleading the Committee. One has to recognise that legal concepts are not always such as the ordinary newspaper reader can understand, and if one starts trying to expound the law in terms which the ordinary newspaper reader can understand one is apt to get it wrong or to state it wrongly; and I have tried to be as accurate and as lucid as possible.
§ LORD BESWICK
I am much obliged to the noble and learned Lord. He says now—and I am trying to follow him—that some regulations are directly applicable and some are not. I have read that passage from the Modern Law Review by Gerhard Bebr. If what the noble and learned Lord says is correct, then the legal adviser to the Commission is inaccurate. Is the noble and learned Lord saying that he is inaccurate? Because if, for the noble and learned Lord's benefit, I may just repeat it again, he says:A regulation 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 whatever on the part of member States.There is no qualification to that.
§ THE LORD CHANCELLOR
But I am trying to give the noble Lord a 770 correct answer and I am not trying to follow the language of the legal adviser in the Modern Law Review. What is set down in the Modern Law Review is, I should have thought, in 999 cases out of 1,000, absolutely correct; but it is in fact not in theory absolutely correct because, as I say—and I am trying to explain to the noble Lord—what is directly applicable or not is a question of substance and not of form. There are cases where a regulation contains matter which requires further action by the State, in which case it is not directly applicable. It is also possible—it is theoretically possible; I am not sure that I could point my finger to an actual example—for something to be written in the form of a regulation which was in substance something more in the nature of a directive. The question is one of substance and not of form. The test is one of completeness and perfectness (if that is the right word) and not one of the actual form which it takes. There are directives which are directly applicable, although the majority are not; and I am told there are some regulations, but very few, which are not directly applicable—and I believe that to be a correct answer. I am not concerned to criticise an article the exact phraseology of which I do not fully recollect. I think I have given the Committee an absolutely correct answer so far as I can.
§ LORD SHACKLETON
May I ask one question? The noble and learned Lord is, I think, making sense to me—just—in this difficult area. He says that most of the directly applicable Community laws will be made in the form of regulations, and that these regulations can be made by the Council or by the Commission, or both. This is a very important point, because the Council has Ministers represented on it and the Commission does not.
§ THE LORD CHANCELLOR
The Council is the authority under which the Commission works; but I think it works informally to the extent that a great number of regulations are given the imprimatur of the Commission. But if a State wishes to take it to the Council it can do so. The Council is the body of ultimate resort subject to negotiation between the States.
§ LORD SHACKLETON
How can a State take it to the Council if it is within 771 the possession of the Commission? Or does the Council know everything the Commission is doing? I understood that this was not the purpose of the basic constitution.
§ THE LORD CHANCELLOR
The Commission, just to make an analogy, is the Civil Service and the Council is the political authority of Ministers.
§ LORD SHACKLETON
The noble and learned Lord is on a very important point. The Treaty of Rome specifically makes it clear that the Commission is not the Civil Service. This is important, whether we are for or against the Common Market. We must be right on this vital point. It is laid down very clearly in the Treaty of Rome that the Commission is in this respect an independent body and has an independent life. I admit that there are links between the two and that there is a very carefully worked out relationship; but, with great respect to the noble and learned Lord. I think it is misleading to say that the analogy is with the Civil Service.
§ THE LORD CHANCELLOR
To some extent all analogies are misleading. I think it was not misleading in the context in which I used it. But if it does not help the noble Lord, I will not persist in the analogy. Obviously, it was no more than an analogy. It was not designed to say that the Commission was exactly the same thing as the Civil Service, nor did I wish to create that impression.
§ THE EARL OF LAUDERDALE
Before my noble and learned friend leaves that point, may I ask him to clarify a phrase which I think fell from his lips. He said that it would be possible for negotiation in the Council. Could he enlarge on that?
§ THE EARL OF LAUDERDALE
With great respect, it is a very different thing indeed; and this is what worries some of us. Is it not the case, from what my noble and learned friend has said, that there are matters which may be right or may be wrong and that they will be decided by horse-trading; that this will 772 be done over our heads and that we shall have no recourse other than the veto?
§ THE LORD CHANCELLOR
I think not. I was talking simply in terms of negotiation between States which can always alter the terms of the legal obligation. That is so whether we enter into the Common Market or not. My noble friend is trying to read too much in what I have said.
May I move back to the point on which I was touching? I am seeking to describe the nature of directly applicable law. I hope I have established that it is a separate system of law. It is applicable in each country not as part of the legal system of that country but applied by their courts. Where there is a conflict between a rule of domestic law, in each one of the member countries, the directly applicable law is pre-eminent in the sense that it is the duty of the courts of that country to give effect to the directly applicable law of the Community. If in doubt as to what the law is it refers or can refer to the Luxembourg Court for a positive interpretation. Sometimes one forgets the train of argument when one is, quite properly, interrupted; but I wanted to add that what is or is not directly applicable is itself a question of Community law. That is an important addition to what I was saying because, for example, I read out a number of clauses in the articles of the Treaty which I said were directly applicable; and I said that because they had been so held to be directly applicable. But if I had given the impression that no other article could hereafter be held to be directly applicable I should be giving a misleading impression.
§ LORD BESWICK
Would the noble and learned Lord be good enough to point out to me in which clause, or phrase, or subsection of any clause it is stated that some regulations are not directly applicable?
§ THE LORD CHANCELLOR
It is not to be found in the Treaty at all; that is why I found it necessary to state it in my speech.
§ LORD BESWICK
With respect, a statement in the noble and learned Lord's speech is not sufficiently good. The 773 country wants something rather more authoritative even than that. I should have thought that it would go into an Act of Parliament. Can the noble and learned Lord say in which part of this Bill which we are now considering, in which clause or which phrase, it is even hinted that some regulations are not directly applicable?
§ THE LORD CHANCELLOR
I think the noble Lord is really being a little discourteous. I am only seeking to answer the question put by the noble Lord, Lord Stow Hill. If I had given a different answer it would have been an inaccurate one. I was seeking to answer the question he put. It is true as a general rule that the directly applicable law is to be found either in certain articles of the Treaty or in regulations, but it is not true as an absolute statement of unqualified fact that there is nothing in the regulations which is not directly applicable or that there is nothing, for instance, in the directives which is not directly applicable; because both those statements as absolutely unqualified statements would be wrong.
The noble Lord asked me to say which phrase in Clause 2(1) contained that information. The answer is that that information is not contained in Clause 2(1). The purpose of Clause 2(1) is to provide that those obligations which are of direct application shall have direct application. It does not seek to give their sources; it does not say either that they are regulations or directives. It mentions the Treaties, but not, by name, the different kind of instruments under the Treaties. Nor, with great respect to the noble Lord, Lord Beswick, would one expect it to do so.
I did not want to take too long at this stage, I know noble Lords want to discuss the aspects of the clause. Therefore I want to bring this intervention to an end as quickly as I may. The fact of the matter is that we are at the heart of the Bill. The concept which we are being asked to accept is that of a Common Market with common rules—in so far as they are not contained in the original Treaty formulated under the institution of the membership of the Common Market—in a way that we shall be discussing in due course and directly applicable in the sense in which I had 774 I been trying to describe it. I had not intended to go further than that; but it seems to me that those were the questions which the noble Lord, Lord Stow Hill, was putting. The answers to them, if I may go back to his speech and then draw my remarks to a close, is that you do have to look at the articles of the Treaty to see which are directly applicable; and the test is completeness and perfection. You cannot leave it to the Legislatures of each individual member to enact the directly applicable system by its own processes because they take effect immediately once you accept membership of the Treaty. They are enforceable, or at any rate are of direct application from the moment they take effect, and they do not take effect from the moment you legislate them by your own legislative process.
§ LORD GREENWOOD OF ROSSENDALE
Before the noble and learned Lord leaves that question can he tell us at what stage the regulations become effective? Is it possible for them to become effective purely on the decision of the Commission and not that of the Council?
§ THE LORD CHANCELLOR
They become effective, I think, on publication or on the commencement date. It is the same, I think, in principle as our own legislation. The regulations have to be published before they can be effective, and they may contain a commencement date.
§ LORD GREENWOOD OF ROSSENDALE
Is the noble and learned Lord telling us that they can come just from the Commission, the Civil Service body?
§ THE LORD CHANCELLOR
They come from the Commission. It is not in that sense that it is independent, but in its regulation-making power that it operates in implementation of the policies laid down by the Council. It formulates regulations in implementation of policies laid down by the Council. The Council itself may make regulations but if it does so it makes them only on the proposal of the Commission.
§ LORD BERNSTEIN
Can the noble and learned Lord tell me where in the Treaties are the words which make this particular clause necessary? Assuming it has been arranged between a willing 775 buyer and a willing seller. We have a "commitment of honour"(I think those were the words used) and we are obligated to do something. I cannot find out where we are obligated to have such a wide clause as is proposed here.
§ THE LORD CHANCELLOR
This clause gives effect only to those obligations and rights which are of direct application under the Treaties; that is all it does. We are obligated to give effect to those rights under Article 2 of the Act of Accession. It is—
§ THE LORD CHANCELLOR
Do let me answer one question at a time. It is Article 2 of the Act of Accession to which I referred. It is not a question of words. I have been trying to explain to noble Lords that it is inherent in the conception of a Common Market that there are common rules, and this is the way in which the common rules of this Common Market have been operated. This is the interpretation put upon the Treaties. It has been put upon the Treaties from the very early days, from the start, and this is the obligation which we undertake when we enter into the Treaties. Clause 2(1)—it is not a question of words—simply gives effect to such obligations and rights as are, by the operation of Community law, of direct application.
§ LORD BALOGH
Would the noble and learned Lord confirm that an analogous clause has been enacted in France, Italy and the various other countries? That is my first question. My second question is in reference to what the noble and learned Lord said before. He said that Parliamentary control is unimpaired. I do not know whether perhaps he used the word "control" in a legal sense which I do not understand; but if he did not use the word "control" in this particular "Hailshamian" sense I should like to know what he means by it. If something is directly applicable without any discussion in Parliament, surely Parliament cannot be said to have control over it. That is the very essence of the Common Market, and that is why some of us are doubtful whether at this particular juncture in these particular circumstances one should enter the Market. 776 Surely the noble and learned Lord cannot possibly say that Parliamentary control is unimpaired when a clause is directly applicable without discussion.
§ THE LORD CHANCELLOR
If the noble Lord had been attending to me as carefully as I had hoped, he would have heard me say that what was unimpaired was Parliamentary sovereignty. I began my speech, I should think during fully the first five or ten minutes of it, by saying that I thought that further instruments of Parliamentary control on the lines of those suggested by the noble and learned Lord, Lord Diplock, on Second Reading, were required. So I did not make the statement attributed to me. I must say, in passing, that I found his reference to a "Hailshamian" sense offensive.
As regards the first question that he asked, of course all the Six have slightly different processes in their Legislatures, but there is no question that all the countries of the Six have accepted the equivalent of Clause 2(1). The directly applicable law of the Community applies, without further national or domestic enactment, in all the countries of the Six. I cannot, without notice, describe the exact legislative process in all six cases by which that result has been arrived at. This is the result which we arrived at by our own legislative process, but the result is the same in all six cases.
I think that I have answered Lord Stow Hill's question. I am afraid that I have been tempted into a rather longer intervention than I had intended by a number of questions which really relate to other parts of the subsection. I did not wish to intervene at this length at this stage, but I felt that I ought to give some account of the direct applicability of Community law since that was the question which the noble and learned Lord, Lord Stow Hill, put to me.
I hope that I shall not be confronting the noble Lord, Lord Beswick, "eyeball to eyeball", but, with the permission of the Committee, and in order that the House may hear Statements by my noble friends Lady Tweedsmuir of Belhelvie and Lord Drumalbyn, I beg to move that the House do now resume.
§ Moved, accordingly, and, on Question, Motion agreed to.
§ House resumed.